[Cite as State v. Reed, 2019-Ohio-1266.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                       Court of Appeals No. E-17-037

        Appellee                                    Trial Court No. 2014-CR-509

v.

Eric Reed                                           DECISION AND JUDGMENT

        Appellant                                   Decided: April 5, 2019

                                             *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Brian A. Smith, for appellant.

                                             *****

        SINGER, J.

                                           Introduction

        {¶ 1} Appellant, Eric Reed, appeals the July 11, 2017 judgment of the Erie County

Court of Common Pleas revoking his community control and imposing a five-year

sentence for participating in a criminal gang in violation of R.C. 2923.42(A), a felony of
the second degree. For the reasons that follows, we reverse the judgment and remand the

matter to the trial court for resentencing.

                                    Assignment of Error

              The trial court committed reversible error by failing to give all

       required jail time credit to Appellant.

                                        Background

       {¶ 2} On December 18, 2014, appellant was indicted on three counts:

participating in a criminal gang in violation of R.C. 2923.42(C); aggravated rioting in

violation of R.C. 2917.02(A)(2); and assault in violation of R.C. 2903.13(A).

       {¶ 3} On July 14, 2015, appellant entered a guilty plea to the participating in a

criminal gang charge. The remaining counts were dismissed, and the prosecution

recommended community control sanctions.

       {¶ 4} On August 25, 2015, a sentencing hearing was held and appellant was

sentenced to five years community control.

       {¶ 5} Appellant was to comply with certain conditions while on community

control, including to obey federal, state and local laws and ordinances. Appellant

violated this condition because he committed aggravated burglary, burglary, or assault, in

November 2016, as charged in Erie C.P. case No. 2017-CR-0012.

       {¶ 6} The trial court found probable cause existed, and a hearing was scheduled

for January 6, 2017. The hearing was continued numerous times and was held on July 7,

2017. Appellant admitted, and the trial court found, that he violated his conditions.




2.
       {¶ 7} The trial court set the matter for sentencing on July 10, 2017. At the

hearing, appellant’s counsel requested the court decide whether electronic monitoring or

standard house arrest is to be credited as days of confinement. The court denied applying

credit for the electronic monitoring or standard house arrest, and subsequently proceeded

to sentence appellant after revoking his community control.

       {¶ 8} The court sentenced appellant to five years in prison, and gave him 316 days

of credit for time served as of July 10, 2017. The judgment was journalized July 11,

2017, and appellant now appeals.

                                          Analysis

       {¶ 9} In his sole assignment of error, appellant asserts the trial court failed to

properly apply 171 days of confinement credit to his sentence in accordance with State v.

Holmes, 6th Dist. Lucas No. L-08-1127, 2008-Ohio-6804. Appellee contends that

appellant’s postconviction house arrest was not a restraint on his liberty such that he

could not come and go on his own volition.

       {¶ 10} R.C. 2949.08(C)(1) relevantly provides:

       If [a] person is sentenced to jail for a felony or a misdemeanor, the jailer in

       charge of a jail shall reduce the sentence of a person delivered into the

       jailer’s custody * * * by the total number of days the person was confined

       for any reason arising out of the offense for which the person was convicted

       and sentenced * * *.

See Holmes at ¶ 11.




3.
         {¶ 11} The term “confinement” as used in R.C. 2949.08(C)(1), is synonymous

with the term “detention” as defined in R.C. 2921.01(E). See id. at ¶ 12, citing State v.

Sutton, 6th Dist. Lucas No. L-03-1104, 2004-Ohio-2679, ¶ 13.

         {¶ 12} The statutory definition of detention once excluded “supervision and

restraint incidental to probation, parole and release on bail.” Id. at ¶ 15. However, the

current statutory definition “clearly does not.” Id. See also R.C. 2921.01(eff. Sept. 29,

2013).

         {¶ 13} Appellant asserted below that he should be awarded confinement credit for

time spent on house arrest. The prosecution argued no confinement credit should be

awarded for the house arrest because it was imposed after appellant violated his

community control. The trial court recognized Holmes, yet denied appellant’s request.

         {¶ 14} In Holmes, we reversed the trial court and held that Holmes was entitled to

confinement credit for his time served on house arrest. Holmes specifically sought credit

“for the 90 days time that he spent on electronic monitoring as part of his community

control sentence.” Id. at ¶ 8. We granted the credit. Id. at ¶ 20.

         {¶ 15} Our analysis in Holmes initially consisted of an explanation of how

electronic monitoring house arrest constitutes a form of detention pursuant to R.C.

2921.34. Id. at ¶ 17-18. We found this applied where electronic monitoring was imposed

pursuant to community control. Then, we took the analysis a “step further,” finding that

in the interest of justice, “where an individual can be prosecuted for escape from

electronic monitoring imposed pursuant to community control or probation, that

individual should be entitled to credit for time served in that way.” Id. at ¶ 19.


4.
       {¶ 16} Based on our review, the record in this case demonstrates that appellant

served days on house arrest after being sentenced to community control in September of

2015. Although the house arrest was not explicitly imposed in the trial court judgment,

we hold that appellant is entitled to credit for those days he was confined because he

could have been prosecuted for escape during that time when a condition of the court-

imposed community control was to abide by what conditions the probation officer set,

which the probation officer Gale testified included electronic monitoring and standard

house arrest.

       {¶ 17} Gale explained and testified in detail about the type and time period of

restraint imposed on appellant, as follows:

                [Appellant’s counsel]: All right. And that’s [(imposing house

       arrest)] something that you’re allowed to do as a result of the Court

       originally putting Mr. Reed on probation, correct?

                [Gale]: That’s correct.

                [Appellant’s counsel]: Okay, all right. And so do you know when

       or what dates that you would have put Mr. Reed on electronic monitoring

       house arrest?

                [Gale]: On electronic monitoring or standard house arrest?

                [Appellant’s counsel]: Well—

                [Gale]: He was on both.

                [Appellant’s counsel]: Okay. So let me—let me go through the

       difference because I didn’t realize there was a difference.


5.
              [Gale]: Okay.

              [Appellant’s counsel]: So there’s an electronic monitoring first,

     right?

              [Gale]: Correct.

              [Appellant’s counsel]: Okay. And what is that?

              [Gale]: Electronic monitoring is a bracelet they put around their

     ankle with GPS capabilities and then standard house arrest is a bracelet they

     wear around their wrist. It’s a lower level of supervision on house arrest.

              [Appellant’s counsel]: All right. So let’s go with the electronic

     monitoring first. What are the restrictions or how does that work?

              [Gale]: It depends on what they’re allowed to do, what they’re not

     allowed to do. Some people are on total lockdown. They can’t leave their

     house except for Court appointments.

              [Appellant’s counsel]: Okay.

              [Gale]: Mr. Reed was granted work privileges. He could go to

     work. He also asked to go to the bank on Fridays, I believe, to cash his

     check or do something with his finances. And, of course, he was able to

     come see me, along with any type of counseling.

              [Appellant’s counsel]: All right. So absent those exceptions with

     the electronic monitoring, was he otherwise supposed to stay at a certain

     residence?

              [Gale]: Yeah, he was supposed to stay at his listed residence.


6.
            [Appellant’s counsel]: Okay. All right. And besides authorizing

     him to go to work and to the bank, would he have to seek otherwise

     authorization to leave the residence otherwise?

            [Gale]: Yes. He had a caseworker with LECCC that facilitates the

     house arrest and turns in schedules to her, because I know at one point he

     asked to work overtime and that was granted as well.

            [Appellant’s counsel]: All right. And this may sound silly, but with

     the electronic monitoring that’s continuous, so there would not have been

     any breaks in that?

            [Gale]: Well, he actually had a break, because he had come off of

     it—

            [Appellant’s counsel]: Okay, but while it— but while—

            [Gale]: --and then was put back on again.

            [Appellant’s counsel]: I’m sorry. But while it was on, though, I

     mean, the fact is that that was continue— that was continuous in nature.

            [Gale]: Yes, yes.

            [Appellant’s counsel]: All right. All right. And then while he was

     on the electronic monitoring, as you said before, he was still required to

     check in with you?

            [Gale]: Yes.

            [Appellant’s counsel]: All right. All right. And then he— even

     though he’s on electronic monitoring, besides checking in with you, he still


7.
     has to follow all the conditions that we talked about in Defendant’s Exhibit

     A, correct?

            [Gale]: That’s correct.

            [Appellant’s counsel]: All right, okay. So can you tell me, then, do

     you know how long he was on the electronic monitoring?

            [Gale]: Yes. He was originally placed on electronic monitoring on

     March 31st of 2016 until May 29th of 2016.

            * * * [Appellant’s counsel]: Okay. And then you talked about the

     fact that separate from electronic monitoring, then, is house arrest, correct?

            [Gale]: Standard house arrest, correct.

            [Appellant’s counsel]: Standard house arrest.

            [Gale]: Correct.

            [Appellant’s counsel]: All right. And for Mr. Reed, was he on

     standard house arrest then?

            [Gale]: Initially he was, yes.

            [Appellant’s counsel]: Okay. And what does that entail then?

            [Gale]: The same conditions, it’s just you’re not monitored by a

     GPS. It’s a bracelet that’s put on your wrist and it’s kind of like at your

     word that you’ll be home, and we send house arrest officers out to check on

     you randomly.




8.
              [Appellant’s counsel]: So I want to be very clear about this. So then

       on standard house arrest he does not— he’s got a bracelet, but I was going

       to say it’s nothing that’s electronically monitored, correct?

              [Gale]: That’s correct.

              [Appellant’s counsel]: But, otherwise, all of the conditions, though,

       for electronic monitoring apply, though, for standard house arrest.

              [Gale]: That’s correct.

              [Appellant’s counsel]: All right. And how long was he on standard

       house arrest?

              [Gale]: From December 3rd, 2015 until March 31st of 2016, at

       which time he was placed on electronic monitoring that same day.

       {¶ 18} Consistent with Holmes, Gale’s explanation and testimony of the detention

imposed precisely details the type of restraint on liberty we decided is to be credited as

confinement. See Holmes, 6th Dist. Lucas No. L-08-1127, 2008-Ohio-6804, at ¶ 20.

Accordingly, we hold that appellant is entitled to confinement credit for those days he

was on electronic monitoring or standard house arrest, and his sole assignment of error is

found well-taken.

                                        Conclusion

       {¶ 19} For the foregoing reasons, the judgment of the Erie County Court of

Common Pleas is reversed and the matter is remanded. The trial court is ordered to




9.
proceed in a manner consistent with this decision. Appellee is ordered to pay the costs of

this appeal pursuant to App.R. 24. We note this decision is in conflict with, among

others, the Twelfth District Court of Appeals in State v. Porter, 2018-Ohio-3123, 106

N.E.3d 125 (12th Dist.). Pursuant to Ohio Constitution, Article IV, Section 3(B)(4), we

sua sponte certify a conflict to the Supreme Court of Ohio for review and final

determination. The parties are directed to S.Ct.Prac.R. 7.01 and 7.08 for further

proceedings.


                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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