[Cite as State v. Osborne, 2011-Ohio-2363.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 11 CA 14
JACK OSBORNE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 07 CR 931D


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 17, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES J. MAYER, JR.                            JACK OSBORNE
PROSECUTING ATTORNEY                           PRO SE
JILL M. COCHRAN                                N.C.C.T.F.
ASSISTANT PROSECUTOR                           2000 South Avon-Belden Road
18 South Park Street                           Grafton, Ohio 44044
Mansfield, Ohio 44902
Richland County, Case No. 11 CA 14                                                        2

Wise, J.

        {¶1}    Defendant-Appellant, Jack Osborne, appeals the January 4, 2011,

judgment of the Richland County Court of Common Pleas denying his motion for jail

time credit for time served on Electronically Monitored Home Detention.

        {¶2}    Appellee is the State of Ohio.

        {¶3}    This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

        {¶4}    “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form.”

        {¶5}    This appeal shall be considered in accordance with the aforementioned

rule.

                        STATEMENT OF THE FACTS AND CASE

        {¶6}    The trial court initially sentenced Appellant to a $10,000.00 fine, a three-

year license suspension, thirty months in prison, suspended, and four years community

control sanctions with the condition that Appellant complete a six-month residential

treatment program, the DUI court program, pay child support, and submit to random

drug testing.

        {¶7}    On November 15, 2007, Appellant was again arrested in Richland County

for OMVI, as well as for violating his community control. On December 17, 2007, the

trial court sentenced Appellant to fifteen months in the Lorain Correctional Institution for
Richland County, Case No. 11 CA 14                                                        3


his community control violation. On July 2, 2008, the trial court sentenced Appellant on

case number 07-CR-093 to three years in prison, to be served consecutively to his

community control violation sentence in case number 05-CR-0468. Appellant was fined

$1,500.00 and a three-year license suspension was imposed. The State agreed to

judicial release after Appellant entered DUI Court subsequent to serving six months of

his prison sentence.

           {¶8}   On March 17, 2010, after Appellant had been in prison for twenty-seven

months, the trial court granted judicial release and required Appellant to complete a

residential treatment program at Licking-Muskingum Community Correction Center

(LMCCC).

           {¶9}   On April 22, 2010, Appellant was unsuccessfully discharged from LMCCC,

having violated program rules regarding being dishonest to staff and having a

detrimental attitude to the program and to others. Appellant was then transported to

Richland County Jail.

           {¶10} Appellant was arraigned on community control violations and was placed

on an electronic monitoring device and house arrest on May 13, 2010.

           {¶11} On May 26, 2010, the trial court held a community control violation hearing

and Appellant admitted that he was terminated from the LMCCC program; however, he

argued that he was not given a chance to finish the program.

           {¶12} Appellant subpoenaed five witnesses during the mitigation portion of the

proceedings in order to testify as to his participation in the program; however, the court

permitted him to call two witnesses to testify. The State did not call any witnesses to

testify.
Richland County, Case No. 11 CA 14                                                         4


       {¶13} The trial court sentenced Appellant to serve the remainder of his three-

year sentence on case number 07-CR-093

       {¶14} On June 1, 2010, Appellant was transported to the Ohio Department of

Rehabilitation and Correction, where he was given 29 days of jail time credit.

       {¶15} On November 2, 2010, Appellant filed a motion for jail time credit for the

time he served in Licking-Muskingum Community Correction Center (LMCCC) and also

for time served on Electronically Monitored Home Detention (EMHD).

       {¶16} By Judgment Entry filed November 29, 2010, the trial court granted

Appellant 34 days jail time credit for the time spent at LMCCC and I day for time spent

at the Richland County jail, for a total of 35 days jail time credit. The trial court did not

grant any credit for days spent on EMHD as a condition of his bond.

       {¶17} Appellant now appeals the decision of the trial court, raising the following

sole Assignment of Error:

       {¶18} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO

GIVE THE DEFENDANT-APPELLANT JAIL TIME CREDIT, AGAINST THE IMPOSED

PRISON SENTENCE, FOR TIME CONFINED ON ELECTRONIC MONITORED

HOUSE ARREST, WHILE ON COMMUNITY CONTROL.                        THIS DENIED HIS DUE

PROCESS       RIGHTS     IN   VIOLATION       OF    THE    SIXTH     AND    FOURTEENTH

AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10 & 16 OF

THE CONSTITUTION OF THE STATE OF OHIO, AND CONTRARY TO OHIO

REVISED CODE SECTION 2967.1919 AND SECTION 2949.08(D).”
Richland County, Case No. 11 CA 14                                                     5


                                             I.

        {¶19} In his sole assignment of error, Appellant argues that he was denied due

process because he was not given jail time credit for time served on electronically

monitored home detention. We disagree.

        {¶20} In State v. Dye, Richland App.No. 2006-CA-8, 2006-Ohio-5713, this Court

held:

        {¶21} “In order for appellant to receive credit towards his prison sentence, the

period of house arrest must be considered confinement within the meaning of R.C.

§2967.191. State v. Faulkner (1995), 102 Ohio App.3d 602, 657 N.E.2d 602. In State v.

Studer (March 5, 2001), Stark App.No. 2000CA00180, this Court found electronically

monitored house arrest was not confinement under R.C. §2967.191. Specifically, this

Court held as follows: “The term ‘confinement,’ while not defined, is set forth in R.C.

§2921.01(E), which defines ‘detention’ as ‘arrest; confinement in any vehicle

subsequent to an arrest; confinement in any facility for custody of persons charged with

or convicted of a crime or alleged or found to be delinquent or unruly.... Detention does

not include supervision of probation or parole, or constraint incidental to release on

bail.” Studer, supra at 2. See also State v. Bates, Guernsey App. No. 04CA11, 2004-

Ohio-6856 and State v. Krouskoupf, Muskingum App.No. CT2005-0024, 2006-Ohio-

783. Furthermore, in State v. Gapen, 104 Ohio St.3d 358, 819 N.E.2d 1047, 2004-Ohio-

6548, the Ohio Supreme found that “pretrial electronic home monitoring was not

intended to be a form of detention under R.C. 2921.01(E).” Id. at paragraph 72.”

        {¶22} In Gapen, the Ohio Supreme Court reviewed and analyzed the statutory

history of pretrial electronic home monitoring and detention, stating:
Richland County, Case No. 11 CA 14                                                       6


       {¶23} “First, the statutory history of R.C. 2921.01(E) indicates that the General

Assembly did not intend to include pretrial electronic home monitoring in the definition of

detention. For example, a former version of R.C. 2921.01(E), effective on July 1, 1996,

specifically defined pretrial electronic home monitoring as a form of detention. See

Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7335. However, R.C. 2921.01(E)

was amended, effective October 4, 1996, and the General Assembly deleted the

reference to electronic home monitoring from the definition of detention. See Sub.H.B.

No. 154, 146 Ohio Laws, Part II, 2213, 2214.

       {¶24} “Second, electronic home monitoring was separately defined in Ohio's

sentencing statute. Former R.C. 2929.23, Am.Sub.H.B. No. 22, 148 Ohio Laws, Part IV,

8353, 8383-8384, in effect on the day of the murders, see Am.Sub.H.B. No. 490, stated,

“ ‘Electronically monitored house arrest’ means a period of confinement of an eligible

offender in the eligible offender's home or in other premises specified by the sentencing

court * * *.” R.C. 2929.23(A)(4). An “[e]ligible offender” was defined as a “person who

has been convicted of or pleaded guilty to any offense” excluding exceptions not

applicable here. (Emphasis added.) R.C. 2929.23(A)(3). Thus, “[f]ormer R.C. 2929.23

focused on those serving terms of incarceration and did not apply to those on electronic

monitoring as a condition of bail under Crim.R. 46.” See State v. Sutton, Lucas App. No.

L-03-1104, 2004-Ohio-2679, 2004 WL 1171149, ¶ 10.

       {¶25} “Third, Ohio courts of appeals have generally held that persons under

pretrial electronic home monitoring are not entitled to credit for time served, because

pretrial electronic home monitoring is a “constraint in lieu of bail pursuant to R.C.

2967.191” and is not detention under R.C. 2921.01(E). See State v. Faulkner (1995)
Richland County, Case No. 11 CA 14                                                         7

102 Ohio App.3d 602, 604, 657 N.E.2d 602; State v. Studer (Mar. 5, 2001), Stark App.

No. 2000CA00180, 2001 WL 246416, * 2; Bailey v. Chance (Sept. 18, 1998), Mahoning

App. No. 98 CA 169, 1998 WL 666965, * 3; State v. Setting (Mar. 20, 1996), Wayne

App. No. 95CA0057, 1996 WL 122094, * 3. Similarly, Ohio courts of appeals have held

that persons under pretrial electronic home monitoring are not entitled to credit for

speedy-trial purposes because pretrial electronic home monitoring does not constitute

detention. State v. Truesdale (Dec. 15, 1995), Montgomery App. No. 15174, 1995 WL

738418, * 2; State v. Brownlow (1991), 75 Ohio App.3d 88, 92, 598 N.E.2d 888.”

       {¶26} In the instant case, Appellant, like the appellants in Bates, supra, and

Studer, supra, was placed on electronically monitored house arrest as a condition of

bond. Appellant was free on bond and such constraint was incidental to his release on

bail. R.C. §2929.01(E). We therefore find that Appellant's house arrest does not

constitute confinement and therefore Appellant is not entitled to jail time credit for the

time served on the house arrest. As noted by this Court in Studer, “[d]uring such time,

appellant had liberties that the [sic] would not have had had he been placed in jail rather

than on house arrest.” Id.

       {¶27} Appellant argues that subsequent to the ruling in Dye, supra, this Court in

In Re Gould, Licking App.No. 07-CA-099, 2008-Ohio-900 and State v. Holmes, Lucas

App. L-08-1127, 2008-Ohio-6804 has found that EMHD constitutes detention.

       {¶28} Upon review, we find both Gould and Holmes to be distinguishable. The

Gould case is distinguishable in that it involved post-trial, not pre-trial, electronic house

monitoring and dealt with whether the defendant could be charged with escape for
Richland County, Case No. 11 CA 14                                                       8


violating her EMHD after removing her ankle bracelet component of the monitoring

device.

       {¶29} We further find that the Holmes case, supra, is likewise distinguishable. In

Holmes, the defendant spent 30 days on EMHD as a condition of his probation and 60

more days of EMHD after he violated his probation. While this Court found that the

defendant was entitled to jail time credit for the time he spent on EMHD as a condition

of his probation, this Court found that he was not entitled to credit for the time the

defendant was on EMHD as a condition of bail while his probation violation was

pending.

       {¶30} Based on the foregoing, we find that the trial court did not err in overruling

Appellant's motion for jail time credit.

       {¶31} Appellant’s sole assignment of error is overruled.

       {¶32} For the foregoing reason, the judgment of the Court of Common Pleas,

Richland County, Ohio, is affirmed.


By: Wise, P. J.

Hoffman, J., and

Farmer, J., concur.


                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                  JUDGES
JWW/d 0510
Richland County, Case No. 11 CA 14                                             9


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
JACK OSBORNE                              :
                                          :
       Defendant-Appellant                :         Case No. 11 CA 14




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
