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State v. Hendon

Court of Appeals of Ohio, Ninth District, Summit

April 4, 2018

STATE OF OHIO Appellee
v.
ERIC D. HENDON Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2014-01-0120 (A)

          CRAIG M. JAQUITH, Assistant State Public Defender, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER Presiding Judge.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 order.

         II.

         Assignment 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 omitted.)

         {¶8} 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 disagree.

         {¶9} 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 the trial.

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.

         A. "Voidness" of Postrelease Control

         {¶10} 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[.]"

         {¶11} 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 ...


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