Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender Noelle A. Powell Erika Cunliffe Assistant Public
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Glen Ramdhan Daniel T. Van Mary M. Dyczek
Assistant County Prosecutors Justice Center.
BEFORE: Stewart, J., E.A. Gallagher, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
J. STEWART, JUDGE.
Defendant-appellant Sherman Stewart pleaded guilty to one
count of having a weapon while under disability in violation
of R.C. 2923.13(A)(2) as charged. In a separate case, Stewart
pleaded guilty to an amended count of robbery in violation of
R.C. 2911.02(A)(1), a second-degree felony, with a one-year
firearm specification. The convictions in both cases arose
from a single incident wherein Stewart and two others, armed
with handguns, robbed a deli. Stewart's weapon disability
conviction, the only subject of this appeal, was predicated
on a prior delinquency adjudication where he had committed
acts that, if committed by an adult, would constitute the
offense of robbery, an offense of violence. In this appeal,
Stewart argues that the weapon disability statute, R.C.
2923.13(A)(2), violates his due process rights because it
permits a juvenile adjudication to "create the basis for
an adult offense." We affirm Stewart's conviction.
We first note that Stewart did not object to, or otherwise
challenge, the application of the statute at the trial court.
Because of this, the state argues that Stewart waived the
constitutional challenge he now presents by having pleaded
guilty to the offense.
Stewart claims that he could not challenge the application of
R.C. 2923.13 in the trial court because the Ohio Supreme
Court case he relies on for reversal here, State v.
Hand, Slip Opinion No. 2016-Ohio-5504, had not been
decided when he was convicted. This argument is unpersuasive
for several reasons.
Waiver is "[t]he voluntary relinquishment - express or
implied - of a legal right or advantage."
Black's Law Dictionary 1813 (10th Ed.2014).
Fundamentally, "'waiver is the intentional
relinquishment or abandonment of a known right.'"
State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, citing Johnson
v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed.
1461 (1938). When represented by competent counsel, a
defendant "'waives all nonjurisdictional defects in
prior stages of the proceedings.'" State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 19, quoting Ross v. Common Pleas Court,
30 Ohio St.2d 323, 285 N.E.2d 25 (1972). See also State
v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810
N.E.2d 92, ¶ 78.
Although Hand had not yet been decided when Stewart
was convicted, there is nothing that prevented Stewart from
challenging the constitutionality of the statute at the trial
court (similar to what the defendant did in Hand by
pleading no contest and making a constitutional challenge).
An issue similar to the one in this case is the mandatory
bindover statute and whether an accused waives the right to
challenge the constitutionality of the statute by pleading
guilty. Although courts are divided on the issue, see
State v. Legg, 2016-Ohio-801, 63 N.E.3d 424 (4th Dist),
our district has consistently held that a guilty plea to a
felony conviction waives the right to challenge the mandatory
bindover statute on appeal. State v. Carter, 8th
Dist. Cuyahoga No. 101810, 2015-Ohio-1834, ¶ 53
(concluding that defendant's guilty plea waived
constitutional challenge to mandatory bindover statutes);
State v. Mays, 2014-Ohio-3815, 18 N.E.3d 850, ¶
43 (8th Dist.). There is no practical difference between the
mandatory bindover cases and this case challenging the use of
a juvenile adjudication to create a weapon disability.
Stewart has, therefore, waived his right to challenge the
constitutionality of R.C. 2923.13.
Even if Stewart had not waived his right to challenge the
statute, Hand does not apply to the statute at issue
here: it did not hold that a juvenile delinquency
adjudication may not constitute an element of an offense.
Hand addressed the narrow issue of whether a
juvenile adjudication could be deemed a criminal conviction
for the purpose of sentencing enhancements. Hand,
Slip Opinion No. 2016-Ohio-5504, at ¶ 36-37.
Stewart was convicted for having a weapon while under
disability, in violation of R.C. 2923.13(A)(2), which makes
it a crime for a person to knowingly have or carry a firearm
if that person "has been convicted of any felony offense
of violence or adjudicated a delinquent child for the
commission of an offense that, if committed by an adult,
would have been a felony of violence." He argues for an
extension of Hand -invalidating a statute that
equated a prior juvenile adjudication with a prior criminal
conviction for the purpose of enhancing the degree of, or
punishment for, a subsequent adult offense - to also
invalidate a statute that makes a prior delinquency
adjudication an element of a crime. We note that other
appellate districts that have addressed this issue have
declined to do so. See State v. Hudson, 7th Dist.
Mahoning No. 15MA0134, 2017-Ohio-645, ¶ 51 (no
indication Supreme Court would extend Hand to R.C.
2923.13(A)(2)); State v. Carnes, 1st Dist. Hamilton
No. C-150752, 2016-Ohio-8019, ¶ 14 (Hand
limited to banning use of adjudication to enhance