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Case Update - State v. Hand

Your client is charged with aggravated robbery with a gun.  The minimum sentence is six years - three for the gun and three for the crime - but the judge indicates he'll consider judicial release, which means that your guy could be out in three years and six months.  No, he won't, says the prosecutor:  it's mandatory time on a first or second degree felony if you've got a prior first or second degree felony, and your client does.   No, he doesn't, you say, because you looked over the LEADS sheet and made sure he didn't have any priors.  But it wasn't a felony conviction, the prosecutor says:  the reason you didn't find it is because it was a juvenile adjudication, and under RC 2901.08(A), that counts the same as an adult conviction.

Not after that the Supreme Court's decision last week in State v. Hand.

The statute in question makes juvenile adjudications applicable to everything except a repeat violent offender specification.  A prior adjudication for OVI can elevate the degree or penalty for a subsequent crime; a prior robbery or burglary adjudication, in combination with an adult conviction, can make a subsequent conviction for either a high-tier felony three, with a maximum five-year sentence instead of three. 

So why did the Supreme Court strike down the statute?  How it got there was based on a clever argument by Hand's lawyers.  The US Supreme Court's decisions in Blakely v. Washington and Apprendi v. New Jersey held that a "maximum sentence" couldn't be imposed unless it was based on facts found by a jury or admitted by the defendant.  Hand's juvenile conviction wasn't based on a jury verdict, because you don't get a jury trial in juvenile court.  The maximum sentence Hand could've gotten without the jury-less juvenile adjudication was three years of non-mandatory time.  (Actually, eleven, but that doesn't matter in this analysis.)  Therefore, the application of Hand's juvenile adjudication so as to make his time for this offense mandatory violates Blakely/Apprendi.

It's not quite easy.  As O'Donnell points out in his opinion for Kennedy and French, the three dissenters, Blakely/Apprendi has a significant exception:  other than a prior conviction, the maximum sentence the defendant can receive is one based on facts found by a jury or admitted by the defendant.

But does adjudication equal conviction, for Blakely/Apprendi purposes?  The majority of the courts, state and Federal, have held that it does.  But that's not good enough for the majority in Hand:  they find that the lack of a jury trial constitutes a lack of due process, and that means the adjudication can't be used.

Several points and questions.

What if Hand had admitted the delinquency charge?  Notably, neither the opinion nor the briefs make any mention of whether Hand's adjudication resulted from an admission or after a hearing.  I think you'd be faced with a tougher argument that Hand applies where there's an admission; that would seem to put it squarely within Apprendi/Blakely's "facts admitted by the defendant."

Does this apply to offenses like OVI and weapons under disability?  It seems it would quite clearly apply to the former:  prior adjudications of OVI affect the degree of offense or penalty for a subsequent one, and it's impossible to distinguish that from the situation in Hand.  It would also apply to elevation of burglary and robbery offenses to "high-tier" third degree felonies.

Weapons under disability is a different matter.  There, the prior adjudication doesn't increase the degree or penalty, it creates the offense:  a weapons under disability charge can be based solely on a disqualifying juvenile adjudication.  That's not a sentencing issue, though, so one might argue that Hand doesn't apply.

But Hand is based on the due process violation in not having a jury trial in a juvenile case.  There doesn't seem to be a whole lot of sense in arguing that you can't give a guy a mandatory three years in prison based on a juvenile adjudication, but that you can charge him with a crime which subjects him to a three-year prison sentence based on a juvenile adjudication.  It needs a bit of development, but I think the argument's there.

Are we getting a kinder, gentler Supreme Court on criminal cases?  You could certainly make the case.  This year, the court handed down a good ruling on search and seizure (albeit with some bad dicta) in State v. Leak (discussed here), narrowed the tampering statute in State v. Barry (here), expanded appellate review of sentencing in State v. Marcum (here), unanimously rejected the State's position on the standard actual prejudice for pre-indictment delay cases in State v. Jones (here), and just a few weeks ago struck down a portion of the sexual battery statute dealing with police officers in State v. Mole (here.)

And you could make a very good case that the Ohio Supreme Court has become one of the most juvenile-friendly courts in the country.  Several years ago, in Graham v. Florida and Miller v. Alabama, SCOTUS struck down life-without-parole sentences for juveniles, drawing largely on research which showed that adolescent brains have a lesser ability to handle impulse control and judgment.  The Ohio Supreme Court seems intent on taking that ball and running with it.  Earlier this year, in State v. Barker (here), the court was confronted with RC 2933.81, which provides that if police follow the interrogation procedures outlined in that statute, a confession is presumed voluntary; the court struck that down as it applied to juveniles.  Several Ohio courts had held that juvenile adjudications weren't subject to allied offense analysis, because the statute only spoke of "convictions"; the Supreme Court reversed that in In re A.G. (here).

And I don't think that Hand is the last case like this.  Back in April, I watched the oral argument in State v. Aalim, which involves the issue of whether the mandatory bindover provision of juvenile law is constitutional.  You can watch it, too, and please tell me where you see four votes for upholding the State's position.


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