         [Cite as State v. Kleinholz, 2015-Ohio-4280.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :     APPEAL NO. C-150276
                                                         TRIAL NO. B-1401046
        Plaintiff-Appellee,                        :

  vs.                                              :        O P I N I O N.

ERIC KLEINHOLZ,                                    :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 16, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Elizabeth Agar, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



F ISCHER , Presiding Judge.

       {¶1}     Defendant-appellant Eric Kleinholz appeals the judgment of the

Hamilton County Common Pleas Court revoking his community control and

sentencing him to 18 months in prison. He argues the trial court erred by failing to

credit the 180 days he had spent on electronically monitored detention (“EMD”)

towards his prison sentence. After reviewing R.C. 2967.191 and the applicable case

law, we cannot conclude that Kleinholz’s time on EMD constituted confinement. We,

therefore, affirm the trial court’s judgment.

                           Factual and Procedural Posture

       {¶2}   On April 1, 2014, Kleinholz pleaded guilty to domestic violence, a

fourth-degree felony, in violation of R.C. 2919.25(A). On April 17, 2014, the trial

court sentenced Kleinholz to three years of community control with multiple

conditions, including that Kleinholz serve 180 days in the River City Community

Based Correctional Facility (“River City CBCF”), followed by 180 days of EMD.

       {¶3}   On February 5, 2015, Kleinholz was charged with violating his

community control. On February 12, 2015, the trial court found Kleinholz guilty of

the violation, but continued him on community control with some additional

conditions. On April 6, 2015, Kleinholz was again charged with violating the terms of

his community control. Kleinholz had tested positive for opiates (heroin) on March

6, 2015, March 20, 2015, and April 3, 2015. On April 8, 2015, Kleinholz pleaded no

contest and the trial court found him guilty of the violations. It revoked Kleinholz’s

community control and sentenced him to 18 months in prison.

       {¶4}   At the sentencing hearing, Kleinholz asked the trial court to give him

jail-time credit for the 180 days he had spent on EMD as a condition of his

community control. The trial court asked Kleinholz if he had worked while he was on



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community control. Kleinholz told the court that he had worked at the Gold Star on

Reading Road when he was in River City until about “three months I got out [sic], so

September, October, November, up to December.” Kleinholz said he then “started

painting. And then [he] went to Bob Evans. [He] went to the Bob Evans on Colerain

in January. [He] was there three and a half months.”

       {¶5}    The trial court credited Kleinholz with 223 days, which included the

time he had spent in jail and the 180 days he had spent in the River City CBCF, but it

declined to credit him with the 180 days he had spent on EMD.

           PostConviction Electronically Monitored Detention

       {¶6}    In a single assignment of error, Kleinholz argues the trial court erred

by failing to credit him with the 180 days he had spent on EMD.

       {¶7}    R.C. 2967.191 provides:

       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. The

       department of rehabilitation and correction also shall reduce the



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       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, if

       any, that the prisoner previously served in the custody of the

       department of rehabilitation and correction arising out of the offense

       for which the prisoner was convicted and sentenced.

       {¶8}    The term “confined” as used in R.C. 2967.191 is not defined in the

Revised Code. Therefore, we examine case law, which has defined “confinement” for

purposes of jail-time-credit statutes R.C. 2949.08(C)(1) and 2967.191.

       {¶9}    Kleinholz urges this court to follow State v. Holmes, 6th Dist. Lucas

No. L-08-1127, 2008-Ohio-6804, ¶ 2-6, where the Sixth Appellate District held that a

defendant should have been granted jail-time credit under R.C. 2949.08(C)(1) for his

time on electronically monitored house arrest (“EMHA”) that was completed during

his community control. The Sixth District reasoned that because electronic

monitoring constituted detention for purposes of an escape conviction, it should also

warrant, in the interest of justice, credit as time served. Id. at ¶ 19.

       {¶10} The state urges us, on the other hand, to follow a number of appellate

districts, which have declined to treat EMHA and EMD, that is imposed as part of

probation or community control, as confinement for jail-credit purposes. In State v.

Blankenship, 192 Ohio App.3d 639, 2011-Ohio-1601, 949 N.E.2d 1087 (10th Dist.),

the Tenth Appellate District held that a defendant, who had been convicted of a

misdemeanor and placed on a 90 day term of EMHA, but was permitted to leave his

home to go to work and anger-management treatment, was not entitled to

confinement credit under R.C. 2949.08(C). The Tenth District acknowledged that

some appellate districts had found “confinement” to be synonymous with detention,



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but the court found it unnecessary to conclude whether the two terms were

synonymous. Id. at ¶ 10, fn. 1. Instead, it focused on the Ohio Supreme Court’s

opinions in State v. Nagle, 23 Ohio St.3d 185, 492 N.E.2d 158 (1986), and State v.

Napier, 93 Ohio St.3d 646, 758 N.E.2d 1127 (2001), which had evaluated the term

“confinement” for jail-credit purposes.

       {¶11} In Nagle, the Supreme Court examined a rehabilitative facility, and

concluded that the time Nagle had spent in the rehabilitative facility, as a condition

of his probation, was not sufficiently restrictive to constitute confinement for

purpose of jail-time credit under R.C. 2949.08(C). Nagle at 186. Nagle had pleaded

guilty to felonious assault. The trial court had imposed a suspended jail sentence,

and had placed Nagle on conditional probation. One of conditions of his probation

was to serve 18 months in a Texas rehabilitation facility near his father. Nagle

voluntarily left the facility after 54 days, flew back to Ohio, and turned himself in at

the local jail. Following a probation-revocation hearing, the trial court terminated

Nagle’s probation and reimposed the original sentence, but it did not credit the 54

days he had spent at the rehabilitation facility against his original sentence. Id. at

185.

       {¶12} The Supreme Court, in reversing the court of appeals, which had

credited Nagle for the time in the facility, looked at the examples of confinement set

forth in R.C. 2949.08(C) to determine that Nagle had not been “confined” during his

tenure at the facility. The court observed that under none of the statutory examples

could the defendant leave official custody of his own volition. “In contrast, the

rehabilitation facility imposed restrictions upon [Nagle’s] freedom of action to the

extent communications with family or friends were restricted or monitored. Yet,

[his] freedom of movement had not been severely restrained.” Id. at 187. He was free



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to leave of his own volition, as shown by the fact that Nagle had voluntarily left the

facility, even though his departure had constituted a violation of the conditions of his

probation. Id. Thus, the Supreme Court concluded that the time Nagle had spent in

the rehabilitative facility was not a form of “confinement” for purposes of credit for

time-served under R.C. 2949.08(C). Id. at 188.

       {¶13} In Napier, the Ohio Supreme Court addressed whether time in a

community-based corrections facility (“CBCF”) should be credited against prison

time under R.C. 2967.191, since inmates have much greater opportunities to leave

the facilities than those confined in prison or jail. Napier had pleaded guilty to

felony drug possession and had been sentenced to three years of community-control

sanctions, including evaluation and treatment at a residential CBCF. Napier, 90

Ohio St.3d at 649, 758 N.E.2d 1127. After Napier had violated his community-

control sanctions, the trial court imposed an eight-month prison sentence. Napier

claimed he was entitled to credit for 110 days spent at the CBCF. The trial court

granted Napier credit for only 30 days at the facility when he had been in a

“lockdown” status, and not permitted to leave the facility. Id. at 647.

       {¶14} The Supreme Court reversed the trial court's decision, holding that

Napier was entitled to credit for all the time he had spent at the facility. Id. at 648.

In reaching this conclusion, the Supreme Court focused on its prior opinion in State

v. Snowder, 87 Ohio St.3d 335, 720 N.E.2d 909 (1999), where, in considering

whether a CBCF was “confinement,” it had looked to the definition of a CBCF, which

“must be a secure facility that contains lockups and other measures sufficient to

ensure the safety of the surrounding community.” Napier at 648.           The Supreme

Court looked at the exact qualities of the facility, as well as the specific nature of

Napier's experience at the facility, as compared to the experience of the defendant in



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Snowder, to determine whether he had been sufficiently restricted so as to constitute

“confinement.” Id.

       {¶15} The Supreme Court ruled that because a CBCF exercises effective

control over the ability of the offender to leave the facility, and the facility is secured

in such a way as to prevent offenders from entering the community without approval

of the facility's managers, “all time served in a CBCF constitutes confinement for the

purposes of R.C. 2967.191” even though the offender may be permitted to leave to

participate in employment and other activities outside the CBCF. Id. at syllabus and

648. The court noted that even though Napier could leave the facility, after the

“lockdown,” his ability to leave was subject to requesting and securing permission

from the staff by submitting a detailed written description of his travel plans, which

included reporting when he was leaving the facility, where he planned to go, and

when he planned to return. The Supreme Court concluded that because Napier was

not free to “come and go as he wished,” but was subject to the control of the staff

regarding his personal liberties, he was “confined” for purposes of R.C. 2967.191. Id.

       {¶16} In Blankenship, the Tenth Appellate District, drawing upon the

Supreme Court’s delineation of “confinement” in Nagle and Napier, looked to the

order imposing EMHA. The court noted that the order had permitted Blankenship

to leave his home for both anger-management treatment and employment.

Blankenship, 192 Ohio App.3d 639, 2011-Ohio-1601, 949 N.E.2d 1087, at ¶ 16. It

concluded that

       like the defendant in Nagle, Blankenship was apparently able to leave

       his home of his own volition because he must have done so to violate

       the terms of his EMHA. The fact that he faced possible consequences

       for choosing to violate his EMHA did not transform the EMHA into a



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       condition imposing ‘such a restraint on his freedom of movement that

       he could not leave custody of his own volition.’

Id., quoting State v. Slager, 10th Dist. Franklin No. 08AP-581, 2009-Ohio-1804, ¶

20.

       {¶17} In State v. Tabor, 5th Dist. Richland No. 111CA33, 2011-Ohio-3200, ¶

18-19, the Fifth Appellate District, found the Tenth Appellate District’s analysis in

Blankenship persuasive, and held that a defendant, who had been convicted of a

felony offense, was not entitled to credit for time spent on electronic monitoring as a

condition of his community control, which required him to be home between the

hours of 10:00 p.m. and 6:00 a.m.

       {¶18} Likewise, in State v. Williams, 3d Dist. Hancock No. 5-11-26, 2011-

Ohio-6698, the Third Appellate District declined to follow the Sixth Appellate

District’s opinion in Holmes and instead followed the Tenth District’s opinion in

Blankenship. It concluded that Williams, who had been convicted of possession of

crack cocaine and sentenced to community control with 30 days of EMD as a part of

his community control, was not entitled to time-served credit under R.C. 2967.191

because his movements were not so restricted so as to constitute confinement. Id. at

¶ 18. The court noted that the only restriction upon Williams’s movement was that

he had to “abide by curfew, which will be set out by the Adult Probation Officer.”

Absent this restriction, he had unfettered liberty to leave his house of his own

volition. Thus, the Third District held that, consistent with Nagle and Blankenship,

the defendant’s movements under the terms of his electronic monitoring were not so

severely restrained as to constitute confinement under R.C. 2949.08(C). Id. at ¶ 19.

       {¶19} After reviewing the case law, we decline to follow the Sixth District’s

analysis in Holmes. Pursuant to the analysis of “confinement” articulated by the



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Ohio Supreme Court in Napier and Nagle, the court must consider the

circumstances surrounding the restraint of the defendant’s physical movements

without regard to whether the defendant’s movements may constitute a violation of

probation or community control. Thus, in determining whether a defendant has

been confined for purposes of the award of jail-time credit, it is irrelevant whether he

could be prosecuted for escape. We, therefore, agree with the Tenth, Fifth, and Third

Appellate Districts, which have held that EMHA and EMD do not qualify as

confinement for purposes of jail-time credit. Thus, the trial court properly concluded

that Kleinholz was not entitled to additional jail-time credit for his time on EMD.

We, therefore, overrule his sole assignment of error and affirm the judgment of the trial

court.

                                                                    Judgment affirmed.

DEWINE and STAUTBERG, JJ., concur.


Please note:
         The court has recorded its own entry this date.




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