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Court News Ohio
Court News Ohio

Juvenile Has Right to Counsel if Facing Possible Confinement

If confinement is a possible punishment for a juvenile, the juvenile must have waived his or her right to an attorney before the adjudication can be used to enhance a later adult conviction for driving under the influence of drugs or alcohol (OVI), the Ohio Supreme Court held today.

A juvenile’s right to counsel is protected by due process at every stage of legal proceedings, Justice Judith Ann Lanzinger wrote in the 4-3 decision.

In this case, the court determined that the 2011 sentence for Jason T. Bode was wrongly enhanced when a juvenile OVI offense was counted as one of five prior OVI convictions. State law elevates an OVI misdemeanor offense to a fourth-degree felony if the offender previously pled guilty to or was convicted of five or more OVI violations. However, the Supreme Court concluded that Bode’s juvenile adjudication could not be counted because he had no attorney during the juvenile proceeding and had not waived his right to counsel.

The decision returns the case to the trial court to resentence Bode and reverses the judgment of the Fifth District Court of Appeals.

New Offenses Elevated to Felonies
In 1992, the juvenile court found that Bode had committed the equivalent of OVI if he had been an adult. During the hearing, Bode was not represented by an attorney and did not waive counsel. As an adult, he was convicted for OVI four times between 1996 and 1999. In 2011, he was again convicted for OVI offenses.

Justice Lanzinger reasoned that juveniles have the right to counsel if actual confinement is a possibility for the alleged offenses.

Justice Lanzinger reasoned that juveniles have the right to counsel if actual confinement is a possibility for the alleged offenses.

Based on provisions in R.C. 4511.19(G)(1)(d), the 2011 misdemeanor crimes were enhanced to fourth-degree felonies because of Bode’s earlier offenses, including his juvenile adjudication. State law requires an additional prison term of one to five years when convicted under the enhancement specification.

The trial court sentenced Bode to three years in prison plus a suspended 54 months of confinement with five years of community control, a lifetime driver’s license suspension, vehicle forfeiture, fines, court costs, and fees. He appealed, and the Fifth District affirmed the trial court’s decision.

Juvenile Right to Attorney
Justice Lanzinger explained that a juvenile adjudication can be counted when determining whether an offender has had five OVI convictions under R.C. 4511.19(G)(1)(d) because state law considers a juvenile adjudication to be a “conviction” when imposing a sentence for later offenses.

However, as a minor Bode had no attorney representation. Justice Lanzinger reasoned that juveniles have the right to counsel if actual confinement is a possibility for the alleged offenses. This right stems from the due process provisions in the U.S. and Ohio constitutions as well as from former R.C. 2151.352, which was in effect in 1992 at the time of Bode’s juvenile case, she noted.

The court also reviewed its 2007 ruling in State v. Brooke, which involved adult convictions. In that case, the court decided the state may not automatically use an adult’s earlier, uncounseled conviction to enhance a later violation of the OVI statute if the offender’s right to counsel in the earlier case was violated because a proper waiver was not made. “This rule must apply to juveniles as well,” Justice Lanzinger concluded.

“The trial court here misread a limitation into Brooke when it attempted to apply that case to these facts,” she wrote. “Brooke did mention the fact of confinement as a factor in determining whether the right to counsel for a misdemeanor had attached. But in that case we did not intend to limit the right to challenge the use of a previous conviction (or delinquency adjudication) to those who actually received a term in custody.”

States May Provide Greater Rights
While noting that the U.S. Supreme Court limits the right to counsel to those cases in which actual incarceration is imposed, Justice Lanzinger stressed that states are empowered to grant greater rights than those in the federal constitution.

Also, a 2014 Ohio Supreme Court ruling (State v. Schleiger) held that the right to counsel exists in critical stages of a criminal proceeding for a felony. While Bode’s juvenile offense would have been a misdemeanor for an adult, Justice Lanzinger reasoned that Bode still faced possible confinement and had a right to an attorney.

“He was entitled to an attorney ‘at all stages of the proceedings,’ pursuant to former R.C. 2151.352,” she wrote. “And while the dissent attempts to minimize misdemeanors, saying that defendants should have a right to counsel only when actual prison is imposed, it is difficult to see any logic or purpose in the felony/misdemeanor distinction. An attorney is crucial whenever there is the possibility of custody — that is what an attorney will protect against. … Ohio law provided that Bode was entitled to an attorney, and his uncounseled adjudication amounted to an unconstitutional violation of his due-process rights.”

“Unless evidence of a valid waiver of counsel is shown, the uncounseled juvenile disposition may not be used [to enhance a later sentence],” she concluded.

Joining the majority opinion were Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and William M. O’Neill. Justice Judith L. French dissented in an opinion joined by Justices Terrence O’Donnell and Sharon L. Kennedy.

Dissenting Opinion
In Justice French’s view, Bode had no constitutional right to an attorney at his juvenile adjudication and the “majority opinion creates an entirely new, and entirely unfounded, interpretation of the constitutional right to counsel.”

Justice French wrote that the U.S. Supreme Court has held the constitutional right to counsel in misdemeanor cases arises when there is actual, not possible, imprisonment. This actual imprisonment standard applies only in misdemeanor cases, and Schleiger is not relevant here because it involved felonies, she reasoned.

While Justice French agreed with the majority that states may provide greater rights than those in the federal constitution, she believes Brooke provides precedent that the court must follow in this case.

“In Brooke, … we held that ‘[a]n uncounseled conviction cannot be used to enhance the penalty for a later conviction if the earlier conviction resulted in a sentence of confinement,’” she wrote. “There is no possible way to characterize our statements in Brooke as just a passing nod to ‘the facts of that case,’” as the majority indicated. 

“Our history is clear: we accepted the ‘actual imprisonment’ standard in Brooke,” she added. “We cited [the U.S. Supreme Court decision in] Nichols [v. United States] as law in Brooke. Our present should be equally clear and consistent.”

Justice French would have allowed Bode’s penalties for the 2011 OVIs to be increased based on counting his juvenile offense, even though he had no attorney then, and she would have affirmed the Fifth District’s judgment.

2013-1044. State v. Bode, Slip Opinion No. 2015-Ohio-1519.

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