“The risk-assessment determination made by the General Assembly in enacting R.C. 2923.13 does not undermine the rehabilitative purpose of the juvenile-justice system, nor does it give rise to the due-process concerns we were called upon to resolve in Hand. Framed differently, the lack of a right to a jury trial, as well as other protections, does not make prior juvenile adjudications unreliable for risk-assessment purposes.”
Justice DeGenaro, majority opinion
“Allowing a juvenile offense that was not serious enough to merit transfer to an adult court to follow Carnes for 20 years directly contradicts the current scientific understanding of the juvenile brain. And it is inconsistent with Ohio’s juvenile-justice system, which is based on rehabilitation, not punishment.”
Chief Justice O’Connor, dissent.
On August 15, 2018, the Supreme Court of Ohio handed down a merit decision in State v. Carnes, 2018-Ohio-3256. In a 6-1 opinion authored by Justice DeGenaro, with Court of Appeals Judges William Klatt of the Tenth District, Lisa Sadler of the Tenth District and Lynne Callahan of the Ninth District sitting for Justices Fischer, DeWine, and Kennedy, respectively, the Court held that it is constitutionally permissible to use a prior juvenile adjudication to prove an element of the offense of having a weapon while under disability as an adult. Chief Justice O’Connor wrote a lengthy, and solo, dissent. The case was argued February 27. 2018.
Case Background
In 1994, sixteen-year-old Anthony Carnes got into a fist fight with another teenager of about the same age. As part of a plea, at a hearing at which his mother was present, but no lawyer, Carnes was adjudicated as delinquent for committing what would have been felonious assault if committed by an adult.
In 2013, Carnes was found to be in possession of a firearm and was subsequently charged with having a weapon while under disability in violation of 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 on the ground that his uncounseled juvenile adjudication could not be used as the basis for the statutory disability. The trial court denied the motion, and Carnes was convicted and sentenced.
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 and an analysis of the argument here.
Key Precedent
R.C. 2901.08(A) (A prior “adjudication as a delinquent child or as a juvenile traffic offender is a conviction for a violation of the law or ordinance” in determining (1) the offense an individual can be charged with, and/or (2) the sentenced imposed for the offense.)
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. Taniguchi, 1995-Ohio-163 (“A conviction under R.C. 2923.13 for having a weapon while under disability is not precluded when there is an acquittal on, or dismissal of, the indictment which had formed the basis for the charge of having a weapon while under disability.” Syllabus.)
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.”)
Roper v. Simmons,, 543 U.S. 551 (2005) (Prohibits death penalty for offenses committed while the defendant was a juvenile.)
In re C.S., 2007-Ohio-4919 (Juvenile courts are premised on different goals than criminal courts, and instead focus on the state’s role to protect wayward children, save them from criminal prosecution, and rehabilitate them.)
Graham v. Florida, 560 U.S. 48 (2010) (The Eighth Amendment prohibits life sentences without parole for juvenile nonhomicide offenders in part because “juveniles have a “lack of maturity and an underdeveloped sense of responsibility.””).
Miller v. Alabama, 132 S.Ct. 2455 (2012) (Forbids imposition of mandatory life without parole sentences for juvenile offenders, including juvenile homicide offenders.)
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.”)
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. Barfield, 2017-Ohio-8243 (1st Dist.) (“[A] legal disability can arise from far less than a jury-eligible criminal conviction.”)
Merit Decision
Analysis
Narrowing the Issue to be Decided
Carnes had argued broadly that a juvenile adjudication cannot be used to satisfy an element of any adult offense without violating due process. The Court narrowed the issue to the specifics of his situation, which was whether a juvenile adjudication can be used as an element of the weapons-under-disability statute.
Short answer: Yes.
Bode and Hand
In 2015, in State v. Bode, the Court held that an uncounseled juvenile adjudication of delinquency for an offense equivalent to operating a vehicle while intoxicated “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.” About a year later, in State v. Hand, the Court struck down R.C. 2901.08(A), which treated a juvenile adjudication as an adult conviction to enhance the juvenile’s sentence as an adult, because the juvenile adjudication process did not involve the right to a jury trial. Carnes tried, but failed, to build off the backs of these decisions.
Distinguishing Hand
A prior juvenile adjudication under R.C. 2901.08(A) expressly serves as a conviction for purposes of deciding what offense to charge someone with, and the sentence, if convicted. But R.C. 2923.13, the weapons-under-disability statute, provides a number of different disability conditions, a juvenile adjudication being one, and R.C. 2923.13(A)(2), the juvenile adjudication provision, does not use juvenile adjudications as sentence enhancements. Regardless of the predicate offense, a statutory violation is a third-degree felony. And, the juvenile adjudication is an element of the offense; it is, itself, the disability.
But Aren’t Elements of an Offense More Consequential than Enhancements?
At first blush, yes, says Justice DeGenaro. But, on second blush, apparently not. The weapons-under-disability statute is different because there are a number of categories of legal disabilities that serve as elements of the offense which can arise from something less than a jury-eligible criminal conviction– like simply being under indictment for a violent felony, or for being a chronic alcoholic.
Carnes Fails to Seek Relief From Disability
R.C. 2923.14(A)(1) creates a process by which a person can seek relief from a disability such as the prohibition against owning, carrying, or using a firearm by applying to the common pleas court. Carnes did not avail himself of this option.
Federal and State Legislative Policy Choices to Keep Guns Away From Certain Dangerous Persons
Although it involved a federal weapons-disability statute, the Court found Lewis v. United States instructive. In Lewis the U.S. Supreme Court held that a prior uncounseled conviction could serve as the predicate for a subsequent conviction under the federal weapons-disability statute. In doing so, the U.S. Supreme Court emphasized the legislative purpose behind the federal gun laws, namely to keep firearms away from persons Congress considered potentially irresponsible and dangerous.
Similarly, “inherent in R.C. 2923.13(A)(2) is a policy decision made by the legislature that allowing weapons in the hands of individuals with certain prior juvenile adjudications poses an increased risk to public safety, as does allowing weapons in the hands of those with other disabling conditions such as chronic alcoholism or drug dependence,” wrote DeGenaro. In other words, as the First District put it in Barfield, “[A] legal disability can arise from far less than a jury-eligible criminal conviction.”
Some Sympathy for Carnes
The majority expresses some sympathy for Carnes’ situation, but sends a clear non-judicial-activist message that it is not the Court’s role to second-guess legislative policy choices, noting that the General Assembly could reform the weapons-under-disability statute, but has not thus far done so.
Second Amendment and Analogous Ohio Constitutional Challenge a Non-Starter
Amicus Buckeye Firearms Association, which filed a brief in support of Carnes, argued that the Second Amendment and Article I Section 4 of the Ohio Constitution prohibit the state from criminalizing the lawful possession of a firearm based on a prior juvenile adjudication. Since those arguments were never raised anywhere below, the court declined to address them in this case.
Chief Justice O’Connor’s Dissent
The Chief’s solo dissent is longer than the entire majority opinion. She’s always felt strongly about the protection of juveniles.
She begins with the Ohio high court’s substantial case-law recognition of the differences between juvenile and adult offenders. She criticizes the weapons-under-disability statute for its failure to consider these differences or to “comport with the rehabilitative goals of the juvenile-justice system.” She notes that if a juvenile offense is serious enough to merit adult consequences, the state can seek to transfer the juvenile to adult court or request a serious-youthful-offender disposition. But neither happened here, in what was essentially a fist-fight between two teen-aged boys of the same age.
The Science in Understanding the Juvenile Brain
The Chief notes that while the juvenile-justice system has always been based on the idea that adult criminal court is inappropriate for most juvenile offenders, it is only recently that medical evidence has been offered to back this up. She reviews the U.S. Supreme Court cases such as Graham v. Florida and Roper v. Simmons, and articles cited in the amicus briefs in support of Carnes, which detail this science proving that juveniles are immature, lack impulse control, are more subject to peer pressure, and have an underdeveloped sense of responsibility.
The Chief chides the legislature for being hesitant to enact reform legislation consistent with this current knowledge, noting that it has been the courts that have been willing to strike down certain juvenile-justice laws based on this new science. She gives examples from both the U.S. Supreme Court and the Supreme Court of Ohio.
That Same Scientific Evidence Suggests Applying R.C. 2923.13 to Juveniles is Unfair
The Chief chides the majority’s decision in this case as being out of step with the most recent studies about juvenile brain development, and the overarching rehabilitative goal of the juvenile-justice system. She also notes that all of the other disqualifying disabilities under the weapons-under-disability statute involve conduct that occurred as an adult.
Related Jurisprudence Striking Down Some Sentencing Enhancements Calls In to Question the Application of R.C. 2923.13 to Juvenile Adjudications
The Chief repeats that R.C.2923.13 is both unfair because it burdens a child into adulthood, and unconstitutional because it burdens an adult with the consequences of a juvenile adjudication in which the juvenile did not get the full panoply of constitutional rights available to an adult in the criminal-justice system.
The Chief reviews Apprendi, Bode, and Hand. She concedes that their holdings do not align squarely with this case since they dealt with sentencing enhancements rather than elements of an offense. But she posits that even though the jury is the ultimate fact-finder as to the element of a qualifying adjudication, in reality, the jury has very little choice other than to affirm that old juvenile adjudication, which was made years ago (in this case, almost 20), and without the full due process rights afforded an adult offender, thus making the principles of those cases fully applicable here. In this case, Carnes’ juvenile adjudication did not include those due-process protections.
“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,” she wrote. And even though the majority pointed out that some of the other legal disabilities under the statute can result from far less than a jury-eligible criminal conviction, all of the others relate to the defendant’s behavior as an adult, making this disability fundamentally different from the others.
The Chief’s Entreaty to the General Assembly
While the Chief expressed her disappointment with the majority decision, she expressed greater disappointment that the legislature has not changed this law, given the substantial scientific research about the juvenile brain, and the recent jurisprudence from the U.S. Supreme Court and this one.
“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,” she wrote.
The Chief would find it unconstitutional to use a juvenile adjudication as a predicate disability, and would strike the pertinent language from R.C. 2913(A)(2) and (3).
Case Syllabus
None.
Concluding Observations
Both then-student contributor Jefferson Kisor and I called this for the state. And we both commented on what a cold bench there was in this case. But a cold bench produced a hot decision here. I predicted that in the end, I thought a majority would consider this a valid legislative policy decision, which is essentially what happened. Subbing appellate Judge Klatt was especially insistent about that. The majority in this case pretty much bought the state’s argument, even though to me, there are parts of the majority’s analysis that I had difficulty following.
The Chief continues her track record of protecting juveniles. I was surprised she had not a single ally here. The fact that there were three appellate subs on the case really didn’t matter in the end. The Chief pretty much bought all of what Carnes had argued, although it did not seem as if she were doing so during argument.
Clearly, the Chief misses having former justices Lanzinger, Pfeifer, and O’Neill as allies in juvenile cases. It will be interesting to see if the she can form a new coalition in these cases after Justice O’Donnell, who is seldom on the side of juvenile offenders (although he was the lone dissenter in State v. Martin, Slip Opinion No. 2018-Ohio-3226. involving a juvenile sex-trafficking victim) retires at year’s end. I suspect Justice DeGenaro will often go with the Chief on these issues, and maybe Justice Fischer. Justices Kennedy, French and O’Donnell all dissented in both Bode and Hand. Justice DeWine hasn’t shown particular sympathy in juvenile cases. It will matter who wins Justice O’Donnell’s seat.
It will also be interesting to see if the legislature listens to the Chief’s entreaty and tackles any of this. H.B. 394, which had bi-partisan support, was certainly a step in the right direction. It addressed the mandatory transfer of juveniles, and sentencing for juvenile non-homicide offenders, among other topics. While it was voted out of committee, it never got a floor vote in the House, and its chief sponsor, Jeff Rezabek of Clayton, has now been named Juvenile Judge in Montgomery County.