Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-619945-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Kevin R. Filiatraut and Christopher D.
Schroeder, Assistant Prosecuting Attorneys, for appellee.
A. Stanton, Cuyahoga County Public Defender, Robert Blanshard
McCaleb, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, JUDGE.
1} Delvonte Philpotts appeals from his conviction of
having weapons while under disability. R.C. 2923.13(A)(2)
prohibits a person under indictment for a felony offense of
violence from acquiring, having, carrying, or using any
firearm. Philpotts was found to have a weapon while under
indictment for rape. Although the rape charge against
Philpotts was eventually dismissed by the state, Philpotts
was prosecuted and convicted for the
weapons-while-under-disability offense pursuant to R.C.
2923.13(A)(2). On appeal, he raises three assignments of
error for our review:
1. Automatic criminalization of the possession of firearms by
indictees violates the Second Amendment on its face.
2. Automatic criminalization of the possession of firearms by
indictees violates the Second Amendment as applied.
3. Automatic criminalization of the possession of firearms by
indictees violates the right to procedural due process, both
on its face and as applied.
2} Upon review, we conclude R.C. 2923.13(A)(2) to be
constitutional on its face and as applied to Philpotts. In
addition, we determine the statute does not violate the Due
Process Clause. Finding no merit to his constitutional
claims, we affirm the judgment of the trial court.
3} On March 10, 2017, Philpotts was indicted by the
grand jury for rape, kidnapping, and assault. The rape and
kidnapping counts were accompanied with one- and three-year
firearm specifications. On March 15, 2017, Philpotts appeared
for arraignment and pleaded not guilty. The court
subsequently set a bond for $25, 000, and as a condition of
his bond, he was subject to GPS electronic home detention
monitoring. On April 17, 2017, Philpotts posted the bond and
was released from the county jail.
4} Three months later, the Cleveland Police
Department's Gang Impact Unit discovered that, while out
on bond, Philpotts posted pictures of himself on his social
media page showing him standing outside of his home with a
handgun; his GPS home monitoring ankle bracelet was visible
in some of the pictures, indicating the pictures were taken
while he was out on bond.
5} Based on the discovery, the police prepared a
warrant to search his home. During the search, the police
found an operable Taurus PT111 Pro 9 mm handgun with
ammunition - the same gun displayed in his social media
pictures. Philpotts subsequently admitted to the police that
he possessed the firearm discovered by the police.
6} On August 4, 2017, Philpotts was indicted by the
grand jury for having a weapon while under a disability
pursuant to R.C. 2923.13(A)(2). Subsequently, on November 27,
2017, the state dismissed the rape case without prejudice.
7} Thereafter, on January 3, 2018, Philpotts moved
to dismiss the indictment in the
weapons-while-under-disability case, arguing R.C.
2923.13(A)(2) was unconstitutional. On March 14, 2018, the
trial court held a hearing on the motion. On April 19, 2018,
the court denied the motion.
8} The record also reflects that, sometime after the
March 14, 2018 hearing, Philpotts was arrested for having a
loaded handgun in a vehicle, in violation of R.C. 2923.16
("Improperly handling firearms in a motor
vehicle"). Philpotts subsequently pleaded no contest in
the weapons-while-under-disability case but pleaded guilty to
the charge of improperly handling firearms in a motor
vehicle. The trial court sentenced him to three years of
community control sanctions for his convictions in these two
cases. Philpotts appeals from his conviction in the
weapons-while-under-disability case only.
9} We review de novo a trial court's decision
concerning a defendant's motion to dismiss an indictment
based on a constitutional challenge to the statute under
which the defendant is indicted. State v. Wheatley,
2018-Ohio-464, 94 N.E.3d 578, ¶ 5 (4th Dist.)
10} On appeal, Philpotts argues R.C.
2923.13(A)(2)'s automatic criminalization of possession
of firearms by one who is under indictment violates the
Second Amendment to the United States Constitution and is
unconstitutional on its face and as applied to him. He argues
the statute violates the Second Amendment to the United
States Constitution as that amendment was interpreted by the
United States Supreme Court in the landmark decision
District of Columbia v. Heller, 554 U.S. 570, 128
S.Ct. 2783, 171 L.Ed.2d 637 (2008), as well as Article I,
Section 4 of the Ohio Constitution.
Second Amendment and District of Columbia v.
11} The Second Amendment to the United States
Constitution provides: "A well regulated Militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed."
Historically, legal scholars debated whether the Second
Amendment recognizes an individual's right to keep and
bear arms beyond the goal of guaranteeing the availability of
a citizen militia for the security of the State. See
Heller in passim and United States v. Miller,
307 U.S. 174, 176-183, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). In
Heller, the United States Supreme Court interpreted
the Second Amendment to be conferring a right to keep and
bear arms regardless of whether or not one is a member of an
organized militia. Applying the Second Amendment, the court
struck down a law in the District of Columbia that banned any
handgun possession. Subsequently, in McDonald v.
Chicago, 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d
894 (2010), the court extended Heller to the states,
holding that the Second Amendment right to keep and bear arms
is applicable to the states by virtue of the Fourteenth
12} Long before Heller and
McDonald, Ohio courts have recognized the right to
bear arms under the Ohio Constitution. Section 4, Article I
of the Ohio Constitution states: "The people have the
right to bear arms for their defense and security * *
*." The provision has been found to confer upon the
people of Ohio the fundamental right to bear arms. Arnold
v. Cleveland, 67 Ohio St.3d 35, 46, 616 N.E.2d 163
(1993). See also State v. Smith, 10th Dist. Franklin
No. 18AP-124, 2018-Ohio-4297, ¶ 10 (the Ohio
Constitution expressly provides its citizens the right to
bear arms for their defense and security unrelated to militia
13} Thus, we review the constitutionality of R.C.
2923.13(A)(2) with the understanding that "[t]he right
to keep and bear arms is a fundamental right enshrined in
federal and state constitutional law." State v.
Robinson, 2015-Ohio-4649, 48 N.E.3d 1030, ¶ 11
2923.13: Weapons-While-Under-Disability Statute
14} R.C. 2923.13 was enacted in 1972 as part of a
bill that largely revamped Ohio's existing substantive
criminal code. State v. Carnes, 154 Ohio St.3d 527,
2018-Ohio-3256, 116 N.E.3d 138, ¶ 16. It enumerates
several disability conditions, and a violation of the statute
is a third-degree felony. The statute states:
(A) Unless relieved from disability as provided in section
2923.14 of the Revised Code, no person shall knowingly
acquire, have, carry, or use any firearm or dangerous
ordnance, if any of the following apply:
(1) The person is a fugitive from justice.
(2) The person is under indictment for or has been
convicted of any felony offense of violence or has
been adjudicated a delinquent child for the commission of an
offense that, if committed by an adult, would have been a
felony offense of violence.
(3) The person is under indictment for or has been
convicted of any felony offense involving the illegal
possession, use, sale, administration, distribution, or
trafficking in any drug of abuse or has been adjudicated a
delinquent child for the commission of an offense that, if
committed by an adult, would have been a felony offense
involving the illegal ...