The sole exception is when the trial court expressly bases its findings upon evidence of the offender's history of prior convictions or juvenile adjudications. See State v. Lowery, 160 Ohio App.3d 138, 2005-Ohio-1181, 826 N.E.2d 340; State v. Deters, 163 Ohio App.3d 157, 2005-Ohio-4049, 837 N.E.2d 381. {¶ 10} At Ladson's sentencing hearing, the trial court stated, "To not send him to prison would demean the seriousness of the offense and to not send him to prison would not adequately punish him and protect the public.
While the United States Supreme Court has not decided this question, the majority of courts that have addressed the issue we face here have held that juvenile adjudications fall within the prior conviction exception.See, e.g., United States v. Burge, 407 F.3d 1183, 1190 (11th Cir. 2005); United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003); United States v. Smalley, 294 F.3d 1030, 1032-33 (8th Cir. 2002); Nichols v. State, 910 So.2d 863, 865 (Fla.Ct.App. 2005); Ryle v. State, 842 N.E.2d 320, 322 (Ind. 2005); State v. Hitt, 273 Kan. 224, 42 P.3d 732, 740 (2002); State v. Deters, 163 Ohio App.3d 157, 837 N.E.2d 381, 385 (2005), rev'd in part on other grounds sub nom. In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 847 N.E.2d 1174, 1178 (2006); State v. Mounts, 130 Wash.App. 219, 122 P.3d 745, 747 (2005).
{¶ 116} 2005-1752. State v. Deters, Hamilton App. No. C-010645, 163 Ohio App.3d 157, 2005-Ohio-4049, 837 N.E.2d 381. Proposition of Law No. II.
January 25, 2006. Hamilton App. No. C-010645, 163 Ohio App.3d 157, 2005-Ohio-4049. APPEALS ACCEPTED FOR REVIEW
We recognize that although "a juvenile adjudication is not a conviction of a crime and should not be treated as one," it is widely accepted that an offender's juvenile history can be used as prior criminal history for the purpose of imposing consecutive sentences. SeeState v. Bonner , 8th Dist. Cuyahoga No. 97747, 2012-Ohio-2931, 2012 WL 2459162, ¶ 8 ; State v. Daniel , 5th Dist. Ashland No. 11-COA-047, 2012-Ohio-2952, 2012 WL 2476373, ¶ 20 ; State v. Love , 194 Ohio App.3d 16, 2011-Ohio-2224, 954 N.E.2d 202, ¶ 8 (1st Dist.) ; State v. Deters , 163 Ohio App.3d 157, 2005-Ohio-4049, 837 N.E.2d 381, ¶ 24 (1st Dist.). However, use of an offender's juvenile criminal history is generally reserved for instances where the offender has an extensive juvenile history.
{¶6} Bromagen now urges us to revisit our well-established position that "juvenile adjudications may be considered for purposes of examining the likelihood of [an adult offender's] recidivism." State v. Deters, 163 Ohio App.3d 157, 2005-Ohio-4049, 837 N.E.2d 381, ¶ 24 (1st Dist.), overruling State v. Montgomery, 159 Ohio App.3d 752, 2005-Ohio-1018, 825 N.E.2d 250 (1st Dist.) (holding that juvenile-delinquency adjudications could not be used to support a finding that a prison term would not adequately protect the public from future crime by the offender or would demean the seriousness of the crime). The gravamen of Bromagen's argument is that a juvenile-delinquency adjudication is "not the same as a criminal conviction," and thus cannot be used to support the criminal-conduct finding for consecutive sentences.
Appellant argues that consideration of his juvenile delinquency adjudications for sentencing purposes violates his right to a jury trial as defined in Blakely and its progeny. {¶ 12} In State v. Deters, 163 Ohio App.3d 157, 2005-Ohio-4049, the First District Court of Appeals held that a sentencing court could properly consider a defendant's juvenile delinquency adjudications as a factor in determining the likelihood of recidivism, and consequently when considering the imposition of a greater than minimum sentence under R.C. 2929.14(B)(2). This decision was summarily reversed by the Ohio Supreme Court on the basis of its decision in Foster, and remanded for resentencing.
Recently, other courts have adopted this same position. See State v. Deters, 2005 WL 1863406, *3 (Ohio Ct.App. 2005); Nichols v. State, 910 So.2d 863, 2005 WL 1523772 (Fla.Dist.Ct.App. 2005); United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005), cert. denied, No. 05-5601, 2005 WL 1859969, ___ U.S. ___, 126 S.Ct. 551, 163 L.Ed.2d 467 (U.S. July 27, 2005).
The only exception is when the findings are expressly based upon the defendant's history of prior convictions, see State v. Lowery, 160 Ohio App.3d 138, 2005-Ohio-1181, 826 N.E.2d 340, and/or juvenile adjudications. See State v. Deters (Aug. 5, 2005), 1st Dist. No. C-010645. {¶ 13} Here, the trial court found that more than the minimum sentences were justified based upon both of the factors set forth in R.C. 2929.14(B): that minimum sentences would have both (1) demeaned the seriousness of the crimes, and (2) failed to adequately protect the public from future harm.