Oral Argument Preview: 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 will hear 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 pursuant to R.C. 2923.13. Justices Fischer, DeWine, and Kennedy have all recused themselves from the case. Sitting for them, respectively, are Judge Wiliam 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.

Case Background

In 1994, seventeen-year-old Anthony Carnes got into a fight with another teenager in Hamilton County, Ohio. He was subsequently adjudicated as a juvenile 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. Hamilton County Court of Common Pleas Judge Robert C. Winkler 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.

The Appeal

In a decision authored by Judge Stautberg, with then-Judge DeWine concurring in judgment only, the First District Court of Appeals affirmed the conviction. The First District did not extend the Supreme Court’s holdings in State v. Bode or State v. Hand to prohibit the use of a juvenile adjudication to prove a weapon under disability charge. In her dissenting opinion, Judge Cunningham argued that the principles established in Bode and Hand should apply. Specifically, “[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.”

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices French, O’Neill, and Judge Klatt (sitting for Justice Fischer)

No: Justices O’Donnell and Kennedy, and Judge Sadler (sitting for Justice DeWine)

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.”)

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.”)

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.”)

Arnold v. Cleveland, 7 Ohio St.3d 35 (1993) (“A state court is entirely free to read its own state’s constitution more broadly than [the U.S. Supreme] Court reads the Federal Constitution, or to reject the mode of analysis used by [the U.S. Supreme] Court in favor of a different analysis of its corresponding constitutional guarantee.”)

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.”)

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.”)

State v. Johnson, 2010-Ohio-6301 (Holding that a “conviction for violation of the offense of having weapons while under disability as defined by R.C. 2923.13(A)(3) does not require proof of a culpable mental state of the element that the offender is under indictment for…”)

Carnes’ Argument

The First District erred by failing to follow the recent juvenile jurisprudence of both this Court, and also of the United States Supreme Court, both of which have steadfastly found that juveniles are unequivocally different from adults. Although the juvenile justice system is “designed to shield children from stigmatization based upon the bad acts of their youth,” the State seeks to punish Carnes for a twenty-year-old “youthful indiscretion.” This is incongruent with the focus of Ohio’s juvenile justice system, which is predicated on rehabilitation.

The doctrine of fundamental fairness, which prevents enhanced-punishments due to juvenile adjudications, applies equally, if not more so, in this context. These juvenile proceedings, which lacked the formalities of the adversarial adult system, should not act as the sole basis for proving an essential element of an adult offense—an offense which otherwise would have been legal conduct, but for the juvenile adjudication.

As this Court has made clear in State v. Hand and State v. Bode, juvenile adjudications are simply not adult convictions. Just as juvenile adjudications cannot be used as penalty enhancements, by the same logic they should not be permitted to provide the elements of an offense committed by an adult. That is particularly true in a case like this which turns legal conduct by an adult—possession of a firearm, into illegal conduct—possession of a firearm while under disability.

Even if the Federal Constitution did not offer protection in this instance, the Ohio Constitution as a “document of independent force” can and should apply greater protection in this instance. Under this view of state-constitutionalism, the Ohio Constitution should prohibit the use of juvenile adjudications from being used as an element of an offense for sustaining an adult criminal conviction, when that same adjudication cannot be used to enhance a penalty for an adult offense.

State’s Argument

This Court should affirm the First District and find that the use of the prior adjudication as an element of the offense was proper for determining whether Carnes possessed a weapon while under disability. While the Court held in Hand that juvenile adjudications cannot be used as penalty enhancements, they still may be used for other purposes, including to provide the element of an offense.

The cases cited by Carnes are all predicated on sentence-enhancements and should not be extended to include the present case. In fact, the sentence for the offense at issue, R.C. 2923.13, cannot be enhanced. This statute does not treat juvenile adjudications as criminal convictions, and it also avoids the reliability problems that plagued the sentence-enhancement provisions at issue in Hand. For example, the statute can still apply when the underlying offense is dismissed, or if the offender was later acquitted. If this Court finds in favor of Carnes, it will open the door for a plethora of challenges under all of the categories of disabilities under R.C. 2923.13.

Ohio’s General Assembly acted within its power to restrict the ability of those with juvenile adjudications to own firearms. The U.S. Supreme Court’s decision in Lewis v. United States supports the constitutionality of Ohio’s use of juvenile adjudications to create a firearm disability. Lewis held that even an unconstitutional conviction can act as a valid disability, which means that even a potentially unreliable juvenile adjudication can do the same.

Furthermore, Carnes has not argued this statute impacts one of his fundamental rights, and is therefore only subject to a rational basis review, which carries a heavy presumption of legality. The statute clearly passes constitutional muster.

The arguments of amicus Buckeye Firearms Association regarding Carnes’s constitutional right to bear arms were not properly raised and preserved for the appeal. Therefore, this Court should not address these arguments.

Carnes’ Proposed Proposition of Law

Juvenile adjudications cannot satisfy elements of an offense committed as an adult.

State’s Proposed Counter Proposition of Law

While a juvenile adjudication may not be used to enhance a sentence or the degree of an offense, it may be used as an element of an offense.

Amici in Support of Carnes

The Buckeye Firearms Association

The Buckeye Firearms Association (“BFA”) filed an amicus brief in support of Carnes. The BFA is an organization that seeks to promote and defend an Ohioan’s right to own and use firearms for legal purposes.

Even though Carnes did not raise a state or federal constitutional challenge earlier in this appeal, BFA requests this Court to use its discretion and address this issue. The right to bear arms has been recognized by both the U.S. Supreme Court and this Court as a “fundamental individual right.” Therefore, this is a prohibition that is per se unconstitutional, or at least should be subjected to intermediate, if not strict scrutiny review. Regardless, the statute at issue would not survive any level of review because it is not narrowly tailored.

Individuals like Carnes with juvenile adjudications do not fit the purpose of the ban on the possession of firearms by felons because by definition, they are not felons. And it is incongruous to hold a juvenile offender dangerous enough to warrant this disability-status when the current juvenile system transfers the most dangerous juvenile offenders to adult court for prosecution.

Since a juvenile adjudication is not a criminal conviction, the state cannot criminalize otherwise lawful possession of a firearm based on a juvenile adjudication.

The Juvenile Law Center and the National Juvenile Defender Center

The Juvenile Law Center (“JLC”) and the National Juvenile Defender Center (“NJDC”) filed an amicus brief in support of Carnes. Both of these organizations seek to advocate on behalf of juveniles and promote fairness and justice in the juvenile judicial system. In their brief, these organizations emphasize the differences between juvenile and adult court systems in Ohio. Allowing a juvenile adjudication to prove an element of an adult offence contradicts the goals and principles of Ohio’s juvenile system, namely rehabilitation. It is also incongruent with this Court’s limitations on the use of juvenile adjudications in other instances like Hand and Bode, especially considering the psychosocial differences between adolescents and adults. JLC and NJDC urge this Court to overturn Carnes’ conviction and not allow juvenile adjudications to “impose major collateral consequences as an adult.”

Amicus in Support of the State

Cuyahoga County Prosecutor’s Office

The Cuyahoga County Prosecutor’s Office (“CCPO”) filed an amicus brief in support of the state. The CCPO agrees with the state that the use of a juvenile adjudication to satisfy the elements of having weapons while under disability in violation of R.C. 2923.13(A)(2) is not prohibited under State v. Hand, and expressed concern about violent juvenile offenders committing offenses with firearms. While the instant case involves a single juvenile adjudication from years past, the CCPO stressed the broader impact of this case.

While CCPO believes any Second Amendment issue was waived in this case because it was not raised below, CCPO believes the statute as applied to juveniles satisfies any level of scrutiny.

Although rehabilitation is one goal, society cannot ignore the continued risks some offenders pose, which serves the legitimate prohibition on their possession of firearms. Furthermore, the law was narrowly tailored to this purpose and allows a person like Carnes to seek relief from his disability status upon proper application to the appropriate court. The law, as written and applied, holds offenders accountable and keeps Ohioans safe. As such, the CCPO requests that this Court reject Carnes’ proposed proposition of law and affirm his conviction.

Student Contributor: Jefferson Kisor