Opinion
Case No. 99CA30.
Date of judgment entry: August 19, 1999.
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 98CR449
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee ROBERT CALESARIC ASSISTANT PROSECUTOR
For Defendant-Appellant ANDREW T. SANDERSON
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J.
OPINION
Defendant Jacob Glover appeals a judgment of the Court of Common Pleas of Licking County, Ohio, convicting and sentencing him for driving under the influence in violation of R.C. 4511.19, after appellant changed his plea from not guilty to no-contest. The indictment alleged it was appellant's fourth DUI offense in the last six years, the first of which occurred when appellant was a juvenile. Appellant assigns two errors to the trial court:
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN ALLOWING THE STATE OF OHIO TO RELY ON THE DEFENDANT-APPELLANT'S PRIOR JUVENILE TO ENHANCE THE CHARGE HEREIN TO A FELONY OFFENSE.
II. THE FAILURE OF TRIAL COUNSEL TO ADEQUATELY PRESERVE THE DEFENDANT-APPELLANT'S APPELLATE RIGHTS WITH RESPECT TO THE USE OF HIS PRIOR ADJUDICATION TO ENHANCE THE INSTANT CASE TO A FELONY DENIED THE DEFENDANT-APPELLANT HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
I
In his first assignment of error, appellant urges the trial court should not have relied on appellant's juvenile conviction to enhance the present charge to a felony offense. Pursuant to R.C. 4511.19 and 4511.99, a fourth OMVI offense in six years is enhanced to a felony. Appellant argues his adjudication as a juvenile traffic offender by the Licking County Juvenile Court on September 21, 1995, does not constitute a conviction, and should not be used to enhance his present offense. Prior to January 1, 1996, juvenile traffic offenders' adjudications were not classified as convictions and could not be used to enhance the penalty of a subsequent adult OMVI conviction, see State v. Blogna (1990), 60 Ohio App.3d 141. However, the Ohio General Assembly enacted R.C. 2901.08 effective January 1, 1996, changing the law with respect to the effect of juvenile adjudications on subsequent offenses. Pursuant to R.C. 2901.08, a prior juvenile adjudication is now considerated a conviction for purposes of determining subsequent offenses, enhancements, or punishments. Appellant argues because his juvenile adjudication occurred prior to the enactment of R.C. 2901.08, the court should not have applied the statute to the instant case. Appellant cites us to R.C. Section 1.48, which provides a statute is presumed to be prospective in its operation unless expressly made retrospective. Appellant urges R.C. 2901.08 does not specifically state it applies to juvenile adjudications prior to its effective date. Appellant argues R.C. 2901.08 is not a remedial statute, because it expressly changes the nature of juvenile adjudications. We find R.C. 2901.08 does not change the characterization or status of a prior juvenile offense. The statute has no effect whatsoever on the juvenile offense, but rather affects the enhancement provisions for subsequent offenses. As the Seventh District noted in State v. Vermillion (June 24, 1999), Belmont App. No. 98CA16, unreported, the effect of the enhancement provisions is to re-define the second offense, not the prior offense, Vermilliion, at 5, citing Akron v. Kirby (1996), 113 Ohio App.3d 452 at 461. We find the trial court did not err in considering appellant's juvenile adjudication a conviction for enhancement purposes. Accordingly, the first assignment of error is overruled.
II
Next, appellant urges if we find the trial counsel did not adequately preserve the argument set forth in I, supra, then trial counsel was ineffective. In light of our discussion above, we find the second assignment of error is moot, and accordingly, it is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence. By Gwin, P.J., and Edwards, J., concur, Hoffman, J., dissents.
I respectfully dissent from the majority opinion. Appellee aptly identifies the issue presented in this appeal, i.e., "may a prior juvenile adjudication, Driving Under the Influence of Alcohol, entered prior to January 1, 1996, be utilized to enhance a subsequent adult Driving Under the Influence offense to a felony?" I conclude it may not. My reason follows. I begin by noting both parties represent the issue raised herein to be one of first impression. The trial court made the same observation in its February 19, 1999 Judgment Entry. This Court previously held, in State v. Blogna (1990), 60 Ohio App.3d 141, an adjudication as a juvenile traffic offender could not be used to enhance a subsequent Driving Under the Influence conviction as an adult. However, as argued by appellee in its brief to this Court, and as found by the trial court in its Judgment Entry denying appellant's motion in limine, the law changed on January 1, 1996, when the legislature enacted R.C. 2901.08. That statute provides: If a person is alleged to have committed an offense and if the person previously has been adjudicated a delinquent child or juvenile traffic offender for a violation of a law or ordinance, the adjudication as a delinquent child or as a juvenile offender is a conviction for a violation of law or ordinance for the 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.
In light of the enactment of R.C. 2901.08, the issue becomes does the statute "reach back" to appellant's September 21, 1995 adjudication as a juvenile traffic offender? The trial court found the statute does reach back because the triggering mechanism is not the prior adjudication as a juvenile traffic offender, but rather the new Driving Under Influence charge. I do not disagree with this conclusion. Furthermore, I do not disagree with the case law cited by appellee which holds a law cannot be considered retroactive when it merely apprises one enhanced penalties will accompany new crimes. However, R.C. 2901.08 does more than merely apprise appellant of enhanced penalties for future crimes; it changes the underlying nature of the juvenile case from an "adjudication" into a "conviction." In addition to apprising of enhanced penalties for future offenses, R.C. 2901.08 changes the "status" of the prior juvenile offense. R.C. 1.48 provides a statute is presumed to be prospective in its operation unless expressly made retrospective. R.C. 2901.08 makes no mention it is to be applied to juvenile adjudications prior to its effective date; therefore, it is presumed to be prospective in nature. Accordingly, I find the trial court erred in allowing appellant's September 21, 1995 juvenile adjudication to be considered a conviction for enhancement purposes. I would sustain appellant's first assignment of error and reverse the trial court's judgment and remand the case for further proceedings.