[Cite as State v. Porter, 2018-Ohio-3123.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee/Cross-                  :     CASE NOS. CA2017-07-101
        Appellant,                                                 CA2017-07-103
                                                   :
    - vs -                                                      OPINION
                                                   :             8/6/2018
DESHAWN PORTER,
                                                   :
        Defendant-Appellant/Cross-
        Appellee.                                  :



      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/cross-appellant

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



        PIPER, J.

        {¶ 1} Defendant-appellant/cross-appellee, DeShawn Porter, appeals the manner in

which the Warren County Court of Common Pleas determined his jail-time credit after

sentencing Porter to two years in prison. Plaintiff-appellee/cross-appellant, the state of Ohio,

appeals the same trial court's decision awarding jail-time credit for days that Porter spent on

house arrest.

        {¶ 2} Porter pled guilty to one count of burglary and was sentenced to two years in
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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.

       {¶ 3} 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

original two-year prison term. 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.

       {¶ 4} Porter now appeals the trial court's calculation of jail-time credit, raising one

assignment of error:

       {¶ 5} THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE APPELLANT JAIL-

TIME CREDIT FOR TIME SPENT ON HOUSE ARREST, WITH A CURFEW.

       {¶ 6} The state also appeals the trial court's sentence, raising the following cross-

assignment of error:

       {¶ 7} THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED PORTER 96

DAYS OF JAIL-TIME CREDIT FOR THE TIME HE SPENT ON ELECTRONICALLY-

MONITORED HOUSE ARREST.

       {¶ 8} Given that the two assignments of error are interrelated, we will address them

together.

       {¶ 9} As previously stated, the trial court revoked Porter's community control after

Porter's second violation. In determining jail-time credit toward the two-year sentence, the

trial court gave Porter credit for the time he was under house arrest, but did not award time
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for which Porter was subject to a curfew.

       {¶ 10} This court has addressed these issues in previous decisions of which all

parties and the trial court are aware. This court has specifically determined that defendants

are not confined for the purposes of granting jail-time credit when subject to curfew

restrictions. State v. Bowling, 12th Dist. Warren Nos. CA2017-02-020, CA2017-02-021, and

CA2017-03-032, 2017-Ohio-8539. Although Porter asks us to depart from the precedent set

forth in Bowling, we decline to do so and, instead, reiterate the legal analysis set forth

therein.

       {¶ 11} Ohio statutes specifically instruct sentencing courts to reduce a prison term by

the total number of days that the defendant was "confined."             R.C. 2967.191; R.C.

2949.08(B). However, the statues do not define or offer guidance on how the term "confined"

should be used by Ohio courts. Nevertheless, we noted in Bowling that curfew is not defined

as a period of "confinement" under the terms of the Ohio Revised Code. Instead, and

pursuant to R.C. 2929.01(G), the term curfew "means a requirement that an offender during

a specified period of time be at a designated place."

       {¶ 12} We also addressed the Ohio Supreme Court's decisions related to the issue of

jail-time credit in State v. Nagle, 23 Ohio St.3d 185 (1986); and State v. Napier, 93 Ohio

St.3d 646 (2001). In Nagle, the defendant was ordered to attend a residential rehabilitation

facility pursuant to the terms of his conditional probation. However, the defendant left the

treatment before it was completed and was subsequently resentenced by the trial court. The

court held that the defendant was not entitled to jail-time credit for time spent in the

rehabilitation facility because "in none of [the examples of confinement under R.C.

2949.08(C)] may the defendant leave official custody of his own volition." 23 Ohio St.3d at

186.

       {¶ 13} In Napier, the court found that the defendant was entitled to jail-time credit for
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time spent at a community based correctional facility because the time spent there was

confinement. Napier was only able to leave the facility after submitting a detailed written

description of when he was leaving the facility, where he was going, and when he planned to

return. The court reasoned that Napier was not free to come and go and was thus "subject to

the control of the staff regarding personal liberties." 93 Ohio St.3d at 648.

       {¶ 14} Courts interpreting Nagle and Napier 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. Blankenship, 192 Ohio App.3d 639, 2011-Ohio-

1601, ¶ 14 (10th Dist.). In State v. Tabor, 5th Dist. Richland No. 11CA33, 2011-Ohio-3200,

the Fifth District Court of Appeals held that an individual was not entitled to jail-time credit

where the offender was placed on community control and subject to electronic monitoring

and curfew. Tabor was subject to a curfew requirement that restricted him to his home

between the hours of 10:00 p.m. and 6:00 a.m. Otherwise, the defendant "was free to move

around within the county and could leave the county with permission as long as he abided by

the terms of his community control." Id. at ¶ 18.

       {¶ 15} The record indicates that Porter was subject to a curfew that required him to

be home from 8:00 p.m. to 8:00 a.m., Monday through Sunday. Aside from those times,

evidence submitted at the revocation hearing indicated that Porter had freedom of movement

and was not in custody or restrained from movement. Instead, Porter was "able to do what

he want[ed]," which included ingesting cocaine. Porter was also free to "do or go wherever"

he wanted, other than leaving the state without permission. Porter was permitted to work,

"come and go from [his] residence," attend parties or go to church. Further, Porter was able

to go to the store, decide when and where to eat, was free to play video games, and watch

movies or television. Porter was also permitted to have visitors, and his movement in his

home was not restrained or restricted in any way. As a result, we find that Porter was not
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"confined" for purposes of calculating jail-time credit for the time spent on curfew. Therefore,

the trial court did not err by calculating Porter's jail-time credit without including the days

Porter was subject to a curfew. Consequently, Porter's assignment of error is overruled.

       {¶ 16} While a majority of the panel in State v. Fillinger, 12th Dist. Madison No.

CA2016-04-015, 2016-Ohio-8455, determined that being subject to house arrest qualifies as

being confined for purposes of jail-time credit, we now depart from the reasoning set forth in

that case.

       {¶ 17} In Fillinger, 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 provided in the statute, the majority

held that a defendant subject to house arrest qualifies for jail-time credit for the days he or

she spends on house arrest.

       {¶ 18} 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 violation of probation or community control." 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

Napier at 648.

       {¶ 19} We agree with the reasoning articulated in Judge Hendrickson's dissent.

Porter's accountability to a designated location (his home) was not tantamount to
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confinement associated with the loss of liberties and restraint of choices found in jail

confinement. While on house arrest, Porter was not subject to the control of officials

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 on house

arrest. This is because an individual's liberties, freedom of choices, and movement are not

restrained to an extent commonly associated with being "confined." 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. We therefore overrule this

court's prior decision in Fillinger to the extent that it permits jail-time credit for those on house

arrest.

          {¶ 20} The record herein is undisputed that Porter's freedom of movement was not

restrained while he was subject to house arrest. During 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.

          {¶ 21} 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

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 around his home, planning meals,

welcoming guests, and doing whatever he wanted while in the house.

          {¶ 22} Moreover, 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 have

left his home to go anywhere and do anything because he was never physically restrained or
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stopped from walking out his front door. Porter was granted the comfort and convenience of

residing at home. Such is not equivalent to being subject to the moment-to-moment control

of staff regarding personal liberties. The individual autonomy one experiences when required

to be at a certain location, like house arrest, with all of its other freedom and choices, cannot

remotely be compared to the substantial restrictions imposed by the confinement found in a

government-operated facility.

       {¶ 23} 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 continue his life, make decisions on when and what he was going to do in his home, and

was even able to move residences to reside with his girlfriend. Thus, Porter was not confined

during the time he was subject to house arrest, and the trial court erred by granting Porter 96

days of jail-time credit. The state's cross-assignment of error is sustained. On remand, the

trial court shall recalculate Porter's jail time credit and shall not give credit for the days Porter

was subject to house arrest.

       {¶ 24} Judgment affirmed in part, reversed in part, and the matter is remanded to the

trial court for the sole purpose of recalculating Porter's jail-time credit.


       S. POWELL, P.J., concurs.


       RINGLAND, J., concurs in part and dissents in part.


       RINGLAND, J., concurring in part and dissenting in part.

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

Madison No. CA2016-04-015, 2016-Ohio-8455. In Fillinger, this court found that "house

arrest" satisfied the definition of "confined" for purposes of determining jail-time credit. Id. at

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¶ 12. In so doing, this court relied on the statutory definition of "house arrest," which is

defined as "a period of confinement." R.C. 2929.01(P). As a result, "house arrest," when

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

felony, it is 'confinement.'" Id.

       {¶ 26} However, I concur in part because curfew is not defined as a period of

"confinement" under the terms of the Ohio Revised Code. Pursuant to R.C. 2929.01(G), the

term curfew "means a requirement that an offender during a specified period of time be at a

designated place." State v. Bowling, 12th Dist. Warren Nos. CA2017-02-020, CA2017-02-

021, and CA2017-03-032, 2017-Ohio-8539, ¶ 17. Therefore, I would affirm the decision of

the trial court to the extent it denied Porter credit for the time he was subject to a curfew.




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