[Cite as State v. Pope, 2012-Ohio-5452.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                    :      Hon. Sheila G. Farmer, J.
                                              :      Hon. John W. Wise, J.
-vs-                                          :
                                              :
GERALD POPE                                   :      Case No. 2012CA00159
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2010CR0893



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 13, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      GERALD A. POPE, PRO SE
Prosecuting Attorney                                 Inmate No. 623-245
                                                     Lake Erie Correctional Institution
By: RENEE M. WATSON                                  P.O. Box 8000
Assistant Prosecuting Attorney                       Conneaut, OH 44030
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00159                                                       2

Farmer, J.

       {¶1}   On June 30, 2010, the Stark County Grand Jury indicted appellant, Gerald

Pope, on five counts of nonsupport of dependents in violation of R.C. 2919.21.

Appellant pled guilty to the charges on August 18, 2010.            By judgment entry filed

October 4, 2010, the trial court sentenced appellant to five years of community control

with conditions, including electronically monitored house arrest.

       {¶2}   On October 27, 2011, appellant's probation officer filed a motion to revoke

appellant's probation for violating several rules. On December 20, 2011, an addendum

to the motion to revoke was filed to add appellant's active warrants for passing bad

checks.

       {¶3}   A hearing was held on March 14, 2012. By judgment entry filed March 23,

2012, the trial court revoked appellant's community control and sentenced him to

fourteen months in prison.

       {¶4}   On July 23, 2012, appellant filed a motion for jail time credit for his time

spent on electronic monitored house arrest. By judgment entry filed July 26, 2012, the

trial court denied the motion.

       {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶6}   "I FEEL AS THOUGH THE TRIAL COURT VIOLATED MY DUE

PROCESS RIGHTS BY NOT CREDITING THE TIME I SPENT ON ELECTRONICALLY

MONITORED HOUSE ARREST AS PART OF MY COMMUNITY CONTROL."
Stark County, Case No. 2012CA00159                                                         3


                                             II

      {¶7}    "THE TRIAL COURT ERRED WHEN IT DENIED MY JAIL TIME CREDIT

FOR DAYS SUCCESSFULLY COMPLETED ON ELECTRONICALLY MONITORED

HOUSE ARREST WHEN A SUBSEQUENT PRISON TERM WAS IMPOSED FOR A

VIOLATION."

                                            I, II

      {¶8}    Appellant challenges the trial court's failure to give him jail time credit for

time spent on electronically monitored house arrest as such constituted detention. We

disagree.

      {¶9}    This court examined this same issue in State v. Tabor, 5th Dist. No.

11CA33, 2011-Ohio-3200. In Tabor, this court analyzed the meaning of "detention" and

concluded the following at ¶ 18-20:



              In this case, appellant was only required to be at home between the

      hours of 10:00 p.m. and 6:00 a.m. which was merely a curfew

      requirement. Appellant was free to move around within the county and

      could leave the county with permission as long as he abided by the terms

      of his community control.

              In State v. Blankenship, Franklin App. No. 10AP–651, 2011–Ohio–

      1601, ¶ 19, our brethren from the Tenth District held, "[i]n light of the case

      law and statutory analysis set forth above, we hold that a person 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 postconviction
Stark County, Case No. 2012CA00159                                                      4

      probation."   Although Blankenship involved a misdemeanor case, we

      agree with the well-reasoned analysis therein.

             Upon review, we find the trial court did not err in denying appellant

      jail time credit for his time spent on electronic monitoring.



      {¶10} In the case sub judice, the trial court sentenced appellant to five years of

community control and placed him in the Intensive Supervision Probation Program.

Judgment Entry filed October 4, 2010. Appellant was ordered to serve "house arrest

followed by a 9:00 p.m. curfew" and was assigned to the Stark County Day Reporting

Program. Appellant was also informed of his freedom and lack of detention as follows:



      2. The Defendant shall keep the supervising officer informed of his

      residence and place of employment.             The Defendant shall obtain

      permission from the supervising officer before changing residence or

      employment.     The Defendant understands that if he is released and

      absconds supervision, he may be prosecuted for the crime of escape,

      under section 2921.34 of the Revised Code.

      3. The Defendant shall not leave the State of Ohio without written

      permission of the Adult Parole/Probation Department.

      16. The Defendant shall follow the following Special Conditions:

      f. That this defendant shall obtain and maintain verifiable full-time

      employment.
Stark County, Case No. 2012CA00159                                                   5


       {¶11} Given the nature of appellant's community control, we find our decision in

Tabor to be controlling.

       {¶12} Assignments of Error I and II are denied.

       {¶13} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                            _______________________________



                                            _______________________________



                                            _______________________________

                                                          JUDGES

SGF/sg 1029
[Cite as State v. Pope, 2012-Ohio-5452.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
GERALD POPE                                    :
                                               :
        Defendant-Appellant                    :       CASE NO. 2012CA00159




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________



                                               _______________________________



                                               _______________________________

                                                           JUDGES
