THE STATE OF OHIO, APPELLEE, v. ADKINS, APPELLANT.
No. 2010-0465
Supreme Court of Ohio
Submitted April 20, 2011—Decided July 5, 2011.
129 Ohio St.3d 287, 2011-Ohio-3141
IV. Conclusion
{¶ 36} In considering the sanction that we have imposed in similar cases, the aggravating and mitigating factors in this case, and respondent‘s conduct in this case, including his uncooperative attitude and deceptive responses pertaining to the investigation, we agree with the board that an actual suspension is warranted. Accordingly, we accept the recommendation of the board. Respondent is therefore suspended from the practice of law for one year, with six months stayed upon the conditions that respondent complete an additional six hours of continuing legal education in ethics and office management and that he not commit further disciplinary violations. If he fails to comply with these conditions, the stay will be lifted, and he will serve the full one-year suspension.
{¶ 37} Costs are taxed to respondent.
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Kitch, Drutchas, Wagner, Valitutti & Sherbrook and Patrick B. Cavanaugh; and Michael A. Bonfiglio, Bar Counsel, for relator.
David R. Pheils Jr. and Marshall D. Wisniewski, for respondent.
{¶ 1} The issue we address in this case is whether a pre-January 1, 1996 juvenile adjudication can be considered one of the five prior similar offenses necessary to enhance an
Factual and Procedural Background
{¶ 2} On September 14, 2007, defendant-appellant, Gary Adkins, was indicted for an OVI violation under
{¶ 3} Specifically, the indictment alleged that Adkins had been convicted of six prior OVI offenses, including a November 20, 1987 adjudication in Delaware County Juvenile Court, where Adkins had been adjudicated “a juvenile traffic offender as a result of Alcohol Concentration, Fleeing an Officer and Failure to Maintain Assured Distance.” Whether that adjudication could properly be considered a prior offense is the issue in this case.
{¶ 4} Adkins filed a motion to dismiss the indictment, asserting that it lacked the sufficient number of qualifying prior convictions to support a felony charge. He targeted three of the convictions, including the juvenile adjudication, as invalid for purposes of enhancement; the court ultimately found that one of the convictions was not a valid prior conviction for purposes of enhancement under
{¶ 6} The matter is before this court upon the acceptance of a discretionary appeal. State v. Adkins, 126 Ohio St.3d 1551, 2010-Ohio-3855, 932 N.E.2d 343.
Law and Analysis
{¶ 7}
{¶ 8} Effective January 1, 1996,
{¶ 9}
“(A) If a person is alleged to have committed an offense and if the person previously has been adjudicated a delinquent child or juvenile traffic offender for a violation of a law or ordinance, * * * the 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 upon the person relative to the conviction or guilty plea.”
{¶ 10} Although Ohio juvenile proceedings do not result in criminal convictions—a juvenile court proceeding is a civil action, In re Anderson (2001), 92 Ohio St.3d 63, 748 N.E.2d 67, syllabus, and juveniles are “adjudicated delinquent” rather than “found guilty,” State v. Hanning (2000), 89 Ohio St.3d 86, 89, 728 N.E.2d 1059—
{¶ 11} Adkins argues that an application of
{¶ 12}
{¶ 13} First, the law is not retrospective. It applies only to offenses that occur after the effective date of the statute.
{¶ 14} Still, even with statutes that apply prospectively, this court has shown the willingness to also address claims of retroactivity: “In Van Fossen [v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 105, 522 N.E.2d 489], this court stated that the constitutional limitation against retroactive laws ‘“include[s] a prohibition against laws which commenced on the date of enactment and which operated in futuro, but which, in doing so, divested rights, particularly property rights, which had been vested anterior to the time of enactment of the laws.“’ [Id.], quoting Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence (1936), 20 Minn. L. Rev. 775, 781-782.” Tobacco Use Prevention & Control Found. Bd. of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207, 941 N.E.2d 745, ¶ 14.
{¶ 15}
{¶ 16} Adkins‘s juvenile disposition remains untouched: “Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction.” Nichols v. United States (1994), 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745.
{¶ 17}
{¶ 18} Adkins had notice of the change in
{¶ 19}
{¶ 20} Because
Judgment affirmed.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Robert E. Cesner Jr., for appellant.