THE STATE OF OHIO, APPELLEE, v. CARNES, APPELLANT.
No. 2017-0087
Supreme Court of Ohio
August 15, 2018
2018-Ohio-3256
DEGENARO, J.
Submitted February 27, 2018
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Carnes, Slip Opinion No. 2018-Ohio-3256.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2018-OHIO-3256
THE STATE OF OHIO, APPELLEE, v. CARNES, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Carnes, Slip Opinion No. 2018-Ohio-3256.]
Criminal law—
(No. 2017-0087—Submitted February 27, 2018—Decided August 15, 2018.)
APPEAL from the Court of Appeals for Hamilton County, No. C–150752, 2016-Ohio-8019.
{¶ 1} In this discretionary appeal, we consider whether using a prior juvenile adjudication of delinquency for the commission of an offense that would have been felonious assault if it had been committed by an adult as an element of the offense of having a weapon under disability as set forth in
Relevant Facts and Procedural History
{¶ 2} Appellant, Anthony Carnes, was indicted by a grand jury in 2013 on one count of having a weapon while under a disability in violation of
{¶ 3} In a split decision, the First District upheld the trial court‘s denial of Carnes‘s motion to dismiss. 2016-Ohio-8019, 75 N.E.3d 774.
Juvenile Adjudication as an Element of the Offense of Having a Weapon While Under a Disability
{¶ 4} Carnes frames the proposition before us broadly; he argues that a juvenile adjudication cannot be used to satisfy an element of any adult offense without violating due process. However, Carnes and appellee, the state of Ohio, limit the arguments in their briefs to whether a juvenile adjudication can be used as an element of the weapons-under-disability statute; thus, we limit our consideration to that statute exclusively and refrain from issuing a broader holding.
{¶ 5} Carnes urges us to hold that a juvenile adjudication cannot satisfy an element of an adult offense without violating due process, thereby extending our holdings in Bode and in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, which was decided during the pendency of Carnes‘s appeal to the First District.2
{¶ 6} In Bode, we considered whether a prior uncounseled juvenile adjudication of delinquency for an offense that was equivalent to operating a vehicle while intoxicated (OVI) could be used to enhance the penalty for a subsequent adult OVI conviction. In an opinion that largely focused on the juvenile‘s due-process right to counsel, we held that an adjudication of delinquency may not be used to enhance the penalty for a later offense when the adjudication carried the possibility of confinement, the adjudication was uncounseled, and there was no effective waiver of the right to counsel. Id., 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶ 9.
{¶ 7} A little over a year later, in Hand, we considered whether the appellant‘s prior juvenile adjudication of delinquency for committing an aggravated robbery should operate as a first-degree-felony conviction to enhance his sentence. Hand contended that
{¶ 8} Hand is distinguishable from the situation presented in this case. The language of
{¶ 9} By contrast,
(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:
(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.
{¶ 10} Moreover,
{¶ 11} It is basic hornbook law that the state under its police powers may impose restrictions on who may possess firearms. State v. Taniguchi, 74 Ohio St.3d 154, 157, 656 N.E.2d 1286 (1995). In crafting
{¶ 12} Further, the legislature created a process whereby a person may seek relief from a disability. Subject to certain exceptions, any person who is prohibited from acquiring, having, carrying, or using firearms may apply to the court of common pleas in the county in which the person resides for relief from such prohibition.
(1) * * *
(a) [i]f the disability is based upon * * * an adjudication, the applicant has been fully discharged from imprisonment, community control, post-release control, and parole * * *,
* * *
(2) [t]he applicant has led a law-abiding life since discharge or release, and appears likely to continue to do so,
(3) [t]he applicant is not otherwise prohibited by law from acquiring, having, or using firearms.
{¶ 13} Both parties direct our attention to Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Although Lewis involved a federal weapons-disability statute that did not include juvenile adjudications as a basis for a disability, it is nonetheless instructive. The issue in Lewis was whether a defendant‘s existing prior conviction, which was flawed because the defendant had not been represented by counsel and therefore was subject to collateral attack, could constitute the predicate act for a subsequent conviction under the federal weapons-disability statute. Id. at 56.
{¶ 14} The Lewis court concluded that the prior conviction could constitute the predicate act, distinguishing caselaw that precluded the use of previous convictions to enhance a penalty or for sentencing purposes because the previous convictions were entered without the benefit of counsel and their reliability was questionable. Id. at 66-67, citing Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). The Supreme Court
{¶ 15} Following a discussion of the legislative history of the federal weapons-under-disability statute, the court concluded that the federal gun laws * * * focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. Lewis at 67. In other words, the legislative purpose underlying the statute was broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. Id. at 64-65, quoting Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976). Accordingly, the court concluded that [e]nforcement of that essentially civil disability through a criminal sanction does not ‘support guilt or enhance punishment,’ see Burgett, 389 U.S., at 115, on the basis of a conviction that is unreliable when one considers Congress’ broad purpose. Lewis at 67.
{¶ 16}
{¶ 17} The risk-assessment determination made by the General Assembly in enacting
{¶ 18} Although we are not unsympathetic to Carnes‘s particular situation, we emphasize that it is not our role to second-guess the General Assembly‘s policy choices. Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35. The dissent rightfully acknowledges that the General Assembly could initiate reforms to the weapons-under-disability statute to reflect emerging policy concerns, but so far it has not done so.
{¶ 19} Contrary to
{¶ 20} Finally, we turn to amicus curiae Buckeye Firearms Association‘s contention that because a juvenile adjudication in Ohio is not a criminal conviction, the state is prohibited from criminalizing the legal possession of a firearm based upon a prior juvenile adjudication pursuant to the Second and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of the Ohio Constitution. Because these arguments were not raised in the trial or appellate courts, they were not preserved for our consideration, and we decline to address them now. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15-16.
Conclusion
{¶ 21} A prior juvenile adjudication may be an element of the weapons-under-disability offense set forth in
Judgment affirmed.
O‘DONNELL, CALLAHAN, FRENCH, KLATT, and SADLER, JJ., concur.
O‘CONNOR, C.J., dissents, with an opinion.
LYNNE S. CALLAHAN, J., of the Ninth District Court of Appeals, sitting for KENNEDY, J.
WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for FISCHER, J.
LISA L. SADLER, J., of the Tenth District Court of Appeals, sitting for DEWINE, J.
O‘CONNOR, C.J., dissenting.
{¶ 22} I dissent. The General Assembly established Ohio‘s juvenile-justice system with the understanding that child offenders are fundamentally different from adult offenders. See In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 66. We have repeatedly recognized the distinct purposes of juvenile and adult courts. See, e.g., State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, ¶ 27-31; State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 7; In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 72. And in my dissenting opinion in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883 (O‘Connor, C.J., dissenting), I detailed many of the practical and constitutional differences between juvenile and adult courts.
{¶ 23} The law at issue in this case,
{¶ 24} If a juvenile crime is serious enough to potentially merit adult consequences, the state may seek to transfer the juvenile to adult court,
{¶ 25} The majority refers to appellant‘s, Anthony Carnes‘s, 1994 adjudication of delinquency for committing a felonious assault. But information surrounding the facts is illuminating. While serious, the circumstances are not particularly unusual and show a teenage disagreement that got out of hand. The assault stemmed from a fist fight when Carnes was 16 years old. The fight started as an argument between Carnes and another boy approximately his age. The two met to settle the argument, which led to a fight in which Carnes punched the other boy, causing him to lose four teeth. Carnes was arrested about one week after the fight. He was released but returned to court one month later for a hearing on the charges. He was accompanied at that hearing by his mother, who was a nurse. Although Carnes and his mother signed a waiver at that time, when Carnes was questioned during the current proceedings, he did not remember being offered an attorney or understand that he had waived his right to one. The state did not offer any of the victim‘s medical records into evidence to establish the fact or extent of injury. Carnes accepted a plea agreement, thereby avoiding an adjudicatory hearing. He was sent to a residential treatment facility, Hillcrest School, in lieu of a Department of Youth Services facility.
{¶ 26} Twenty years later, police responded to a 9-1-1 call reporting shots fired near Carnes‘s home. Although there was no testimony that Carnes was seen with a weapon, police located one in the back of his home. The police subsequently linked him to the gun using DNA evidence. He was indicted for violating
ANALYSIS
A. Recent advancements in understanding the development of a juvenile‘s brain have led to greater scrutiny of juvenile-justice laws
{¶ 27} The General Assembly established Ohio‘s juvenile-justice system to achieve fundamentally different results than those reached in adult criminal courts:
The juvenile courts were premised on profoundly different assumptions and goals than a criminal court, United States v. Johnson (C.A.D.C.1994), 28 F.3d 151, 157 (Wald, J., dissenting), and eschewed traditional, objective criminal standards and retributive notions of justice. Instead, a new civil adjudication scheme arose, with a focus on the state‘s role as parens patriae and the vision that the courts would protect the wayward child from evil influences, save him from criminal prosecution, and provide him social and rehabilitative services. In re T.R. (1990), 52 Ohio St.3d 6, 15, 556 N.E.2d 439; Children‘s Home of Marion Cty. v. Fetter (1914), 90 Ohio St. 110, 127, 106 N.E. 761; Ex parte Januszewski (C.C.Ohio 1911), 196 F. 123, 127.
In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 66. Although the juvenile-justice system has always been premised on the notion that adult criminal court is inappropriate for most child offenders, only recently has medical evidence been offered to support that premise.
{¶ 28} Substantial scientific research during the last two decades has discovered significant physiological differences between child and adult brains. Citing this
First, over the course of adolescence and into early adulthood, there is a strengthening of activity in brain systems involving self-regulation. * * *
Second, there are important changes in the way the brain responds to rewards. * * *
A third change in brain function over the course of adolescence involves increases in the simultaneous involvement of multiple brain regions in response to arousing stimuli, such as pictures of angry or terrified faces.
Id. at 70-71. Steinberg concluded that the consensus emerging from recent research on the adolescent brain is that teenagers are not as mature as adults in either brain structure or function. Id. at 71.
{¶ 29} Another article cited by the centers described evidence establishing that the connectivity and efficiency of [cellular] connections in the prefrontal cortex, the area of the brain responsible for executive functions including short-term memory, attention, inhibitory control, and decision making, has been shown to continue developing throughout adolescence and early adulthood. Gruber & Yurgelun-Todd, Neurobiology and the Law: A Role in Juvenile Justice?, 3 Ohio St.J.Crim.L. 321, 324 (2006).
{¶ 30} A juvenile‘s brain is still developing until the juvenile is 18 years old and is no longer subject to juvenile adjudication, and likely well after. Recent studies suggest that juveniles are less able than adults to regulate their responses to external stimuli and to judge the consequences of their actions. See, e.g., Steinberg at 71-72. I am not suggesting that this research absolves juveniles from all responsibility for their bad acts. But that research does suggest that even though our juvenile-justice system is based on the theories of protection, treatment, and rehabilitation, it is not properly designed to grapple with the realities of the not-yet-developed brains of juveniles.
{¶ 31} Although the legislative branch has been hesitant to enact reforms to juvenile-justice systems, courts have been willing to consider constitutional challenges to juvenile-justice laws in light of scientific studies involving juvenile brain development. In a series of cases, the United States Supreme Court has relied on such documentation and research to strike down certain juvenile-justice laws.
{¶ 32} This court has echoed the Supreme Court‘s conclusions, determining that due to their lack of maturity, juvenile offenders who commit even the most heinous acts have a lesser moral culpability than adults who commit similar acts, State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, ¶ 58. See also In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, at ¶ 40 (juveniles are not only less culpable than adults, their bad acts are less likely to reveal an unredeemable corruptness).
B. The mounting evidence of a juvenile‘s brain development suggests that R.C. 2923.13 as applied to juvenile adjudications is unjust
{¶ 33}
{¶ 34} This disability contrasts starkly with the others mentioned in
C. Jurisprudence finding certain sentencing enhancements unconstitutional calls R.C. 2923.13 as applied to juvenile adjudications into question
{¶ 35}
{¶ 36} The United States Supreme Court has held that it is unlawful to enhance a sentence based on facts not found by a jury (or by a judge when the offender waived the right to a jury trial). Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court held that a judge is not permitted to make a finding of any fact, other than the fact of a prior conviction, when such a finding would subject the defendant to a penalty beyond the prescribed statutory maximum. Id. at 490. The court endorsed the principle that it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. Id. at 490, quoting Jones v. United States, 526 U.S. 227, 252, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring). It also noted the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. (Emphasis sic.) Id. at 482-483.
{¶ 37} In State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, we considered the use of an uncounseled juvenile adjudication as a sentencing enhancement. In Bode, an uncounseled juvenile adjudication for operating a vehicle while intoxicated (OVI) was counted as one of the five violations necessary to enhance an adult‘s charge for OVI to a felony OVI that required prison as punishment. Id. at ¶ 4. We held that an uncounseled juvenile adjudication during which the right to counsel was not waived could not be used to enhance a later violation of the OVI law that could lead to confinement. Id. at ¶ 17-18. We described Bode‘s juvenile adjudication as a 20-year ticking time bomb and held that it was unconstitutional for an uncounseled juvenile adjudication to be used to enhance the punishment for a subsequent OVI charge. Id. at ¶ 25.
{¶ 38} In Hand, we applied the United States Supreme Court decision in Apprendi, expanded our ruling in Bode, and held that it was unconstitutional for any juvenile adjudication, not just an uncounseled one, to be the basis for a sentencing enhancement. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.2d 448, at ¶ 38. We recognized that juvenile adjudications do not have the same procedural safeguards as adult convictions, including the rights to a jury trial and to have guilt proved beyond a reasonable doubt. Id. at ¶ 26. We ruled that [i]n order to continue holding that a jury trial is not required for juveniles, we must maintain the civil nature of juvenile adjudications. It is contradictory and fundamentally unfair to allow juvenile adjudications that result from these less formal proceedings to be characterized as criminal
{¶ 39} Admittedly, the holdings in Apprendi, Bode, and Hand do not squarely align with this case. While those cases dealt with sentencing enhancements, Carnes‘s case involves an element of the offense, which is found by the jury. Even though the jury is the ultimate fact-finder as to the element of a qualifying juvenile adjudication, in reality, the jury has little choice but to affirm the juvenile adjudication that was made potentially years before and without the full due-process rights afforded to a criminal defendant. In this respect, the principles in Apprendi, Bode, and Hand do apply.
{¶ 40} In Apprendi, Bode, and Hand, there were constitutional deficiencies related to the sentence-enhancing violation. In each case, the lower court had increased the sentence based on the constitutionally deficient enhancement. In this case, Carnes‘s juvenile adjudication did not include all the due-process protections of an adult criminal conviction, but the court still used it to trigger an adult criminal sentence 20 years later. The only difference between this case and Apprendi, Bode, and Hand is that the weapons-under-disability conviction requires a jury finding, unlike the enhancements in those cases, which were determined by a judge. But as already explained, any opportunity for the jury to make a real choice is a chimera.
{¶ 41} The majority points out that a legal disability can arise from far less than a jury-eligible criminal conviction. Majority opinion at ¶ 11, quoting State v. Barfield, 2017-Ohio-8243, 87 N.E.3d 233, ¶ 10 (1st Dist.). It is true that other named disabilities in
D. The General Assembly should rewrite R.C. 2923.13 in light of mounting scientific research and recent due-process jurisprudence
{¶ 42} I am disappointed by the majority‘s decision today, but I am more vexed that the General Assembly has not already taken steps to change this law, particularly in light of the substantial scientific research and documentation that a juvenile‘s brain is underdeveloped, coupled with the related decisions by this court and the United States Supreme Court holding that juveniles are less culpable for their conduct and more likely to benefit from the rehabilitative efforts of our justice system than adult offenders.
{¶ 43} Not one person on this court, in the legislature, and I dare say, in the public at large would want to be held accountable, years later, as an adult, for decisions that were made as a 16 year old and adjudicated in the juvenile system. This court has in the past affirmed the legislature‘s decision to allow punishment for certain juvenile offenses to continue into adulthood, but only when it has found that the law afforded the juvenile sufficient procedural safeguards.
{¶ 44} I dissent.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant Public Defender, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Cuyahoga County Prosecutor‘s Office.
Ronald Lemieux, urging reversal for amicus curiae Buckeye Firearms Association.
Juvenile Law Center and Marsha L. Levick; and Winston & Strawn, L.L.P., Samuel S. Park, and John E. Drosick, urging reversal for amicus curiae Juvenile Law Center.
Nadia N. Seeratan, urging reversal for amicus curiae National Juvenile Defender Center.