[Cite as State v. Harvey, 2017-Ohio-5512.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2016-L-092
        - vs -                                   :

RICARDO L. HARVEY,                               :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
00540.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Ricardo L. Harvey, pro se, PID: A674-573, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Ricardo L. Harvey, pro se, appeals the judgment of the Lake

County Court of Common Pleas denying his “motion to reduce sentence for time on

bond.” Appellant seeks credit for time served toward his prison sentence for trafficking

in heroin and tampering with evidence for the time he was free on bond while awaiting

trial and sentencing. For the reasons that follow, we affirm.
       {¶2}   On June 25, 2015, appellant was charged in the Painesville Municipal

Court with tampering with evidence. He was arrested on a warrant and brought to court

at which time personal bond was set. On July 6, 2015, he was bound over to the trial

court and his personal bond was continued. On July 13, 2015, the trial court received

the municipal court’s docket and filings.

       {¶3}   On October 29, 2015, appellant pled guilty via information to trafficking in

heroin, a felony of the fourth degree, and tampering with evidence, a felony of the third

degree. The court found appellant’s plea was voluntary, accepted the plea, and found

him guilty.   On that same date, the trial court continued the bond as an “own

recognizance” bond. Also on that date, appellant signed the “Conditions of Bond.”

       {¶4}   Also on October 29, 2015, the court sentenced appellant to 17 months in

prison for trafficking in heroin and 24 months for tampering with evidence, the two terms

to be served concurrently to each other, for a total of 24 months. Bond was continued

three days to November 1, 2015, when appellant’s sentence was to begin.

       {¶5}   Appellant did not appeal his guilty plea or his sentence. Instead, nine

months later, on July 23, 2016, he filed a pro se “Motion to Reduce Sentence for time

on bond.” In his motion, he asked for what amounted to jail-time credit for the 109 days

he was on bond from July 13, 2015 (the day the trial court received the municipal court’s

docket and filings) through November 1, 2015 (the day his sentence began). In support,

he argued that, due to the possibility of confinement if he should violate the conditions

of his bond, he was “confined in [his] mind.” As a result, he argued he was “confined”

pursuant to R.C. 2967.191, and thus entitled to credit for time served for this period.

The state filed a brief in opposition, arguing that appellant failed to cite any authority that




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would allow the court to credit him with any time served while he was out of jail and

complying with the terms of his bond. The court denied appellant’s motion.

       {¶6}   Appellant appeals the trial court’s judgment, asserting the following for his

sole assignment of error:

       {¶7}   “The trial court abused its discretion and committed plain error in violation

of Crim.R. 52(B) for failing to grant appellant time while on bond pursuant to Criminal

rule 46 time confined while on bond. (Sic.)”

       {¶8}   As a preliminary matter, we note this court has previously held that where

a defendant, like appellant, had an opportunity to raise, but failed to raise, jail-time credit

issues on direct appeal, he was barred by res judicata from raising such issues in a

post-conviction motion for jail-time credit. State v. Karpenko, 11th Dist. Trumbull No.

2014-T-0001, 2015-Ohio-1220, ¶9-11.

       {¶9}   However, R.C. 2929.19(B)(2)(g)(iii) provides, in pertinent part:

       {¶10} [A] sentencing court retains continuing jurisdiction to correct any
             error not previously raised at sentencing in making a determination
             [of the appropriate jail-time credit] * * *. The offender may, at any
             time after sentencing, file a motion in the sentencing court to
             correct any error made in making [such] determination[.]
             (Emphasis added.)

       {¶11} Several courts have held that since R.C. 2929.19(B)(2)(g)(iii) provides that

a court has continuing jurisdiction to correct any jail-time credit error not previously

raised at sentencing, this statute abates the application of res judicata as it relates to

issues that could have been raised at sentencing but were not. State v. Lynch, 10th

Dist. Franklin Nos. 15AP-123, etc., 2015-Ohio-3366, ¶9-11; State v. Quarterman, 8th

Dist. Cuyahoga No. 101064, 2014-Ohio-5796, ¶8; State v. Copas, 4th Dist. Adams No.

14CA996, 2015-Ohio-5362, ¶11-12.



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         {¶12} The state concedes on appeal that it did not argue res judicata in the trial

court and the state does not assert res judicata on appeal. Res judicata is not self-

executing; rather, it must be affirmatively raised and if it is not, it is waived. See State v.

Apanovitch, 107 Ohio App.3d 82, 89 (8th Dist.1995). For these reasons and in the

interest of justice, we choose to address appellant’s jail-time credit argument.

         {¶13} This court reviews the trial court’s determination as to the amount of

credit, if any, to which a defendant is entitled under the clearly and convincingly contrary

to law standard in R.C. 2953.08(G)(2). State v. Smith, 11th Dist. Geauga No. 2014-G-

3185, 2014-Ohio-5076, ¶15; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶1

(“an appellate court may vacate or modify a felony sentence on appeal only if it

determines by clear and convincing evidence that the record does not support the trial

court’s findings under relevant statutes or that the sentence is otherwise contrary to

law”).

         {¶14} Pursuant to R.C. 2967.191, a prisoner’s prison term shall be reduced:

         {¶15}   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, confinement for examination to determine the
                 prisoner’s competence to stand trial * * *, [and] confinement while
                 awaiting transportation to the place where the prisoner is to serve
                 the prisoner’s prison term * * *. (Emphasis added.)

         {¶16} Appellant argues that since he was subject to re-arrest under the

conditions of his bond if he failed to appear for his court hearings while this case was

pending, he was “confined” for purposes of R.C. 2967.191 and thus entitled to credit for

time served during the 109-day period during which he was on an own recognizance

bond.




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      {¶17} The only case appellant cites in support is Jones v. Cunningham, 371 U.S.

236 (1963). In Jones, the Court held that a defendant released on parole is in custody

for purposes of federal habeas corpus because a paroled prisoner is released into the

parole board’s custody and also because the board’s custody involves significant

restraints on a parolee’s freedom. Id. at 241-243.

      {¶18} In contrast with Jones, here, appellant was not on parole, but, rather, was

free on an own recognizance bond while awaiting trial and sentencing. Further, the only

condition of the bond appellant challenges required that he appear for his court hearings

and provided that if he failed to appear, his bond would be revoked.

      {¶19} Appellant has failed to cite any case law holding that being free on bond

while awaiting trial and sentencing with a condition requiring the defendant to appear at

his court hearings amounts to confinement, entitling him to credit for time served.

Moreover, our research supports the opposite result.

      {¶20} The term “confinement,” as used in R.C. 2967.191, while not defined in

the criminal code, 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. R.C. 2921.01(E) defines “detention” as

      {¶21} arrest; confinement in any vehicle subsequent to an arrest;
            confinement in any * * * facility for custody of persons charged with
            or convicted of crime * * *; hospitalization, institutionalization, or
            confinement in any * * * facility that is ordered pursuant to * * * the
            Revised Code; * * * supervision by an employee of the department
            of rehabilitation and correction of a person on any type of release
            from a state correctional institution * * *. (Emphasis added.)

      {¶22} The Supreme Court has interpreted the “confinement” language in R.C.

2949.08(C), which is virtually the same as the “confinement” language in R.C.




                                           5
2967.191, as requiring severe restraint of freedom of movement so that the person

cannot leave official custody. State v. Sullivan, 7th Dist. Columbiana No. 01-CO-66,

2002-Ohio-5225, ¶7, citing State v. Nagle, 23 Ohio St.3d 185, 186-187 (1986).            In

Nagle, supra, the Ohio Supreme Court held that release to a rehabilitation center for 18

months was a condition of probation, not confinement for time-crediting purposes.

      {¶23} It is well settled that a defendant is not entitled to have his prison term

reduced for days spent on his own recognizance after bond was set and before trial.

Sullivan, supra, at ¶5-6. In support, the Seventh District stated that being released on

one’s own recognizance with conditions such as having to return to court for disposition

is not confinement for time-crediting purposes pursuant R.C. 2967.191. Id.

      {¶24} Moreover, several courts have similarly resolved the issue when

addressing more extreme bond conditions - house arrest or electronically-monitored

house arrest. These courts hold that where the trial court places a defendant under

house arrest or electronically-monitored house arrest as a condition of his recognizance

bond pending trial or sentence, he is nevertheless free on bond and thus not confined

for time-crediting purposes. State v. Faulkner, 102 Ohio App.3d 602, 604 (3d

Dist.1995); Sutton, supra, at ¶12; State v. Delaney, 12th Dist. Warren No. CA2012-11-

124, 2013-Ohio-2282, ¶8, citing State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548,

¶72; State v. Tyler, 90 Ohio App.3d 380, 381 (10th Dist.1993) (“The house arrest was

not confinement in lieu of bail but, rather, was a condition of release from confinement *

* *. * * * [W]e find no rationale or provision for granting credit towards a sentence of

incarceration in a penal institution for time spent free on bail, although on house arrest,




                                            6
while awaiting sentence.”); In re Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-

1933, ¶59; State v. Gowdy, 7th Dist. Mahoning No. 07MA103, 2008-Ohio-1533, ¶26.

       {¶25} Here, appellant was not subject to house arrest, electronically-monitored

house arrest, or any other restrictive conditions. Rather, the only condition of his bond

with which he takes issue required his attendance at all court hearings. Such condition

did not terminate his freedom while on bond or severely restrict his freedom of

movement while under official custody. Faulkner, supra; Sullivan, supra; Nagle, supra.

We therefore hold that appellant was not in “confinement” while on bond pursuant to

R.C. 2967.191, and, as a result, the trial court did not err in denying his motion for credit

for time served.

       {¶26} For the reasons stated in the opinion of this court, the assignment of error

is overruled. It is the order and judgment of this court that the judgment of the Lake

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

                                 ____________________


COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


       {¶27} I concur with the majority’s well-reasoned opinion but write to note that

appellant’s argument highlights a very real inconsistency in the present state of both

precedent and statutory interpretation regarding this area of the law.                  The

characteristics of pre-sentence bond and post-sentence probation are more similar than




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different given the restrictive conditions and limitations upon a defendant’s movement

and freedom.    The conditions of bond often include drug-testing, travel restrictions,

frequent reporting and, occasionally, electronic monitoring.          The costs of these

conditions are assessed to the defendant before he is even found guilty of the crime

charged.

       {¶28} The law requires that defendants be given credit for the time they spend

incarcerated prior to conviction. However, there is no means for “crediting” a defendant

for having to meet the numerous conditions of their bond prior to conviction. At this

point the law does not recognize, nor reconcile, this inconsistency. The demands of the

public and the legal system for procedural fairness and sentencing reform may require

that this inconsistency be addressed in the not-too-distant future.

       {¶29} The writer, however, must read the law as it is today, not how it may be in

the future. As such, I respectfully concur with the majority.




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