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State v. Stewart

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 25, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
SHERMAN STEWART DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-599213-B

         AFFIRMED.

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender Noelle A. Powell Erika Cunliffe Assistant Public Defenders.

          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

          MELODY J. STEWART, JUDGE.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 punishment).

         {¶8} ...


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