[Cite as State v. Porter, 2018-Ohio-3852.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :

        Appellee,                                  :     CASE NOS. CA2017-07-101
                                                                   CA2017-07-103
                                                   :
    - vs -                                                   EN BANC OPINION
                                                   :            9/24/2018

DESHAWN PORTER,                                    :

        Appellant.                                 :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 14CR30506



David P. Fornshell, Warren County Prosecuting Attorney, Kristen A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Diehl & Hubbell, LLC, Martin E. Hubbell, 304 East Warren Street, Lebanon, Ohio 45036, for
appellant



        EN BANC.

        {¶ 1} Pursuant to App.R. 26(A)(2) and Loc.R. 18(D), this court sua sponte

determined that a conflict existed regarding our review of jail-time credit involving house

arrest as discussed in State v. Fillinger, 12th Dist. CA2015-04-015, 2016-Ohio-8455, and

State v. Porter, 12th Dist. Warren Nos. CA2017-07-101 and CA2017-07-103, 2018-Ohio-

3123. Therefore, this court considered the matter en banc.
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        {¶ 2} After holding an en banc conference pursuant to Loc.R. 18(D), a majority of the

judges of this court have determined that a defendant is not entitled to jail-time credit for the

time he or she is subject to house arrest. As such, the law of this district is now settled, and

sentencing courts in the Twelfth District shall analyze the matter as set forth in State v.

Porter.

        {¶ 3} In Porter, the state appealed the manner in which the Warren County Court of

Common Pleas determined Porter's jail-time credit after sentencing him to two years in

prison. Porter pled guilty to one count of burglary and was sentenced to two years in prison.

Porter was incarcerated for several months before he was granted judicial release and

placed on three years of community control. Thereafter, Porter violated the terms of his

community control by absconding and absenting himself from the jurisdiction without the trial

court's permission. Porter also tested positive for drug use. The trial court then imposed

more restrictive community control sanctions, which included electronically-monitored house

arrest and a curfew.

        {¶ 4} Porter violated the terms of his community control again when he tested

positive for cocaine. The trial court revoked Porter's community control and imposed the two-

year prison term originally announced. The trial court awarded jail-time credit, which included

the time that Porter spent on house arrest but did not include the amount of time Porter was

subject to a curfew.1

        {¶ 5} On appeal, the state argued that the trial court improperly calculated jail-time

credit. In determining jail-time credit toward the two-year sentence, the trial court gave Porter

credit for the time he was under house arrest pursuant to State v. Fillinger, 12th Dist.



1. This court has unanimously determined that no jail-time credit may be awarded for time subject to curfew.
State v. Bowling, 12th Dist. Warren Nos. CA2017-02-020, CA2017-02-21, and CA2017-03-032, 2017-Ohio-8539.
As such, Porter's original appeal specific to his being denied jail-time credit while subject to curfew is not a
matter subject to this en banc consideration and will not be addressed in this opinion.
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Madison No. CA2016-04-015, 2016-Ohio-8455. Therein, the majority relied on the definition

of house arrest set forth in Ohio's sentencing scheme. Specifically, R.C. 2929.01(P) defines

house arrest as "a period of confinement of an offender that is in the offender's home or in

other premises specified by the sentencing court * * *." Based solely on the definition of

"confinement" in an unrelated statute, R.C. 2929.01(P), the majority held that a defendant

subject to house arrest qualifies for jail-time credit for purposes of being "confined" pursuant

to R.C. 2967.191.

        {¶ 6} In a well-reasoned dissent, Judge Robert A. Hendrickson determined that the

statutory definition of house arrest should not be dispositive when deciding if one is subject to

jail-time credit while on house arrest. Rather, Judge Hendrickson's dissent focused on the

different ways the word "confinement" has been treated by the legislature, and that a

sentencing court's final determination should be based on "circumstances surrounding the

restraint of the defendant's physical movements without regard to whether the defendant's

movements may constitute a violate of probation or community control." Fillinger, 2016-Ohio-

8455 at ¶ 23. The circumstances by which conditions are imposed upon an individual identify

the extent to which a person was subject to the control of others and liberties restrained. See

State v. Napier, 93 Ohio St.3d 646 (2001).2

        {¶ 7} Having considered the matter en banc, we find that Porter's accountability to a

designated location (his home) is not tantamount to confinement associated with the loss of

liberties and the restraint of choices the same as, or similar to, being confined in jail. While




2. The dissent suggests that Porter I relied upon "dubious" authority when citing Nagle, Napier, Blankenship, and
Tabor. However, even a cursory review of Porter I demonstrates that those cases were discussed when
addressing the issue of curfew, not house arrest. While Porter I and the majority herein discuss the general rule
from Napier that circumstances control a determination of confinement, such general rule did not form the basis
of the analysis for Porter I or our current majority. As stated in the previous footnote, this court, including the
dissenting members, has been unanimous on the issue of curfew and that no jail-time credit may be awarded to
those subject to a curfew, and the curfew issue was not before this court en banc. As such, the dissent's disdain
for cases cited in Porter I on an issue that is not before us is both unfounded and perplexing.
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on house arrest, Porter was not subject to the direct control of officials of a government

facility regarding his personal decisions and self-determination. We therefore hold that an

individual subjected to house arrest may not be awarded jail-time credit for the time spent

while exercising the freedoms of house arrest. This is because an individual's liberties,

freedom of choices, and movement are not restrained to an extent reasonably associated

with being "confined" in a facility.

       {¶ 8} Being "confined" for purposes of jail-time credit as found in R.C. 2967.191 does

not allow for employment at will and living at other premises as does house arrest

"confinement" found in R.C. 2929.01(P). A plain reading of the statutes should not be

"construed" as the dissent does, as having the same meaning. The dissent reaches its

interpretation via its judicial determination of legislative intent. We remain unpersuaded to

follow such a path.

       {¶ 9} Porter had significant and substantial freedom from restraint while on house

arrest. Thus, jail-time credit was improperly given to Porter for the time he was on house

arrest. As previously stated in Porter, and now upheld after en banc consideration, this court

overrules our prior decision in State v. Fillinger to the extent that it permits jail-time credit for

those on house arrest.

       {¶ 10} The record herein is undisputed that Porter's freedom was minimally restrained

while he was subject to house arrest. Throughout the final probation hearing, testimony

revealed that Porter wore an electronic monitoring device that merely beeped when he

moved away from the beacon, but such monitoring did not stop him from leaving his home.

During the time that Porter was under house arrest, he even moved residences from staying

with a friend to moving into a long-term motel with his girlfriend.

       {¶ 11} In fact, nothing about Porter's house arrest was consistent with traditional

confinement.     Porter's personal liberties were not curtailed, as he was not physically
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restrained, and instead, was merely monitored from afar by the probation department or court

services. Porter was not locked in his home or subject to shackles or restraints. Porter

controlled his own schedule, including moving freely about, choosing his roommates,

planning meals, welcoming guests, and doing whatever he wanted, whenever he wanted. In

fact, Porter violated his community control while living on house arrest for using cocaine.3

        {¶ 12} Porter could have left his home at any time, as it was not locked or protected

by probation or court services in any manner. Simply by choice, Porter could go anywhere,

and do anything, because he was never "confined." Porter was granted the comfort and

convenience of residing at home and later at a motel with his girlfriend. Such is not

equivalent to being subject to moment-to-moment control by officials regarding personal

liberties. The individual autonomy one experiences when required to be at a certain location,

like house arrest, with all of its freedom and other choices, cannot remotely be compared to

the substantial restrictions imposed by the confinement found in a government-operated

facility.

        {¶ 13} We note the dissent attempts to obtain the same result it reached in Fillinger.

Yet, the law is not devoid of common sense, nor is R.C. 2967.191 to be denied its plain

reading. Being "confined" within the statute does not include house arrest confinement. The

dissent employs statutory construction suggesting a plain reading of the statute aids it in

interpreting legislative intent. Yet, there is no need to employ statutory construction or look to

"intent" if the words of the statute are plain and unequivocal. It is incongruous to search for

legislative intent using statutory construction if a plain reading of the statute can be applied.



3. The dissent cavalierly dismisses the differences in the types of confinement as being "mental imagery," yet,
the two statutes function separately and without reference to one another due to the significant differences of the
various types of confinement. While R.C. 2967.191 gives examples of custodial confinement, house arrest
"confinement," to the extent it exists, clearly entails much greater freedom in self-governance. House arrest is a
given opportunity with a very limited inconvenience, which one undertakes in order to avoid the much greater
intrusion of a lock-down facility.
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As the dissent itself reveals in its recitation of interwoven case law and statutes, it cannot

avoid the remaining fact that R.C. 2967.191 does not expressly provide that an offender is

entitled to jail-time credit for house arrest, particularly as defined under another statute.

          {¶ 14} We note that none of the examples of being "confined" for which one is

entitled to jail-time credit include circumstances that equate to the "confinement" as defined

in the house arrest statute. The dissent suggests that the two different statutes carry the

same meaning via a gymnastic exercise of statutory construction, and ironically "construes"

its interpretation under the guise of "judicial restraint" and legislative deference. The

dissent's vainglorious pronouncement that it alone applies R.C. 2967.191 "as written," rings

hollow.

          {¶ 15} While Porter may have faced consequences for his choice to leave his house,

such consequences for disobeying a court order were no more akin to confinement than his

original decision to violate the terms of his community control. Simply stated, Porter was able

to conduct his life however he chose, make decisions regarding when and what he was going

to do, and was even able to choose where and with whom he lived. Thus, Porter was not

confined during the time he was subject to house arrest for the purposes of R.C. 2967.191,

and the trial court erred by granting Porter 96 days of jail-time credit.

          {¶ 16} To secure and maintain uniformity of the court's decisions, the court hereby

confirms and adopts the holding in State v. Porter, 12th Dist. Warren Nos. CA2017-07-101

and CA2017-07-103, 2018-Ohio-3123, as the en banc decision of the court on the issue of

whether time served under house arrest constitutes confinement for purposes of determining

jail-time credit. We further overrule State v. Fillinger, 12th Dist. Madison No. CA2016-04-

015, 2016-Ohio-8455, to the extent it permits jail-time credit for time served under house

arrest.



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        S. POWELL, P.J., HENDRICKSON and PIPER, JJ., concur.


        RINGLAND and M. POWELL, JJ., dissent.


        RINGLAND and M. POWELL, JJ., dissenting.

        {¶ 17} We respectfully dissent from the majority’s opinion that house arrest is not

"confinement" for purposes of R.C. 2967.191, overruling State v. Fillinger, 12th Dist. Madison

No. CA2016-04-015, 2016-Ohio-8455, and adopting State v. Porter, 12th Dist. Warren Nos.

CA2017-07-101 and CA2017-07-103, 2018-Ohio-3123 (Porter I), as the law in this district. In

Fillinger, this court found that a person was entitled to confinement credit against a prison

term under R.C. 2967.191, for prior time on house arrest that had been imposed as a

sanction for the same felony conviction. Id. at ¶ 12. In so doing, this court relied on the

statutory definition of "house arrest" in R.C. 2929.01(P).

        {¶ 18} "House arrest" as "confinement" for which a prisoner is entitled to credit

against a prison term, necessarily depends upon whether the words "confined" and

"confinement," as used in R.C. 2967.191, have the same meaning as the word "confinement"

as used in R.C. 2929.01(P).4              Based upon long-recognized principles of statutory

construction and principles of judicial deference to legislative enactments, we believe that

those words must be construed as having the same meaning in both statutes.

        {¶ 19} Pursuant to R.C. 2929.01(P), "[h]ouse arrest means a period of confinement of

an offender that is in the offender's home or in other premises specified by the sentencing

court or by the parole board pursuant to section 2967.28 of the Revised Code" and during

which all of the following apply:

                (1) The offender is required to remain in the offender's home or

4. "Confined" and "confinement," as used in R.C. 2967.191, are merely different usages of the same word (i.e.,
an adjective and a noun, respectively) conveying the same essential concept. Therefore, when we refer to the
word "confinement," we are also referring to "confined," and vice versa.
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              other specified premises for the specified period of confinement,
              except for periods of time during which the offender is at the
              offender's place of employment or at other premises as
              authorized by the sentencing court or by the parole board.

              (2) The offender is required to report periodically to a person
              designated by the court or parole board.

              (3) The offender is subject to any other restrictions and
              requirements that may be imposed by the sentencing court or by
              the parole board.

(Emphasis added.)

       {¶ 20} R.C. 2967.191 provides in pertinent part that:

              The department of rehabilitation and correction shall reduce the
              stated prison term of a prisoner or, if the prisoner is serving a
              term for which there is parole eligibility, the minimum and
              maximum term or the parole eligibility date of the 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, confinement for examination to determine the
              prisoner’s competence to stand trial or sanity, confinement while
              awaiting transportation to the place where the prisoner is to serve
              the prisoner’s prison term, as determined by the sentencing court
              under division (B)(2)(g)(i) of section 2929.19 of the Revised
              Code, and confinement in a juvenile facility.

(Emphasis added.)

       {¶ 21} Considering whether "confinement" as used in each of the statutes has the

same meaning, requires that we ascertain and give effect to the Legislature's intent in

enacting the statutes. State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, ¶ 9. Courts must

first resort to the plain language of the statute to determine the legislative intent. State v.

Waggoner, 12th Dist. Butler No. CA2013-02-027, 2013-Ohio-5204, ¶ 9. A statute should be

applied as it is written when its meaning is unambiguous and definite. Lowe at ¶ 9. "An

unambiguous statute must be applied in a manner consistent with the plain meaning of the

statutory language." Antoon v. Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-

7432, ¶ 20. The words used in a statute may not be ignored or treated as superfluous. State
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v. Polus, 145 Ohio St.3d 266, 2016-Ohio-655, ¶ 12 ("[n]o part [of a statute] should be treated

as superfluous unless that is manifestly required, and the court should avoid that construction

which renders a provision meaningless or inoperative").

       {¶ 22} Additionally, in applying the usual rules of statutory construction, we should be

mindful that there is a special rule of construction for statutes defining criminal penalties.

R.C. 2901.04(A), sometimes referred to as the rule of lenity, provides that "sections of the

Revised Code defining offenses or penalties shall be strictly construed against the state, and

liberally construed in favor of the accused." This statute applies because R.C. 2901.01(P)

defines the penalty of "house arrest." Thus, the rule of lenity provides the backdrop against

which the use of the word "confinement" in R.C. 2967.191 and 2929.01(P) should be

interpreted.

       {¶ 23} Reading R.C. 2967.191 and 2929.01 together indicates that the word

"confinement" is used similarly in each of the statutes. That the word "confinement" is used

in both statutes to refer to felony sanctions, in and of itself, strongly suggests that the statutes

concern the same subject matter. Furthermore, an understanding of R.C. 2967.191 requires

that it be interpreted with reference to the definitions in R.C. 2901.01. For instance, R.C.

2967.191 provides that confinement credit reduces a prisoner's "stated prison term." But the

phrase "stated prison term" is not defined in R.C. Chapter 2967. However, "stated prison

term" is defined by R.C. 2929.01, the same statute that defines "house arrest" as

"confinement." Finally, in requiring that confinement credit be given in four specific instances

of confinement, R.C. 2967.191 uses language nearly identical to that used in R.C.

2929.01(P) in defining "house arrest" as "confinement." Thus, considering the use of the

word "confinement" in both statutes, the similarity of language used in each statute in

describing particular instances of "confinement," and the interdependence of the statutes,

and construing the statutes strictly against the state and liberally in favor of the prisoner, the
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statutes should be construed as entitling a prisoner to credit for confinement on house arrest.

       {¶ 24} As mentioned above, R.C. 2967.191 includes four specific instances for which

the statute requires that a prisoner receive credit against a prison term (i.e., confinement in

lieu of bail, for examination to determine competence or sanity, while awaiting transport, or in

a juvenile facility). Apparently referring to the absence of house arrest from those specific

instances of confinement, the majority notes that R.C. 2967.191 "does not clearly provide"

confinement credit for house arrest. However, the statute is clear that its mention of specific

instances of confinement is not exclusive. The statute provides that the confinement credit it

requires "includes" those particular instances of confinement. Accordingly, the inclusion of

specific instances of confinement does not circumscribe the primary mandate of the statute

that credit is due for prior "confinement." Thus, in applying R.C. 2967.191, it is necessary to

determine not only whether the prisoner was subject to one of the statute's enumerated

instances of "confinement," but also whether the prisoner was otherwise previously

"confined" for the offense. Moreover, by defining "house arrest" as "confinement," R.C.

2929.01(P) has the practical effect of treating "house arrest" as a particular instance of

"confinement" for which credit is due against a prison term, to the same extent as those listed

in R.C. 2967.191. Pursuant to R.C. 2967.191 and 2929.01(P), a prisoner is entitled to credit

for periods of house arrest that was imposed as a conviction for a felony.

       {¶ 25} Today the majority adopts Porter I as the law of our appellate district.

However, a review of Porter I discloses that it is based upon dubious authority. In holding

that R.C. 2967.191 does not entitle a prisoner to credit for confinement on house arrest,

Porter I relied upon the Ohio Supreme Court’s opinions in State v. Nagle, 23 Ohio St.3d 185

(1986); and State v. Napier, 93 Ohio St.3d 646 (2001); the Tenth Appellate District's opinion

in State v. Blankenship, 192 Ohio App.3d 639, 2011-Ohio-1601 (10th Dist.); and the Fifth

Appellate District's opinion State v. Tabor, 5th Dist. Richland No. 11CA33, 2011-Ohio-3200.
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A review of those cases does not support adoption of Porter I as the law.5

        {¶ 26} Nagle and Napier resolved the issue of whether a particular sanction was

"confinement" for which a prisoner was entitled to credit by considering the nature and extent

of the restraint upon the prisoner’s liberty imposed by the sanction. However, neither of these

cases involved house arrest or another sanction which is defined by statute as "confinement."

Neither of these cases construed R.C. 2929.01(P). "Confinement" is not otherwise defined

by the Ohio Revised Code. Thus, because Nagle and Napier were considering sanctions

which the General Assembly had not defined as "confinement," resolution necessarily

required an inquiry into the nature of the sanction to determine whether it should be

considered "confinement." However, such an inquiry is unnecessary for house arrest

because it is statutorily defined as "confinement." Thus, the Nagle/Napier precedent is

distinguishable and inapplicable.

        {¶ 27} Blankenship and Tabor each involve a denial of confinement credit for house

arrest. Blankenship and Tabor, as well as the dissent in Fillinger, cite State v. Dickinson, 28

Ohio St.2d 65 (1971), to discount the unambiguous language of R.C. 2929.01(P) that house

arrest is "confinement." Dickinson is cited for the proposition that "where two statues do not

expressly state that the word has the same meaning in both, it is apparent that it might have

different meanings." Dickinson at 70. However, when the Dickinson citation is considered in

context, it is clear that Dickinson does not support the proposition advanced by Blankenship,

Tabor, and the Fillinger dissent. The entire Dickinson quote is as follows:

                 It must be noted, however, that the definition of a word in a civil
                 statute does not necessarily import the same meaning to the
                 same word in interpreting a criminal statute. The result may be

5. The majority characterizes our criticism of Nagel, Napier, Blankenship, and Tabor as authority supporting their
position as "unfounded and perplexing" because those cases were relied upon in Porter I only in its analysis of
whether curfew, as opposed to house arrest, is "confinement" for purposes of R.C. 2967.191. However, in
holding that house arrest is not "confinement" in Porter I the majority stated that, "[w]e agree with the reasoning
articulated in Judge Hendrickson's dissent" in Fillinger. Judge Hendrickson's dissent in Fillinger relied upon
Nagel, Napier, Blankenship, and Tabor. By extension, so does the majority in this case.
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              desirable, but criminal statutes, unlike civil statutes, must be
              construed strictly against the state. Thus, where two statutes do
              not expressly state that the word has the same meaning in both,
              it is apparent that it might have different meanings.

Dickinson at 70.

       {¶ 28} In Dickinson, the supreme court was commenting upon whether a word in a

civil statute, which is not subject to strict construction against the state, would necessarily

have the same meaning when also used in a criminal statute, which is strictly construed

against the state. In this case, we are not dealing with a civil statute and a criminal statute but

with two criminal statutes.     Blankenship, Tabor, and the Fillinger dissent misconstrue

Dickinson to rationalize a different meaning of "confinement" as used in R.C. 2967.191, from

its use in R.C. 2929.01(P). Blankenship and Tabor are not persuasive authority which we

should follow.

       {¶ 29} We agree with the majority’s philosophical aversion to treating house arrest as

"confinement" for which credit is due under R.C. 2967.191. We understand the majority's

reluctance to equate "house arrest" and "confinement" and to avoid the mental imagery that it

conjures of leisurely enjoying the pleasures of living at home as punishment for conviction of

a crime. The majority has advanced many legitimate arguments why a prisoner should not

receive credit against a sentence of imprisonment for time on house arrest. But the

judiciary's judgment is no more discerning than the Legislature's. Thus, we presume the

General Assembly weighed those same arguments against other contrary considerations

when enacting R.C. 2929.01(P) and defining house arrest as "confinement." As judges, we

must accept the limitations upon our constitutional authority and exercise judicial restraint:

              Judges are men and women just like everyone else in society.
              We are not infallible, but we do have a job to do. But in
              performing our duties, we should do so fairly and impartially,
              setting aside our own personal opinions and feelings, and render
              decisions in accordance with the law as adopted by the General
              Assembly and not attempt to impose our own personal views of
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              what the law should be, in order to remake and control society in
              our own personal concept of what society should be.

Cox v. Franklin Cty. Court of Common Pleas, 42 Ohio App.3d 171, 176 (10th Dist.1988). See

also Moore v. Dague, 46 Ohio App.2d 75, 85 (10th Dist.1975) ("Courts are not super-

legislatures, whose function it is to enact those laws which it feels the legislative bodies have

unwisely failed to enact"); State ex rel. Ebersole v. Hurst, 111 Ohio App. 76, 77-78 (1st

Dist.1960) ("[I]t is not for the courts to change the statutes to conform to what the courts

consider a better rule. This would be judicial legislation").

       {¶ 30} The doctrine of separation of powers and related principles of judicial

deference demand that we defer to the General Assembly's judgment in enacting legislation.

In this regard, absent the statutory definition of house arrest as "confinement," we would also

agree with the majority's reasoning that house arrest is not "confinement" pursuant to the

Nagle/Napier analysis. However, the General Assembly has spoken on the matter and we

must adhere to "[t]he cardinal principle of upholding legislative enactments, unless clearly in

excess of the power conferred upon the legislature by the constitution, [having] its source in

the division of the powers of government into three branches and the deference to be

properly shown by each of those branches to the others." State ex rel. Durbin v. Smith, 102

Ohio St. 591, 607 (1921). "Such deference is due from this court to the legislative branch,

and this court would be exceeding its constitutional power if it lightly nullified an act of the

legislative branch." Id. Until and unless the legislature amends the language of R.C.

2929.01(P), we have no choice but to apply the statute as written. Thus, we must defer to

the General Assembly's judgment that house arrest is "confinement."

       {¶ 31} With regard and respect for our colleagues in the majority, we dissent from

their holding that house arrest is not "confinement" for which an offender is entitled to credit

for purposes of R.C. 2967.191.

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