[Cite as State v. Sanders , 2021-Ohio-275.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

DONTA LAMONT SANDERS, Appellant. :

:

:

:

:

: CASE NO. CA2020-06-033

O P I N I O N 2/1/2021

CRIMINAL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case No. 2019CR0000893

D. Vincent Faris, Clermont County Prosecuting Attorney, Nichola s Horton, 76 S. Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee W. Stephen Haynes, Clermont County Public Defender, Robert F. B enintendi, 302 E. Main Street, Batavia, Ohio 45103, for appellant

S. POWELL, J. {¶ 1} Appellant, Donta Lamont Sanders, appeals the decision of the Cl ermont County Court of Common Pleas denying his motion to suppress. F or the reasons outlined below, we affirm the trial court's decision. Facts and Procedural History {¶ 2} On April 9, 2012, the Hamilton County Court of Common Pleas iss ued aClermont CA2020-06-033

- 2 - judgment entry sentencing Sanders to seven years in prison. Th is sentence was imposed by the Hamilton County Court of Common Pleas as a result of San ders' guilty plea to one count of felonious assault. Within that same judgment entry, t he Hamilton County Court of Common Pleas also sentenced Sanders to three years of community control. This sentence was imposed as a result of Sanders' guilty plea to one count of endangering children. The Hamilton County Court of Common Pleas ordered the two sentences to be served consecutively. By ordering the sentences to be served consecut ively, the Hamilton County Court of Common Pleas noted that Sanders' three-year community control term would begin only after Sanders was released from prison on that seven year prison term. This judgment entry was issued by the Hamilton County Court of Common Pleas i n Hamilton C.P. Case

No. B 1107010. {¶ 3} On January 7, 2019, Sanders was released from prison. Shortly thereafter, on January 16, 2019, the Hamilton County Court of Common Pleas issued an entry that noted Sanders' three-year community control term would run from January 7, 2019 to January 11, 2022. There is no dispute that the terms of Sander s' community control prohibited Sanders from owning, possessing, or carrying a firea rm or other lethal weapon. There is also no dispute that the terms of Sanders' community c ontrol required Sanders to immediately notify his probation officer of any change in his h ome address, i.e., that he was no longer living with his sister in Hamilton County. {¶ 4} Late in the day on August 14, 2019, Sanders' probation officer, Probation Officer Brian Urban, received information that Sanders was not living with his sister in Hamilton County as he had claimed, but was instead living with his girlfriend and her children in Clermont County. P.O. Urban also received informat ion that Sanders may be in possession of a firearm. The next morning, on August 15, 2019, P.O. Urban contacted Agent Chris Wilson with the Clermont County Narcotics Unit for assistance. Following anClermont CA2020-06-033

- 3 - investigation into Sanders' whereabouts, a warrant was issued f or Sanders' arrest based on allegations that Sanders had violated the terms of his commu nity control. There is no dispute that the warrant for Sanders' arrest was executed on Au gust 16, 2019 following a traffic stop of Sanders' vehicle initiated by officers from the Clermont County Sheriff's Office. {¶ 5} Following Sanders' arrest, P.O. Urban conducted a search of San ders'

residence. The search was conducted in accordance with P.O. Ur ban's authority granted to him under the terms of Sanders' community control as Sanders ' probation officer. According to P.O. Urban's arrest s ummary, the search of Sanders ' residence resulted in the discovery of a .45 Smith & Wesson firearm under the mattress wh ere Sanders' personal property (including Sanders' probation paperwork) was located. 1 The search also resulted in the discovery of an ammunition magazine in the pocket of San ders' pants located a short distance away from where the firearm was located. {¶ 6} Subsequent to this search, Sanders was transported to the Hamil ton County Justice Center. Once there, Sanders telephoned his sister. Du ring this call, Sanders admitted that the firearm discovered during the search of his r esidence belonged to him. Specifically, as P.O. Urban stated in his arrest report: In a later jail call to the defendants (sic) sister, he describ ed to her where the gun was found although that information was never relayed to Mr. Sanders. They also discussed trying to convince [Sanders' girlfriend] to tell the probation department it was her gun in order to get him out of trouble. {¶ 7} On August 21, 2019, a notice was filed with the Hamilton County Court of Common Pleas alleging Sanders had violated the terms of his com munity control. These violations included, but were not limited to, Sanders' possessi on of the firearm discovered

1. We note that contrary to P.O. Urban's arrest summary, Agent Wilson stated in his investigative report that the firearm was actually discovered in Sanders' "dresser drawer * * * wrapped up in Sanders' clothing." However, despite this discrepancy, there is no dispute that the firearm and ammunition magazine discovered during the search of Sanders' residence did, in fact, belong to Sanders.Clermont CA2020-06-033

- 4 - during the search of his residence on August 16, 2019. {¶ 8} On August 29, 2019, Sanders filed a motion with the Hamilton Co unty Court of Common Pleas requesting the court amend its April 9, 2012 ju dgment entry "by vacating the requirement of community control and dismissing the communi ty control violations." To support this claim, Sanders relied on the Ohio Supreme Court's decision in State v.

Hitchcock , 157 Ohio St.3d 215, 2019-Ohio-3246. The Ohio Supreme Court's decision in

Hitchcock was released on August 15, 2019, the day prior to Sanders' arr est. {¶ 9} In Hitchcock , the Ohio Supreme Court held that "unless otherwise authorized by statute, a trial court may not impose community-control sanc tions on one felony count to be served consecutively to a prison term imposed on another fel ony count." Id . at ¶ 1. Therefore, according to Sanders, because the Hamilton County Co urt of Common Pleas did not have the "statutory authority" to order his three year community control term to be served consecutively to his seven year prison term in its April 9, 2012 judgment entry, (1) its judgment entry "was void from its inception," (2) the judgm ent entry should be amended to vacate his three-year community control term, (3) he "should not be required to remain on community control in this case," and (4) any pending violati on of his community control

should be dismissed. {¶ 10} On September 17, 2019, the Clermont County Grand Jury returned an indictment charging Sanders with one count of having weapons wh ile under disability in violation of R.C. 2923.13(A)(2). As stated in the bill of part iculars, the charge arose based on the following: [O]n August 16, 2019 in Clermont County, Ohio, officers assisted [the] Hamilton County Probation Department in the arrest of the defendant, who had an active warrant. A search o f the defendant's residence was conducted and a .45 Smith and Wesson handgun was located. Once at the Hamilton County Justice Center, the defendant admitted possession of the handgun over the phone. The defendant has prior convictionsClermont CA2020-06-033

- 5 - for Felonious Assault, Domestic Violence, and Aggravated Assault. This indictment was issued in the case before us, Clermont C.P. Case No. 2019 CR 00893. {¶ 11} On October 7, 2019, the Hamilton County Court of Common Pleas i ssued a decision on Sanders' motion to amend its April 9, 2012 judgment entry. In that decision, the Hamilton County Court of Common Pleas noted that it had hel d a hearing and determined that Sanders had violated the terms of his community control. Based upon this finding, the Hamilton County Court of Common Pleas noted that i t had then revoked Sanders' community control and sentenced Sanders to serve seven years in prison for felonious assault. The Hamilton County Court of Common Pleas a lso noted that it had sentenced Sanders to serve seven years in prison for endangerin g children. The Hamilton County Common Pleas Court then noted that it had ordered the tw o sentences to be served concurrently, awarded Sanders with seven years of jail-time cre dit, terminated Sanders' community control, and dismissed Sanders' community control vio lation. {¶ 12} On February 11, 2020, Sanders filed a motion to suppress with t he trial court.

Similar to the motion that he had filed with the Hamilton Count y Court of Common Pleas, Sanders argued that the search of his residence was unlawful be cause the sentence imposed by the Hamilton County Court of Common Pleas in 2012 or dering him to serve his three-year community control term consecutive to his seven year prison sentence "was void from its inception" based on the Ohio Supreme Court's decision in Hitchcock . Therefore, according to Sanders, because the Hamilton County Court of Comm on Pleas' decision sentencing him to three-year community control term was "void," P.O. Urban's "supervision and authority to search" his residence was also void and anythi ng discovered in the search of his residence was subject to the exclusionary rule and must be suppressed. {¶ 13} On March 10, 2020, the trial court held a hearing on Sanders' m otion toClermont CA2020-06-033

- 6 - suppress. Because the facts were generally not in dispute, the trial court did not hear any witness testimony at this hearing. The trial court instead hea rd legal arguments from both parties regarding what impact, if any, the Ohio Supreme Court's decision in Hitchcock had on P.O. Urban's ability to conduct a search of Sanders' residen ce given the fact that

Hitchcock rendered Sanders' three-year community control term "void." T he trial court also heard arguments as to whether the "good faith" exception to the exclusionary rule applied. {¶ 14} To assist the trial court, the parties submitted three joint ex hibits and eight joint stipulations of fact. Those eight stipulations of fact s ubmitted to the trial court are as

follows: 1. Agent Chris Wilson and Hamilton County Probation Officer Brian Urban are not licensed attorneys. 2. Agent Wilson and his fellow officers in the Clermont County Narcotics Unit and P.O. Urban and his fellow Probation Officers are not in the practice of monitoring the Ohio Supreme Court's website for case law updates. 3. At no time on August 15, 2019 or August 16, 2019 were Agent Wilson or P.O. Urban aware of the Ohio Supreme Court's decision in State v. Hitchcock

. 4. No Hamilton County judicial official or court staff ever contacted P.O. Urban about the status of Defendant's community control pursuant to State v. Hitchcock

. 5. On August 16, 2019, Agent Wilson was unaware of any of the details regarding Defendant's probation for case Number B 1107010, other than being told by P.O. Urban that Defendant was on probation to Hamilton County and they had a warrant for his arrest. 6. P.O. Urban and his fellow probation officers in Hamilton County do not question Judges about their decisions to place someone on probation, they merely supervise the individuals that are placed on probation through the court system. 7. P.O. Urban received the information regarding Defendant's possible address and firearm possession late in the day on August 14, 2019, and he contacted Agent Wilson for assistance the morning of August 15, 2019.Clermont CA2020-06-033

- 7 - 8. P.O. Urban conducted a search of Defendant's residence, which led to the discovery of the firearm, pursuant to his abil ity as a Probation Officer to search the residence of any individua l that is supervised by the Hamilton County Probation Department. {¶ 15} On March 25, 2020, the trial court issued a decision denying Sa nders' motion to suppress. In so holding, the trial court determined that "[ e]ven if the search at issue in this case was unwarranted, the good faith exception to the excl usionary rule clearly applies." Expounding on its holding, the trial court stated: Under the circumstances of the case at hand, the Court finds that the possibly unwarranted search at issue was conducted with absolutely no culpability on the part of law enforcement. Thus, suppressing the resulting evidence would have zero deterrent effect on future Fourth Amendment violations. Hitchcock was decided on August 15, 2019. The search of the Defendant's residence took place the very next day. As the State notes, law enforcement officers cannot be expected to read and comprehend the ramifications of decisions by the Ohio Supreme Court within 24 hours of the announcement of those decisions. {¶ 16} Continuing, the trial court stated: Here, the actions of the [Hamilton County Probation Department] and the Clermont County Sheriff's Department were objectively reasonable and conducted in good faith. There was information that the Defendant had committed infractions of his probation, the [Hamilton County Probation Department] obtained an arrest warrant, and surveillance was conducted to confirm the information. Further, at the time the search was conducted, the [Hamilton County Probation Department] and the Clermont County Sheriff's Department had absolutely no reason to believe that the Defendant's community control sentence was legally void. In fact, that determination was not made by the Hamilton County Court of Common Pleas until October 7, 2019. {¶ 17} On May 8, 2020, Sanders entered a plea of no contest to the ind icted charge of having weapons while under disability. After conducting the necessary Crim.R. 11 plea colloquy, the trial court accepted Sanders' no contest plea upo n finding Sanders hadClermont CA2020-06-033

- 8 - entered his plea knowingly, intelligently, and voluntarily. Ba sed upon the underlying facts offered by the state, the trial court then found Sanders guilty as charged. The trial court then held a sentencing hearing and sentenced Sanders to serve a n 18-month prison term. The trial court also ordered the firearm discovered during the search of Sanders' residence be destroyed as contraband. Sanders now appeals, raising a sin gle assignment of error challenging the trial court's decision to deny his motion to su ppress. Motion to Suppress Standard of Review {¶ 18} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio4769, ¶ 15, citing State v. Burnside , 100 Ohio St.3d 152, 20 03-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence to resolve factual questions and evaluate witness credibility. State v. Vaughn , 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Th erefore, when reviewing the denial of a motion to suppress, this court is bou nd to accept the trial court's findings of fact if they are supported by competent, credible e vidence. State v. Durham , 12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14. "'A n appellate court, however, independently reviews the trial court's legal conclusi ons based on those facts and determines, without deference to the trial court's decision, wh ether as a matter of law, the facts satisfy the appropriate legal standard.'" State v. Frost , 12th Dist. Fayette No. CA2018- 11-023, 2019-Ohio-3540, ¶ 7, quoting State v. Cochran , 12th Dist. Preble No. CA2006-10- 023, 2007-Ohio-3353, ¶ 12. The Good Faith Exception to the Exclusionary Rule Applies {¶ 19} As noted above, Sanders claims the trial court erred by denying his motion to suppress. To support this claim, Sanders' argues that because his three-year community control term was "void" from its inception given the Ohio Supre me Court's decision inClermont CA2020-06-033

- 9 - Hitchcock , P.O. Urban's authority to search his residence pursuant to th e authority granted to him under the terms of Sanders' community control as Sanders ' probation officer was

also "null and void." 2 However, even if we were agree to Sanders' claim that P.O. Ur ban's authority to search his residence became "null and void" upon t he Ohio Supreme Court's

release of its decision in Hitchcock , the trial court did not err by finding the good faith exception to the exclusionary rule clearly applies to the case at bar. Rule of Law: The Exclusionary Rule {¶ 20} "Generally, evidence obtained as a result of an unconstitutiona l search or seizure will be excluded under the exclusionary rule." State v. Adkins , 12th Dist. Butler Nos. CA2014-02-036 and CA2014-06-141, 2015-Ohio-1698, ¶ 48. The exc lusionary rule is "'a deterrent sanction that bars the prosecution from introducing e vidence obtained by way of

a Fourth Amendment violation.'" State v. Dibble , 159 Ohio St.3d 322, 2020-Ohio-546, ¶ 14, quoting Davis v. United States , 564 U.S. 229, 231-232, 131 S.Ct. 2419 (2011). "However, under the good-faith exception to the exclusionary rule, where police act objectively and in a 'reasonable-good faith belief' that their conduct is lawful, the evidence from these

searches will not be excluded." Id. , citing State v. Johnson , 141 Ohio St.3d 136, 2014-Ohio5021, ¶ 40-42; and United States v. Leon , 468 U.S. 897, 909, 104 S.Ct. 3405 (1984). {¶ 21} "'To trigger the exclusionary rule, police conduct must be suff iciently deliberate that exclusion can meaningfully deter it, and suffic iently culpable that such deterrence is worth the price paid by the justice system.'" State v. Commins , 12th Dist. Clinton Nos. CA2009-06-004 and CA2009-06-005, 2009-Ohio-6415, ¶ 25, quoting Herring

v. United States , 555 U.S. 135, 144, 129 S.Ct. 695 (2009). Therefore, "[s]ince the purpose

2. Given Sanders' arguments, this decision offers no opinion as to whether Sanders' three-year community control term was void or merely voidable given the Ohio Supreme Court's decision in Hitchcock . We nevertheless note that according to the Ohio Supreme Court's re cent decision in State v. Harper , Slip Opinion No. 2020-Ohio-2913, a sentence is void only where the "sentenci ng court lacks jurisdiction over the subjectmatter of the case or personal jurisdiction over the accused." Id . at ¶ 42.Clermont CA2020-06-033

- 10 - of the exclusionary rule is to deter unlawful police conduct, e vidence obtained from a search should be suppressed only if it can be said that the law enforc ement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the

Fourth Amendment." State v. Morse , 12th Dist. Warren Nos. CA2001-11-099 and CA2001- 11-100, 2002-Ohio-3873, ¶ 24, citing Leon at 919. Analysis {¶ 22} As stated previously, the trial court found the "possibly unwar ranted search" of Sanders' residence by P.O. Urban was conducted "with absolut ely no culpability on the part of law enforcement." We agree. {¶ 23} The Ohio Supreme Court released its decision in Hitchcock on August 15, 2019. The search of Sanders' residence took place the very nex t day, August 16, 2019. The parties' joint stipulation of fact specifically notes that neither Agent Wilson nor P.O. Urban are licensed attorneys who were in the practice of monito ring the Ohio Supreme Court website for case law updates. The same is true as it rel ates to the other agents and probation officers in the Clermont County Narcotics Unit and th e Hamilton County Probation Department. The parties' joint stipulation of fact also notes that neither Agent Wilson nor P.O. Urban were aware of the Ohio Supreme Court's decision in Hitchcock at any time prior to Sanders' residence being searched. The parties' joint stipu lation of fact further notes that no Hamilton County judicial official or court staff ever contac ted P.O. Urban about the status of Sanders' community control in light of the Ohio Supreme Cour t's decision in Hitchcock

. {¶ 24} Considering that even the most seasoned attorneys often lack th e skillset necessary to understand the potential ramifications that a deci sion issued by the Ohio Supreme Court may have within 24 hours of its release, the same would certainly be true for law enforcement officers like Agent Sanders and P.O. Urban who are not licensed attorneys who engage in the practice of law. Therefore, just a s the trial court found,Clermont CA2020-06-033

- 11 - because there was no reason for anyone involved in the search o f Sanders' residence to believe Sanders' three-year community control term had been ren dered "void" at the time P.O. Urban conducted the search of Sanders' residence, "suppres sing the resulting

evidence would have zero deterrent effect on future Fourth Amen dment violations." Accordingly, since the purpose of the exclusionary rule is to d eter unlawful police conduct, something which did not occur here, we find no error in the tri al court's decision denying Sanders' motion to suppress upon finding the good faith excepti on to the exclusionary rule clearly applies to the case at bar. State v. Fleming is Not Binding on this Court {¶ 25} In so holding, we note that Sanders argues this court should re verse the trial court's decision based on the Second District Court of Appeals' decision in State v. Fleming , 2d Dist. Clark No. 2012 CA 59, 2013-Ohio-503. However, althoug h Fleming presents a somewhat similar factual scenario to the facts at issue here, " [i]t is well-established that we are generally only bound by the decisions of the Ohio Supreme C ourt and by past precedent produced by our own district, not those decisions from [any of] the other eleven appellate

districts." State v. Ertel , 12th Dist. Warren No. CA2015-12-109, 2016-Ohio-2682, ¶ 9. Therefore, rather than the Second District's decision in Fleming , we choose to instead follow the Ohio Supreme Court's decision in State v. Castagnola , 145 Ohio St.3d 1, 2015-Ohio1565, wherein the Ohio Supreme Court found "[t]he exclusionary rule should not be applied when 'the official action was pursued in complete good faith' b ecause it would have no

deterrent effect." Id. at ¶ 97, citing State v. George , 45 Ohio St.3d 325, 331, quoting Leon , 468 U.S. at 919. We also choose to follow the Ohio Supreme Cou rt's decision in State v.

Johnson , 141 Ohio St.3d 136, 2014-Ohio-5021, wherein the Ohio Supreme Court found "the good-faith exception should be applied 'where new developm ents in the law have upended the settled rules on which the police relied.'" Id. at ¶ 48, quoting United States v.Clermont CA2020-06-033

- 12 - Sparks , 711 F.3d 58, 68 (1st Cir.2013). Accordingly, finding no meri t to any of the arguments advanced by Sanders' herein, Sanders' single assignme nt of error lacks merit

and is overruled. {¶ 26} Judgment affirmed.

M. POWELL, P.J., and BYRNE, J., concur.