[Cite as State v. Blankenship, 2011-Ohio-1601.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
:
Plaintiff-Appellee,
:
No. 10AP-651
v.
:
(C.P.C. No. 08CR-2862)
Anthony Blankenship,
:
(REGULAR CALENDAR)
Defendant-Appellant.
:
D E C I S I O N
Rendered on March 31, 2011
Ron O'Brien, Prosecuting Attorney, and John H. Cousins IV,
for appellee.
Yeura R. Venters, Public Defender, and John W. Keeling, for
appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1}
Defendant-appellant, Anthony Blankenship ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas revoking his probation and
imposing the balance of his original jail sentence for a conviction of misdemeanor theft.
For the reasons that follow, we affirm in part and reverse in part.
{¶2}
On November 20, 2008, appellant pled guilty to one count of theft, a first-
degree misdemeanor in violation of R.C. 2913.02. The trial court sentenced appellant to
180 days in jail and suspended the jail days, placing appellant on probation for one year.
The conditions of his probation included obtaining employment, paying restitution, and
No. 10AP-651
2
completing an anger-management class. In June 2009, appellant stopped reporting to
his probation officer. Subsequently, appellant was declared to be an absconder and his
probation was suspended. On March 31, 2010, following an administrative hearing, the
court restored appellant's probation, imposing a 90-day term of electronically monitored
house arrest ("EMHA") and extending the probation for one year. On May 21, 2010,
appellant violated the EMHA. He also failed to complete other conditions of his probation.
On June 25, 2010, the trial court conducted a hearing on the probation department's
request to revoke appellant's probation. At the hearing, appellant argued that, if his
probation was revoked and the jail sentence was reimposed, he was entitled to timeserved credit against the jail sentence for 50 days spent under EMHA. Appellant also
argued that he was entitled to credit for 90 days of actual time spent in jail related to the
theft conviction and that the probation department had miscalculated in asserting that he
was only entitled to credit for 81 days spent in jail. The trial court revoked appellant's
probation, reimposed the 180-day jail sentence, and ordered that appellant was entitled to
receive time-served credit of 81 days for the time he spent in jail. No credit was given for
the time appellant spent on EMHA.
{¶3}
Appellant appeals, setting forth the following two assignments of error for
the court's review:
ASSIGNMENT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED BY NOT CREDITING THE
TIME THE DEFENDANT WAS SENTENCED TO
ELECTRONICALLY MONITORED HOUSE ARREST
TOWARD THE MAXIMUM JAIL SENTENCE THAT IT
IMPOSED UPON THE DEFENDANT BECAUSE HOUSE
ARREST IS DEFINED AS CONFINEMENT AND
DETENTION BY THE REVISED CODE AND THE COURTS
No. 10AP-651
3
ARE OBLIGATED TO CREDIT THE AMOUNT OF TIME A
DEFENDANT IS CONFINED "FOR ANY REASON ARISING
OUT OF THE OFFENSE FOR WHICH THE PERSON WAS
CONVICTED AND SENTENCED" TOWARDS THE
SENTENCE IMPOSED UPON AN OFFENDER.
ASSIGNMENT OF ERROR NUMBER TWO
THE TRIAL COURT ERRED WHEN IT FAILED TO
CORRECT AN OBVIOUS CLERICAL ERROR IN THE
CALCULATION OF THE TIME THAT THE DEFENDANT
SPENT IN PRETRIAL DETENTION.
{¶4}
Appellant's first assignment of error asserts that, when the trial court
revoked his probation, it should have given credit against his jail term for the time he
spent under EMHA.
{¶5}
Generally, an appellate court will not overturn the sentence imposed on a
misdemeanor offender absent an abuse of discretion by the trial court. See Columbus v.
Repine, 10th Dist. No. 07AP-250, 2007-Ohio-5015, ¶19 (French, J., concurring
separately). However, the essence of appellant's first assignment of error involves a
dispute over the proper application of R.C. 2949.08(C). " 'When an appellate court is
called upon to review a trial court's interpretation and application of a statute, the
"appellate court conducts a de novo review, without deference to the trial court's
determination." ' " State v. Willig, 10th Dist. No. 09AP-925, 2010-Ohio-2560, ¶14, quoting
McGeehan v. State Bur. of Workers' Comp. (Dec. 28, 2000), 10th Dist. No. 00AP-648
(internal citations omitted).
{¶6}
In imposing a sentence for a misdemeanor offense, a trial court is "guided
by the overriding purposes of misdemeanor sentencing," which are "to protect the public
from future crime by the offender and others and to punish the offender."
R.C.
No. 10AP-651
4
2929.21(A). The sentencing court "has discretion to determine the most effective way to
achieve" these purposes. R.C. 2929.22(A). Unless a specific sanction is required, the
court may sentence an offender to a jail term, community control sanctions, or both. R.C.
2929.25(A)(1). The range of available community control sanctions includes residential
sanctions, such as a term in a halfway house; nonresidential sanctions, such as a period
of house arrest; and financial sanctions, such as restitution. R.C. 2929.26 to 2929.28.
The total time of all community control sanctions imposed for a misdemeanor offense
may not exceed five years. R.C. 2929.25(A)(2). If an offender violates a community
control sanction, the court may impose a longer time under that community control
sanction, a more restrictive community control sanction, or a combination of community
control sanctions, including a jail term. R.C. 2929.25(C)(2).
{¶7}
"House arrest" is defined as "a period of confinement of an offender that is
in the offender's home or in other premises specified by the sentencing court" during
which the offender is required to remain in the home except when authorized to leave for
employment or other designated purposes. R.C. 2929.01(P). The offender is required to
periodically report to a designated person and may be subject to other restrictions or
conditions. Id. Electronic monitoring involves the use of an electronic device to monitor
and determine an individual's location. R.C. 2929.01(TT)-(UU).
{¶8}
Ohio law provides that, when a person is sentenced to jail for a felony or
misdemeanor offense, his sentence shall be reduced "by the total number of days the
person was confined for any reason arising out of the offense for which the person was
convicted and sentenced." R.C. 2949.08(C)(1). Appellant argues that, because the law
No. 10AP-651
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defines house arrest as "a period of confinement," then time served in post-conviction
EMHA qualifies for a reduction of his jail sentence under R.C. 2949.08(C)(1).
{¶9}
The term "confinement" is not separately defined under R.C. 2929.01.
However, the fact that house arrest is defined using the term "confinement" does not
necessarily mean that it qualifies for time-served credit under R.C. 2949.08(C)(1).
"[W]here two statutes do not expressly state that the word has the same meaning in both,
it is apparent that it might have different meanings." State v. Dickinson (1971), 28 Ohio
St.2d 65, 70.
{¶10} It is clear that house arrest does not always qualify as "confinement." This
court has previously held that time served under EMHA as a condition of bail prior to
sentencing cannot be credited toward a jail sentence. State v. Furlong (Feb. 6, 2001),
10th Dist. No. 00AP-637, citing State v. Holt (May 12, 2000), 2d Dist. No. 18035.
Similarly, the Supreme Court of Ohio has held that pre-trial EMHA as a condition of bond
"does not constitute detention." State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548,
¶72; see also State v. Sutton, 6th Dist. No. L-03-1104, 2004-Ohio-2679, ¶16.1 Appellant
concedes that pre-trial EMHA as a condition of bail is not confinement for purposes of
calculating time-served credit, but seeks to distinguish these cases by arguing that an
individual can refuse pre-trial EMHA as a condition of bail and choose to remain in jail
awaiting trial, but cannot refuse EMHA when it is imposed as part of a post-conviction
sentence. (Appellant's brief at 10.) Therefore, appellant argues, post-conviction EMHA
1
"Detention" is defined in R.C. 2921.01(E) and is relevant to the crime of escape, prohibited under R.C.
2921.34. Some courts have determined that "confinement" has the same meaning as "detention." See
State v. Faulkner (1995), 102 Ohio App.3d 602, 604. While we acknowledge these decisions, they are not
binding on this court and we need not reach the issue of whether "confinement" and "detention" are
synonymous.
No. 10AP-651
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as a condition of a sentence is different in nature and should qualify for time-served
credit.
{¶11} The case before this court involves a misdemeanor offender and the
application of the time-served credit provision of R.C. 2949.08(C)(1). Our holding is
accordingly limited to these circumstances. We note, however, that much of the existing
case law regarding credit for time served arises in the context of felony offenses. We also
note that some of these cases involve application of the time-served credit provision of
R.C. 2967.191.
In relevant part, R.C. 2949.08(C)(1) and 2967.191 contain nearly
identical language. Therefore, we find that the analysis, reasoning, and conclusions of
these cases may be analogous to the matter before us. With this in mind, we begin our
analysis with a discussion of two decisions of the Supreme Court of Ohio evaluating
whether other forms of restrictions on offenders qualified for time-served credit.
{¶12} In State v. Nagle (1986), 23 Ohio St.3d 185, the Supreme Court of Ohio
considered whether time spent in a residential rehabilitation facility as a condition of
probation constituted confinement under R.C. 2949.08(C). The defendant in Nagle pled
guilty to felonious assault; he was given a suspended jail sentence and placed on
conditional probation. One of the conditions of his probation was spending 18 months at
an out-of-state rehabilitation facility. After less than two months, the defendant left the
rehabilitation facility, returned to Ohio, and turned himself in to authorities. Id. At a
subsequent probation revocation hearing, the trial court terminated the defendant's
probation and reimposed the original jail sentence. The court of appeals held that the trial
court erred by not giving the defendant credit under R.C. 2949.08(C) for the time he spent
in the rehabilitation facility. Id. at 186. The Supreme Court reversed the court of appeals
No. 10AP-651
7
and reinstated the original sentence, holding that the trial court was not required to give
credit against the jail term for time spent in the rehabilitation facility. Id. at 188. Central to
this holding was the Supreme Court's observation that "in none of [the examples of
confinement under R.C. 2949.08(C)] may the defendant leave official custody of his own
volition." Id. at 186. By contrast, although the rehabilitation facility imposed restrictions
on the defendant's freedom of communication with those outside the facility, "[his]
freedom of movement was not so severely restrained, i.e., he indeed did depart the
facility." Id. at 187. Therefore, time spent in this residential rehabilitation facility as a
condition of post-conviction probation was not a form of "confinement" eligible for timeserved credit under R.C. 2949.08(C).
{¶13} By contrast, in State v. Napier, 93 Ohio St.3d 646, 2001-Ohio-1890, the
Supreme Court of Ohio concluded that time spent in a community-based correctional
facility constituted confinement under R.C. 2967.191. That case involved a defendant
who pled guilty to felony drug possession and was sentenced to three years of
community control sanctions, including evaluation and treatment at a residential
community-based correctional facility. Id. at 649. After violating his community control
sanctions, the trial court imposed an eight-month prison sentence, and the defendant
claimed he was entitled to credit for 110 days spent at the community-based correctional
facility. The trial court granted the defendant credit for only the first 30 days at the facility
when he was in a "lockdown" status and not permitted to leave the facility. Id. at 647.
The Supreme Court reversed the trial court's determination, holding that the defendant
was entitled to credit for all of the time spent at the facility. The Supreme Court noted
that, although the defendant could leave the facility after the "lockdown" period, his ability
No. 10AP-651
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to leave was subject to requesting permission and submitting a detailed written
description of when he was leaving the facility, where he was going, and when he
planned to return. Because the defendant was not free to come and go as he wished and
"was subject to the control of the staff regarding personal liberties," the defendant's time
in the community-based correctional facility constituted "confinement" for purposes of
R.C. 2967.191. Id. at 648.
{¶14} Consistent with the reasoning of these decisions, this court has previously
noted the Supreme Court of Ohio's holding that " 'confinement' requires such a restraint
on the defendant's freedom of movement that he cannot leave official custody of his own
volition." State v. Slager, 10th Dist. No. 08AP-581, 2009-Ohio-1804, ¶20. In Slager, the
court concluded that pre-arrest hospitalization for treatment of injuries sustained while
fleeing the police did not constitute confinement for purposes of R.C. 2967.191. Id. at
¶21. The court stated that a hospital is not the type of secure facility that would give rise
to confinement. Further, the defendant was not guarded, confined, or restrained while in
the hospital, and he was only placed under arrest on the day he was discharged from the
hospital. Id. The court therefore determined that the defendant was not entitled to credit
for time served for his pre-arrest hospital stay.
{¶15} The Second District Court of Appeals considered a case similar to the
present appeal in State v. Ober, 2d Dist. No. 2003-CA-27, 2004-Ohio-3568.
The
defendant in that case was convicted of five counts of sexual battery, served a portion of
his original jail sentence, and then was released on probation.
After violating his
probation, the terms of probation were modified, and he was placed on house arrest. Id.
at ¶6. When the defendant once again violated his probation, his original jail sentence
No. 10AP-651
9
was reimposed. The defendant argued that, under R.C. 2967.191, he was entitled to
time-served credit for the period he spent on house arrest before violating his probation a
second time. Id. at ¶19. The court of appeals concluded that the defendant's house
arrest "was less restrictive, or at least no more restrictive, than the situation of the
defendant in State v. Nagle." Id. at ¶20. Therefore, while on house arrest, the defendant
had not been confined for purposes of R.C. 2967.191.
{¶16} The order imposing EMHA on appellant indicates that he was permitted to
leave his home for both anger-management treatment and employment. Moreover, like
the defendant in Nagle, appellant was apparently able to leave the home of his own
volition, because he must have done so to violate the terms of his EMHA. The fact that
he faced possible consequences for choosing to violate his EMHA did not transform the
EMHA into a condition imposing "such a restraint on [his] freedom of movement that he
[could not] leave official custody of his own volition." Slager, at ¶20, citing Nagle, at 18687.
{¶17} In addition to case law supporting a finding that EMHA does not constitute
confinement for purposes of R.C. 2949.08(C), statutory analysis also supports this
conclusion. In construing a statute, " '[s]tatutes relating to the same matter or subject * * *
are in pari materia and should be read together to ascertain and effectuate if possible the
legislative intent.' " D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250,
2002-Ohio-4172, ¶20, quoting State ex rel. Pratt v. Weygandt (1956), 164 Ohio St. 463,
paragraph two of the syllabus. Appellant argues that EMHA constitutes confinement
under R.C. 2949.08(C) because an offender convicted of a misdemeanor cannot be
sentenced to a term of EMHA that exceeds the maximum jail term available for the
No. 10AP-651
offense.
10
(Appellant's brief at 3.) However, this claim is contrary to established law
applicable specifically to misdemeanor sentencing. Although R.C. 2929.27 is silent as to
how long a term of EMHA may be imposed, R.C. 2929.25(A)(2) provides that the duration
of all community control sanctions—which includes nonresidential sanctions such as
EMHA—imposed on a misdemeanor offender may not exceed five years. By contrast,
the law specifically provides that a misdemeanor offender may be sentenced to a term in
a halfway house or an alternative residential facility "not to exceed the longest jail term
available for the offense."
R.C. 2929.26(A)(1) and (2).
Absent a similar statutory
restriction on EMHA, a trial court has discretion to impose a term of EMHA longer than
the maximum jail term available for the offense, so long as the court heeds the cumulative
five-year restriction for all community control sanctions. In State v. Cowen, 167 Ohio
App.3d 233, 2006-Ohio-3191, the Second District Court of Appeals held that a trial court
did not err by sentencing a misdemeanor offender to three months of EMHA when the
maximum possible jail term for the offense was 30 days. The court held that "if the
legislature intended for a sentence of [EMHA] to be the equivalent of a jail term, then it
could have inserted the same limitation in R.C. 2929.27 [as in R.C. 2929.26(A)(1) and
(2)], but it did not." Id. at ¶27.
{¶18} Appellant's position is also contrary to the authority given to trial courts to
remedy violations of community control sanctions. Under R.C. 2929.25(C)(2), a court
may impose additional penalties on an individual who violates a condition of a community
control sanction, including a longer time under the same community control sanction or a
more restrictive community control sanction. The statute provides that "[t]he court may
reduce the longer period of time that the violator is required to spend under the longer
No. 10AP-651
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sanction or the more restrictive sanction * * * by all or part of the time the violator
successfully spent under the sanction that was initially imposed." R.C. 2929.25(C)(3).
(Emphasis added.) This statute vests trial courts with discretionary authority to give
violators credit for time served under a community control sanction when imposing
additional punishment for violating that community control sanction. Thus, under this
statute, if the court below had sentenced appellant to an extended term of EMHA as a
penalty for violating the original EMHA sanction, the court would have had discretionary
authority to reduce the extended term to give appellant credit for time served under the
original EMHA sanction.
Appellant argues that, when the trial court reimposed the
original jail sentence after he violated EMHA, the court was required to give him credit for
time served under EMHA. However, if credit must be given for time served under EMHA
when reinstating a jail sentence, then it would follow that time-served credit would be
mandatory when imposing an extended community control sanction.
Assembly has clearly provided otherwise.
The General
Accepting appellant's position would be
logically inconsistent with the authority granted to trial courts under R.C. 2929.25(C)(3).
{¶19} In light of the case law and statutory analysis set forth above, we find that
an individual convicted of a misdemeanor offense is not entitled to time-served credit
under R.C. 2949.08(C) for time spent under EMHA as a condition of post-conviction
probation.
{¶20} We note finally that, although we find that the trial court is not required to
give appellant time-served credit for his time under EMHA, we disagree with the state's
assertion that only pre-conviction confinement may be credited under R.C. 2949.08(C).
(Appellee's brief at 8.) The state argues that both the title of R.C. 2949.08, "[c]onfinement
No. 10AP-651
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of convicts; reduction of sentence for confinement prior to conviction," and the examples
provided in the statute demonstrate that only pre-conviction forms of confinement may be
used in determining time-served credit. Id. However, it is well-established that title,
chapter, and section headings do not constitute part of the law. R.C. 1.01; see also Viers
v. Dunlap (1982), 1 Ohio St.3d 173, 175, overruled on other grounds by Wilfong v.
Batdorf (1983), 6 Ohio St.3d 100, 103.2 Further, one of the examples of confinement for
which time-served credit should be granted under R.C. 2949.08(C)(1) is "confinement
while awaiting transportation to the place where the person is to serve the sentence,"
which by its own terms assumes that the confined individual has been convicted and
sentenced. The Napier decision, discussed above, also demonstrates that certain forms
of post-conviction community control sanctions are deemed to be confinement for
purposes of determining time-served credit. Therefore, we cannot agree with the state's
position that only pre-conviction confinement is eligible for time-served credit.
{¶21} For the reasons set forth above, appellant's first assignment of error is
without merit and is overruled.
{¶22} In his merit brief, appellant asked this court, in the event that we overruled
the first assignment of error, to certify our decision as being in conflict with the decision in
State v. Holmes, 6th Dist. No. L-08-1127, 2008-Ohio-6804. We decline to do so.
2
We also note that section headings should not be considered part of the law for purposes of interpreting a
statute because these headings may vary by publisher. Baldwin's Ohio Revised Code Annotated refers to
R.C. 2949.08 as "[c]onfinement of convicts; reduction of sentence for confinement prior to conviction."
Page's Ohio Revised Code Annotated refers to R.C. 2949.08 as "[c]onfinement upon conviction; reduction
of sentence for prior confinement." The online version of the Ohio Revised Code refers to R.C. 2949.08 as
"[c]ustody upon conviction – reduction of sentence for days served."
No. 10AP-651
13
{¶23} In Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 1993-Ohio-223, the
Supreme Court of Ohio explained the conditions that must be met before certifying a
conflict, stating as follows:
First, the certifying court must find that its judgment is in
conflict with the judgment of a court of appeals of another
district and the asserted conflict must be "upon the same
question." Second, the alleged conflict must be on a rule of
law—not facts. Third, the journal entry or opinion of the
certifying court must clearly set forth that rule of law which the
certifying court contends is in conflict with the judgment on the
same question by other district courts of appeals.
Id. at 596 (emphasis sic).
{¶24} In Holmes, the Sixth District considered whether a defendant who had been
convicted of felony drug possession was entitled to credit for time served under EMHA
when he was returned to prison for violating his community control sanctions. Holmes at
¶2-6. The present case involves an offender convicted of misdemeanor theft. There are
important distinctions between the schemes for felony sentencing and misdemeanor
sentencing.
See, e.g., State v. Sutton, 162 Ohio App.3d 802, 2005-Ohio-4589, ¶9.
Because Holmes involved a felony offender and the present case involves a
misdemeanor offender, we believe that the decisions are not "upon the same question,"
and certification is improper.
{¶25} Appellant's second assignment of error claims that the trial court erred by
only granting credit for 81 days of time served in jail, when he had actually spent a total of
90 days in jail at various times for this offense. Appellant asserts that this nine-day
discrepancy arises from the time of his original sentencing in November 2008. Appellant
was arrested on October 2, 2008, and was released from jail on bond on November 6,
No. 10AP-651
14
2008. Thus, it appears that appellant spent 36 days in jail prior to his release on bond. At
the original sentencing, however, the court ordered that he was entitled to 27 days of
credit for time served in jail prior to conviction. This alleged mathematical error remained
on the record and formed part of the trial court's calculation in the order revoking
appellant's probation.
{¶26} While suggesting that res judicata might apply to this assignment of error,
the state "concedes that a limited remand is appropriate to correct the original sentencing
entry." (Appellee's brief at 14-15.) In light of the facts asserted by appellant, it appears
that the trial court erred in its original calculation of appellant's time-served credit and that
this error led to a subsequent error in the order revoking appellant's probation.
{¶27} Accordingly, appellant's second assignment of error is sustained.
{¶28} For the foregoing reasons, appellant's first assignment of error is overruled
and his second assignment of error is sustained. We affirm the judgment of the Franklin
County Court of Common Pleas denying time-served credit for the time appellant spent
under EMHA, but reverse the trial court's judgment granting only 81 days of credit for time
served in jail.
We remand this matter to the trial court to vacate its July 1, 2010,
revocation entry and to re-issue a new corrected order regarding the credit for actual time
served in jail to which appellant is entitled.
Judgment affirmed in part and reversed
in part; cause remanded with instructions.
BRYANT, P.J., and FRENCH, J., concur.
_______________________
