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State v. Carney

Court of Appeals of Ohio, First District, Hamilton

November 17, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
FURIOUS CARNEY, Defendant-Appellant.

         Hamilton County Court of Common Pleas, Trial No. B-1503485

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

          J. Rhett Baker, for Defendant-Appellant.

          OPINION

          DETERS, JUDGE.

         {¶1} Following a jury trial, defendant-appellant Furious Carney was convicted of one count of having weapons while under a disability under R.C. 2923.13(A)(3) and one count of carrying concealed weapons under R.C. 2923.12(A)(2). He was acquitted of one count of felonious assault with accompanying firearm specifications. The trial court sentenced Carney to three years' imprisonment on the weapons-under-a-disability charge and 18 months' imprisonment on the carrying-concealed-weapons charge, to be served consecutively. We find no merit in Carney's two assignments of error, and we affirm his convictions.

         I. Juvenile Adjudication as a Disability

         {¶2} In his first assignment of error, Carney contends that his conviction for having weapons while under a disability must be vacated. He argues that under the Ohio Supreme Court's decision in State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, a juvenile adjudication cannot be the disability on which the conviction is based. This assignment of error is not well taken.

         {¶3} In Hand, the Ohio Supreme Court held that because a juvenile adjudication is not established through a procedure that provides a right to a jury trial, it cannot be used to increase a sentence beyond a statutory maximum or mandatory minimum. Id. at paragraph two of the syllabus. Carney seeks to extend that holding to the disability element of having weapons while under a disability.

         {¶4} This court rejected that argument in State v. Carnes, 2016-Ohio-8019, 75 N.E.3d 774 (1st Dist.). We stated that "the mere fact of Carnes's 1994 adjudication imposed a disability that made it illegal under R.C. 2923.13(A)(2) for Carnes to possess a firearm in Ohio. The reliability of Carnes's adjudication is immaterial for purposes of that statute." Id. at ¶ 14. We went on to state,

The dissent relies on State v. Hand * * * for its position that Carnes's adjudication should be off-limits for purposes of establishing the disability element of the WUD charge. Hand does not apply in this case. Its holding is limited to banning the use of a juvenile adjudication to enhance punishment. It is therefore not relevant to the issue raised in this appeal.

Id. at ¶ 15.

         {¶5} We reiterated that holding in State v. McCray, 1st Dist. Hamilton No. C-160272, 2017-Ohio-2996. We stated,

In State v. Carnes * * *, we recently declined to extend the application of Hand to bar the use of a juvenile adjudication to prove the disability element of a weapon-under-disability charge under R.C. 2923.13(A)(2). Therefore, we hold that McCray's right to due process was not violated by the use of his prior juvenile adjudication ...

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