[Cite as State v. Stobbs, 2020-Ohio-92.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.      29346

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RONALD C. STOBBS                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR-2018-10-3522

                                  DECISION AND JOURNAL ENTRY

Dated: January 15, 2020



        TEODOSIO, Presiding Judge.

        {¶1}     Defendant-Appellant, Ronald Stobbs, appeals from the judgment of the Summit

County Court of Common Pleas. This Court reverses.

                                                 I.

        {¶2}     Mr. Stobbs was arrested on two counts of OVI, both of which were later indicted

as third-degree felonies due to his previously having been convicted of a felony OVI. He was

taken into custody and held at the jail before being granted supervised release. As conditions of

his supervised release, he was ordered to reside at a restricted halfway house, to wear a Secure

Continuous Remote Alcohol Monitor (“SCRAM”), to refrain from driving, to report to the

Pretrial Supervision Program Office every other week, and to have phone contact with the office

on his non-reporting weeks.

        {¶3}     The parties ultimately entered into a plea agreement wherein Mr. Stobbs agreed to

plead guilty to one OVI count in exchange for the State dismissing his remaining count and
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agreeing to a two-year prison sentence with credit for time served. At his plea hearing, he asked

the court to deduct, as part of his jail-time credit, the time he had spent on supervised release.

The court indicated that he would not be entitled to credit for that time, but agreed that he could

argue the issue at sentencing. Mr. Stobbs did so at his sentencing hearing, but the court once

again rejected his argument. The court orally announced that he would receive two years in

prison, with credit strictly for the time he spent incarcerated at the jail.

        {¶4}    Before the court issued its sentencing entry, Mr. Stobbs filed a motion for

reconsideration. He asked the court to either grant his motion or hold a hearing to receive

evidence on the issue of whether he was entitled to additional jail-time credit. The State did not

respond to the motion for reconsideration, and the court denied it without holding a hearing.

Consistent with its earlier pronouncement, the court sentenced Mr. Stobbs to two years in prison,

with credit for the time he spent incarcerated at the jail.

        {¶5}    Mr. Stobbs now appeals from the trial court’s judgment and raises two

assignments of error for our review.

                                                   II.

                                ASSIGNMENT OF ERROR ONE

        THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
        WHEN IT FAILED TO CREDIT THE DEFENDANT WITH JAIL TIME FOR
        TIME SERVED IN A RESTRICTIVE RESIDENTIAL PROGRAM WHICH
        RESTRICTED [HIM FROM] LEAVING AND WHERE HE WOULD RECEIVE
        AN ESCAPE CHARGE IF HE LEFT.

        {¶6}    In his first assignment of error, Mr. Stobbs argues that the trial court erred when it

failed to award him additional jail-time credit. For the following reasons, we sustain Mr. Stobbs’

assignment of error and remand this matter to the trial court for further proceedings.
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          {¶7}   “The record of [a] person’s conviction shall specify the total number of days, if

any, that [he] was confined for any reason arising out of the offense for which [he] was convicted

and sentenced * * *.” R.C. 2949.08(B). The department of rehabilitation and correction then

must “reduce [the person’s] sentence ‘by the total number of days that [he] was confined * * *.’”

State v. Keith, 9th Dist. Lorain No. 08CA009362, 2009-Ohio-76, ¶ 6, quoting R.C. 2967.191(A).

R.C. 2967.191(A) provides, as examples of confinement, “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

[his] prison term, * * *, and confinement in a juvenile facility.” “The Supreme Court of Ohio

has concluded from these examples that ‘confinement’ requires such a restraint on the offender’s

freedom of movement that he cannot leave official custody of his own volition.” State v. James,

106 Ohio App.3d 686, 690 (9th Dist.1995), citing State v. Nagle, 23 Ohio St.3d 185, 186-187

(1986). Thus, when a defendant seeks jail-time credit for time he spent at a facility other than

jail, the question is whether his time at that facility was “sufficiently restrictive to constitute

confinement * * *.” State v. Rinella, 9th Dist. Summit No. 28460, 2018-Ohio-1922, ¶ 19. If

sufficiently restrictive, time served in a non-jail facility will be awarded as jail-time credit. See

State v. Napier, 93 Ohio St.3d 646 (2001), syllabus; State v. Snowder, 87 Ohio St.3d 335, 337

(1999).

          {¶8}   The record reflects that, following his release from jail, Mr. Stobbs was ordered to

reside at a restricted halfway house under the supervision of the Summit County Pretrial

Supervision Program. Both his attorney and the trial court referred to the restricted halfway

house as “RIP” or “the RIP program,” and his attorney later defined the program name in full as

“the Residential Institutional Probation (“RIP”) restricted program * * *.” At his plea hearing,
                                                 4


Mr. Stobbs asked the court to credit him with the time he served in the RIP program. He

represented to the court that the State had agreed that time was eligible for credit, and the

prosecutor did not object to his representation. Even so, the court indicated that Mr. Stobbs

would not be entitled to credit for that time because “RIP is not a secured facility.” Mr. Stobbs

then asked to be able to argue the issue at sentencing, and the court agreed that he could do so.

          {¶9}   At his sentencing hearing, Mr. Stobbs once again asked the court to credit him

with the time he spent in the RIP program. He represented to the court that he spent his time

there under restriction and was told that he would incur an escape charge if he attempted to

leave. The State did not dispute his representation, object, or otherwise provide an argument to

the contrary. Nevertheless, the court rejected his argument and refused to award him additional

jail-time credit. In doing so, it merely stated that it would “not credit[] [Mr. Stobbs] time in the

RIP program.” The court did not offer any rationale in support of its decision not to award

credit.

          {¶10} After his sentencing hearing but before the court journalized his sentence, Mr.

Stobbs filed a motion for reconsideration. In his motion, he asked the court to hold a hearing on

the issue of confinement, so that he might present evidence. He represented to the court that,

while in the RIP program, he resided in the “Restricted” area, he was subject to the control of the

staff “regarding his personal liberties,” he was told that he would be charged with escape if he

left, he was denied permission to visit his family for either Thanksgiving or Christmas, and he

was only permitted to leave the facility for his “required AA meetings occurring across the street

and for court appearances of which he had a specific time limit for return.” He indicated that he

had requested both the record of his time spent at the RIP program and “the Restricted Halfway

House Handbook.” Mr. Stobbs indicated that he would supplement the record with those
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materials upon receipt and asked the court to provide him the opportunity to present his evidence

at a hearing. The State did not respond to his motion, but the court denied it. In doing so, the

court wrote in its sentencing entry and an accompanying journal entry that the request for

additional jail-time credit was denied. Once again, it did not offer any rationale in support of its

decision not to award credit.

        {¶11} As noted, time served in a non-jail facility, if sufficiently restrictive, will

constitute “confinement” for purposes of R.C. 2967.191. See Napier, 93 Ohio St.3d at 648.

Accord Snowder, 87 Ohio St.3d at 337.

        A reviewing court’s determination of whether time served in a [non-jail facility]
        constitutes confinement * * * is [dependent] on a record that evidences the level
        of restriction placed on the defendant during his participation at the facility. * * *
        When the trial court fails to provide reasoning for its denial of the motion and the
        record fails to indicate whether an appellant’s participation in a [] program was
        confinement as defined in Napier, the trial court must reconsider the issue of
        crediting time served in light of the level of defendant’s participation at the
        [facility].

State v. Edwards, 9th Dist. Summit No. 20840, 2002 WL 701946, *1-2 (Apr. 24, 2002). On

reconsideration, it is the defendant’s burden to present evidence “that demonstrates his level of

participation at the [facility].” Id. at *2.

        {¶12} Upon review, this Court cannot determine whether the trial court erred when it

refused to award Mr. Stobbs the additional jail-time credit that he requested. That is because the

record does not “evidence[] the level of restriction placed on [him] during his participation [in

the RIP program]” or the trial court’s “reasoning for its denial of [his] motion.” Edwards at *1-

2. The trial court initially rejected Mr. Stobbs’ request for credit because “RIP is not a secured

facility.” Yet, Mr. Stobbs then presented an argument to the contrary. He represented to the

court that he had resided in the restricted portion of the facility, he would have been criminally

charged if he had left without permission, and he had been subject to the control of the staff
                                                 6


“regarding his personal liberties.” See Napier at 648. The State never opposed any of his

representations, and the trial court, in rejecting his argument, failed to provide any reasoning for

its decision. Moreover, the record otherwise contains scant evidence as to the specifics of the

facility where Mr. Stobbs resided or his level of participation in the program. Upon review, we

cannot determine “whether [his] participation in the [RIP] program[] was ‘confinement.’” State

v. Neff, 9th Dist. Lorain No. 00CA007578, 2001 WL 111529, *2 (Feb. 7, 2001).

        {¶13} Because the trial court did not provide reasoning for its denial of Mr. Stobbs’

motion and the record does not indicate whether he was confined herein, “the trial court must

reconsider the issue of crediting time served in light of the level of [his] participation at the

[facility].” Edwards at *2. On remand, it will be Mr. Stobbs’ burden to present evidence

demonstrating his level of participation in the RIP program. See id. His first assignment of error

is sustained on that basis.

                                ASSIGNMENT OF ERROR TWO

        THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
        WHEN IT FAILED TO HOLD A HEARING ON THE DEFENDANT’S
        REQUEST [TO] RECEIVE CREDIT FOR TIME SERVED IN A
        RESTRICTIVE RESIDENTIAL PROGRAM WHICH RESTRICTED [HIM
        FROM] LEAVING AND WHERE HE WOULD RECEIVE AN ESCAPE
        CHARGE IF HE LEFT.

        {¶14} In his second assignment of error, Mr. Stobbs argues that the trial court erred

when it failed to hold a hearing on his request for additional jail-time credit. Because this matter

must be remanded for further proceedings, Mr. Stobbs’ second argument is premature. We,

therefore, decline to address it.

                                                III.

        {¶15} Mr. Stobbs’ first assignment of error is sustained. Because his second assignment

of error is premature, this Court declines to address it. The judgment of the Summit County
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Court of Common Pleas is reversed, and the cause is remanded for further proceedings in

accordance with the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.



                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT


SCHAFER, J.
CALLAHAN, J.
CONCUR.

APPEARANCES:

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
