[Cite as State v. Fillinger, 2016-Ohio-8455.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                                MADISON COUNTY




STATE OF OHIO,                                        :

        Plaintiff-Appellant,                          :      CASE NO. CA2016-04-015

                                                      :           OPINION
    - vs -                                                        12/28/2016
                                                      :

TREVOR J. FILLINGER,                                  :

        Defendant-Appellee.                           :



      CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                           Case No. CRI 20130069



Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellant

Thomas J.C. Arrington, 67 East High Street, London, Ohio 43140, for defendant-appellee



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a decision in the Madison

County Court of Common Pleas awarding jail-time credit to defendant-appellee, Trevor

Fillinger, for time he spent subject to postconviction electronic monitored house arrest

("EMHA"). For the reasons detailed below, we affirm.

        {¶ 2} On August 30, 2013, Fillinger pled no contest and was convicted of one count

of attempted gross sexual imposition in violation of R.C. 2907.05(A)(4), a fourth-degree
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felony. On February 6, 2014, Fillinger was sentenced to community control and, as part of

that sentence, was placed on EMHA. The sentencing entry did not provide any exceptions to

Fillinger's EMHA, stating only that "[t]he Defendant is placed on House Arrest with Electronic

Monitoring Device."

       {¶ 3} On August 27, 2015, Fillinger's community control was modified and he was

removed from EMHA. Following his removal from EMHA, Fillinger violated the terms of his

community control. Fillinger admitted to the violation and the trial court imposed an 18-month

prison sentence. During the sentencing hearing, Fillinger requested credit for the time spent

on EMHA. After taking the matter under advisement, the trial court granted Fillinger's request

and credited him with jail-time credit for the time spent on postconviction EMHA. The state

now appeals the decision of the trial court, raising a single assignment of error for review:

       {¶ 4} THE TRIAL COURT INCORRECTLY AWARDED THE DEFENDANT CREDIT

FOR JAIL-TIME SERVED WHEN IT GAVE HIM CREDIT FOR TIME SPENT ON EMHA.

       {¶ 5} The state challenges the trial court's award of jail-time credit, alleging that

Fillinger's time spent on postconviction EMHA should not be considered for purposes of

determining jail-time credit.

       {¶ 6} Both parties acknowledge that there is a split amongst Ohio appellate districts

regarding the calculation of jail-time credit for postconviction EMHA. The state argues this

court should adopt the position of the Tenth District Court of Appeals in State v. Blankenship,

192 Ohio App.3d 639, 2011-Ohio-1601 (10th Dist.). There, the Tenth District held that a

defendant, who had been convicted of a misdemeanor and placed on a 90-day period of

EMHA but was permitted to leave his home to go to work and anger-management treatment,

was not entitled to confinement credit. Id. at ¶ 16. Relying on State v. Nagle, 23 Ohio St.3d

185 (1986) and State v. Napier, 93 Ohio St.3d 646 (2001), the court found "'confinement'

requires such a restraint on the defendant's freedom of movement that he cannot leave
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official custody of his own volition." Id. at ¶ 14.

       {¶ 7} A number of appellate districts have adopted the reasoning in Blankenship and

held that a defendant was not entitled to credit for time spent on postconviction electronic

monitoring or EMHA. State v. Tabor, 5th Dist. Richland No. 11CA33, 2011-Ohio-3200; State

v. Williams, 3d Dist. Hancock No. 5-11-26, 2011-Ohio-6698; State v. Kleinholz, 1st Dist.

Hamilton No. C-150276, 2015-Ohio-4280.

       {¶ 8} To the contrary, Fillinger urges this court to follow State v. Holmes, 6th Dist.

Lucas No. L-08-1127, 2008-Ohio-6804, where the Sixth District held that a defendant should

have been granted jail-time credit under R.C. 2949.08 for his time on postconviction EMHA.

Id. at ¶ 2-6. The court in Holmes 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.

       {¶ 9} Based on our review, we find the trial court properly awarded jail-time credit to

Fillinger based on the time spent on postconviction EMHA. In so doing, we decline to adopt

the reasoning of Blankenship and its progeny, which approach the issue of whether "house

arrest" is confinement based upon a "restraint of movement" analysis. Rather, we find that

the issue may be resolved by resorting to the relevant statutes.

       {¶ 10} R.C. 2949.08(B) provides:

              The record of the person's conviction shall specify the total
              number of days, if any, that the person was confined for any
              reason arising out of the offense for which the person was
              convicted and sentenced prior to delivery to the jailer,
              administrator, or keeper under this section. The record shall be
              used to determine any reduction of sentence under division (C)
              of this section.

(Emphasis added.)

       {¶ 11} Likewise, R.C. 2967.191 provides:

              The department of rehabilitation and correction shall reduce

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              the stated prison term of a 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 * * *.

(Emphasis added.)

       {¶ 12} The Revised Code does not define the term "confined" as used in these

statutes. However, as used in R.C. Chapter 2929, "house arrest," when imposed as a

sanction for the conviction of a crime 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 * * *."

R.C. 2929.01(P) (Emphasis added). According to this definition, when "house arrest," is

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

it is "confinement."

       {¶ 13} The cases relied upon in Blankenship, i.e., Nagle and Napier, 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 the "rehabilitation facility" and the

correctional facility in Nagle and Napier, respectively, are not defined by the Ohio Revised

Code as "confinement."

       {¶ 14} We recognize that the Tenth District did not consider the import of R.C.

2929.01(P), in part, by relying on State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548.

Blankenship, 2011-Ohio-1601 at ¶ 9. In Gapen, the Ohio Supreme Court held that pretrial

electronic home monitoring does not constitute detention for the purpose of prosecuting the

crime of escape because it was not intended to be a form of detention under R.C.

2921.01(E). This court has construed Gapen to also apply for purposes of pretrial jail-time

credit. Specifically, in State v. Delaney, 12th Dist. Warren No. CA2012-11-124, 2013-Ohio-

2282, this court held that "pretrial EMHA does not constitute confinement for the purpose of
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receiving jail-time credit." Id. at ¶ 8.

       {¶ 15} We also recognize that there will often be no practical distinction between

pretrial house arrest and house arrest imposed as a postconviction sanction. However, as

noted, there is a legal distinction based upon R.C. 2929.01(P) specifically defining the later

as "confinement." Apparently, the Supreme Court also recognizes a distinction between

pretrial and postconviction house arrest as it carefully restricted its holding in Gapen by

continually emphasizing that the case involved "pretrial" home monitoring. Any resulting

inequity in the disparate treatment of pretrial and postconviction house arrest is a matter to

be resolved by the legislature, not the judiciary.

       {¶ 16} Accordingly, we agree that Fillinger was "confined" for purposes of receiving

jail-time credit for the time spent on postconviction EMHA. The trial court did not err by

crediting Fillinger with those days. The state's sole assignment of error is overruled.

       {¶ 17} Judgment affirmed.


       M. POWELL, P.J., concurs.


       HENDRICKSON, J., dissents.


       HENDRICKSON, J., dissenting.

       {¶ 18} I respectfully dissent from the majority's opinion. Because Fillinger's physical

movement was not restrained while he was on EMHA, I would reverse the trial court's

decision awarding Fillinger jail-time credit.

       {¶ 19} As the majority has recognized, there is a split between the appellate districts

as to whether EMHA should be considered "confinement" for purposes of determining jail-

time credit. I find the rationales expressed by the Tenth District Court of Appeals in State v.

Blankenship, 192 Ohio App.3d 639, 2011-Ohio-1601 (10th Dist.), and the First District Court

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of Appeals in State v. Kleinholz, 1st Dist. Hamilton No. C-150276, 2015-Ohio-4280,

compelling.

      {¶ 20} In Blankenship, the defendant pled guilty to misdemeanor theft and was

eventually placed on a 90-day term of EMHA.              Blankenship at ¶ 2.      The terms of

Blankenship's EMHA permitted him to leave his home to attend anger-management

treatment and go to work. Id. at ¶ 16. After Blankenship violated his EMHA and his

probation was revoked, he argued he was entitled to 50 days of jail-credit for the time he

spent under EMHA. Id. at ¶ 2. The trial court disagreed. Id.

      {¶ 21} On appeal, the Tenth District upheld the trial court's denial of jail-time credit

after examining the Ohio Supreme Court's holdings in State v. Nagle, 23 Ohio St.3d 185

(1986), and State v. Napier, 93 Ohio St.3d 646 (2001). In Nagle, the court determined that a

defendant was not entitled to jail-time credit for the time he spent in a rehabilitation facility

because his "freedom of movement was not so severely restrained." Nagle at 187. In

contrast, in Napier, the court found that a defendant was entitled to jail-time credit for time

spent in a community-based correctional facility, even after a "lock-down" period had ended,

because the defendant "was not free to come and go as he wished * * * [but, rather,] was

subject to the control of the staff regarding [his] personal liberties." Napier at 648. The

Tenth District concluded that Blankenship's EMHA was similar to the situation in Nagle.

Blankenship, 2011-Ohio-1601 at ¶ 16. The court noted Blankenship was permitted to leave

his home for anger-management and employment purposes, and, more importantly, was

able to "leave the home of his own volition." Id. As the Tenth District noted, "[t]he fact that

he faced possible consequences for choosing to 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.'" Id., quoting State v. Slager, 10th Dist.

Nos. 08AP-581, 08AP-582, 08AP-709, and 08AP-710, 2009-Ohio-1804, ¶ 20.
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      {¶ 22} The First District reached a similar result in Kleinholz. There, a defendant pled

guilty to felony domestic violence and was sentenced to three years of community control

with multiple conditions, including that he serve 180 days at a community-based correctional

facility followed by 180 days of electronically monitored detention ("EMD"). Kleinholz, 2015-

Ohio-4280 at ¶ 2. While on EMD, Kleinholz was able to maintain employment outside his

home. Id. at ¶ 4. After violating his community control and being sentenced to prison,

Kleinholz asked the trial court to give him jail-time credit for the 180 days he spent on EMD.

Id. The trial court denied Kleinholz's request and he appealed. Id. at ¶ 5.

      {¶ 23} The First District, after reviewing the decisions in Nagle, Napier, Blankenship,

and Holmes, concluded that Kleinholz was not entitled to jail-time credit for his time on EMD.

Id. at ¶ 9-19. The court stated that "[p]ursuant to the analysis of 'confinement' articulated by

the 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."

Id. at ¶ 19. In denying Kleinholz jail-time credit, the court expressly rejected the rationale of

the Sixth District in Holmes, stating that "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." Id.

      {¶ 24} 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
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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, 2011-Ohio-1601 at ¶ 16., quoting Slager, 2009-Ohio-1804 at ¶ 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.

      {¶ 25} 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 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.

      {¶ 26} 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, 201-Ohio-3200; State v. Williams,

3d Dist. Hancock No. 5-11-26, 2011-Ohio-6698. Under the 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.


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      {¶ 27} Accordingly, for the reasons stated above, I respectfully dissent from the

majority's opinion. I would sustain the state's assignment of error and would reverse the trial

court's decision to award Fillinger jail-time credit for the time he spent on EMHA.




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