The Ohio Supreme Court ruled today that a juvenile adjudication cannot be used to enhance the penalty for an adult crime if the adjudication had the possibility of confinement and the juvenile was not represented by an attorney and did not waive his right to counsel. The case before the Court involved Jason T. Bode, who was adjudicated delinquent for an OVI offense in 1992. Bode was not represented by an attorney during that adjudication and did not waive his right to counsel. Bode was then convicted of four more OVI offenses as an adult between 1996 and 1999.
In 2011 Bode was indicted for another OVI offense. While the crime typically would have been a misdemeanor, he was charged with a felony under R.C. 4511.19(G)(1)(d), which elevates an OVI offense to a fourth degree felony if the offender has been convicted of five or more OVI offenses in the previous twenty years. Bode moved to suppress the evidence from his juvenile adjudication, arguing that because he hadn’t been represented at the time, the adjudication violated his constitutional right to counsel and couldn’t be used to enhance the penalty for the current charges. The trial court denied his motion and Bode was convicted and sentenced using the enhanced penalties. The 5th District affirmed on appeal.
In a 4-3 decision penned by Justice Lanzinger, the Ohio Supreme Court reversed the 5th District’s ruling, holding that, “the state may not use a prior, uncounseled delinquency adjudication to enhance a sentence for a later violation of R.C. 4511.19 if the right to counsel was violated because an appropriate waiver was not obtained.”
The state argued that a right to counsel only arises in cases where the defendant was actually sentenced to confinement, and that since Bode was not, his lack of counsel did not prevent the juvenile adjudication from being counted against him. The Court clarified that although he was not actually sentenced to a period of confinement, because Bode’s juvenile adjudication carried this possibility, it could not be used to enhance the penalties in his current case.
The Court found that this right to counsel is a due process right as provided by the U.S. and Ohio Constitutions, and that it also arises in O.R.C. 2151.352, which was in effect in 1992 when Bode was adjudicated. The Court also examined its decision in State v. Brooke, where it held that an adult conviction without appropriate counsel could not be used to enhance an OVI penalty, and found that this right also applies to juveniles. The Court noted that while in Brooke they had mentioned that the defendant had been sentenced to confinement, this did not mean that confinement was required to trigger the right to counsel.
Justices, O’Connor, Pfeifer and O’Neill joined in the decision. Justice French penned a dissent that was joined by Justices Kennedy and O’Donnell. The dissent argues that under Brooke and U.S. Supreme Court precedent, actual confinement is required to trigger the right to counsel, and since that was not the case with Bode, his juvenile adjudication should still have been taken into account.
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