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State v. Bingham

Court of Appeals of Ohio, Third District, Allen

August 19, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
LEONARD BINGHAM, JR., DEFENDANT-APPELLANT.

          Appeal from Allen County Common Pleas Court Trial Court No. CR2016 0142.

          Kenneth J. Rexford for Appellant.

          Jana E. Emerick for Appellee.

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant, Leonard Bingham, Jr. ("Bingham"), appeals the December 20, 2018 judgment of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.

         {¶2} In February 2016, the Lima Police Department became aware of potential drug activity taking place at 419 South Collett Street ("419 S. Collett") in Lima, Ohio-a residence that was then owned by Bingham. Over the following one and one-half months, law enforcement officers received numerous reports documenting activity at 419 S. Collett that was consistent with drug trafficking, including the observation of what witnesses believed to be drug transactions in a parking lot adjacent to the residence. On March 30, 2016, law enforcement officers, with the participation of a confidential informant, conducted a controlled buy of marijuana from 419 S. Collett. Based on this controlled buy and the collection of citizen reports, law enforcement officers subsequently obtained a warrant to search the residence, which was executed on the evening of April 1, 2016. During the course of the search, officers discovered a firearm and a small quantity of crack cocaine concealed within a shoebox that Bingham was seen carrying into the residence. Furthermore, the search uncovered a gallon-size freezer bag full of marijuana, other, smaller quantities of marijuana and cocaine, and materials evidently used to manufacture crack cocaine.

         {¶3} On May 12, 2016, the Allen County Grand Jury indicted Bingham on four counts: Count One of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(e), a first-degree felony; Count Two of illegal manufacture of drugs in violation of R.C. 2925.04(A), (C)(2), a second-degree felony; Count Three of having weapons while under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony; and Count Four of possession of marihuana in violation of R.C. 2925.11(A), (C)(3)(c), a fifth-degree felony. (Doc. No. 2). On May 19, 2016, Bingham filed written pleas of not guilty, which were accepted by the trial court on May 20, 2016. (Doc. Nos. 7, 11).

         {¶4} On September 6, 2016, Bingham filed a motion to suppress evidence. (Doc. No. 27). On September 12, 2016, Bingham filed a supplement to his motion to suppress. (Doc. No. 29). On September 22, 2016, the State filed a memorandum in opposition to Bingham's motion to suppress. (Doc. No. 36). On September 23, 2016, Bingham filed his reply to the State's memorandum in opposition to his suppression motion. (Doc. No. 37). On October 27, 2016, the trial court denied Bingham's motion to suppress evidence. (Doc. No. 55).

         {¶5} On September 1, 2017, Bingham filed a second motion to suppress evidence. (Doc. No. 144). On September 5, 2017, the trial court denied Bingham's second suppression motion on the basis that the motion was the "exact same motion" as the one denied in October 2016. (Doc. No. 146). On September 7, 2017, Bingham filed a motion for reconsideration of the trial court's judgment denying his second motion to dismiss. (Doc. No. 147). In support of his motion for reconsideration, Bingham argued that the "majority of the new Motion to Suppress * * * contains different arguments and cites case law not contained in the old Motion to Suppress * * *." (Id.). In response, the trial court ordered Bingham to submit affidavits or other evidentiary material supporting his new claims, which Bingham did on October 13, 2017 by filing two affidavits suggesting that the affidavit used to obtain the search warrant for 419 S. Collett contained materially false or misleading statements. (Doc. Nos. 152, 175). Following a December 20, 2017 hearing on Bingham's second motion to suppress, the trial court denied the motion on December 27, 2017. (Doc. No. 217).

         {¶6} On January 19, 2018, Bingham filed a "Motion to Reopen Evidence as to Motion to Suppress filed 9/1/17 and to Reconsider Denial of Same." (Doc. No. 234). In this motion, Bingham asked that the trial court reconsider his second motion to suppress evidence because his former trial counsel ineffectively argued the motion.[1] (Id.). Although the trial court did not reconsider its decision on his second suppression motion, upon leave of court, Bingham filed a third motion to suppress evidence on March 2, 2018. (Doc. Nos. 257, 267). Hearings on Bingham's third motion to suppress evidence were held on July 26 and August 21, 2018. (See Doc. Nos. 331, 334, 357, 359, 362). On August 24, 2018, the trial court denied Bingham's third motion to suppress evidence. (Doc. No. 362).

         {¶7} Meanwhile, on April 13, 2018, Bingham filed a motion to dismiss the indictment. (Doc. No. 282). On April 17, 2018, the State filed a memorandum in opposition to Bingham's motion to dismiss. (Doc. No. 285). On April 19, 2018, Bingham filed a reply to the State's memorandum in opposition to his motion to dismiss. (Doc. No. 286). On April 23, 2018, the trial court denied Bingham's motion to dismiss. (Doc. No. 287).

         {¶8} A change of plea hearing was held on October 26, 2018. (Doc. Nos. 392, 394). Under a negotiated plea agreement, Bingham withdrew his previous not guilty pleas and entered pleas of no contest to the counts of the indictment. (Doc. Nos. 393, 394). In exchange, the State agreed that it would not oppose the issuance of a $250, 000 appellate bond. (Doc. No. 393). The trial court accepted Bingham's no contest pleas, found him guilty, and ordered a presentence investigation. (Doc. No. 394).

         {¶9} On November 27, 2018, Bingham filed a motion to withdraw his no contest pleas. (Doc. No. 399). Although Bingham initially indicated that he wished to withdraw all of his pleas, at the hearing on his motion to withdraw, Bingham clarified that he wanted to withdraw his pleas only as to Counts One and Two. (Dec. 11, 2018 Tr. at 5-6). On December 17, 2018, the trial court denied Bingham's motion to withdraw his no contest pleas. (Doc. No. 408).

         {¶10} Bingham's sentencing hearing was held on December 20, 2018. At the sentencing hearing, the trial court determined that Counts One and Two would merge for purposes of sentencing. (Doc. No. 410). The State elected to sentence Bingham on Count One. (Id.). The trial court sentenced Bingham to 10 years in prison on Count One, 24 months in prison on Count Three, and 12 months in prison on Count Four. (Id.). The trial court ordered that the sentences for Counts One and Three be served consecutively to each other. (Id.). Furthermore, the trial court ordered that the sentence for Count Four be served concurrently with the consecutive sentences imposed for Counts One and Three. (Id.). Thus, the trial court sentenced Bingham to an aggregate term of 12 years' imprisonment. (Id.).

         {¶11} On December 27, 2018, Bingham filed a notice of appeal. (Doc. No. 414). He raises three assignments of error for our review.

         Assignment of Error No. I

         The Trial Court should have dismissed the Indictment for insufficient number of jurors because Crim.R. 6(A) is unconstitutional, in violation of Article I, Section 10, of the Ohio Constitution and R.C. §2939.02.

         {¶12} In his first assignment of error, Bingham argues that the trial court erred by denying his motion to dismiss. Specifically, Bingham argues that the indictment against him should have been dismissed because the grand jury that returned the indictment was not lawfully impaneled. Bingham notes that he was indicted by a 9-member grand jury pursuant to Crim.R. 6(A). However, he contends that the portion of Crim.R. 6(A) setting the number of grand jurors necessary to constitute a grand jury at 9 violates the Ohio Constitution. He argues that under the Ohio Constitution, the Ohio legislature has exclusive authority to determine the number of persons necessary to constitute a grand jury and the legislature has done so by enacting R.C. 2939.02, which provides that "[g]rand juries shall consist of fifteen persons * * *." Therefore, according to Bingham, because the grand jury that returned his indictment did not consist of the requisite 15 members, the indictment is "voidable [and] subject[] * * * to dismissal" and the trial court erred by concluding otherwise. (Appellant's Brief at 9).

         {¶13} This court recently considered and rejected an identical challenge to the constitutionality of Crim.R. 6(A)'s 9-member grand jury requirement and reaffirmed that Crim.R. 6(A) supersedes R.C. 2939.02 to the extent that the two are in conflict. See State v. Holmes, 3d Dist. Allen No. 1-18-52, 2019-Ohio-2485, ¶ 10-18. We need not reproduce those efforts here. Because the grand jury that indicted Bingham consisted of 9 grand jurors, the minimum number required under the constitutionally valid and superior provisions of Crim.R. 6(A), the grand jury that indicted Bingham was lawfully impaneled. See id. at ¶ 17. Accordingly, the trial court did not err by denying his motion to dismiss the indictment. See id.

         {¶14} Bingham's first assignment of error is overruled.

         Assignment of Error No. II

         The Trial Court erred by not suppressing the fruits of the tainted search warrant.

         {¶15} In his second assignment of error, Bingham argues that the trial court erred by denying his motion to suppress evidence. In particular, Bingham argues that the affidavit relied on to secure the search warrant for 419 S. Collett contained materially false information and omitted critical information that would have affected the issuing judge's probable cause determination. (Appellant's Brief at 20-22). Bingham contends that once the incorrect information is excised from the affidavit and the omitted information is included, the affidavit does not support a determination that probable cause existed to search 419 S. Collett and the trial court erred by concluding otherwise. (Id. at 18, 22).

         {¶16} "Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, "an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court's conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

         {¶17} The Fourth Amendment to the United States Constitution provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." "Probable cause 'means less than evidence which would justify condemnation,' so that only the 'probability, and not a prima facie showing of criminal activity is the standard of probable cause.'" State v. Gonzales, 3d Dist. Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18, quoting State v. George, 45 Ohio St.3d 325, 329 (1989).

In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a ...

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