[Cite as State vs. Fortson, 2018-Ohio-2388.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J.

Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : CHARLES LEWIS FORTSON : Case No. 2017CA00141 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2017- CR-0278

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 18, 2018

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO VICTORIA BADER Prosecuting Attorney Assistant State Public Defender East Broad Street, Suite 1400 By: RONALD MARK CALDWELL Columbus, Ohio 43215 Assistant Prosecuting Attorney Central Plaza South, Suite 510 Canton, Ohio 44702 Stark County, Case No. 2017CA00141 2 Baldwin, J.

{¶1} Appellant, Charles Fortson, appeals his conviction for having weapons

under a disability in violation of 2923.13(A)(2), a felony of the third degree. Appellant was

a juvenile at the time of the filing of the complaint, but his case was transferred to the

Stark County Court of Common Pleas, where he admitted to the indictment and was

sentenced on this charge and several other charges. Appellee is the State of Ohio.

FACTS AND PROCEDURAL POSTURE

{¶2} The facts leading to the charges filed against appellant are unnecessary for

the resolution of the appeal, so they are omitted.

{¶3} The appellee was a juvenile just eleven days short of his eighteenth birthday

when he allegedly committed several felony offenses including the only offense relevant

to his appeal, one count of having a weapon under disability in violation of R.C.

2923.13(A)(2). The State filed complaints with the Stark County Court of Common Pleas,

Family Division, charging appellant with multiple offenses on September 23, 2016 and,

concurrent with the filing of the complaints, the State filed a motion to transfer jurisdiction Stark County, Case No. 2017CA00141 3

to the Criminal Division of the Stark County Court of Common Pleas pursuant to Juv.R.

30, R.C. 2152.10 and 2152.12. After a hearing on January 26, 2017 and after a thorough

evaluation of the law and the facts, the family court issued extensive findings of fact and

conclusions of law and determined that there was probable cause to believe that appellant

committed the alleged offenses and that he was not amenable to rehabilitation in the

juvenile system. The court transferred his case to the criminal division per entry on

February 14, 2017. Appellant did not object or appeal the family court’s findings or orders.

{¶4} Appellee was indicted on March 8, 2017 for one count of possessing a

weapon under disability in violation of R.C. 2923.13(A)(2) and several other felony

offenses, including three counts of rape, one count of kidnapping, one count of

aggravated robbery, one count of improperly handling firearms in a motor vehicle, one

count of receiving stolen property, one count of carrying a concealed weapon, one count

of trafficking in a controlled substance and one count of possession of cocaine. He initially

plead not guilty, but, on April 10, 2017, appellant changed his plea to guilty and was

sentenced to 36 months on the violation of R.C. 2923.13(A)(2). He was sentenced on all

other pending charges for a total time of incarceration of 19 years.

Stark County, Case No. 2017CA00141 4

{¶5} Appellant filed a notice of appeal and a motion for leave to file a delayed

appeal on July 28, 2017. That motion was granted and appellant filed a brief with a single

assignment of error:

{¶6} THE STARK COUNTY COMMON PLEAS COURT ERRED WHEN IT

CONVICTED CHARLES FORTSON OF WEAPONS UNDER DISABILITY WHERE THE

DISABILITY AROSE FROM A JUVENILE ADJUDICATION. State v. Hand, 149 Ohio St.3d 94, 2016-0hio-5504, 73 N.E.3d 448; State v. Bode, 144 Ohio St.3d 155, 2015-0hio-

1519, 41 N.E.3d 1156; FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION;

ARTICLE I, SECTION 16, OHIO CONSTITUTION.

{¶7} We note that appellant has appealed only his conviction for having a

weapon under a disability and no other portion of his conviction. We also note that this

issue was not argued before the trial court and, therefore, must be reviewed under a “plain

error” standard.

Stark County, Case No. 2017CA00141 5

STANDARD OF REVIEW

{¶8} Error not raised in the trial court must be plain error in order to reverse. State

v. Johnson, 5th Dist. Richland No. 98–CA–42, 1998 WL 818026, citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error is to be taken with utmost

caution, under exceptional circumstances, and only to prevent a manifest miscarriage of

justice. Id. Plain error does not exist unless but for the error, the outcome of the trial would

clearly have been otherwise. State v. Nicholas, 66 Ohio St.3d 431, 613 N.E.2d 225

(1993).

{¶9} If the appellant is correct and the trial court erred, the charge of having a

weapon while under a disability would not have been considered, so we will review the

appellant’s argument as an assertion of plain error.

{¶10} Appellant relies on the Supreme Court of Ohio’s holdings in State v. Hand,

149 Ohio St.3d 94, 2016-0hio-5504, 73 N.E.3d 448, and State v. Bode, 144 Ohio St.3d 155, 2015-0hio-1519, 41 N.E.3d 1156 as well as a policy argument regarding how

offenders are treated in juvenile court. It is the obligation of the Legislature and not this

court to adopt legislation based upon policy decisions, so the policy arguments presented Stark County, Case No. 2017CA00141 6

by appellant, though they may be well reasoned, are unpersuasive in this context. More

importantly, the family court determined that appellant is not amenable to rehabilitation in

the juvenile system and should now be treated as an adult, so consideration of appellant’s

age has, at least in part, been addressed by the family court.

{¶11} Further, the facts in this case distinguish it from the precedent cited by

appellant. In Bode and Hand the State charged appellants with offenses committed when

they were adults. Those appellants objected to the use of a prior juvenile adjudication to

enhance the penalty for the offense committed as an adult. In this case appellant was

initially charged with several offenses, including having a weapon while under a disability,

as a juvenile. Appellant is currently subject to the jurisdiction of the Criminal Division of

the Stark County Court of Common Pleas for those charges only because the State filed

a motion to transfer the matter and the family court, after a thorough analysis, concluded

that a transfer was warranted. This case does not, as suggested by appellant, allow “a

juvenile adjudication to rear its head years later in an unrelated adult proceeding.”

{¶12} Appellant is effectively arguing that the charge of possessing a weapon

under a disability filed against a juvenile under RC 2923.13(A)(2) cannot survive the Stark County, Case No. 2017CA00141 7

transfer from the juvenile system to the adult system. The Supreme Court of Ohio did not

consider that issue in Hand or Bode because those appellants committed offenses as

adults that were impacted by prior acts as a juvenile. The appellant herein committed

offenses as a juvenile for which was sentenced as an adult, so the appellant’s reliance

on the holdings of Hand and Bode is misplaced. For that reason, we conclude that the

trial court did not err.

{¶13} If, arguendo, appellant’s argument remains valid despite the fact that

appellant was initially charged as a juvenile and we were to consider the holdings in Hand

and Bode, appellant does not provide any reason for us to deviate from our position in

State v. Jones, 5th Dist. No. 2017CA00064, 2017-Ohio-9119, and we decline to do so.

We have determined that the juvenile adjudication is the disability. It does not impact the

degree of or sentence for the offense. Thus the due process concerns present in Hand

are absent here. Jones, Id., at ¶ 14.

{¶14} The holdings of the Supreme Court of Ohio in Hand and Bode addressed

facts that involved charges against an adult defendant. The Court ruled that a juvenile

adjudication could not be used to enhance the degree of or the sentence for a subsequent Stark County, Case No. 2017CA00141 8 offense committed as an adult. Hand, syllabus, paragraph 1; Bode, syllabus. This court

and other districts have concluded that the rule in Hand and Bode does not apply to the

facts of appellant’s case.

{¶15} We addressed the use of a juvenile adjudication to support an adult

conviction for having a weapon under a disability in Jones, supra, and we noted that:

“***the First, Second, Seventh, Eighth, and Tenth Districts have rejected the

argument Jones advances here. State v. Carnes, First Dist., 2016-Ohio-

8019, 75 N.E.3d 774, appeal allowed, State v. St. Jules, 2nd Dist.

Montgomery App. No. 27405, 2017–Ohio–794, 2017 WL 4340684, State v.

Hudson, 7th Dist., 2017-Ohio-645, 85 N.E.3d 371, State v. Stewart, 8th Dist.

Cuyahoga App. No. 105154, 2017-Ohio-2993, 2017 WL 2291643, State v.

Brown, 10th Dist. Franklin App. No. 16AP-753, 2017-Ohio-7134, –––

N.E.3d ––––. We join these districts in concluding that Hand does not apply

to R.C. 2923.13(A)(2). Therefore, the use of a juvenile adjudication did not

violate Jones' due process rights.”

Jones, supra at ¶ 18 Stark County, Case No. 2017CA00141 9 {¶16} The Second District Court of Appeals recently affirmed its conclusion in St.

Jules, supra in the case of State v. Gause, 2nd Dist. Montgomery No. 27527, 2018-Ohio-

313, ¶11:

Therefore, we once again hold that the use of a juvenile adjudication to

support a charge of having weapons while under disability does not violate

a defendant's constitutional right to due process.

{¶17} Though the decision of the Supreme Court of Ohio in Bode, supra, was not

addressed in our decision in Jones, that holding is analogous to the decision in Hand.

The Supreme Court defined the issue as “whether the state may use an uncounseled

juvenile adjudication to enhance penalties for an adult conviction”. Bode at ¶ 1. As in

Hand, the focus was on enhancement of penalties and not whether the juvenile

adjudication can serve as an element of an offense committed when appellant is an adult.

The appellant argues that we should extend the rational of Hand and Bode to prevent the

use of juvenile adjudications as an element of a charge of possessing weapons under a

disability. We decline appellant’s invitation to overrule our decision in Jones and to ignore

the decision of our colleagues in other districts.

Stark County, Case No. 2017CA00141 10

{¶18} For the forgoing reasons, the decision of the Stark County Court of Common Pleas is affirmed. Costs assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and Delaney, J. concur.