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State v. Ortiz

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

STATE OF OHIO PLAINTIFF-APPELLANT
v.
ANTONIO ORTIZ DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-608367-A

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor BY: Daniel T. Van Assistant Prosecuting Attorney

          ATTORNEYS FOR APPELLEE Mark Stanton Cuyahoga County Public Defender BY: Erika B. Cunliffe Jeff Gardner Assistant Public Defenders

          BEFORE: E.T. Gallagher, P.J., Boyle, J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, P.J.

         {¶1} Appellant, the state of Ohio ("the state"), appeals from the trial court's judgment granting defendant-appellee, Antonio Ortiz's, motion to dismiss the offense of having weapons while under disability, as charged by information. The state raises the following assignment of error for review:

1. Under the holding of State v. Hand, Slip Opinion No. 2016-Ohio-5504, using a prior juvenile adjudication for a conviction of having weapons while under disability is not a constitutional violation; therefore, the trial court erred in dismissing the charge.

         {¶2} After careful review of the record and relevant case law, we reverse the trial court's judgment and remand for proceedings consistent with this opinion.

         I. Procedural and Factual History

         {¶3} In August 2016, Ortiz was charged by way of information with one count of having weapons while under disability in violation of R.C. 2923.13(A)(2), and one count of carrying a concealed weapon in violation of R.C. 2923.12(A)(2). The offense of having weapons while under disability was predicated on Ortiz's prior juvenile adjudication for aggravated robbery.

         {¶4} In November 2016, Ortiz filed a motion to dismiss his having weapons while under disability charge "based upon 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]." Ortiz argued that according to the reasoning of the Ohio Supreme Court's decision in Hand, his prior juvenile adjudication cannot support a having weapons while under disability charge.

         {¶5} The state opposed the motion, arguing that the language of Hand is limited to instances in which a juvenile adjudication enhanced a criminal offense committed by an adult and does not create a prohibition against using all juvenile adjudications.

         {¶6} Following a hearing, the trial court granted the motion, stating in relevant part:

The state's arguments lack merit because the Hand decision does not preclude the application of a juvenile adjudication "for the purposes of determining the offense with which the person should be charged" as stated in R.C. 2901.08(A). Nor does it do so concerning any other statute, such as Having Weapons While Under Disability. The Supreme Court of Ohio in Hand focused only on enhanced ...

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