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Date: 01-29-2018

Case Style:

STATE OF OHIO v. DEONTE L. GAUSE

Case Number: 27527

Judge: Jeffrey M. Welbaum

Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY

Plaintiff's Attorney: ANDREW FRENCH
Assistant Prosecuting Attorney

Defendant's Attorney: DAVID K. WEHNER
Public Defender

Description: On January 24, 2017, the Montgomery County Grand Jury returned an
indictment charging Gause with single counts of carrying concealed weapons in violation
of R.C. 2923.12(A), improperly handling firearms in a motor vehicle in violation of R.C.
2923.16(B), and having weapons while under disability in violation of R.C. 2923.13(A)(2).
The charge of having weapons while under disability was predicated on a prior juvenile
adjudication for rape that Gause committed in 2009.
{¶ 3} Gause pled not guilty to all the charges and subsequently filed a motion to
dismiss the charge of having weapons while under disability. In his motion to dismiss,
Gause argued that the statute governing the offense of having weapons while under
disability, R.C. 2923.13(A)(2), violates due process to the extent that the statute allows
the offense to be predicated on a juvenile adjudication. In support of this argument,
Gause cited to the Supreme Court of Ohio’s decision in State v. Hand, 149 Ohio St.3d
94, 2016-Ohio-5504, 73 N.E.3d 448, which held that a statute violates the Due Process
Clauses of the Ohio and United States Constitutions if it “treat[s] a juvenile adjudication
as a previous conviction that enhances either the degree of or the sentence for a
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subsequent offense committed as an adult.” Id. at ¶ 37.
{¶ 4} The trial court agreed with Gause’s argument and held that R.C.
2923.13(A)(2) was unconstitutional “to the extent that the statute provides that Gause’s
juvenile adjudication may serve [as] an essential element of the offense of having
weapons under disability, a third degree felony.” Decision, Entry and Order Dismissing
Count 2 of the Indictment (March 27, 2017), Montgomery County Court of Common Pleas
Case No. 2016-CR-3917, Docket No. 24, p. 2. In so holding, the trial court explained
that: “If it violates due process to permit a juvenile adjudication to enhance the degree of
an offense, or to enhance the punishment for an offense, it follows that it likewise violates
due process to permit a juvenile adjudication to establish a third degree felony on the
basis of conduct which would otherwise not be a crime.” Id. Accordingly, the trial court
dismissed Gause’s indicted charge of having weapons while under disability.
{¶ 5} The State now appeals from the trial court’s dismissal, raising a single
assignment of error for review.
Assignment of Error
{¶ 6} The State’s assignment of error is as follows:
THE TRIAL COURT MISAPPLIED THE HOLDING IN STATE V. HAND
WHEN IT DISMISSED COUNT TWO OF DEONTE GAUSE’S
INDICTMENT, WHICH CHARGED HIM WITH HAVING WEAPONS WHILE
UNDER DISABILITY.
{¶ 7} Under its sole assignment of error, the State contends that the trial court’s
decision granting Gause’s motion to dismiss the charge of having weapons while under
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disability should be reversed because in ruling on the motion, the trial court erroneously
relied on Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. We agree.
{¶ 8} In Hand, the Supreme Court of Ohio ruled that it is an unconstitutional
violation of due process to use a juvenile adjudication as the equivalent of an adult
conviction to enhance a penalty for a later crime, because, unlike an adult conviction, a
juvenile adjudication does not involve the right to a trial by jury. Hand at ¶ 37-38. In so
holding, the Supreme Court struck down R.C. 2901.08(A), a statute which specifically
provided that a prior “adjudication as a delinquent child or as a juvenile traffic offender is
a conviction for a violation of the law or ordinance for purposes of determining the offense
with which the person should be charged and, if the person is convicted of or pleads guilty
to an offense, the sentence to be imposed[.]” Id. at paragraph one of the syllabus and
¶ 9. The Supreme Court held “that R.C. 2901.08(A) violates the Due Process Clauses
of Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the
United States Constitution because it is fundamentally unfair to treat a juvenile
adjudication as a previous conviction that enhances either the degree of or the sentence
for a subsequent offense committed as an adult.” Id. at ¶ 37. Accordingly, the Supreme
Court of Ohio made it clear in Hand that “a juvenile adjudication is not a conviction of a
crime and should not be treated as one.” Id. at ¶ 38.
{¶ 9} As previously noted, the trial court in this case relied on Hand to dismiss
Gause’s weapons under disability charge on grounds that the statute governing the
offense, R.C. 2923.13(A)(2), unconstitutionally permits a juvenile adjudication to serve as
an element of the offense. However, two months after the trial court’s decision, we held
the following in State v. McComb, 2017-Ohio-4010, ___ N.E.3d ___ (2d Dist.):
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We do not * * * find that the Supreme Court of Ohio’s holding in Hand
renders the weapons under disability statute McComb was convicted under,
R.C. 2923.13(A)(2), unconstitutional on due process grounds. R.C.
2923.13(A)(2) provides, in relevant part, that:
[N]o person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if * * * 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.
(Emphasis added.)
Pursuant to the statute, a violation of R.C. 2923.13(A)(2) requires an
offender to either have a prior conviction or a prior juvenile adjudication.
Unlike the statute that was struck down in Hand, the statute at issue, R.C.
2923.13(A)(2), does not treat a prior juvenile adjudication as a conviction.
Rather, a prior juvenile adjudication and conviction are treated as alternative
elements necessary to establish the offense of having weapons while under
disability. Hand does not ban the use of a prior juvenile adjudication as an
element of an offense; rather, Hand bans the use of a juvenile adjudication
to enhance a penalty by treating the adjudication as an adult conviction.
Hand at ¶ 37 (holding “it is fundamentally unfair to treat a juvenile
adjudication as a previous conviction that enhances either the degree of or
the sentence for a subsequent offense committed as an adult”).
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McComb at ¶ 25-26.
{¶ 10} In support of our holding in McComb, we relied on cases from Ohio’s
Seventh and First Appellate Districts that also declined to extend the holding in Hand to
R.C. 2923.13(A)(2). See McComb at ¶ 27, citing State v. Hudson, 2017-Ohio-645, 85
N.E.3d 371 (7th Dist.) and State v. Carnes, 2016-Ohio-8019, 75 N.E.3d 774 (1st Dist.).
Since our decision in McComb, the Tenth and Eighth Appellate Districts have also
concluded that the holding in Hand does not apply to R.C. 2923.13(A)(2). See State v.
Brown, 2017-Ohio-7134, ___ N.E.3d ___ (10th Dist.); State v. Williams, 2017-Ohio-5598,
___ N.E.3d ___ (10th Dist.); State v. Stewart, 8th Dist. Cuyahoga No. 105154, 2017-Ohio2993;
State v. Parker, 2017-Ohio-7484, ___ N.E.3d ___ (8th Dist.). We have also
continued to follow the holding in McComb in several cases concerning the same issue.
See State v. Jackson, 2d Dist. Montgomery No. 27351, 2017-Ohio-4197; State v. Boyer,
2017-Ohio-4199, ___ N.E.3d ___ (2d Dist.); State v. St. Jules, 2d Dist. Montgomery No.
27405, 2017-Ohio-7941; State v. Herron, 2d Dist. Montgomery No. 27378, 2017-Ohio8908.

{¶ 11} Based on the precedent established in this appellate district and several
other appellate districts in the State of Ohio, we conclude that the trial court erred in
applying the holding in Hand to dismiss Gause’s charge for having weapons while under
disability, as Hand does not apply to R.C. 2923.13(A)(2). Therefore, we once again hold
that the use of a juvenile adjudication to support a charge of having weapons while under
disability does not violate a defendant’s constitutional right to due process.
{¶ 12} The State’s sole assignment of error is sustained.

Outcome: Having sustained the State’s sole assignment of error, the judgment of the
trial court is reversed and the matter is remanded for further proceedings.

Plaintiff's Experts:

Defendant's Experts:

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