FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2014-01-0120 (A)
M. JAQUITH, Assistant State Public Defender, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. SCHAFER Presiding Judge.
Defendant-Appellant Eric D. Hendon appeals from his
conviction in the Summit County Court of Common Pleas. For
the reasons set forth below, we affirm.
On December 31, 2013, an incident occurred involving a
robbery at a house located at 329 Seventh Street in
Barberton, Ohio. During the robbery, three of the occupants
of the house, J.K., D.C.K., and A.K., were fatally wounded. A
fourth occupant of the house, R.B., was shot and stabbed but
survived her injuries. Following the incident, R.B. placed a
911 call at 6:48 p.m.
On or about January 1, 2014, Oriana House employee, Deanna
Brutto, learned of the incident that occurred at 329 Seventh
Street. Pursuant to her role as program manager for
electronic monitoring, she entered the address into the
tracking system, and "ran points" for a thousand
foot radius around the address, and a thirty minute time
period prior to the 9-1-1 call that alerted to the incident.
Ms. Brutto discovered that a GPS monitoring device assigned
to an individual under supervision for postrelease control
had been in the immediate vicinity just prior to the 9-1-1
call. After determining that the GPS monitoring device was
assigned to Hendon, Ms. Brutto conveyed this information to
Officer Todd Liggett of the Northern Ohio Violent Fugitive
Task Force, to identify Hendon as a person of interest
related to the incident.
On January 2, 2014, Officer Liggett received a
"request to arrest Eric Hendon[.]" Officer
Liggett utilized the GPS system to determine Hendon's
location and then proceeded to execute the arrest along with
Barberton police and other officers. Hendon was taken into
custody in connection with the incident on January 2, 2014.
On January 22, 2014, the Summit County Grand Jury returned a
fourteen-count capital indictment charging Hendon with the
following: one count of aggravated murder of J.K., two counts
of aggravated murder of D.C.K., two counts of aggravated
murder of A.K., attempted murder of R.B., four counts of
aggravated robbery, two counts of felonious assault, and one
count of having weapons while under disability. Numerous
specifications were attached to these charges. Hendon was
arraigned on February 4, 2014, and pleaded not guilty to all
counts of the indictment.
A jury was empaneled and the matter proceeded to trial on
March 17, 2016. The jury returned a verdict on April 7, 2016,
finding Hendon guilty on all counts. After the mitigation
phase of the trial, the jury recommended a sentence of life
in prison without parole as to the aggravated murder charges.
The trial court made its additional findings as to certain
specifications, and found Hendon guilty on the charge of
having weapons under disability. Hendon was sentenced
according to law.
Hendon appeals the May 17, 2016 judgment entry of conviction
and presents three assignments of error for our review. For
ease of analysis we elect to address the assignments out of
of Error II
Admission of testimony and exhibits concerning
[Hendon]'s December 31, 2013, GPS tracking data violated
[Hendon]'s Fourth Amendment rights and constituted plain
error, requiring the reversal of his convictions. Fourth
Amendment, United States Constitution; Article I, Section 14,
Ohio Constitution. (Citations to the record
Hendon argues that "the unchallenged Fourth-Amendment
violations that occurred at trial" resulted in the
admission of GPS tracking data. Specifically, he contends
that the admission of such evidence constitutes plain error
because the postrelease control from his prior case "was
void ab initio[.]" Further, Hendon contends that his
"GPS monitoring was in place only to enforce a curfew
requirement, not track his movements at all times." We
Hendon acknowledges that because the alleged error was not
objected to at trial, this Court reviews only for plain
error. Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the
attention of the court. Crim.R. 52(B). Hendon bears the
burden to establish plain error on the record. State v.
Thomas, Ohio St.3d, 2017-Ohio-8011, ¶ 32. This
burden requires Hendon to demonstrate each of the following:
First, there must be an error, i.e., a deviation from the
legal rule. Second, the error must be plain. To be
"plain" within the meaning of Crim.R. 52(B), an
error must be an "obvious" defect in the trial
proceedings. Third, the error must have affected
"substantial rights" [and] affected the outcome of
State v. Consilio, 9th Dist. Summit No. 28409,
2017-Ohio-7913, ¶ 7, quoting State v. Barnes,
94 Ohio St.3d 21, 27 (2002). There is a discretionary aspect
of Crim.R. 52(B), and reviewing courts should take notice of
plain error "with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of
justice." State v. Long, 53 Ohio St. 2d 91
(1978), paragraph three of the syllabus.
"Voidness" of Postrelease Control
Hendon claims that he was wrongfully subjected to postrelease
control based on a deficient sentencing entry in a prior
case. Therefore, Hendon argues, he should never have been
subjected to supervision and GPS monitoring. Based on the
allegedly unlawful imposition of GPS supervision, Hendon
contends that "the trial court should have barred the
evidence related to the GPS tracking data as a violation of
[his] Fourth Amendment rights[.]"
Hendon's argument is predicated upon language contained
in the sentencing entry from his previous conviction in
State v. Eric D. Hendon, Summit C.P. No.
CR-2000-07-1675 (Dec. 26, 2000). This Dec. 26, 2000
sentencing entry is part of the record in the current matter
because it was admitted into evidence as State's Exhibit
330 based only on its relevance to Hendon's charge for
having weapons while under disability. Nevertheless, Hendon
argues that it was incumbent upon the trial court to
undertake a review of that sentencing entry for the entirely
unrelated purpose of making an unsolicited determination as
to the validity of Hendon's postrelease control, then
conclude based solely on the ...