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In State v. Bode, Slip Opinion No. 2015-Ohio-1519, the Ohio Supreme Court in a 4-3 decision held that a defendant’s juvenile adjudication of delinquency for DUI could not enhance the penalty for a later adult sentence for DUI, when there was no defense counsel at the juvenile adjudication, and there was no waiver of the right to counsel.  The court held this was true even though the juvenile adjudication did not result in confinement – it was enough that confinement could have been imposed.

The majority opinion appears to base its decision on both the U.S. and the Ohio Constitution.  The majority opinion recognized that U.S. Supreme Court decisions require that actual confinement must be imposed in misdemeanor cases for the right to counsel to attach.  See Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), Nichols v. United States, 511 U.S. at 743, 114 S.Ct. 1921, 128 L.Ed.2d 745.  The majority distinguished these cases because they involved adult convictions, not juvenile delinquency cases. The majority opinion states:

This limitation, however, fails to account for the fact that juvenile proceedings are civil, and therefore juvenile rights to counsel arise under the constitutional protection of due process. C.S., 115 Ohio St.3d 267, 2007–Ohio–4919, 874 N.E.2d 1177, at ¶ 76, 79–80. In Gault [In re Gault, 387 U.S. 1, 36-37, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)] the Court held that the due-process right to counsel attached to all juvenile proceedings that pose a threat of confinement. Gault, 387 U.S. at 41, 87 S.Ct. 1428, 18 L.Ed.2d 527.

State v. Bode, 2015-Ohio-1519, ¶ 19.

Moreover, the majority opinion stated that the Ohio Constitution may afford more rights than the U.S. Constitution.  So, even if the U.S. Constitution’s due process rights only kick in if the juvenile was actually incarcerated, the Ohio Constitution grants the right to counsel if confinement was merely possible for a misdemeanor offense.

Three judges dissented.  The dissent states that the majority created new, Ohio-specific constitutional doctrines absent sufficient reasons why Ohio constitutional law should differ from the federal law. Id. at ¶ 33.

It appears the majority opinion found the reason to deviate from federal law was that: Under Ohio law, a juvenile is entitled to counsel at all stages of the proceeding (former R.C. 2151.35). Also, State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 103 held that it is the possibility of confinement that matters, not actual confinement. Schleiger was a felony case, but the majority did not see any logic or purpose in the felony/misdemeanor distinction. Furthermore, allowing an uncounseled misdemeanor to mandate an increased penalty of imprisonment for a later crime would violate due process and goes beyond the holding of Nichols v. United States, 511 U.S. at 743, 114 S.Ct. 1921, 128 L.Ed.2d 745. See the concurrence in Nichols, at 754. The sentencing enhancement in Nichols was not automatic, but:

Under the Guidelines, then, the role prior convictions play in sentencing is presumptive, not conclusive, and a defendant has the chance to convince the sentencing court of the unreliability of any prior valid but uncounseled convictions in reflecting the seriousness of his past criminal conduct or predicting the likelihood of recidivism.

Nichols, concurrence at 752.  In this case, Bode was automatically subject to an increased prison term based on the prior uncounseled conviction.

State v. Bode, Slip Opinion No. 2015-Ohio-1519Docket, Oral Argument, Court News Ohio, Juvenile Has Right to Counsel if Facing Possible Confinement

The writer of this blog notes that there are other cases where the Ohio Supreme Court held that the Ohio Constitution afforded more rights than the U.S. Constitution, even when the language of the Ohio Constitution and U.S. Constitution are similar.  See State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175 (Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.), State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985 (Physical evidence seized as a result of unwarned but voluntary statements is inadmissible under Ohio Constitution Article I, Section 10 provision regarding self-incrimination, although it would be admissible under the Fifth Amendment to the U.S. Constitution.)

The Ohio Supreme Court may again consider whether the Ohio Constitution provides more rights than the U.S. Constitution in an upcoming search and seizure case.  See our prior post, Ohio Supreme Court to Decide Whether Ohio Constitution Affords More Protection Against Unlawful Searches and Seizures Than U.S. Constitution.

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