from Allen County Common Pleas Court Trial Court No. CR2016
Kenneth J. Rexford for Appellant.
E. Emerick for Appellee.
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.
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.
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).
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.
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).
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. (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).
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.
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).
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).
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'
On December 27, 2018, Bingham filed a notice of appeal. (Doc.
No. 414). He raises three assignments of error for our
of Error No. I
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.
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).
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.
Bingham's first assignment of error is overruled.
of Error No. II
Trial Court erred by not suppressing the fruits of the
tainted search warrant.
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,
"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).
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 ...