STATE OF OHIO v. COREY PARKER
No. 97841
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 11, 2012
[Cite as State v. Parker, 2012-Ohio-4741.]
BEFORE: S. Gallagher, J., Celebrezze, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION; Case No. CR-549438
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549438
RELEASED AND JOURNALIZED: October 11, 2012
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Ma‘rion D. Horhn
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} This appeal is a companion case arising out of the same events as contained in State v. Carrington, 8th Dist. No. 97769.
{¶2} Defendant-appellant, Corey Parker, appeals from the sentence imposed by the trial court following the entry of a guilty plea to aggravated robbery, with notice of prior conviction, and having weapons while under disability. For the following reasons, we affirm Parker‘s sentence.
{¶3} On April 16, 2011, Parker drove two codefendants, Emmanuel Scott and Antwon Carrington, to a pet store located on Cleveland‘s east side. Scott and Carrington entered the store to commit a robbery while Parker remained in the car. There was an exchange of gunfire in the store, and Scott received a nonfatal gunshot wound. He returned to the car, and Parker drove him to the emergency room at Cleveland Clinic. After the police identified Parker from video footage at the clinic, they arrested Parker, Scott, and Carrington.
{¶4} Parker was indicted on May 12, 2011, along with Scott and Carrington, and charged with Count 1, aggravated robbery; Count 2, aggravated burglary; Counts 3 through 5, kidnapping; Counts 6 through 8, felonious assault; Count 9, carrying a
{¶5} Parker pleaded guilty on September 21, 2011, to aggravated robbery, a first-degree felony, and having weapons while under disability, a third-degree felony. In exchange for Parker‘s agreement to cooperate with the police and testify against Scott and Carrington, the state dismissed all other charges and specifications excluding the one reflecting notice of prior conviction. The trial court sentenced Parker on November 30, 2011, to eight years in prison with five years of postrelease control.
{¶6} Parker timely appealed and sets forth two assignments of error. In his first assignment of error, he asserts that because
{¶8} The state also argues that Parker‘s entry of a guilty plea to the aggravated robbery and the prior conviction precludes him from raising the constitutionality of
{¶9} In Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), the United States Supreme Court held that where a defendant pleads guilty with the advice of counsel, he or she may not later claim a violation of constitutional rights that occurred prior to the plea. See State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927. However, the United States Supreme Court noted in Menna v. New York, 423 U.S. 61, fn. 2 at 62-63, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), that a plea of guilty establishes the defendant‘s guilt, and operates as a waiver of only those
{¶10} The United States Supreme Court thereby distinguished constitutional violations that go to factual guilt from constitutional violations that relate to the validity of the statute relied on by the state to convict a defendant. Id. A defendant such as Parker may, therefore, raise those constitutional violations that go to the state‘s ability to prosecute, regardless of factual guilt, in an appeal from a guilty plea. Id. at paragraph one of the syllabus. Parker argues that because
{¶11} A juvenile court proceeding is a civil action, In re Anderson, 92 Ohio St.3d 63, 2001-Ohio-131, 748 N.E.2d 67, syllabus; and juveniles are “adjudicated delinquent” rather than “found guilty,” State v. Hanning, 89 Ohio St.3d 86, 89, 2000-Ohio-436, 728 N.E.2d 1059. Although Ohio juvenile proceedings do not result in criminal convictions, effective January 1, 1996,
(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.
{¶12} In State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, the Ohio Supreme Court considered the constitutionality of
{¶13} The Adkins court found that Adkins was punished for his current offense, and not a previous juvenile adjudication. Id. at ¶ 15. As the United States Supreme Court has held,
When a defendant is given a higher sentence under a recidivism statute — or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant‘s criminal history — 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant‘s “status as a recidivist.” The sentence “is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive
one.” Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948).
Id., quoting United States. v. Rodriquez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008).
{¶14} The Adkins court noted further that 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.”
{¶15} Adkins at ¶ 16, quoting Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994).
{¶16} The same holds true here. The use of the prior juvenile adjudication under
{¶17} Parker nonetheless argues that despite the express language of
{¶18} Juvenile delinquents, however, do not serve sentences; rather, the court imposes a disposition intended to rehabilitate the child, not to punish him or her. See
{¶19} Because there is no constitutional right to a jury trial in juvenile adjudications, federal defendants have challenged the constitutionality of the Armed Career Criminal Act (“ACCA“). The ACCA requires imposition of a minimum 15-year term of imprisonment for unlawful possession of a firearm in violation of
{¶20} In construing the ACCA, the federal circuits are split on whether juvenile adjudications fall within the Apprendi prior-conviction exception. The majority of circuits, including the Sixth Circuit, found that juvenile adjudications come within the exception, and may be used to enhance adult sentences, even though they were not presented to a jury. See United States v. Matthews, 498 F.3d 25, 34 (1st Cir.2007); United States v. Jones, 332 F.3d 688, 696 (3d Cir.2003); United States v. Wright, 594 F.3d 259 (4th Cir.2010); United States v. Crowell, 493 F.3d 744, 750 (6th Cir.2007); Welch v. United States, 604 F.3d 408, 426 (7th Cir.2010); United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir.2002); United States v. Burge, 407 F.3d 1183, 1190-1191 (11th Cir.2005).
{¶21} In Crowell, Crowell asserted that, even if the court found he had a juvenile adjudication for a “violent felony,” using that finding as a predicate offense for purposes of the ACCA violates due process and runs afoul of Apprendi, 530 U.S. 466, 120 S.Ct. 2348. Crowell at 749. Crowell contended that a prior juvenile, nonjury adjudication does not qualify as a “prior conviction” for purposes of the Apprendi exception, and
{¶22} The Sixth Circuit in Crowell held that the use of procedurally sound juvenile adjudications as ACCA predicates does not violate due process. Id. at 750. Congress has the power “‘to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant received all process that was due when convicted — for adults that includes the right to a jury trial; for juveniles, it does not.‘” Id., quoting Jones, 332 F.3d 688, 695 (finding juvenile adjudications qualify as ACCA predicates so long as they meet the due process requirements for juvenile proceedings); Smalley, 294 F.3d 1030, 1032-1033 (same).
{¶23} Rather than relying on the “narrow parsing of words” that would create a bright-line rule whereby proof beyond a reasonable doubt, fair notice, and a right to a jury trial are all required procedural safeguards that must be present before qualifying for the Apprendi exception, a court should instead consider “‘the reality of the actual juvenile adjudications to determine whether they are sufficiently reliable so as to not offend constitutional rights if used to qualify for the Apprendi exception.‘” Crowell, 493 F.3d at 750, quoting Jones at 696. The Sixth Circuit, therefore, joined the Third, Eighth, and Eleventh Circuits in finding that the imposition of a sentence enhancement under the ACCA based on a defendant‘s juvenile adjudication without a jury trial does not violate
{¶24} Here, there is no indication that Parker was not afforded appropriate due process in his juvenile adjudication. Further, Parker‘s juvenile adjudication required a finding of proof beyond a reasonable doubt.
[T]he Fifth, Sixth, and Fourteenth Amendments, as construed in Apprendi, do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial.
People v. Nguyen, 46 Cal.4th 1007, 1019, 95 Cal.Rptr.3d 615, 209 P.3d 946 (2009).
{¶25} We likewise conclude that the imposition of a sentence enhancement under
{¶26} Parker‘s first assignment of error is accordingly overruled.
{¶28} Because we do not find plain error under Crim.R. 52(B), Parker‘s second assignment of error is overruled.
{¶29} Judgment affirmed.
It is ordered that appellee recover from appellant 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. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR