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
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
BEFORE: Blackmon, J., E.A. Gallagher, P.J., and S. Gallagher,
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE
This cause came to be heard upon the accelerated calendar
pursuant to App.R. 11.1 and Loc.R. 11. Appellant Corey Parker
("Parker") challenges the trial court's denial
of his motion to vacate his conviction and mandatory
eight-year sentence for aggravated robbery, with a notice of
prior conviction stemming from a juvenile delinquency
adjudication, and having a weapon while under disability. He
assigns the following error for our review:
The Ohio Supreme Court's decision in State v.
Hand, [149 Ohio St.3d 94');">149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d
448], which declared R.C. 2901.08 unconstitutional under both
the state and federal constitutions [because it treats
juvenile adjudications as penalty-enhancing convictions]
applies retroactively to invalidate sentences previously
enhanced under that unconstitutional provision.
Having reviewed the record and pertinent law, we reverse in
part and remand for further proceedings consistent with this
The facts of this matter were set forth in Parker's
direct appeal, as follows:
On April 16, 2011, Parker drove two codefendants, Emmanuel
Scott and Antwon Carrington, to a pet store located on
Cleveland's east side. Scott and Carrington entered the
store to commit a robbery while Parker remained in the car.
There was an exchange of gunfire in the store, and Scott
received a nonfatal gunshot wound. He returned to the car,
and Parker drove him to the emergency room at Cleveland
Clinic. After the police identified Parker from video footage
at the clinic, they arrested Parker, Scott, and Carrington.
Parker was indicted on May 12, 2011, along with Scott and
Carrington, and charged with Count 1, aggravated robbery;
Count 2, aggravated burglary; Counts 3 through 5, kidnapping;
Counts 6 through 8, felonious assault; Count 9, carrying a
concealed weapon; Count 10, having weapons while under
disability; and Count 11, theft. Counts 1 through 8 included
one-year and three-year firearm specifications. Counts 1
through 8 also included a notice of prior conviction
specification under R.C. 2929.13(F)(6), [stemming from] a
juvenile delinquency adjudication in juvenile court for
felonious assault, and a repeat violent offender
specification under R.C. 2941.149(A).
Parker pleaded guilty on September 21, 2011, to aggravated
robbery, a first-degree felony, and having weapons while
under disability, a third-degree felony. In exchange for
Parker's agreement to cooperate with the police and
testify against Scott and Carrington, the state dismissed all
other charges and specifications excluding the one reflecting
notice of prior conviction. The trial court sentenced Parker
on November 30, 2011, to eight years in prison [mandatory,
due to the juvenile delinquency adjudication in the notice of
prior conviction] with five years of postrelease control.
See State v. Parker, 8th Dist. Cuyahoga No. 97841,
2012-Ohio-4741, ¶ 3-5 ("Parker I
"). Scott pled guilty to aggravated robbery
with a firearm specification and felonious assault, and was
sentenced to a total of eight years of imprisonment. Apart
from the three-year term for the firearm specification, Scott
was not sentenced to a mandatory term. Carrington pled guilty
to felonious assault and was sentenced to nonmandatory
eight-year term. See State v. Carrington, Cuyahoga
C.P. No. CR-11-549438 (Nov. 30, 2011); State v.
Scott, Cuyahoga C.P. No. CR-11-549438 (Nov. 30, 2011).
According to appellant's counsel, both Scott and
Carrington were granted judicial release prior to the
completion of their eight-year terms.
On direct appeal, Parker challenged his sentence and also
asserted that R.C. 2901.08 is unconstitutional because it
permits juvenile delinquency adjudications that are not
determined by a jury to be included as prior convictions for
purposes of imposing mandatory prison terms under R.C.
This court rejected Parker's challenge to R.C. 2901.08,
and affirmed. Applying the reasoning set forth in the
majority of jurisdictions deciding the issue, this court held
that prior juvenile delinquency adjudications fell within the
"prior conviction exception" set forth in
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), and that there were
"sufficient procedural safeguards to satisfy the
reliability requirement that is at the heart of
Apprendi ." Id. at ¶ 24. The Ohio
Supreme Court declined Parker's motion for discretionary
appeal, with three justices dissenting. See State v.
Parker, 134 Ohio St.3d 1471, 2013-Ohio-553, 983 N.E.2d
On October 31, 2016, Parker filed a motion to vacate his
conviction and sentence, arguing that his constitutional
rights were violated when the juvenile delinquency
adjudications served as the basis of both the notice of prior
conviction specifications, and the disability element of the
weapons while under disability conviction. The trial court
denied the motion. Parker now appeals.
"Where a criminal defendant, subsequent to his or her
direct appeal, files a motion seeking vacation or correction
of his or her sentence on the basis that his or her
constitutional rights have been violated, such a motion is a
petition for postconviction relief as defined in R.C.