State v. Blogna

GWIN, J. On March 26, 1989, defendant-appellant, Matthew D. Blogna (appellant), was involved in an automobile accident and was charged with the offense of Driving While Under the Influence of Alcohol pursuant to R.C. 4511.19(AX1) and (A) (3). The face of the Uniform Traffic Citation indicated that appellant had a prior DUI offense. On May 2, 1989, following his pleas of not guilty to the above charges, appellant pled no contest to one count of DUI and was found guilty of the same. However, prior to sentencing, counsel for appellant informed the trial court that appellant's prior charge of DUI occurred on December 22,1987, when appellant was seventeen years old. From that charge, appellant was adjudicated a juvenile traffic offender on February 12, 1988. Therefore, counsel for appellant argued through motion, appellant should be sentenced as a first offender because the adjudication as a juvenile traffic offender is not a conviction as required by R.C. 4511.99. On May 30, 1989, the trial court, by judgment entry, overruled appellant's motion and found that appellant's adjudication was a conviction of record and therefore appellant was not entitled to be sentenced as first-offender. The trial court then sentenced appellant *185 not entitled to be sentenced as first-offender. The trial court then sentenced appellant accordingly. Appellant now seeks our review of his sentence and raises the following sole assignment of error: ASSIGNMENT OF ERROR THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT THE DEFENDANT-APPELLANT HAD BEEN "CONVICTED" OF A PRIOR DRIVING WHILE UNDER THE INFLUENCE OFFENSE WITHIN THE MEANINGOF OJt.C.4511.99(A)(2)SINCE THE DEFENDANT-APPELLANT HAD BEEN PREVIOUSLY ADJUDICATED A JUVENILE TRAFFIC OFFENDER BY WAY OF A DRIVING WHILE UNDER THE INFLUENCE OFFENSE IN THE STARK COUNTY COMMON PLEAS COURT, JUVENILE DIVISION, IN 1988. SAID "CONVICTION" SHOULD NOT HAVE BEEN CONSIDERED BY THE TRIAL COURT SINCE SUCH "CONVICTION" IS NOT ADMISSIBLE PURSUANT TO O.R.C. 2151.358(H). IF THE TRIAL COURT WOULD NOT HAVE CONSIDERED THE PRIOR JUVENILE COURT ADJUDICATION AS A "CONVICTION," THE DEFENDANT-APPELLANT WOULD ONLY HAVE BEEN SENTENCED TO A 72-HOUR SENTENCE AS EVIDENCED BY THE COURT’S SENTENCING JUDGMENT ENTRY. I R.C. 4511.99(A) (2) provides in pertinent part: Whoever violates section 4511.19 of the Revised Code, in addition to the license suspension or revocation provided in section 4507.16 of the Revised Code, shall be punished as provided in division (AXD, (2), or (3) of this section. (2) If, within five years of the offense, the offender has been convicted of or pleaded guilty to a violation of section 4511.19 of the Revised Code... the court shall sentence the offender a term of imprisonment of ten consecutives days.... (Emphasis added) As indicated above, R.C. 4511.99 speaks only of previous DUI convictions and is silent as to juvenile traffic offender (by way of DUI offense) adjudications. Therefore, the initial issue confronting us is whether such adjudications fall within the purview of R.C. 4511.99. R.C. 2151.358(H) provides, in relevant part: a judgment entered against a juvenile under R.C. Chapter 2151...shall not impose any of the civil disabilities ordinarily imposed by conviction of a crime in that the child is not a criminal by reason of the adjudication, nor shall any child be charged or convicted of a crime in any court except as provided by this chapter. Juvenile proceedings pursuant to R.C. Chapter 2151 are neither "criminal" or "civil" in nature. In re: C. (1975), 43 Ohio Misc. 98, 72 O.O.2d 421, 422. In fact, under the Juvenile Act, a child cannot be found to have committed a crime but can only be found delinquent, unruly, or a traffic offender. In re: Morris (1971), 29 Ohio Misc. 71, 58 O.O.2d 126, 127. There are numerous distinctions between criminal prosecutions and juvenile adjudications. For instance, the United States Supreme Court has held that a trial by jury in criminal cases is fundamental and guaranteed by the Sixth Amendment. McKeiver v. Pennsylvania (1971), 403 U.S. 528, 29 L.Ed.2d 647, 658, citing Duncan v. Louisiana (1968), 391 U.S. 145, 149. However, States are not required provide jury trials in juvenile proceedings. McKeiver, supra. For the above reasons, we firmly believe the trial court, in the case sub judice, erred as a matter of law in finding appellant's adjudication as a juvenile traffic offender constituted a conviction of record. Instead, as the State contends, the trial court should have looked to R.C. 2151.358(H), which provides: The disposition of a child under the judgment rendered or any evidence given in court is not admissible as evidence against the child in any other case or proceeding in any other court, except that the judgment rendered and the disposition of the child may be considered by any court only as to the matter of sentence or to the granting of probation. The disposition or evidence shall not operate to disqualify a child in any future civil service examination, appointment or application. (Emphasis added). *186 Hence, the trial court may consider, but is not required to consider, a past juvenile adjudication of delinquency, unruliness, and/or traffic offender during the sentencing process. The trial court, in its judgment entry overruling appellant's motion seeking sentencing as a first offender, stated: If this had been the defendant's first conviction of a violation of O.R.C. 4511.19, the court would have sentenced the defendant to a first-offender sentence; namely, seventy-two hours in the Stark County United Way Alcohol Treatment Program or the Stark County Jail, and not ten days in the Stark County Jail. Accordingly, we reverse and remand this cause, as to the trial court's sentencing of appellant as a second offender, with instructions that the trial court resentence appellant as a first-offender in accordance with this opinion. SMART, J., Concurs.