[Cite as State v. Franklin, 2011-Ohio-4078.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-00055
THOMAS FRANKLIN                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appea from the Stark County Court
                                                   of Common Pleas, Case No. 2008CR1088

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            August 15, 2011



APPEARANCES:



For Plaintiff-Appellee                             For Defendant-Appellant

JOHN FERRERO                                       THOMAS FRANKLIN PRO SE
Stark County Prosecutor                            N.C.C.T.F. #581-075
110 Central Plaza S., Ste 510                      2000 South Avon Belden Rd.
Canton, OH 44702                                   Grafton, OH 44044
[Cite as State v. Franklin, 2011-Ohio-4078.]


Gwin, P.J.

         {¶1}    Appellant Thomas Franklin appeals the decision of the Stark County Court

of Common Pleas denying his second motion for jail time credit. Plaintiff-appellee is the

State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

         {¶2}    By Judgment Entry filed September 10, 2008 appellant was found

guilty   of     three    counts     of    Trafficking   in   Cocaine   in   violation   of   R.C.

2925.03(A)(1)(C)(4)(a), felonies of the fifth degree. Appellant was referred to the

Stark Regional Community Correctional Center (SRCCC) for an evaluation prior to

sentencing.

         {¶3}    By Judgment Entry filed October 10, 2008, appellant was sentenced to

three years of community control which included an intensive supervision probation

program.

         {¶4}    Appellant was released from the residential program at SRCCC on March

31, 2009 and remained on intensive supervision.

         {¶5}    On January 5, 2010, appellant’s probation officer filed a motion to revoke

his probation. The trial court conducted a hearing upon the motion to revoke on January

11, 2010. By Judgment Entry filed January 20, 2010 appellant’s community control was

revoked and he was sentenced to a term of twelve months on each count. The trial court

further ordered that the sentences be served consecutively, for an aggregate prison term

of three years. The trial court, on February 1, 2010, issued an order granting appellant

61 days credit for time served in the Stark County Jail.
Stark County, Case No. 2011-CA-00055                                                      3


       {¶6}   On March 22, 2010, appellant’s motion for judicial release was granted

and he was ordered to comply with the Intensive Supervision Probation Program. On

July 26, 2010, his probation officer filed a motion to revoke his probation. After a hearing

on November 1, 2010, the trial court revoked appellant’s Judicial Release. By Judgment

Entry filed November 16, 2010, appellant’s sentence was modified to a total prison term

of twenty four (24) months in prison. By Judgment Entry filed November 22, 2010 the

trial court granted appellant 84 days of credit for time served in the Stark County Jail.

On November 30, 2010, the Ohio Department of Rehabilitation and Correction

recalculated his credit giving him 128 days credit for time served.

       {¶7}   On December 15, 2010, appellant filed a motion requesting credit for the

time he spent in SRCCC from November 17, 2008 to March 23, 2009. The trial court

granted appellant’s motion and by Judgment Entry filed January 4, 2011 gave appellant

credit for 135 days of credit for the time that he had spent in SRCCC.

       {¶8}   On February 2, 2011, appellant filed a second motion for jail time credit,

this time asking to have his electronic monitored house arrest (EMHA) time from

October 15, 2009 to December 15, 2009 counted as jail time credit. By Judgment Entry

filed February 10, 2011 the trial court denied appellant’s motion.

       {¶9}   It is from the trial court’s February 10, 2011 Judgment Entry denying his

second motion for jail time credit that appellant has appealed, pro se, raising as his sole

assignment of error:

       {¶10} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO

GIVE THE DEFENDANT/APPELLANT JAIL TIME CREDIT AGAINST THE IMPOSED

PRISON SENTENCE FOR TIME CONFINED ON ELECTRONIC MONITORED
Stark County, Case No. 2011-CA-00055                                                    4


HOUSE ARREST, WHILE ON COMMUNITY CONTROL. THIS DENIED HIS DUE

PROCESS RIGHTS IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE

U.S. CONSTITUTION AND THE ARTICLE 1, SECTION 10 OF THE CONSTITUTION

OF THE STATE OF OHIO, AND CONTRARY TO OHIO REVISED CODE SECTION

2967.191 AND OHIO REVISED CODE, SECTION 2949.08(D).”

                                               I.

      {¶11} In his sole Assignment of Error, appellant asserts that when the trial court

revoked his judicial release, it should have given credit against his prison term for the

time he spent under EMHA. We disagree.

      {¶12} We begin by noting that the rules dealing with a violation of an original

sentence of community control (R.C. 2929.15) should not be confused with the sections

of the Revised Code regarding early judicial release (R.C. 2929.20) even though the

language of R.C. 2929.20(I) contains the term “community control” in reference to the

status of an offender when granted early judicial release. State v. Mann, 3rd Dist. No. 3-

03-42, 2004-Ohio-4703 at ¶ 6; State v. Durant, Stark App. No.2005 CA 00314,2006-

Ohio-4067.

      {¶13} The Court of Appeals for the Third District further explained, in Mann, the

differences between the rules dealing with a violation of an original sentence of

community control and the rules dealing with judicial release. In doing so, the court

stated:

      {¶14} “R.C. 2929.15(B) only applies to offenders who were initially sentenced to

community control sanctions and permits a trial court to newly impose a prison term

upon an offender who later violates the community control sanctions. [Citations omitted.]
Stark County, Case No. 2011-CA-00055                                                              5


       {¶15} “In contrast, an offender who has been granted early judicial release has

already been ordered to serve a term of incarceration as part of the original sentence

but, upon motion by the “eligible offender,” is released early from prison. * * * If a trial

court chooses to grant early judicial release to an eligible offender, R.C. 2929.20(I)1

conditionally reduces the already imposed term of incarceration, and the trial court is

required to place the eligible offender under appropriate community control sanctions

and conditions. * * * The result is that the eligible offender's original prison sentence is

then conditionally reduced until the offender either successfully completes the

mandatory conditions of community control or violates the conditions of community

control. When an offender violates his community control requirements, the trial court

may re-impose the original prison sentence and require the offender to serve the

balance remaining on the original term. [Citations omitted.] Mann at ¶ 7, ¶ 8.

       {¶16} R.C. 2929.20(K) merely reserves the right of the trial court to re-impose

the sentence that is reduced pursuant to the judicial release if the defendant violates the

sanction. Durant, supra at ¶ 16. It does not authorize the trial court to modify the original

sentence. State v. Mitchell, Richland App. No. 2007-CA-0046, 2007-Ohio-6343 at ¶ 18.

       {¶17} “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) and (UU).
       1
           The current version of the statute has renumbered this provision as R.C.2929.20 (K).
Stark County, Case No. 2011-CA-00055                                                      6


       {¶18} Appellant argues that because the law defines house arrest as “a period of

confinement,” time served in post conviction EMHA qualifies for a reduction of his jail

sentence under R.C. 2967.191. (Appellant’s Brief at 4). Arguably, this section only

grants credit for pre-trial confinement. However, we note pursuant to R.C. 2949.08(C)

(1):

       {¶19} “If the person is sentenced to a jail for a felony or a misdemeanor, the

jailer in charge of a jail shall reduce the sentence of a person delivered into the jailer's

custody pursuant to division (A) of this section 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* * *.”

       {¶20} However, in the case at bar the trial court did not impose the term of

house arrest as a part of appellant's original sentence. Rather, the court imposed the

term of house arrest as a condition of judicial release.

       {¶21} Although R.C. 2929.01(P) defines “house arrest” as a period of

“confinement” and thus, arguably falls within R.C. 2967.191 and R.C. 2949.08(C)(1),

courts have recognized that when house arrest is imposed as a condition of probation,

credit need not be given.

       {¶22} In State v. Nagle (1986), 23 Ohio St.3d 185,           492 N.E.2d 158, 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 pleaded 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
Stark County, Case No. 2011-CA-00055                                                      7


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 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 voluntarily 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 time-served credit

under R.C. 2949.08(C). See, State v. Blankenship, Franklin App. No. 10AP-651, 2011-

Ohio-1601 at ¶12.

       {¶23} By contrast, in State v. Napier (2001), 93 Ohio St.3d 646, 758 N.E.2d

1127, 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 pleaded 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 the defendant violated
Stark County, Case No. 2011-CA-00055                                                     8


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 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. See,

Blankenship, supra at ¶ 13.

      {¶24} Consistent with the reasoning of these decisions, courts have concluded

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, 2009 WL 1027182, ¶ 20; Blankenship, supra at ¶14; State

v. Ober, 2d Dist. No. 2003–CA–27, 2004-Ohio-3568; State v. Tabor, Richland App. No.

11CA33, 2011-Ohio-3200.

      {¶25} In light of the case law and statutory analysis set forth above we hold that

appellant is not entitled to time-served credit under either R.C. 2967.191 or R.C.

2949.08(C) for time spent under EMHA as a condition of judicial release.
Stark County, Case No. 2011-CA-00055                                           9


      {¶26} The sole assignment of error is denied.

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

hereby affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. JOHN W. WISE

                                           _________________________________
                                           HON. JULIE A. EDWARDS
WSG:clw 0719
[Cite as State v. Franklin, 2011-Ohio-4078.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
THOMAS FRANKLIN                                   :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-00055




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

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

appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. JOHN W. WISE

                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
