[Cite as State v. Ortiz,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105301

STATE OF OHIO PLAINTIFF-APPELLANT

vs.

ANTONIO ORTIZ DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-608367-A

BEFORE: E.T. Gallagher, P.J., Boyle, J., and Blackmon, J.

RELEASED AND JOURNALIZED: December 21, 2017 ATTORNEYS FOR APPELLANT

Michael C. O’Malley Cuyahoga County Prosecutor

BY: Daniel T. Van Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Mark Stanton Cuyahoga County Public Defender

BY: Erika B. Cunliffe Jeff Gardner Assistant Public Defenders Courthouse Square, Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:

{¶1} Appellant, the state of Ohio (“the state”), appeals from the trial court’s

judgment granting defendant-appellee, Antonio Ortiz’s, motion to dismiss the offense of

having weapons while under disability, as charged by information. The state raises the

following assignment of error for review:

1. Under the holding of State v. Hand, Slip Opinion No.

, using a prior juvenile adjudication for a conviction of having weapons while under disability is not a constitutional violation; therefore, the trial court erred in dismissing the charge.

{¶2} After careful review of the record and relevant case law, we reverse the trial

court’s judgment and remand for proceedings consistent with this opinion.

I. Procedural and Factual History

{¶3} In August 2016, Ortiz was charged by way of information with one count of

having weapons while under disability in violation of R.C. 2923.13(A)(2), and one count

of carrying a concealed weapon in violation of R.C. 2923.12(A)(2). The offense of

having weapons while under disability was predicated on Ortiz’s prior juvenile

adjudication for aggravated robbery.

{¶4} In November 2016, Ortiz filed a motion to dismiss his having weapons while

under disability charge “based upon the Ohio Supreme Court’s decision in State v. Hand,

[

,

,

].” Ortiz argued that according to

the reasoning of the Ohio Supreme Court’s decision in Hand, his prior juvenile

adjudication cannot support a having weapons while under disability charge. {¶5} The state opposed the motion, arguing that the language of Hand is limited to

instances in which a juvenile adjudication enhanced a criminal offense committed by an

adult and does not create a prohibition against using all juvenile adjudications.

{¶6} Following a hearing, the trial court granted the motion, stating in relevant

part:

The state’s arguments lack merit because the Hand decision does not preclude the application of a juvenile adjudication “for the purposes of determining the offense with which the person should be charged” as stated in R.C. 2901.08(A). Nor does it do so concerning any other statute, such as Having Weapons While Under Disability. The Supreme Court of Ohio in Hand focused only on enhanced sentencing part of this statute because those were the facts presented to the Supreme Court of Ohio.

Nevertheless, R. C. 2901.08 (A) clearly provides that an adjudication as a delinquent child also applies for the purposes of determining the offense with which the person should be charged, which is the issue in the case before this Court. The statute concerning Having Weapons While Under Disability also requires that a defendant have an adjudication as a delinquent child any felony offense of violence as a requirement for the purposes of determining the offense with which the person should be charged. Such an adjudication has occurred with regard to defendant, and he was charged solely because of that adjudication. The fact that the language regarding an adjudication as a delinquent child is used in a specific criminal statute, such as Having Weapons While Under Disability in R. C. 2923.13(A)(3), as opposed to a non-specific criminal statute, such as R. C. 2901.08 (A) is not determinative of defendant Ortiz’s constitutional due process rights. It is clear that the reasoning of the Supreme Court of Ohio in Hand applies to both types of statutes and to charges that are filed, as well as to sentencing enhancements.

The Supreme Court of Ohio held in Hand that it is unconstitutional under

due process to use a juvenile adjudication as a delinquent child to be the

equivalent of an adult conviction in order to enhance a penalty or the crime

as an adult. The same reasoning applied regarding the adjudication of a delinquent child for the purposes of determining the offense with which

the person should be charged, as stated in 2901.08 (A), and which is a one

of the circumstances for charging a defendant with Having Weapons While

Under Disability. See R. C. 2923.13 (A) (3). For these reasons, defendant

Ortiz’s Motion to Dismiss Count 1, Having Weapons While under

Disability is granted.

{¶7} After his having weapons while under disability charge was dismissed, Ortiz

pleaded guilty to carrying a concealed weapon, as charged in Count 2 of the information,

he was sentenced to a two-year term of community control sanctions, including a 90-day

jail term.

{¶8} The state now appeals.

II. Law and Analysis

{¶9} In its sole assignment of error, the state argues that the trial court erred by

granting Ortiz’s motion to dismiss the count of having a weapon while under disability on

the basis of the Ohio Supreme Court’s decision in Hand.

{¶10} In Hand, the Supreme Court of Ohio held that it is unconstitutional to use a

juvenile adjudication as the equivalent of an adult conviction to enhance a penalty for a

later crime, because, unlike an adult conviction, a juvenile adjudication does not involve

the right to a trial by jury. Hand,

,

,

. In so holding, the court struck down R.C. 2901.08(A), a statute that specifically

provided that a prior “adjudication as a delinquent child or as a juvenile traffic offender is a conviction for a violation of the law or ordinance for purposes of determining the

offense with which the person should be charged and, if the person is convicted of or

pleads guilty to an offense, the sentence to be imposed * * *[.]”

at paragraph one of

the syllabus and ¶ 9. Therefore, the Supreme Court of Ohio made it clear in Hand that

“a juvenile adjudication is not a conviction of a crime and should not be treated as one.”

Id. at ¶ 38.

{¶11} In his motion to dismiss, Ortiz argued that the logic of Hand should extend

to his case and prevent the court from considering his prior juvenile adjudication to

support his having a weapon while under disability charge. This court has previously

rejected this argument. In State v. Stewart, 8th Dist. Cuyahoga No. 105154,

, we declined to interpret Hand to negate the weapons disability resulting

from a prior juvenile adjudication, stating, in relevant part:

Hand does not apply to the statute at issue here: it did not hold that a juvenile delinquency adjudication may not constitute an element of an offense. Hand addressed the narrow issue of whether a juvenile adjudication could be deemed a criminal conviction for the purpose of sentencing enhancements.

Id. at ¶ 6. See also State v. Parker, 8th Dist. Cuyahoga No. 105472,

.

{¶12} Our resolution of this issue is in accordance with other appellate districts

that have considered the issue. See State v. Jackson, 2d Dist. Montgomery No. 27351,

(concluding Hand does not apply to the use of a juvenile adjudication as

an element of having a weapon while under disability); State v. Boyer, 2d Dist. Clark No.

2016-CA-63,

(noting the concerns the Supreme Court articulated in Hand do not apply because the indictment for having a weapon while under disability

“relates strictly to choices [the defendant] has made since reaching the age of majority”);

State v. McCray, 1st Dist. Hamilton No. C-160272,

(declining to extend

Hand to bar the use of a juvenile adjudication to prove the disability element of having a

weapon while under disability); State v. Hudson, 7th Dist. Mahoning No. 15 MA 0134,

(finding no indication the Supreme Court would extend the holding in

Hand to R.C. 2923.13(A)(2) and noting that many of the other statutory alternatives for

establishing the disability element encompass facts that were not subjected to a prior jury

trial); State v. Brown, 10th Dist. Franklin No. 16AP-753,

(“We

conclude, therefore, that Hand does not apply to R.C. 2923.13(A)(2).”).

{¶13} Until otherwise directed, we find the trial court committed reversible error

by dismissing the having a weapon while under disability offense on the basis of the Ohio

Supreme Court’s decision in Hand. The state’s sole assignment of error is sustained.

{¶14} Judgment reversed and remanded.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. EILEEN T. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., and PATRICIA ANN BLACKMON, J., CONCUR