What’s On Their Minds: Using a Juvenile Adjudication as an Element of an Adult Offense. State of Ohio v. Anthony Carnes.
On February 27, 2018, the Supreme Court of Ohio heard oral argument in State of Ohio v. Anthony Carnes, 2017-0087. At issue in this case is whether a juvenile adjudication can be used to prove an element of the offense of having a weapon while under disability as an adult. Justices Fischer, DeWine, and Kennedy have all recused themselves from the case. Sitting for them, respectively, are Judge William Klatt of the Tenth District Court of Appeals, Judge Lisa Sadler of the Tenth District Court of Appeals, and Judge Lynne Callahan of the Ninth District Court of Appeals.
In 1994, seventeen-year-old Anthony Carnes got into a fight with another teenager in Hamilton County. He was subsequently adjudicated as delinquent for what was essentially felonious assault. During this juvenile proceeding, Carnes and his mother waived his right to counsel.
Twenty years later, in 2014, Carnes was found to be in possession of a firearm and was subsequently charged with having a weapon while under disability under R.C. 2923.13(A)(2). This was a felony offense. The 1994 juvenile adjudication was the basis for the “disability” in this case. Carnes moved to dismiss the indictment, arguing that his waiver of counsel had been invalid. The trial judge denied this motion, finding a valid waiver of counsel.
Carnes was convicted of having a weapon while under disability and received a thirty-month prison sentence. Carnes appealed. In a split decision authored by Judge Stautberg, with then-Judge DeWine concurring in judgment only, the First District Court of Appeals affirmed the conviction. Judge Cunningham dissented.
Read the oral argument preview of the case here.
Key Statutes and Precedent
R.C. 2923.13 (Having weapons while under disability)
(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:
(2) (The person . . . 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.)
R.C. 2923.14 (Relief from weapons disability)
18 U.S.C. 922(g) (The federal law regarding having a weapon while under disability)
State v. Hand, 2016-Ohio-5504 (“A juvenile adjudication is not a conviction of a crime and should not be treated as one.” A juvenile adjudication may not be used to enhance the sentence for a subsequent adult criminal offense.)
State v. Bode, 2015-Ohio-1519 (“[A]n adjudication of delinquency may not be used to enhance the penalty for a later offense under R.C. 4511.19(G)(1)(d) when the adjudication carried the possibility of confinement, the adjudication was uncounseled, and there was no effective waiver of the right to counsel.”)
Lewis v. United States, 445 U.S. 55 (1980) (“Congress’ judgment that a convicted felon, even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.”)
Apprendi New Jersey, 530 U.S. 466 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt.”)
Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151 (2013) (“The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense.”)
State v. Taniguchi, 1995-Ohio-163 (“It is basic hornbook law that the state under its police powers may impose restrictions on who may possess firearms.”)
At Oral Argument
Peter Galyardt, Assistant Ohio Public Defender, Columbus, for Appellant Anthony Carnes
Scott M. Heenan, Assistant Prosecuting Attorney, Hamilton County, for Appellee State of Ohio
Elements of an offense are more consequential than sentencing enhancements. Anthony Carnes is serving two and a half years in prison as an adult because 20 years earlier as a teenager he was in a fist fight. But for that 20 year old juvenile adjudication, his possession of a gun as an adult was legal. It is unfair to use a childhood transgression to terminate the fundamental right to bear arms as an adult. But for the juvenile adjudication, there is no crime here.
A juvenile adjudication should not be used to establish an element of an offense charged against an adult. While the legislature could and should fix this problem, this court should inform the legislature by holding that the attachment of the disability to the juvenile adjudication is unconstitutional because a juvenile adjudication is not a conviction.
Ohio’s juvenile system winnows out the most egregious criminal conduct through mandatory and discretionary bindover, and to a lesser extent, through serious youthful offender prosecutions. Those who remain in the juvenile system are those who have been deemed amenable to rehabilitation. Therefore, they should get the benefit of a clean slate, and not have stigmatization carried into adulthood.
The state’s reliance on Lewis v. United States, is misplaced. Lewis was decided in 1980, before Apprendi, Alleyne, Heller and Macdonald. Lewis most likely is not still good law. If it is good law, it does not apply to this case. There was no juvenile conduct in Lewis. The system from which Lewis’ conviction-attachment arose included the right to a jury trial. The U.S. Supreme Court in Alleyne ruled that the touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element of the charged offense. The earlier decision in Lewis did not have that language to analyze. The reliance on Lewis falls apart because Lewis had the right to a jury trial.
The state’s focus on the other disability-attaching events in the statute is a false equivalent. They all involve current adult conduct. And many can be factually defended to a weapon under disability jury.
This court has said that Ohio’s juvenile justice system aims to avoid treating youngsters as criminals, and to shield children from stigmatization based upon the bad acts of their youth. Accordingly, the court should hold that a juvenile adjudication cannot be used to satisfy an element of an offense charged against an adult.
What the U.S. Supreme Court held was wrong in Apprendi, and this court held was wrong in Bode and Hand was enhancing a sentence without jury findings. But in Lewis the U.S. Supreme Court said that enforcement of that essential civil disability –not being able to have a firearm—through criminal sanctions does not “support guilt or enhance punishment.” If the U.S. Supreme Court were listening to this case today, it would be looking at Apprendi and Lewis and would say there is nothing wrong here. The main factor that drove these decisions was that things not proven as facts to a jury cannot be used to tinker with a sentence.
Lewis involved an individual who had a completely uncounseled plea, unquestionably in violation of the 14th and 6th amendments, who could have successfully raised some kind of postconviction petition at any time, and had that conviction vacated completely. And yet, the U.S. Supreme Court said that was still good enough for a disability. Even though it could not be used to enhance a sentence, it could be used to create a disability, because that was a policy decision by the legislature. It was up to the legislature to say whether that conviction was reliable or not; it was its policy decision to make. And it was a rational decision to say that creates a disability which prevents a person from having a firearm. There is nothing different between that and using a juvenile adjudication.
There are many examples of non-jury determinations of not being able to possess a firearm, such as people under indictment, fugitives from justice, people with mental illness, those who have been civilly committed, those who are drug-dependent, or chronic alcoholics– the legislature has said all these people are too dangerous to possess firearms, but none of them had a jury to decide if that factor existed. None of this is unconstitutional, including Carnes’ disability-attachment.
What Was On Their Minds
Hand involved the definition of what was a conviction and equated a criminal conviction with a juvenile adjudication, commented Judge Klatt, adding that this statute doesn’t do that.
Both the U.S. Supreme Court and this court have held that there is no due process violation with the lack of a jury trial in the juvenile court, commented Judge Callahan. But under the defense scenario, there could never be a “reliable situation” because you never have a jury trial in juvenile court.
The discussion of the purposes of juvenile dispositions is all well and good for a juvenile committing a delinquency and then being adjudicated while they are a juvenile, commented Chief Justice O’Connor. But what is involved here is an adult activity and it’s not on the same plane as far as an analysis goes. I know the defense is talking about what the intent is, in juvenile proceedings, but we are dealing with an adult allegedly committing an adult crime, she added.
Legislative Choice or Constitutional Matter?
Why isn’t all of this a policy issue for the legislature, since they created the juvenile system in the first place and obviously passed the statute which makes the prior juvenile adjudication an element of the offense, asked Judge Klatt? Later, he commented that much of what defense counsel was arguing was challenging policy, but was not much in the way of a constitutional argument.
Was the Second Amendment challenge raised below, asked Justice DeGenaro?
Weapons Under Disability Statute
Doesn’t this matter only if not relieved of the disability, asked Judge Sadler?
Does it matter that this case focuses narrowly on the weapons under disability offense, as opposed to a broader examination of the issue, asked Justice DeGenaro?
How It Looks From The Bleachers
To Professor Emerita Bettman
In Hand, the court, before Justices DeWine and Fischer came on board, held that a statute which allows a previous juvenile adjudication to count as a prior conviction to enhance a later adult sentence run afoul of Apprendi v. New Jersey and violates due process.
I expected this case to be a major debate over whether Hand should be extended to include elements of offenses, because I agree with Mr. Galyardt that elements are more consequential than enhancements, and I agree with dissenting Judge Penny Cunningham of the First District that “[i]f juvenile adjudications are not reliable enough to enhance a criminal sentence, surely they are not sufficiently reliable to alone sustain proof beyond a reasonable doubt of an element of a crime.” But instead, the argument seemed a bit of a fizzle, not because of an ineffective argument, because I think Mr. Galyardt gave a very nice one. But he was greeted with a cold bench (for example Justice O’Donnell, who is always a very active questioner, said absolutely nothing, nor did Justice French) and palpable skepticism. Also, there were three subs on the bench for recused Justices Fischer, DeWine, and Kennedy, which might have put an asterisk by the decision if Hand were extended to include elements of an offense. But I don’t think that is going to happen. One thing seems certain—the court is not going to get into any Second Amendment challenge, despite the impassioned amicus brief of the Buckeye Firearms Association. That just was not developed below.
Why Mr. Galyardt’s argument did not seem to have more traction is puzzling. The Chief, who is always very protective of juveniles, suggested at the end of his rebuttal that the analysis in Hand was somehow different. She said, “what we are talking about here is an adult activity and it’s not on the same plane as far as an analysis goes.” I’m not sure what she meant. Hand was also an adult, charged with adult felonies, whose sentence was enhanced by a juvenile adjudication. And absent the juvenile adjudication, what Carnes did as an adult was not even criminal. On the other hand, I’m happy to applaud legislative policy choices limiting possession of guns. In the end I think a majority will consider this a valid legislative policy decision, as Judge Klatt mentioned a couple of times in the otherwise sparse questioning.
To Student Contributor Jefferson Kisor
Besides the questions posed by the substitute judges, this was a relatively cold bench. Frankly, this surprised me, given that Carnes’ case is predicated on recent Ohio precedent from this court. This made it very difficult to try and gauge the case. Counsel for both parties presented their cases well, and although the State gave one of the shortest arguments I have ever seen (at approximately five minutes), Mr. Heenan was effective in distinguishing sentence enhancement from the present issue. Luckily, in the final moments of the argument the Chief Justice offered some much-needed clarity on the difference between an element compared to sentencing enhancements; “its not on the same plane as far as the analysis goes.” Much to the chagrin of Carnes and his attorney, I do not believe the court will be sympathetic to his argument, and extend the protections made to juvenile sentence enhancements to adult criminal conduct that happens to be predicated on a juvenile adjudication. Therefore, I predict that the First District’s decision will be affirmed.