[Cite as State v. Jeko, 2019-Ohio-2044.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                       Court of Appeals No. L-18-1093

        Appellant                                   Trial Court No. CR0201602550

v.

Charles Danny Jeko                                  DECISION AND JUDGMENT

        Appellee                                    Decided: May 24, 2019

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellant.

        Larry V. DiLabbio, for appellee.

                                             *****

        MAYLE, P.J.

                                           Introduction

        {¶ 1} The defendant-appellee, Charles Danny Jeko, was convicted of felonious

assault and sentenced by the Lucas County Court of Common Pleas to two years in

prison, with 353 days of jail time credit for those days he had been out of jail on bond and
subject to electronic monitoring. The state appealed. It argues that because the electronic

monitoring was a condition of Jeko’s pretrial bond and not as part of his sentence, it did

not constitute “confinement” under R.C. 2967.191(A) and therefore, he was not entitled

to any credit. As set forth below, we agree with the state, and we remand the case for

resentencing.

                              Facts and Procedural History

       {¶ 2} Jeko was indicted on April 25, 2016, on a single count of felonious assault in

violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree. According to the

record, Jeko punched the victim, his ex-girlfriend, in the face with a closed fist and

pushed her to the ground, causing injuries. Jeko appeared for a preliminary hearing

before the Toledo Municipal Court on July 28, 2016, and was released on bond with the

condition that he “BE PLACED ON GPS SUPERVISION [AND HAVE] NO

CONTACT WITH THE VICTIM.” The case was then bound over to the Lucas County

Court of Common Pleas.

       {¶ 3} Jeko’s arraignment took place on September 14, 2016. According to the

trial court’s order, it “continued [Jeko’s] bond at $50,000 with the following added

conditions: 1) Defendant to be placed in Electronic Monitoring with no violations;

2) Defendant to submit to twice weekly drug testing including urinalysis, blood testing,

or drug patch; 3) Defendant to submit to random Breathalyzer testing; 4) Defendant to

have no direct or indirect contact with the victim.”




2.
       {¶ 4} Jeko was tried before a jury and convicted on January 24, 2017. He then

filed a motion under Crim.R. 33(A)(6), requesting a new trial on the basis of newly

discovered evidence. The trial court granted Jeko’s motion, and the state appealed.

       {¶ 5} Jeko remained on electronic monitoring as a condition of bond after his

conviction and during the state’s appeal. On June 29, 2017, while the appeal was still

pending, Jeko moved to vacate the electronic monitoring portion of his bond. Jeko

stressed that he had been on electronic monitoring for over 300 days without any

violations, appeared on time for all court dates, and dutifully followed all of the terms

and conditions of bond. The trial court initially denied the motion, but on August 28,

2017, it vacated the electronic monitoring condition of bond.

       {¶ 6} On February 23, 2018, we reversed the trial court’s grant of a new trial and

remanded the case for sentencing. State v. Jeko, 6th Dist. Lucas No. L-17-1143, 2018-

Ohio-665 (Jeko I). The sentencing hearing was held on March 21, 2018, at the

conclusion of which the trial court sentenced Jeko to two years in prison, with 353 days

of credit for time spent while under electronic monitoring. Both parties appealed. Jeko’s

appeal was dismissed, sua sponte, for failure to file a brief. The state asserts the

following assignment of error:

              The trial court erred in reducing defendant’s prison term by his time

       served on electronic monitoring before sentence was imposed.




3.
                                      Analysis

       {¶ 7} An appellate court may increase, decrease, modify, or vacate and remand a

disputed trial court sentence if it clearly and convincingly is demonstrated that either the

record of evidence did not support applicable statutory findings or the sentence is

otherwise contrary to law. R.C. 2953.08(G)(2); State v. Tammerine, 6th Dist. Lucas No.

L-13-1081, 2014-Ohio-425, ¶ 11. An error in the computation of jail time credit is

subject to review under R.C. 2953.08(G)(2). See, e.g., State v. Gueli, 6th Dist. Wood No.

WD-17-028, 2018-Ohio-997.

       R.C. 2967.191(A) provides for a reduction of prison time for related days of

confinement. It provides, in relevant part, “[t]he department of rehabilitation and

correction shall reduce the prison term of a prisoner * * * by the total number of days that

the prisoner was confined for any reason arising out of the offense for which the prisoner

was convicted and sentenced, including confinement in lieu of bail while awaiting trial.”

(Emphasis added.) 1

       {¶ 8} “Confinement” is not defined within the criminal code, but it has been

“deemed synonymous with the term ‘detention’” as defined in R.C 2921.01(E). State v.

Sutton, 6th Dist. Lucas No. L-03-1104, 2004-Ohio-2679, ¶ 13. Under R.C. 2921.01(E),


1
  Likewise, R.C. 2949.08, entitled “Confinement upon conviction; reduction of sentence
for prior confinement,” provides, in part: “(C) (1) If the person is sentenced to a jail for a
felony * * * the jailer in charge of a jail shall reduce the sentence of a person delivered
into the jailer’s custody * * * 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,
including confinement in lieu of bail while awaiting trial * * *.”




4.
     “Detention” means arrest; confinement in any vehicle subsequent to an

     arrest; confinement in any public or private facility for custody of persons

     charged with or convicted of crime in this state or another state or under the

     laws of the United States or alleged or found to be a delinquent child or

     unruly child in this state or another state or under the laws of the United

     States; hospitalization, institutionalization, or confinement in any public or

     private facility that is ordered pursuant to or under the authority of section

     2945.37, 2945.371, 2945.38, 2945.39, 2945.40, 2945.401, or 2945.402 of

     the Revised Code; confinement in any vehicle for transportation to or from

     any facility of any of those natures; detention for extradition or deportation;

     except as provided in this division, supervision by any employee of any

     facility of any of those natures that is incidental to hospitalization,

     institutionalization, or confinement in the facility but that occurs outside the

     facility; supervision by an employee of the department of rehabilitation and

     correction of a person on any type of release from a state correctional

     institution; or confinement in any vehicle, airplane, or place while being

     returned from outside of this state into this state by a private person or

     entity pursuant to a contract entered into under division (E) of section

     311.29 of the Revised Code or division (B) of section 5149.03 of the

     Revised Code. For a person confined in a county jail who participates in a

     county jail industry program pursuant to section 5147.30 of the Revised




5.
       Code, “detention” includes time spent at an assigned work site and going to

       and from the work site.

       {¶ 9} Whether the imposition of electronic monitoring constitutes “detention,” and

therefore “confinement” for purposes of jail time credit under R.C. 2967.191(A), depends

upon the circumstances under which it is imposed. Here, Jeko was subjected to

electronic monitoring as a condition of bond during both pre-trial and post-trial

proceedings. Electronic monitoring was imposed as a pre-trial condition of bond

between July 28, 2016 and January 24, 2017, the date of Jeko’s trial. Then, after his

conviction, Jeko remained on electronic monitoring as a condition of bond during the

state’s appeal of the trial court’s grant of a new trial. On August 28, 2017, while the

state’s appeal was still pending, the trial court vacated the electronic monitoring

condition of the bond. Ultimately, this court reversed and remanded the case to the trial

court, and Jeko was sentenced on March 21, 2018, to two years in prison with 353 days

of credit for the total amount of time that Jeko spent while under electronic monitoring.2

       {¶ 10} We have recognized that electronic monitoring that is imposed as a pre-trial

condition of bond is generally not “detention” and, therefore, not “confinement” for

purposes of R.C. 2967.191(A). See Sutton, 6th Dist. Lucas No. L-03-1104, 2004-Ohio-

2679, at ¶ 12 (“[p]re-trial electronic monitoring at home is different from house arrest or

electronic monitoring after conviction. A defendant receives no credit for time served



2
 By our count, Jeko spent a total of 396 days (not 353 days) on electronic
monitoring―180 before trial (between July 28, 2016 and January 24, 2017) and 216 days
after trial (between January 25 and August 28, 2017).


6.
before trial under R.C. 2967.191 or R.C. 2949.08(C)(1) while on pre-trial electronic

monitoring, and requests for time credit that argued that pre-trial electronic monitoring is

‘confinement in lieu of bail awaiting trial’ have been denied on the ground that pre-trial

electronic monitoring is not detention.” (Citations omitted.)); see also State v. Gapen,

104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 72 (“[P]retrial electronic home

monitoring was not intended to be a form of detention under R.C. 2921.01(E).”). The

rationale for this rule is simple: electronic monitoring is “detention” under R.C.

2921.01(E)―and therefore is “confinement” for purposes of jail time credit under R.C.

2967.191―where the defendant could be prosecuted for escape from the electronic

monitoring (where, for example, the electronic monitoring is imposed as a criminal

sentence or community control sanction). See State v. Holmes, 6th Dist. Lucas No.

L-08-1127, 2008-Ohio-6804, ¶ 19; State v. Reed, 6th Dist. Erie No. E-17-037, 2019-

Ohio-1266, ¶ 18. In contrast, a defendant cannot be prosecuted for escape for violating

an electronic monitoring condition of pretrial bond―although, of course, the trial court

could revoke bond for any such violation. See Crim.R. 46(I); R.C. 2927.35.

       {¶ 11} Accordingly, we find that Jeko was not entitled to jail time credit for those

days that he was subject to electronic monitoring before his January 24, 2017 trial

because he was not subject to “detention” or “confinement” during that time. See also

State v. Johnson, 2d Dist. Montgomery No. 27937, 2018-Ohio-4142, ¶ 21 (“[T]rial courts

may not treat a defendant’s electronically-monitored home confinement, imposed as a




7.
condition of bail, as here, as tantamount to being held in jail in lieu of bail for purposes of

allocating jail-time credit.”).

       {¶ 12} Moreover, in this case, we find that this same rationale applies to Jeko’s

electronic monitoring between January 24, 2017, the date of his conviction, and

August 28, 2017, the date that the trial court vacated the electronic monitoring condition

of bond. Jeko’s electronic monitoring was a pretrial condition of his bond that extended

after his conviction, while the state pursued its first appeal. It was not a condition of any

sentence, and had he violated the terms of the electronic monitoring, he would not have

been subject to prosecution, though presumably, his bond would have been rescinded.

See Crim.R. 46(I); R.C. 2927.35. Under these circumstances, we find that Jeko’s

postconviction/pre-sentence electronic monitoring was not “detention”―and therefore

not “confinement” under R.C. 2967.191(A)―and, consequently, he was not entitled to

jail-time credit for that time. Accord State v. Shearer, 6th Dist. Wood No. WD-98-078,

1999 Ohio App. LEXIS 6016 (Dec. 17, 1999) (The “period of [defendant’s] electronic

home monitoring [while prosecuting his appeal] does not equate to ‘confinement’ for

purposes of affecting [his] sentence.” Id. at *7, citing Ex parte Bailey v. Chance, 7th

Dist. Mahoning No. 98CA169, 1998 Ohio App. LEXIS 4401, *8 (Sept. 19, 1998)).

       {¶ 13} The state’s sole assignment of error is found well-taken.

                                         Conclusion

       {¶ 14} We find that the record contains clear and convincing evidence that Jeko’s

sentence is contrary to law. He was not entitled to jail time credit under R.C.




8.
2967.191(A) for the time that he spent on electronic monitoring as a condition of bond

because he was not “confined” during that time. We find the state’s assignment of error

well-taken, reverse the judgment of the trial court awarding Jeko 353 days of jail time

credit, and remand the matter to the trial court for resentencing. It is so ordered. Jeko is

ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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