[Cite as State v. White, 2018-Ohio-3461.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                        No. 17AP-633
v.                                                 :                 (C.P.C. No. 15CR-5549)

Ambrose J. White,                                  :               (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                     Rendered on August 28, 2018


                 On brief: Ron O'Brien, Prosecuting                Attorney,   and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Yeura R. Venters, Public Defender, and
                 Timothy E. Pierce, for appellant. Argued: Timothy E.
                 Pierce.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Ambrose J. White, appeals from the August 3, 2017
decision of the Franklin County Court of Common Pleas denying his motion to set aside
guilty plea and to dismiss. For the following reasons, we affirm.
        {¶ 2} On November 12, 2015, a Franklin County Grand Jury indicted White on two
counts of having weapons while under disability, in violation of R.C. 2923.13. Both counts
identified the alleged disability as White's 2010 adjudication of delinquency as a juvenile
for committing a robbery. White initially entered a not guilty plea. On May 11, 2016, he
withdrew his not guilty plea and entered a guilty plea to one count of having weapons while
No. 17AP-633                                                                               2

under disability. The trial court accepted his guilty plea, found him guilty, entered a nolle
prosequi on the second count, and delayed sentencing for the preparation of a presentence
investigation report. On June 24, 2016, White was sentenced to a period of community
control for five years under intensive supervision.
       {¶ 3} On August 25, 2016, the Supreme Court of Ohio issued a decision in State v.
Hand, 149 Ohio St.3d 94, 2016-Ohio-5504. In that case, the Supreme Court declared R.C.
2901.08(A) unconstitutional as "it is fundamentally unfair to treat a juvenile adjudication
as a previous conviction that enhances either the degree of or the sentence for a subsequent
offense committed as an adult." Id. at ¶ 37. Five days after the Hand decision, White filed
a motion to set aside guilty plea and to dismiss. He argued that there was a manifest
injustice in his conviction for having weapons while under disability because Hand
established that it is impermissible to use a juvenile adjudication to enhance the degree or
the sentence for a subsequent offense committed as an adult. After a hearing on the motion,
the trial court denied it.
       {¶ 4} White appealed, asserting the following assignment of error:
               The lower court erred when it failed to grant Appellant's
               motion to set aside his guilty plea to a single count of having a
               weapon while under disability pursuant [to] Crim.R. 32.1
               because his May 17, 2010 juvenile adjudication where he was
               not entitled to a jury trial should not have disqualified him from
               acquiring, having, carrying or using a firearm. Allowing his
               having a weapon while under disability conviction to stand
               violates the Sixth Amendment of the United States
               Constitution, the Due Process Clause of the Fifth and
               Fourteenth Amendments of the United States Constitution,
               and Article I, Sections 1, 5, 10, and 16 of the Ohio Constitution,
               and the Supreme Court of Ohio decision in State v. Hand, 149
               Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448.

       {¶ 5} Crim.R. 32.1 permits a motion to withdraw a guilty plea "only before sentence
is imposed; but to correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw his or her plea." It is the
defendant who has the burden of establishing the existence of a manifest injustice
warranting the withdrawal of a guilty plea. State v. Smith, 49 Ohio St.2d 261 (1977),
paragraph one of the syllabus. A manifest injustice has been defined as a "clear or openly
unjust act." State v. Lampson, 10th Dist. No. 09AP-1159, 2010-Ohio-3575, ¶ 6, citing State
No. 17AP-633                                                                                3

v. Honaker, 10th Dist. No. 04AP-146, 2004-Ohio-6256, ¶ 7. A manifest injustice relates to
some fundamental flaw in the proceedings which results in a miscarriage of justice or is
inconsistent with the demands of due process. State v. Chandler, 10th Dist. No. 13AP-452,
2013-Ohio-4671, ¶ 6. Manifest injustice " 'is an extremely high standard, which permits a
defendant to withdraw his guilty plea only in extraordinary cases.' " State v. Tabor, 10th
Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6, quoting State v. Price, 4th Dist. No. 07CA47,
2008-Ohio-3583, ¶ 11.
       {¶ 6} The decision whether to grant or deny a motion to withdraw guilty plea is left
to the discretion of the trial court. Smith at paragraph two of the syllabus; Chandler at ¶ 8.
Therefore, this court's review of the trial court's denial of a post-sentence motion to
withdraw a guilty plea is limited to a determination of whether the trial court abused its
discretion. State v. Conteh, 10th Dist. No. 09AP-490, 2009-Ohio-6780, ¶ 16. Absent an
abuse of discretion on the part of the trial court, a decision concerning a post-sentence
motion to withdraw guilty plea must be affirmed. State v. Xie, 62 Ohio St.3d 521, 527
(1992). An abuse of discretion is typically defined as an unreasonable, arbitrary, or
unconscionable decision. State v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-3654, ¶ 8.
However, no court has the authority, within its discretion, to commit an error of law. State
v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
       {¶ 7} White states that in order to convict him of having weapons under disability
the state utilized his juvenile adjudication for robbery. Like all juvenile offenders, White
notes that he was not entitled to a jury trial when he was adjudicated. Because of this, White
contends that using a juvenile adjudication as an element of a criminal offense implicates
the same due process concerns identified in Hand. He further claims that it would be
incongruous to allow a juvenile adjudication to serve as an element of a criminal offense
but not to enhance the degree of or penalty for a criminal offense. Essentially, White argues
that the use of a juvenile adjudication as a predicate offense for a conviction under R.C.
2923.13(A)(2) violates due process.
       {¶ 8} Pursuant to R.C. 2923.13(A):
              Unless relieved from disability under operation of law or legal
              process, no person shall knowingly acquire, have, carry, or use
              any firearm or dangerous ordnance, if any of the following
              apply:
No. 17AP-633                                                                              4

               (1) The person is a fugitive from justice.

               (2) The person is under indictment for or has been convicted
               of any felony offense of violence or has been adjudicated a
               delinquent child for the commission of an offense that, if
               committed by an adult, would have been a felony offense of
               violence.

               (3) The person is under indictment for or has been convicted
               of any felony offense involving the illegal possession, use, sale,
               administration, distribution, or trafficking in any drug of abuse
               or has been adjudicated a delinquent child for the commission
               of an offense that, if committed by an adult, would have been a
               felony offense involving the illegal possession, use, sale,
               administration, distribution, or trafficking in any drug of
               abuse.

               (4) The person is drug dependent, in danger of drug
               dependence, or a chronic alcoholic.

               (5) The person is under adjudication of mental incompetence,
               has been adjudicated as a mental defective, has been
               committed to a mental institution, has been found by a court to
               be a mentally ill person subject to court order, or is an
               involuntary patient other than one who is a patient only for
               purposes of observation. As used in this division, "mentally ill
               person subject to court order" and "patient" have the same
               meanings as in section 5122.01 of the Revised Code.

       {¶ 9}    This court has previously declined to apply Hand to preclude the use of a
juvenile adjudication as a predicate offense for a conviction of having weapons while under
disability pursuant to R.C. 2923.13(A)(2). State v. Williams, 10th Dist. No. 16AP-540,
2017-Ohio-5598; State v. Brown, 10th Dist. No. 16AP-753, 2017-Ohio-7134. We noted that
R.C. 2923.13(A)(2) does not use a prior juvenile adjudication as an enhancement of the
degree or potential penalty of the offense. Williams at ¶ 30; Brown at ¶ 21. Instead, the
statute identifies a prior juvenile adjudication as one of several disabling conditions that
precludes a person from acquiring, having, or carrying a weapon. Id.
       {¶ 10} The Supreme Court of Ohio recently declined to extend Hand to prohibit the
use of a juvenile adjudication as an element of the offense of having weapons while under
disability pursuant to R.C. 2923.13(A)(2). State v. Carnes, __ Ohio St.3d __, 2018-Ohio-
3256. That court noted that a juvenile adjudication was not being used as sentence
No. 17AP-633                                                                              5

enhancement. Id. at ¶ 10. Instead, the juvenile adjudication is an element of the offense as
a disability. The Supreme Court stated that R.C. 2923.13 involves a policy decision by the
General Assembly that identifies increased risk to the public if a weapon is possessed by
certain individuals. Id. at ¶ 16. It made the risk assessment that persons with juvenile
adjudications that involve offenses of violence should not possess a weapon. The Supreme
Court determined that such an assessment does not undermine the rehabilitative purpose
of the juvenile justice system and does not implicate the due process concerns identified in
Hand. Id. at ¶ 17.
       {¶ 11} Based on our prior decisions in Williams and Brown and the Supreme Court
of Ohio's decision in Carnes, the trial court did not err in denying White's motion to set
aside guilty plea and to dismiss. The sole assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                      Judgment affirmed.

                           LUPER SCHUSTER, J., concurs.
                         HORTON, J., concurs in judgment only.
                                 ____________
