Merit Decision: A Prior Juvenile Adjudication Cannot Be Used to Enhance an Adult Sentence. State v. Hand.

“Juvenile law and criminal law are not synonymous.” From the majority opinion.

On August 25, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Hand,Slip Opinion No. 2016-Ohio-5504. In a 4-3 opinion written by Justice Lanzinger, joined by Justices O’Neill, Pfeifer, and Chief Justice O’Connor, the court held that it is unconstitutional to use a juvenile adjudication as the equivalent of an adult conviction to enhance a penalty for a later crime. Justice O’Donnell dissented, joined by Justices Kennedy and French. The case was argued December 1, 2015.

Case Background

When appellant Adrian L. Hand, Jr. was a juvenile, he was adjudicated delinquent for aggravated robbery, a first degree felony if committed by an adult. As an adult, Hand pled no contest to three first degree felonies and two second degree felonies, all with three-year firearm specifications attached. The state argued that Hand must receive a six year mandatory sentence based on his prior juvenile adjudication. Hand contended that only three years of his sentence were mandatory since his prior adjudication was not an adult conviction. The trial court agreed with the state and Hand was sentenced to a mandatory six-year prison term. The Second District Court of Appeals affirmed, in a split decision.

Read the oral argument preview in the case here and an analysis of the argument here.

Key Statutes and Precedent

R.C. 2152.01 (A) (“The overriding purposes for dispositions under this chapter are to provide for the care, protection, and mental and physical development of children subject to this chapter, protect the public interest and safety, hold the offender accountable for the offender’s actions, restore the victim, and rehabilitate the offender. These purposes shall be achieved by a system of graduated sanctions and services.”)

R.C. 2929.13 (F)(6) (A first- or second-degree felony sentence must be mandatory if the defendant “previously was convicted of or pled guilty to” another first- or second-degree felony, or any other equivalent offense.)

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.)

Ohio Constitution, Article I, Section 16 (“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”)

Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540 (1941) (The “due course of law” clause in the Ohio Constitution is functionally equivalent to the “due process of law” clause present in Fourteenth Amendment of the U.S. Constitution.)

In re Gault, 387 U.S. 1 (1967) (“[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”)

In re Agler, 19 Ohio St.2d 70 (1969) (Under the Ohio Constitution, there is no juvenile right to trial by jury. The reason for this fundamental difference from adult criminal proceedings is “to avoid treatment of youngsters as criminals and insulate them from the reputation and answerability of criminals.”)

State v. Walls, 2002-Ohio-5059 (“numerous constitutional safeguards normally reserved for criminal prosecutions are equally applicable to juvenile delinquency proceedings.”)

Apprendi v. New Jersey, 544 U.S. 466 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”)

Alleyne v. United States, 570 U.S. ___ (2013) (Expanding upon the holding of Apprendi, any facts that increase a mandatory minimum sentence must be submitted to a jury.)

United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001) (A “prior conviction” as described in Apprendi is limited to convictions in which the individual was afforded the procedural safeguards of a right to a jury trial and proof beyond a reasonable doubt. Therefore, juvenile adjudications cannot be used as a sentencing enhancement.)

United States v. Crowell, 493 F.3d 744 (6th Cir. 2007) (Nonjury juvenile adjudications can be used for sentence enhancements. These adjudications have sufficient procedural safeguards to ensure their reliability, and therefore, do not offend Apprendi or the individual’s constitutional rights.)

Welch v. United States, 604 F.3d 408 (7th Cir. 2010) (Posner, J., dissenting) (“The constitutional protections to which juveniles have been held to be entitled have been designed with a different set of objectives in mind than just recidivist enhancement… [T]he philosophy on which the juvenile court system was founded emphasizes protecting the ‘best interests of the child’ and rehabilitating rather than punishing the child.”)

Merit Decision

Issue

Does 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 violate due process?

Short answer: yes.

Analysis

The Statutes at Issue Here

Because Hand was convicted of first and second degree felonies, R.C. 2929.13(F) required the trial court to impose a mandatory prison term if Hand had previously been convicted of a first or a second degree felony. But R.C. 2929.13(F) does not define “convicted.” So, the trial court in this case relied on the language in R.C. 2901.08(A), which states that “the adjudication as a delinquent child… is a conviction for the violation of the law …” to impose a mandatory prison term on Hand. Hand argues that treating his juvenile adjudication as a conviction violates his due process and jury trial rights under the Ohio and U.S. Constitutions, and falls afoul of Apprendi.

No New Judicial Federalism Here

About a month ago, in State v. Mole, Slip Opinion No. 2016-Ohio-5124, the court raised more than a few eyebrows by declaring that the Equal Protection Clause of the Ohio Constitution provides greater protection than does its federal counterpart. While Hand raised both state and federal constitutional challenges in this case, the court quite explicitly held Ohio’s “‘due course of law’ provision is the equivalent of the ‘due process of law’ provision in the Fourteenth Amendment to the United States Constitution.”

How Many Times Do We Need To Say It-Juveniles are Different From Adults

The court begins with a reminder that juvenile adjudications are civil and rehabilitative, while criminal sentencing is criminal and punitive. But even though juvenile court proceedings are civil in nature, these constitutional safeguards, rooted in the state and federal due process clauses, have been found applicable to delinquency proceedings: right to counsel, right against self-incrimination and double jeopardy. And the court emphasized the overriding rehabilitative and protective purposes of juvenile dispositions.

The O’Connor Court has been very protective of the rights of juvenile offenders. In State v. Bode, 2015-Ohio-1519, the court found greater protection for uncounseled juveniles under the Ohio Constitution than exists under federal law. In In Re CP, 2012-Ohio-1446, the court struck down automatic lifelong registration and notification requirements for certain juvenile sex offenders. And earlier this year, in State v. Barker, Slip Opinion No. 2016-Ohio-2708, the court struck down the statutory presumption of voluntariness of a recorded custodial statement as unconstitutional as applied to juveniles.

In addition to these cases, Lanzinger cites the key U.S. Supreme Court cases of Roper, Graham, and Miller to underscore the point that juveniles are to be treated differently from adults, and the reasons why.

BUT, No Juries for Juvies

Despite all the constitutional safeguards now afforded to juveniles, they still have no right to trial by jury. Hand argued that it is the lack of a right to a jury trial that makes using the adjudication against him a due process violation. The state argued that because of recidivism issues, the legislature should be allowed to factor a prior juvenile adjudication into an adult sentence. But here the majority makes a key point in response to the state’s argument—“there is a significant difference between allowing a trial judge to consider an adjudication during adult sentencing and requiring a mandatory prison term to be imposed because of it.”

What to do about

In 2000, in Apprendi, the U.S. Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added.) So the question becomes, is a nonjury juvenile adjudication fairly characterized as a prior conviction? There is a circuit split on this issue among the federal courts, which Justice Lanzinger reviews. The majority of circuits that have considered the question (in the context of the Armed Career Criminal Act, 18 U.S.C. 942(e)), including the Sixth Circuit, which covers Ohio, have held that nonjury juvenile adjudications can be characterized as prior convictions without running afoul of due process. These circuits found that juvenile adjudications have enough procedural safeguards to make them reliable enough to satisfy the Apprendi exception even without the right to a jury trial. But the Supreme Court of Ohio found the Tighe case from the Ninth Circuit more persuasive. Tighe held that a prior juvenile adjudication could not be used as a sentence enhancement because it had not been proven by the state to a jury beyond a reasonable doubt.

State supreme courts that have considered this issue are also divided, but most follow the federal circuit majority view, and reject the reasoning in Tighe. But in Hand, Ohio joins the minority viewpoint:

“Given the United States Supreme Court’s emphatic pronouncements on the importance of the right to a jury trial, it is logical to conclude that the court meant to limit the prior-conviction exception to prior proceedings that satisfied the jury-trial guarantee…To convert an adjudication into a conviction when the adjudication process did not provide the right to have a jury test the elements of that offense offends due process and Apprendi and thus the state cannot treat a prior juvenile adjudication as a prior conviction to enhance the penalty for a subsequent conviction,” wrote Lanzinger.

Now What?

The case goes back to the trial court for re-sentencing.

Justice O’Donnell’s Dissent

Justice O’Donnell would find that imposing a mandatory sentence under R.C. 2929.13(F) based on a prior nonjury juvenile adjudication does not violate due process or run afoul of Apprendi.

Justice O’Donnell first relies on the explicit language of R.C. 2901.08(A), which states that “the adjudication as a delinquent child…is a conviction…for purposes of determining the offense…and the sentence to be imposed…” He thinks that language is unambiguous and resolves the issue. He notes that Apprendi expressly and clearly exempts “the fact of a prior conviction” from its jury-finding requirement. And he notes, as did Justice Lanzinger, that the majority position in this case is clearly the minority viewpoint nationally in both federal appellate and state supreme court circles. He agrees with the courts that have found that the other protections received by juveniles, such as notice, counsel, confrontation, and proof beyond a reasonable doubt, ensure the reliability of the proceedings.

Justices Kennedy and French joined O’Donnell’s dissent.

Case Syllabus

1. R.C. 2901.08(A) violates the Due Process Clauses of Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution because it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that enhances either the degree of or the sentence for a subsequent offense committed as an adult.
2. Because a juvenile adjudication is not established through a procedure that provides the right to a jury trial, it cannot be used to increase a sentence beyond a statutory maximum or mandatory minimum. (Apprendi v.New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), followed.)

Concluding Observations

Here’s what I wrote after argument:

“There seems to be little doubt that the court is going to hold that a juvenile adjudication is not a prior conviction, and therefore using it as a mandatory sentencing enhancement falls afoul of Apprendi…”

I incorrectly thought Justice French would join the majority because of the explicit wording of the Apprendi exception, but otherwise accurately noted that Chief Justice O’Connor and Justices Pfeifer, O’Neill and Lanzinger were “more focused on the fact that it is fundamentally wrong to compare a juvenile adjudication to a conviction in the first place. One is civil, the other is criminal. One is rehabilitative, the other punitive.” As I thought it would, this formed the essence of the majority decision. I also correctly predicted the court would not rely solely on the state constitution in this decision, because “there was no development in this case of state constitutional law underpinnings, other than a conclusion in the proposition of law.”

Finally, it was not difficult to predict that Justice O’Donnell would dissent in the case, given his consistent refusal to find special protections for juvenile offenders.

Given the difference in viewpoints on this issue in both the state and federal courts, this case could well go to the U.S. Supreme Court. I’ve heard the prosecution is considering this.

I have written on a number of occasions that Chief Justice O’Connor has made protection of juveniles a hallmark of her tenure. With the pending retirements of Justices Pfeifer (author of In Re C.P.) and Lanzinger (author of Bode), she is losing two stalwart allies in this field of law.

There are still two potential blockbuster juvenile cases awaiting decision. One, State v. Moore, now pending well over a year, tackles the issue of whether a juvenile non-homicide offender can be sentenced to a “de facto” life sentence. Moore was sentenced to a 112-year prison term for convictions on three counts each of rape, complicity to rape, aggravated robbery, and kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old. Moore will be eligible for judicial release at age 92. The other, State v. Aalim,is a constitutional challenge to the mandatory juvenile transfer statute.