[Cite as State v. Hurst, 2018-Ohio-142.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                   :
                                                        CASE NO. CA2017-05-077
        Plaintiff-Appellant,                     :
                                                                OPINION
                                                 :               1/16/2018
    - vs -
                                                 :

ASHLEY N. HURST,                                 :

        Defendant-Appellee.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 17CR32674



David P. Fornshell, Warren Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellant

Kaufman & Florence, William Robert Kaufman, 144 East Mulberry, P.O. Box 280, Lebanon,
Ohio 45036, for defendant-appellee



        S. POWELL, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals the decision of the Warren

County Court of Common Pleas granting defendant-appellee, Ashley N. Hurst, 17 days of

jail-time credit for the time she spent on electronically monitored house arrest ("EMHA") in

accordance with this court's prior decision in State v. Fillinger, 12th Dist. Madison No.

CA2016-04-015, 2016-Ohio-8455. For the reasons outlined below, we reverse the trial
                                                                    Warren CA2017-05-077

court's decision and remand for further proceedings.

                              Facts and Procedural History

       {¶ 2} On January 17, 2017, the Warren County Grand Jury returned an indictment

charging Hurst with single counts of unauthorized use of property in violation of R.C.

2913.04(A) and misuse of credit cards in violation of R.C. 2913.21(B)(2), both fifth-degree

felonies. Hurst was subsequently arraigned and released on her own recognizance upon

entering a plea of not guilty to both charges.

       {¶ 3} On March 1, 2017, after accepting the state's plea offer, Hurst pled guilty to

the unauthorized use of property charge in exchange for dismissal of the misuse of a credit

card charge. After accepting Hurst's guilty plea, the trial court committed Hurst to the

Warren County Jail pending sentencing. Two weeks later, on March 15, 2017, the trial court

sentenced Hurst to three years of community control. As part of her community control

sanctions, Hurst was ordered to enter and successfully complete the Warren County drug

court program, including any aftercare as directed.

       {¶ 4} On March 24, 2017, the trial court issued an order directing the Warren County

jail to place Hurst on EMHA prior to her release. Thereafter, on April 11, 2017, several days

after Hurst was released, Hurst's probation officer filed a report alleging Hurst had violated

the conditions of her community control by submitting a positive drug screen indicating she

had used opiates. The report also alleged that Hurst had admitted to using heroin.

       {¶ 5} On April 12, 2017, the trial court held a hearing on the community control

violation, wherein Hurst pled guilty to violating community control as alleged. After entering

her guilty plea, which the trial court accepted, the trial court continued Hurst on community

control with more restrictive sanctions and further ordered Hurst to remain in the Warren

County drug court program.

       {¶ 6} On April 19, 2017, Hurst's probation officer filed another report alleging Hurst

                                             -2-
                                                                     Warren CA2017-05-077

had again violated the conditions of her community control by submitting a positive drug

screen which indicated she had used opiates. That same day, the trial court held a hearing

on Hurst's reported violation, wherein Hurst once again pled guilty to violating community

control as alleged. After accepting Hurst's guilty plea, the trial court committed Hurst to the

Warren County Jail pending a further review hearing.

       {¶ 7} On April 26, 2017, the trial court held a review hearing and again continued

Hurst's community control with even more restrictive sanctions. The trial court also ordered

Hurst be placed on EMHA for 60 days. As part of this hearing, and over the state's

objection, the trial court then granted Hurst 129 days of jail-time credit, which in accordance

with this court's prior decision in Fillinger, included 17 days that Hurst had previously spent

on EMHA. It is undisputed that while on EMHA, Hurst could have left her home on her own

volition at any time and was in fact permitted to leave her home to attend AA and NA

meetings for nine hours a week, her cognitive intervention program for three hours a week,

and to visit her probation officer one hour a week, as well as to attend court hearings and

for any medical emergencies. Hurst was also permitted to return to her previous residence

to pick up her belongings so that she could move to a new home.

       {¶ 8} With leave from this court, the state now appeals the trial court's decision to

grant Hurst 17 days of jail-time credit for the time she spent on EMHA in accordance with

this court's prior decision in Fillinger.

              The Holding in State v. Fillinger, Jail-Time Credit, and EMHA

       {¶ 9} In Fillinger, the majority opinion, authored by Judge Robert Ringland and

concurred in by Judge Mike Powell, held that "house arrest" satisfied the definition of

"confined" for purposes of determining jail-time credit in accordance with R.C. 2967.191

and 2949.08. In so holding, the majority relied on the statutory definition of "house arrest"

as provided in R.C. 2929.01(P), which defines that term as "a period of confinement of an

                                              -3-
                                                                       Warren CA2017-05-077

offender that is in the offender's home * * *." (Emphasis added.) Using a strict textual

interpretation of these statutes, as opposed to the "restraint of movement" reasoning as set

forth by the Tenth District Court of Appeals in State v. Blankenship, 192 Ohio App.3d 639,

2011-Ohio-1601 (10th Dist.) and its progeny, the majority held that "when 'house arrest,' is

imposed as a community control sanction pursuant to R.C. 2929.17 for a conviction of a

felony, it is 'confinement.'" Fillinger, 2016-Ohio-8455 at ¶ 12. Explaining this holding further,

the majority stated:

               The cases relied upon in Blankenship, i.e., [State v. Nagle, 23
               Ohio St.3d 185 (1986) and State v. Napier, 93 Ohio St.3d 646
               (2001)], are instructive as to whether placement in a
               rehabilitation facility or community-based correctional facility
               may constitute confinement. However, unlike the present case
               involving house arrest imposed as a community control
               sanction, placement in a "rehabilitation facility" and the
               correctional facility in Nagle and Napier, respectively, are not
               defined by the Ohio Revised Code as "confinement."

Id. at ¶ 13.

       {¶ 10} Judge Robert Hendrickson was unconvinced by the majority's position.

Instead, Judge Hendrickson found more compelling the rationale set forth by the Tenth

District's decision in Blankenship and the First District Court of Appeals' decision in State v.

Kleinholz, 1st Dist. Hamilton No. C-150276, 2015-Ohio-4280, both cases that applied the

"restraint of movement" reasoning taken from the Ohio Supreme Court's decisions in Nagle

and Napier. Judge Hendrickson summarized the "restraint of movement" reasoning: in

determining whether a defendant is entitled to jail-time credit for being "confined," the proper

consideration is whether the defendant's freedom of movement was restrained such that

the defendant could not leave his or her home on his or her own volition. Fillinger at ¶ 18-

27.

       {¶ 11} Thereafter, in applying the "restraint of movement" reasoning to the facts in

Fillinger, Judge Hendrickson concluded:

                                               -4-
                                                            Warren CA2017-05-077

The circumstances presented in the present case are similar to
those of Blankenship and Kleinholz. Fillinger was placed on
EMHA, but was permitted to leave his home at his own volition.
Fillinger was lawfully permitted to leave his home to meet with
probation, to attend court, or for medical emergencies. Fillinger
was also physically capable of leaving his home for any other
activity or event he wished to attend as his ability to leave his
home was not subject to the control of others. Compare Napier,
93 Ohio St.3d at 648. The fact that Fillinger faced possible
consequences for choosing to leave his home and violate his
EMHA "did not transform the EMHA into a condition imposing
'such a restraint on [his] freedom of movement that he [could
not] leave official custody of his own volition.'" Blankenship, 192
Ohio App.3d 639, 2011-Ohio-1601 at ¶ 16, quoting [State v.
Slager, 10th Dist. Nos. 08AP-581, 08AP-582, 08AP-709, and
08AP-710, 2009-Ohio-1804, ¶ 20]. As Fillinger's freedom of
movement was not restrained, I would find that he was not
"confined" and, therefore, is not entitled to jail-time credit for the
days he spent on EMHA.

In concluding that Fillinger is not entitled to jail-time credit for his
EMHA, I reject the majority's assertion that inclusion of the word
"confinement" in the definition of "house arrest" under R.C.
2929.01(P) necessarily entitles a defendant on EMHA to jail-
time credit.

As the Tenth District noted in Blankenship:

       The term "confinement" is not separately defined
       under R.C. 2929.01. However, the fact that house
       arrest is defined using the term "confinement"
       does not necessarily mean that it qualifies [for]
       time-served credit under R.C. 2949.08(C)(1).
       "[W]here two statutes do not expressly state that
       the word has the same meaning in both, it is
       apparent that it might have different meanings."
       State v. Dickinson, (1971), 28 Ohio St.2d 65, 70,
       57 O.O.2d 255, 275 N.E.2d 599.

Blankenship at ¶ 9.

Under the approach set forth by the majority, any individual
placed on EMHA would automatically be entitled to jail-time
credit, regardless of the terms of his or her community control.
Take for instance a defendant placed on EMHA that is permitted
to leave his home and move around the county so long as he is
home for certain, set hours. See, e.g., State v. Tabor, 5th Dist.
Richland No. 11CA33, 2011-Ohio-3200; State v. Williams, 3d
Dist. Hancock No. 5-11-26, 2011-Ohio-6698. Under the

                                  -5-
                                                                         Warren CA2017-05-077

               majority's approach, this defendant would be entitled to jail-time
               credit, regardless of the fact that his movement was not
               restrained, because he was under "house arrest" and was
               required to abide by a curfew. Such an approach does not
               comport with the holdings and rationales expressed by the Ohio
               Supreme Court in Nagle and Napier.

Fillinger, 2016-Ohio-8455 at ¶ 24-26.

       {¶ 12} Following this court's decision in Fillinger, this court was faced with a similar

issue regarding a trial court's decision to award jail-time credit in State v. Bowling, 12th Dist.

Warren Nos. CA2017-02-020, CA2017-02-021, and CA2017-03-032, 2017-Ohio-8539. In

that case, with leave from this court, the state appealed the trial court's decision granting

jail-time credit to three appellees for the time they spent subject to a curfew mandated by

the trial court following their respective convictions, two of whom were GPS monitored. The

trial court, in interpreting this court's decision in Fillinger, determined that all three appellees

were entitled to jail-time credit for their time spent on curfew since their curfews required

each of them to be at their respective homes during certain hours of the day, thus equating

being placed on a curfew the same as being "confined" for purposes of calculating jail-time

credit under R.C. 2967.191 and 2949.08.

       {¶ 13} In an opinion again authored by Judge Ringland, this court disagreed with the

trial court's decision and determined the trial court erred by granting jail-time credit. In so

holding, Judge Ringland distinguished the facts in Bowling from the facts in Fillinger.

Specifically, Judge Ringland determined that because "curfew is not defined as a period of

'confinement' under the terms of the Ohio Revised Code," the trial court's reliance on

Fillinger to support its decision to grant jail-time credit to any of the three appellees at issue

was misplaced. Id. at ¶ 17-18. As a result, as opposed to the statute addressing EMHA at

issue in Fillinger, having no statute defining "curfew" as a period of "confinement," Judge

Ringland applied the "restraint of movement" reasoning to find appellees were not


                                                -6-
                                                                     Warren CA2017-05-077

"confined" for purposes of calculating jail-time credit for their time spent on curfew since,

aside from certain hours in the day requiring them to be at home, "appellees had freedom

of movement and were not in custody or restrained from movement." Id. at ¶ 22.

       {¶ 14} I concurred with Judge Ringland's decision and judgment rendered, choosing

not to submit a separate concurring opinion. Judge Hendrickson, however, did submit a

separate concurrence, wherein he reiterated his dissent in Fillinger that in determining

whether a defendant is "confined," and therefore entitled to jail-time credit:

               a court must consider the circumstances surrounding the
               restraint of the defendant's physical movements without regard
               to whether the defendant's movements constitute a violation of
               the terms of his or her community control or probation.

Id. at ¶ 26.

Concluding, Judge Hendrickson, citing to both Blankenship and Kleinholz, stated:

               Regardless of whether a defendant is placed on [EMHA], GPS
               monitoring with a curfew, or nonelectronically monitored curfew,
               the proper focus is whether the defendant's freedom of
               movement was restrained such that the defendant could not
               leave his or her own home on his or her own volition. As [the
               three appellees'] freedom of movement was not restrained and
               they were free to leave their homes whenever they chose while
               on curfew and GPS monitored curfew, I agree with the majority's
               determination that they were not "confined" and, therefore, were
               not entitled to jail-time credit.

Id.

                        Jail-Time Credit for Time Spent on EMHA

       {¶ 15} After a thorough review of the record, I find the dissent authored by Judge

Hendrickson in Fillinger, coupled with his separate concurrence in Bowling, the appropriate

manner for which a trial court should determine whether a defendant is entitled to jail-time

credit. This is not a novel approach for it has been adopted by several other districts

throughout the state as shown in Blankenship and Kleinholz, as well as the Fifth and Second

appellate districts in State v. Franklin, 5th Dist. Stark No. 2011-CA-00055, 2011-Ohio-4078

                                              -7-
                                                                     Warren CA2017-05-077

and State v. Ober, 2d Dist. Champaign No. 2003-CA-27, 2004-Ohio-3568, respectively.

Therefore, just as Judge Hendrickson stated previously, I believe that in determining

whether a defendant is "confined," and therefore entitled to jail-time credit, the proper focus

must be on whether the defendant's freedom of movement was restrained such that the

defendant could not leave his or her own home on his or her own volition. In making such

a determination, the trial court should not be concerned in any way with whether the

defendant's movements would constitute a violation of the terms of his or her community

control or probation.

       {¶ 16} With these principles in mind, and when considering the facts and

circumstances of this case, I find it clear that Hurst's freedom of movement was not in any

way restrained such that she could not leave her home on her own volition, despite the fact

that it would constitute a violation of her community control and potentially subject her to

prosecution for escape, so as to entitle her to receive jail-time credit for her time spent on

EMHA. As noted by the Sixth District Court of Appeals in State v. Holmes, 6th Dist. Lucas

No. L-08-1127, 2008-Ohio-6804, and quoted by Judge Hendrickson in his dissent in

Fillinger, "'in determining whether a defendant has been confined for purposes of the award

of jail-time credit, it is irrelevant whether he [or she] could be prosecuted for escape.'"

Fillinger, 2016-Ohio-8455 at ¶ 23, quoting Holmes at ¶ 19. I agree.

       {¶ 17} Moreover, as the record in this case plainly reveals, Hurst was permitted to

leave her home to attend AA and NA meetings for nine hours a week, her cognitive

intervention program for three hours a week, and to visit her probation officer one hour a

week, as well as to attend her court hearings and for any medical emergencies. Hurst was

also permitted to return to her previous residence in order to retrieve some of her belongings

so that she could move to a new home. Therefore, since Hurst's freedom of movement was

not in any way restrained such that she could not leave her home on her own volition, and

                                              -8-
                                                                        Warren CA2017-05-077

she was in fact permitted to leave her home for certain purposes, I find the trial court erred

by awarding Hurst 17 days of jail-time credit for the time she spent on EMHA. Accordingly,

the trial court's decision is reversed and the state's single assignment of error is sustained.

                     Conflicting Cases Requiring En Banc Review?

       {¶ 18} Upon review, differing panels from this court have now come to seemingly

conflicting decisions in this case and that of Fillinger as to whether a defendant is entitled

to jail-time credit for time spent on EMHA following his or her conviction. Under such

circumstances, App.R. 26(A)(2)(a) allows for en banc consideration by all full-time judges

of this court upon a determination that two or more decisions of the court on which they sit

are found to be in conflict by a majority of the en banc court. App.R. 26(A)(2)(b) allows for

this court to order en banc consideration sua sponte. However, this court feels it more

appropriate for one, if not both, of the parties to this case submit the appropriate application

in compliance with the applicable appellate rules that explains how our decision in this case

may be in conflict with this court's prior decision in Fillinger. As part of such application, we

specifically note the requirement contained in App.R. 26(A)(2)(b) that mandates any

application for en banc consideration "explain how the panel's decision conflicts with a prior

panel's decision on a dispositive issue and why consideration by the court en banc is

necessary to secure and maintain uniformity of the court's decisions."

                                          Conclusion

       {¶ 19} In light of the foregoing, the trial court's decision granting Hurst 17 days of jail-

time credit for the time she spent on EMHA in accordance with this court's prior decision in

Fillinger is reversed and remanded for further proceedings.             The parties are further

instructed, if either so desire, to file an application for en banc consideration in accordance

with the applicable appellate rules, most notably App.R. 26(A)(2).

       {¶ 20} Judgment reversed and remanded.

                                               -9-
                                                                    Warren CA2017-05-077


       HENDRICKSON, P.J., concurs.


       RINGLAND, J., dissents.


       RINGLAND, J. dissenting.

       {¶ 21} I respectfully dissent for the reasons stated in State v. Fillinger, 12th Dist.

Madison No. CA2016-04-015, 2016-Ohio-8455. Therefore, I would affirm the decision of

the trial court.




                                            - 10 -
