State v. Parker

• Decision Date: 07 September 2017
• Docket Number: No. 105472,105472
• Citation: 96 N.E.3d 1183,2017 Ohio 7484
• Parties: STATE of Ohio, Plaintiff–Appellee v. Corey J. PARKER, Defendant–Appellant
• Court: Ohio Court of Appeals

96 N.E.3d 1183

2017 Ohio 7484

STATE of Ohio, Plaintiff–Appellee

v.Corey J. PARKER, Defendant–Appellant

No. 105472

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: September 7, 2017

Mark Stanton, Cuyahoga County Public Defender, By: Erika B. Cunliffe, Assistant Public Defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT

Michael C. O'Malley, Cuyahoga County Prosecutor, By: Diane Smilanick, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE

BEFORE: Blackmon, J., E.A. Gallagher, P.J., and S. Gallagher, J.

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, J.:

{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11. Appellant Corey Parker ("Parker") challenges the trial court's denial of his motion to vacate his conviction and mandatory eight-year sentence for aggravated robbery, with a notice of prior conviction stemming from a juvenile delinquency adjudication, and having a weapon while under disability. He assigns the following error for our review:

The Ohio Supreme Court's decision in State v. Hand , [149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448], which declared R.C. 2901.08 unconstitutional under both the state and federal constitutions [because it treats juvenile adjudications as penalty-enhancing convictions] applies retroactively to invalidate sentences previously enhanced under that unconstitutional provision.

{¶ 2} Having reviewed the record and pertinent law, we reverse in part and remand for further proceedings consistent with this opinion.

{¶ 3} The facts of this matter were set forth in Parker's direct appeal, as follows:

On April 16, 2011, Parker drove two codefendants, Emmanuel Scott and Antwon Carrington, to a pet store located on Cleveland's east side. Scott and Carrington entered the store to commit a robbery while Parker remained in the car. There was an exchange of gunfire in the store, and Scott received a nonfatal gunshot wound

. He returned to the car, and Parker drove him to the emergency room at Cleveland Clinic. After the police identified Parker from video footage at the clinic, they arrested Parker, Scott, and Carrington.

Parker was indicted on May 12, 2011, along with Scott and Carrington, and charged with Count 1, aggravated robbery; Count 2, aggravated burglary; Counts 3 through 5, kidnapping; Counts 6 through 8, felonious assault; Count 9, carrying a concealed weapon; Count 10, having weapons while under disability; and Count 11, theft. Counts 1 through 8 included one-year and three-year firearm specifications. Counts 1 through 8 also included a notice of prior conviction specification under R.C. 2929.13(F)(6), [stemming from] a juvenile delinquency adjudication in juvenile court for felonious assault, and a repeat violent offender specification under R.C. 2941.149(A).

Parker pleaded guilty on September 21, 2011, to aggravated robbery, a first-degree felony, and having weapons while under disability, a third-degree felony. In exchange for Parker's agreement to cooperate with the police and testify against Scott and Carrington, the state dismissed all other charges and specifications excluding the one reflecting notice of prior conviction. The trial court sentenced Parker on November 30, 2011, to eight years in prison [mandatory, due to the juvenile delinquency adjudication in the notice of prior conviction] with five years of postrelease control.

See State v. Parker , 8th Dist. Cuyahoga No. 97841, 2012-Ohio-4741, 2012 WL 4857801, ¶ 3–5 (" Parker I "). Scott pled guilty to aggravated robbery with a firearm specification and felonious assault, and was sentenced to a total of eight years of imprisonment. Apart from the three-year term for the firearm specification, Scott was not sentenced to a mandatory term. Carrington pled guilty to felonious assault and was sentenced to nonmandatory eight-year term. See State v. Carrington , Cuyahoga C.P. No. CR–11–549438 (Nov. 30, 2011); State v. Scott , Cuyahoga C.P. No. CR–11–549438 (Nov. 30, 2011). According to appellant's counsel, both Scott and Carrington were granted judicial release prior to the completion of their eight-year terms.

{¶ 4} On direct appeal, Parker challenged his sentence and also asserted that R.C. 2901.08 is unconstitutional because it permits juvenile delinquency adjudications that are not determined by a jury to be included as prior convictions for purposes of imposing mandatory prison terms under R.C. 2929.13(F)(6).

{¶ 5} This court rejected Parker's challenge to R.C. 2901.08, and affirmed. Applying the reasoning set forth in the majority of jurisdictions deciding the issue, this court held that prior juvenile delinquency adjudications fell within the "prior conviction exception" set forth in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that there were "sufficient procedural safeguards to satisfy the reliability requirement that is at the heart of Apprendi ." Id. at ¶24. The Ohio Supreme Court declined Parker's motion for discretionary appeal, with three justices dissenting. See State v. Parker , 134 Ohio St.3d 1471, 2013-Ohio-553, 983 N.E.2d 370.

{¶ 6} On October 31, 2016, Parker filed a motion to vacate his conviction and sentence, arguing that his constitutional rights were violated when the juvenile delinquency adjudications served as the basis of both the notice of prior conviction specifications, and the disability element of the weapons while under disability conviction. The trial court denied the motion. Parker now appeals.

Postconviction Relief

{¶ 7} "Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21." State v. Reynolds , 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).

{¶ 8} Under R.C. 2953.23(A), a trial court may entertain a successive petition if the petitioner initially demonstrates either (1) he was unavoidably prevented from discovering the facts necessary for the claim for relief, or (2) the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation. R.C. 2953.23(A)(1)(a). Next, the petitioner must also demonstrate that but for the constitutional error at trial, no reasonable finder of fact would have found him guilty. R.C. 2953.23(A)(1)(b).

{¶ 9} A trial court's decision granting or denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.

{¶ 10} Here, Parker's motion to correct or vacate sentence, despite its caption, meets the definition of a motion for postconviction relief under R.C. 2953.21(A)(1), because it (1) was filed subsequent to Parker's direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of the judgment and sentence. Reynolds , 79 Ohio St.3d at 160–161, 679 N.E.2d 1131 ; State v. Bridges , 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, 2016 WL 5940201, ¶ 31.

{¶ 11} In this matter, Parker asserts that the Ohio Supreme Court's decision in Hand operates retroactively and entitles him to vacate his weapons while under disability conviction, the notice of prior conviction, and his sentence.

Hand Decision

{¶ 12} In 2015, the Ohio Supreme Court agreed to hear the same Apprendi -based challenge to R.C. 2901.08 raised by Parker in 2012 when it accepted a discretionary appeal from the decision in State v. Hand , 2d Dist. Montgomery No. 25840, 2014-Ohio-3838, 2014 WL 4384131.

{¶ 13} Thereafter, on August 25, 2016, the Ohio Supreme Court held that it is a violation of due process to treat a juvenile delinquency adjudication as the equivalent of an adult conviction for purposes of enhancing a penalty for a later crime, since the delinquency adjudication is not established through a procedure that provides the right to a jury trial. Hand , at paragraphs one and two of the syllabus.

{¶ 14} In reaching this decision, the Ohio Supreme Court noted that under Apprendi, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at ¶ 23. The court also noted that United States Supreme Court expanded Apprendi 's holding and held that facts increasing a mandatory minimum sentence must also be submitted to a jury and found beyond a reasonable doubt. Id. at ¶ 24, citing Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Apprendi , 530 U.S. at 490, 120 S.Ct. 2348.

{¶ 15} Turning next to the issue of whether a juvenile adjudication is "the fact of a prior conviction" within the exception to Apprendi , the Hand court discussed this court's reasoning in Parker I , 2012-Ohio-4741, 2012 WL 4857801, but declined to follow Parker I . See Hand at ¶ 23. Accordingly, Parker I has been overruled as to this issue.

{¶ 16} The Hand court likewise rejected the reasoning of the Second District, six federal circuit courts, and various other state courts, and instead adopted the minority position of the Ninth Circuit Court of Appeals in United States v. Tighe , 266 F.3d 1187 (9th Cir. 2001), holding that "the ‘prior conviction’ exception to Apprendi's general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt." Id. at ¶ 24, quoting Tighe , at 266 F.3d at 1194. The Ohio Supreme Court explained:

"The constitutional protections to which juveniles have been held to be entitled have been designed with a different

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