What’s On Their Minds: Can a Prior Juvenile Adjudication Be Used to Enhance an Adult Sentence? State of Ohio v. Adrian Hand, Jr.

Update: On August 25, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“An adjudication is not the same as a conviction, and you want to now transform it from an adjudication to a conviction for this purpose?” Chief Justice O’Connor, to the prosecutor.

On December 1, 2015 the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Adrian L. Hand, Jr. 2014-1814. At issue in this case is whether a prior juvenile adjudication can be used to enhance an adult sentence.

Case Background

When appellant Adrian L. Hand, Jr. was a juvenile, he was adjudicated delinquent for aggravated robbery, a first degree felony if committed by an adult. As an adult, Hand pled no contest to aggravated burglary, aggravated robbery, felonious assault, and a firearm specification. The State argued that Hand must receive a six year mandatory sentence based on his prior juvenile adjudication. Hand contended that only three years of his sentence were mandatory since his prior adjudication was not an adult conviction. The trial court agreed with the State and Hand was sentenced to a mandatory six-year prison term. The Second District Court of Appeals affirmed, in a split decision.

Read the oral argument preview of this case here.

Key Statutes and Precedent

R.C. 2152.01 (A) (“The overriding purposes for dispositions under this chapter are to provide for the care, protection, and mental and physical development of children subject to this chapter, protect the public interest and safety, hold the offender accountable for the offender’s actions, restore the victim, and rehabilitate the offender. These purposes shall be achieved by a system of graduated sanctions and services.”)

R.C. 2929.13 (F)(6) (A first or second-degree felony sentence must be mandatory if the defendant had a prior conviction for another first or second degree felony, or any other equivalent offense)

R.C. 2901.08 (a juvenile adjudication is a conviction 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 upon the person relative to the conviction or guilty plea)

Apprendi v. New Jersey 544 U.S. 466 (2000) (Any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The one exception is that when a defendant has been convicted of a prior offense through a proper trial by jury, that conviction can serve as the basis for a sentence enhancement without new jury findings.)

At Oral Argument

Arguing Counsel

Stephen A. Goldmeier, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, for Appellant Adrian L. Hand, Jr.

Andrew T. French, Assistant Montgomery County Prosecutor, Dayton, for Appellee State of Ohio

Hand’s Argument

As the U.S. Supreme Court has said on many occasions in recent years, children are not just miniature adults and cannot be treated as if they were. When Hand was in the juvenile justice system, he was promised special protections and special care. He was promised the ability to work through his troubles and not have his mistakes as a juvenile used against him as an adult. Using his juvenile adjudication against him in this case broke that promise and violated his right to due process.  Unlike adults, juveniles do not have the right to trial by jury. But juveniles do have the right to due process. While some of the protections envisioned by Apprendi are present in juvenile cases, the right to a jury trial is not.  This issue must be viewed through the lens of the new world for juveniles, as articulated in Roper and Graham and Miller.

A prior juvenile adjudication is not irrelevant. For example, it can be used when a judge is making consecutive sentencing findings, or determining the length of a sentence, or in bargaining. There are many places in the law for juveniles to be treated in a way that addresses the seriousness of their conduct. But a prior juvenile adjudication cannot be used as a sentencing enhancement under Apprendi.  Juvenile court proceedings are civil proceedings, and they are informal and designed to help juveniles. Many studies show that when juveniles are in juvenile proceedings, they will admit to things, and go along with the system in ways that adults would not, which is why the juvenile system has these special protections for children.  The tension between the seriousness and result of a juvenile adjudication, and the goals of the juvenile justice system is a difficult one to resolve, and both the U.S. Supreme Court and this court has provided direction that that tension should be resolved in favor of the juvenile.

State’s Argument

The state agrees that juveniles are different from adults and agrees that the juvenile justice system is different from the adult criminal justice system and agrees that the purposes of juvenile adjudication are different from the purposes and principles of sentencing that exist for adults who commit crimes.  But the state disagrees that offenses committed by juveniles must be forever swept under the rug, and can never have consequences or ramifications upon offenders later in life. Juvenile adjudications will never have long term consequences provided that the juvenile does not re-offend. Recidivism is what is in play here. Hand was not a juvenile when he was sentenced in this case. He was an adult. He committed an adult crime and received an adult sentence. The question here is whether or not recidivism, even if the prior offense was committed as a juvenile, can be factored into a legislative enactment as the principle consideration for imposing a later sentence.

There is no requirement that offenders—either juveniles or adults-be advised of the collateral consequences of prior convictions or adjudications. Nor can Apprendi be read as suggesting that the right to trial by jury is the end all and be all of reliability of a prior conviction. The state does not agree that juvenile adjudications are any less reliable, fundamentally from a constitutional due process standpoint, simply because juveniles are not afforded the right to trial by jury. Prior convictions are not elements of the offense.  When they are, they are tried to a jury. But when a prior conviction is a sentencing enhancement, a recidivism factor, and not a disputed element or fact, that is a different matter.

If a prior juvenile adjudication is fundamentally sound, if the juvenile is afforded all constitutional due process protections that this court and the U.S. Supreme Court have said they are entitled to on fundamental fairness and due process grounds, it should be allowed as a sentencing enhancement. That was the case here.

What Was On Their Minds

Adjudication versus Conviction

Did the offense in this case carry a mandatory sentence because the judge felt he could use the juvenile adjudication as a conviction, asked Chief Justice O’Connor? Does this adjudication equate to a conviction for the mandatory sentencing that an adult conviction would trigger? Later, she asked the prosecutor whether it wouldn’t be a different story if at the time of his adjudication, the defendant had been warned that if he committed a particular class of crime in the future, the adjudication would be transformed to a prior conviction to be used against him. And in a key remark of the day, in response to the prosecutor’s argument that adults don’t get advised of the collateral consequences of convictions on later criminal activity, the Chief stated that was comparing apples to apples, whereas comparing adjudication to conviction is like comparing apples to oranges.

What should the court do with the statute that says that the adjudication of a delinquent child is a conviction, asked Justice O’Donnell? Just ignore the General Assembly? Does the defense want the court to declare the statute unconstitutional? (answer: yes, to the extent that it equates a juvenile adjudication with a conviction.) Has the U.S. Supreme Court ever held that a juvenile adjudication is not a conviction? (No, conceded defense counsel.)

Are there any state courts that have said that for the purposes of Apprendi, a juvenile adjudication is not a conviction, asked Justice Lanzinger? How many have held the opposite? (Defense counsel conceded the position he was taking in this case was a minority view.)

From a practical perspective, how would this play out in the courtroom, for an adult defendant who has a juvenile record, asked Justice French?

If the court were to affirm the court of appeals, wouldn’t the court be changing the tenor of pleas in juvenile court, whereby juveniles are now going to be told by the way, we are here to help you, and if you will admit to your misconduct, it’s going to be used against you when you are 32 years old, asked Justice O’Neill?  From a due process standpoint would that not be required? Isn’t the state asking the court to consider a juvenile adjudication as a criminal conviction? Was the defendant told when he admitted true to the juvenile adjudication that it would be used as a criminal conviction against him later in life? When the prosecutor answered that he was not, Justice O’Neill really pounded on him, asking where the defendant’s due process rights were back then.  When the prosecutor responded that there was no requirement to advise defendants of collateral consequences of adjudications, O’Neill mused that “we now offering better constitutional provisions to foreign nationals than we are to the juvenile population.”

So it doesn’t matter how long a record, or how much trouble or how many serious crimes one has committed before age 18, juvenile adjudication is not to be considered at all in an adult crime, asked Justice Pfeifer? How could it be used? If the court were to agree with the defense, and sends the case back for resentencing, couldn’t the judge give the exact same sentence? (answer from defense counsel: yes, but there would be no mandatory three year time, and would provide different opportunities for the defendant.)

So this really isn’t the end of the world for horrific juveniles, because if the juvenile is so inclined with their illegal activities, there is always the bindover option if they are not amenable to treatment in the juvenile system, which then would result in a conviction that would be used to enhance a sentence, observed Chief Justice O’Connor. So this does not preclude all juveniles from the consequences of their actions?

If a juvenile was found liable in a civil proceeding for stealing a checkbook, can that be used as an enhancement as an adult, asked Justice O’Neill?

Lack of Juries in Juvenile Court Proceedings

Is the salient feature here the fact that the juvenile court proceedings are tried to the judge and not to the jury, asked Chief Justice O’Connor?

Should the court decide that juveniles have a right to a jury trial, asked Justice O’Donnell? Otherwise how can the court correct the problem? Should a juvenile request a fact-finding panel? Is this a recurring problem with no solution?

The defense isn’t asking the court to grant jury trials to juveniles is it, asked Justice O’Neill (no, the defense wasn’t.)

Even if the court were to agree with the state that juvenile adjudications meet due process, how does the state get around the key principle from Apprendi that if the state is going to use an adjudication, it has to be based on a jury trial, asked Justice French? Isn’t that what this case is about? Not due process, but the right to a jury trial? While there surely are instances where an adult who may have a juvenile record, may not want the jury in certain cases to be the factfinder as to that adjudication, shouldn’t we leave that to the defendant to decide? In a key remark of the day, French noted that if there was going to be an enhancement based on a conviction, it would have to be a conviction from a jury. Isn’t that really what Apprendi was about, she asked?

Juveniles Are Different

Studies have shown that juveniles, when given the opportunity, to say, well you got me, can I go home, will do that, where adults are less willing to do that, commented Justice O’Neill, noting later that juveniles have substantially fewer due process rights than adults.

Properly Using Juvenile Adjudications in Sentencing

Do any of the court’s previous opinions that seem to suggest that juveniles should have more protections because of what seems to be the criminal type consequence of their behavior go against the defense position today, asked Justice Lanzinger?

Could the court rule in favor of the defense, but still be supportive of our juvenile system, asked Justice French?

State or Federal Constitutional Violation?

In regard to the due process challenge, should the court rely on one Constitution more than the other, asked Justice Lanzinger?

If the court uses the federal Constitution as a lynchpin here and finds in favor of the defense, wouldn’t that probably guarantee a path to the U.S. Supreme Court, whereas if the court relies solely on the state constitution, that may not happen, commented Chief Justice O’Connor, and then smilingly asked defense counsel if he would like to see this case go up to the U.S. Supreme Court? (He ducked, but hey, the Chief’s on a roll. Last year, in a dissent in State v. Clark, 2013-Ohio-4731, she urged the state to take that case to the U.S. Supreme Court.  It did so, and won.)

Was the state constitutional law issue briefed for us, asked Justice French? (In her question, she referred to a recent spirited dissent she’d written. That was in State v. Brown,  2015-Ohio-2438, in which she chided the majority for relying on the Ohio Constitution to find greater protection for an extra territorial traffic stop for a minor misdemeanor, but without any real analysis.) Justice Lanzinger, who wrote the majority decision in Brown immediately responded that the defense had included the state constitution in its proposed proposition of law.

How It Looks From The Bleachers

To Professor Bettman

Like a win for Hand, probably by a vote of 5-2, with Justices O’Donnell and Kennedy dissenting. (It’s always difficult to predict Justice Kennedy’s position, as she seems to have opted permanently not to ask questions.) This court, and the Chief in particular, has made protection of juveniles a hallmark of its jurisprudence.

This was a very hot bench. Hand raised both a due process and right to jury trial challenge in his argument and in his proposed proposition of law. There seems to be little doubt that the court is going to hold that a juvenile adjudication is not a prior conviction, and therefore using it as a mandatory sentencing enhancement falls afoul of Apprendi. But I think Chief Justice O’Connor and Justices Pfeifer, O’Neill and Lanzinger are going to take a slightly different approach than Justice French.

Justice French, alone I think, is strictly focused on the jury trial aspect of this challenge, and sees a literal violation of Apprendi here. In one of her questions, she noted that she thought due process had been met, but the Apprendi exception had not been. That exception says that if a prior conviction serves as the basis of a sentencing enhancement, that conviction had to come from a jury. That “simple fact” (French’s words) was not met here. I don’t think the Chief, and Justices O’Neill, Lanzinger, and Pfeifer, would agree that due process was met here. (Nor do I). They were more focused on the fact that it is fundamentally wrong to compare a juvenile adjudication to a conviction in the first place.  One is civil, the other is criminal. One is rehabilitative, the other punitive.

It was an absolutely brutal day for the prosecutor. Justice O’Neill pounded on him relentlessly, culminating with the observation that foreign nationals got more warnings about collateral consequences than juveniles did.  Later the Chief started in on him equally relentlessly, especially when he suggested again that if a prior juvenile adjudication is constitutionally sound, on fundamental fairness and due process grounds, it should be allowed to enhance the sentence. On this point, the Chief got into one of her staccato strings of questions, testing him on all the rights and protections the court had afforded juveniles.  He could barely catch his breath.

I think two things are going to form the essence of the majority decision.  One is that a juvenile adjudication is a civil action focused on rehabilitation, while an adult conviction is a criminal action focused on punishment, and it is just wrong to compare the proverbial apples to oranges.  The second is a point made primarily by Chief Justice O’Connor and Justice Pfeifer-the fact of the juvenile adjudication can fairly and constitutionally be discretionally taken into account in sentencing by the trial judge. As the Chief put it, there’s “a big difference for the judge to be able to use judicial discretion and determine the interplay of the juvenile record with the current conviction and the activity underpinning that conviction and the appropriate sentence, whereas in the present situation, that discretion is not there.”  And as Justice Pfeifer similarly noted, a juvenile adjudication could come into play in a discretionary array of penalties, in deciding whether to make sentences concurrent  or consecutive, and in certain decisions by the parole board. So, such an adjudication is far from irrelevant.

I also don’t think the court is going to rely on the state constitution, because, as Justice French, in my opinion fairly, complained about in her dissent in State v. Brown,  2015-Ohio-2438, there was no development in this case of state constitutional law underpinnings, other than a conclusion in the proposition of law.  If the majority relies on the state constitution in this case, they may lose French’s vote.

If the court does find a federal Constitutional violation here, this case could well go to the U.S. Supreme Court, as there is already a federal circuit split on this issue.  Justice O’Donnell will find support for his undoubted dissent here, in cases from the Eleventh, Eighth and Third Circuits.  I think O’Donnell, who I have written on numerous occasions is unsympathetic to special protections for juveniles, will go with the state’s argument that juvenile adjudications will never have long term consequences provided that the juvenile does not re-offend, and also with the argument that there is nothing inherently unreliable about a juvenile adjudication, which is very different from the fact finding that was done by the judge in Apprendi.

One last point. Judge Donovan’s dissent in the court of appeals is an excellent read.

To Student Contributor Austin LiPuma

Counsel for Hand heavily (and appropriately) relied on the substantial differences between juvenile adjudications and adult convictions. Defense counsel also acknowledged that our judicial system, as a whole, has a legitimate concern in preventing and adequately punishing recidivism. However, it is inappropriate and ultimately unconstitutional to apply Apprendi in this manner—by boot strapping a juvenile adjudication onto a later criminal conviction for the purposes of sentencing enhancement. When dealt a card directly to him, defense counsel discussed how dangerous this current application can be. A civil case against a juvenile could theoretically be used against that juvenile in later proceedings. Ohio has been at the forefront of creating a juvenile system that recognizes the biological, physiological, and fundamental differences of children. He argued that Ohio should not take a step back when these differences are affirmed with each passing study.

The prosecutor began with a series of concessions about juveniles and adults. However, what is salient here is the truism that is recidivism. A juvenile finding will not perpetually impact the future of a person. However, in this case, this narrow application should be allowed. If a person is a repeat offender, then a higher punishment is necessary. However, due process is central here. The prosecutor suggested that “collateral consequences” of a plea are not required–a point that was generally not well received. Are we really willing to limit (or even outright abandon) due process rights for our juveniles? However, the prosecutor stood by the adjudication as a proper sentencing enhancer since the fundamental fairness test cuts in favor of the State’s position.

This is a win for Hand. I appreciated how invested the bench was in this dialogue. As referenced many times throughout the argument, we are finally recognizing how profoundly different children are and as such, the primary focus is on reform instead of punishment. Justice O’Neill was equally brutal and brilliant in his questioning. Within five minutes of the State’s argument, it became pretty apparent where this one would go.

 

 

 

 

 

 

 

 

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