[Cite as State v. Williams, 2011-Ohio-6698.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-11-26

        v.

CHRISTOPHER M. WILLIAMS,                                  OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2008 CR 00255

                                      Judgment Affirmed

                          Date of Decision: December 27, 2011




APPEARANCES:

        Nathan T. Oswald for Appellant

        Mark C. Miller and Drew A. Wortman for Appellee
Case No. 5-11-26



SHAW, J.

       {¶1} Although originally placed on our accelerated calendar, we elect,

pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

       {¶2} On October 21, 2008, defendant-appellant Christopher Williams

(“Williams”) was indicted on three counts of breaking and entering in violation of

R.C. 2911.13(A), felonies of the fifth degree; one count of safecracking in

violation of R.C. 2911.31(A), a felony of the fourth degree; and one count of

receiving stolen property in violation of R.C. 2913.51(A), a felony of the fifth

degree. On March 16, 2009, Williams entered guilty pleas to all indicted charges.

       {¶3} On May 12, 2009, the trial court sentenced Williams to serve a single

sentence of five years of community control for all five counts. As a condition of

his community control, the trial court ordered Williams to enter into and complete

a term of thirty days in the Hancock County Adult Probation Department’s

Electronic Monitoring Program at his own expense. Notably, this condition only

required Williams to be home by curfew. Williams successfully completed the

electronically monitored portion of his community control.

       {¶4} However, on December 18, 2009, Williams’ probation officer filed a

motion to revoke his community control for failing to be home by the curfew, for

failing to comply with treatment, for failing to report as required to his probation

officer, for failing to notify his probation officer of his change of address, and for

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Case No. 5-11-26



his use of marijuana. Each of these constituted violations of Williams’ community

control conditions. A hearing on the motion was held on December 21, 2009, and

Williams admitted to the violations. The trial court then sentenced Williams to

eleven months in prison for his convictions on each of the breaking and entering

counts and on the receiving stolen property count, all to run concurrently.

Williams was sentenced to seventeen months in prison for his conviction for

safecracking, with this sentence to be served consecutively to the others, for a total

prison term of twenty-eight months. Williams appealed from this sentence.

       {¶5} On appeal, this court reversed the sentence of the trial court because it

ordered a lump sentence of five years community control rather than sentencing

Williams for each individual offense as required by statute.         A resentencing

hearing was held on May 5, 2011. The trial court imposed the previous prison

sentence of twenty-eight months. The trial court granted Williams credit for 523

days of time served. At the resentencing hearing, Williams asked for an additional

30 days of credit for time served for the time he spent subject to electronic

monitoring. The trial court subsequently denied Williams’ request. Williams

appeals from this judgment and raises the following assignments of error.

                       FIRST ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY DENYING [WILLIAMS]
       JAIL TIME CREDIT FOR 30 DAYS OF ELECTRONIC


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       HOME MONITORING SERVED AS                        A COMMUNITY
       CONTROL CONDITION.

                        SECOND ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       IMPOSING AN UNREASONABLY HARSH SENTENCE FOR
       [WILLIAMS’] SAFECRACKING CONVICTION.

                        THIRD ASSIGNMENT OF ERROR

       [WILLIAMS] WAS DENIED EFFECTIVE ASSISTANCE OF
       COUNSEL HIS [SIC] BY TRIAL COUNSEL’S FAILURE TO
       ADVOCATE FOR COMMUNITY CONTROL.

                            First Assignment of Error

       {¶6} The first assignment of error claims that the trial court erred in

denying credit to Williams for the thirty days he spent on electronic monitoring

after his conviction.

       {¶7} Section 2949.08 of the Revised Code provides, in pertinent part:

       (A) When a person who is convicted of or pleads guilty to a felony is
       sentenced to a community residential sanction in a community-based
       correctional facility pursuant to section 2929.16 of the Revised Code or
       when a person who is convicted of or pleads guilty to a felony or a
       misdemeanor is sentenced to a term of imprisonment in a jail, the
       judge or magistrate shall order the person into the custody of the
       sheriff or constable, and the sheriff or constable shall deliver the
       person with the record of the person’s conviction to the jailer,
       administrator, or keeper, in whose custody the person shall remain
       until the term of imprisonment expires or the person is otherwise
       legally discharged.

       ***


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      (C)(1) If the person is sentenced to a 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 pursuant to division (A) of this
      section 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, including confinement in lieu of bail while awaiting
      trial, confinement for examination to determine the person’s
      competence to stand trial or to determine sanity, and confinement
      while awaiting transportation to the place where the person is to serve
      the sentence.

Ohio Appellate Courts have reached different conclusions as to whether electronic

monitoring constitutes “confinement” for purposes of calculating credit for time

served.

      {¶8} In State v. Holmes, 6th Dist. No. L-08-1127, 2008-Ohio-6804, the

defendant was convicted of one count of possession of crack cocaine and

sentenced to community control. The defendant was placed on electronically

monitored house arrest (“EMHA”) for a period of thirty days as part of his

community control.     After successfully completing the electronic monitoring

portion of his sentence, the defendant violated the terms of his community control

and was sentenced to prison. The defendant requested credit for time served for

the ninety days he spent on EMHA. The trial court denied his request and the

defendant appealed.

      {¶9} The court in Holmes determined that “confinement” as used in R.C.

2949.08(C) is “synonymous” with the term “detention” as defined in R.C.


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2921.01(E). Id. at ¶12. Based on this rationale, the court relied heavily on a Fifth

District case, In re Nitaleen Gould, 5th Dist. No. 07-CA-0099, 2008-Ohio-900 and

arrived at the following conclusion.


       In Gould, supra, the case involved a minor defendant who had
       been adjudicated delinquent for the charge of gross sexual
       imposition. The defendant was placed on community control,
       and when she violated the terms of that sentence, she was
       restored to probation. As part of her probation, she was placed
       on electronically-monitored house arrest. At some point during
       this portion of her sentence, the defendant cut off the ankle
       bracelet portion of her electronic monitoring device and left
       home without permission. As a result of her actions, she was
       charged with delinquency by reason of committing escape, in
       violation of R.C. 2921.034.

       The question for the court in Gould was whether the defendant’s
       electronic home monitoring constituted a form of detention
       pursuant to R.C. 2921.01(E), so as to support her conviction for
       the charge of escape. The court, relying solely on the current
       version of the statute-which, unlike the previous versions, makes
       no exclusion for supervision and restraint incidental to
       probation, parole and release on bail-determined that it was. On
       the basis of that determination, the court concluded that the
       defendant’s adjudication for the charge of escape was not
       against the sufficiency of the evidence.

       We agree with the court’s analysis in Gould, and find that it
       applies equally in cases where electronic monitoring is imposed
       pursuant to community control.

       Taking the analysis a step further, we find that the interests of
       justice require that 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. Stated otherwise,

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Case No. 5-11-26



        if electronic monitoring is “detention” for prosecuting the crime
        of escape, it should likewise be “detention” for time-crediting
        purposes.

Holmes, at ¶¶ 16-19.1

        {¶10} Notably, the court in Gould did not specifically address the issue of

whether an offender is entitled to credit for time served for the period of time he or

she spent on post-conviction electronic home monitoring.

        {¶11} However, when confronted with this issue, the same court that

decided Gould elected not to follow the reasoning in Holmes, but instead resolved

the question by arriving to the opposite conclusion. In State v. Tabor, 5th Dist.

No. 111 CA 33, 2011-Ohio-3200, the Fifth District held that the defendant, who

was convicted of a felony offense, was not entitled to credit for time served under

R.C. 2949.08(C) for time spent under electronic monitoring as condition of his

community control, which required him to be home between the hours of 10:00

p.m. and 6:00 a.m. In doing so, the court in Tabor was strongly persuaded by

reasoning of the Tenth District in State v. Blankenship, 192 Ohio App.3d 369,

2011-Ohio-1601, 949 N.E.2d 1087.




1
 In State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, the Supreme Court of Ohio
concluded 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). However, the Supreme Court has not resolved the issue of whether post-conviction electronic
home monitoring constitutes detention under R.C. 2921.01(E).

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         {¶12} In Blankenship, the defendant was convicted of a misdemeanor

offense and placed on a ninety-day term of EMHA. The defendant subsequently

failed to complete the conditions of his probation, which prompted the trial court

to revoke his probation and impose a jail sentence. The defendant then requested

credit for time served for the time he spent on EMHA, which the trial court

denied.

         {¶13} On appeal, the Tenth District determined that the defendant was not

entitled to credit for time served for the time he spent on EMHA. The court in

Blankenship began its analysis by examining the word “confinement” used in R.C.

2949.08(C), and noting that “confinement” is not separately defined under R.C.

2929.01. Id. at ¶ 9. The court acknowledged that some courts have determined

“confinement” to be synonymous with “detention,” but that those cases were not

binding on its decision and ultimately concluded that it was not necessary to

determine whether the two words have the same meaning when resolving this

issue.

         {¶14} Rather, the court in Blankenship reviewed decisions of the Supreme

Court of Ohio to evaluate how “confinement” is considered in the context of

calculating an offender’s credit for time served when the offender has spent time

in a residential rehabilitation facility and a community-based corrections facility as

a condition of community control.

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       {¶15} In State v. Nagle (1986), 23 Ohio St.3d 185, 23 OBR 348, 492

N.E.2d 158, the Supreme Court considered whether time spent in a residential

rehabilitation facility as a condition of probation constituted “confinement” under

R.C. 2949.08(C). The Supreme Court reversed the court of appeals, which gave

Nagle time served credit for time he spent in the rehabilitation facility. Id. at 188.

The court in Blankenship noted that

       Central to this holding was the Supreme Court’s observation
       that “in none of [the examples of confinement under R.C.
       2949.08(C) ] may the defendant leave official custody of his own
       volition.” By contrast, although the rehabilitation facility
       imposed restrictions on the defendant’s freedom of
       communication with those outside the facility, “[his] freedom of
       movement was not so severely restrained, i.e., he indeed did
       voluntarily depart the facility.” Therefore, time spent in this
       residential rehabilitation facility as a condition of postconviction
       probation was not a form of “confinement” eligible for time-
       served credit under R.C. 2949.08(C).

       By contrast, in State v. Napier (2001), 93 Ohio St.3d 646, 758
       N.E.2d 1127, the Supreme Court of Ohio concluded that time
       spent in a community-based correctional facility constituted
       confinement under R.C. 2967.191. * * * The Supreme Court
       noted that although the defendant could leave the facility after
       the “lockdown” period, his ability to leave was subject to
       requesting permission and submitting a detailed written
       description of when he was leaving the facility, where he was
       going, and when he planned to return. Because the defendant
       was not free to come and go as he wished and “was subject to the
       control of the staff regarding personal liberties,” the defendant’s
       time in the community-based correctional facility constituted
       “confinement” for purposes of R.C. 2967.191.



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Case No. 5-11-26



Blankenship, 2011-Ohio-1601 at ¶¶ 12-13 (internal citations omitted). 2

         {¶16} In applying this framework set forth by the Supreme Court to the

case before it, the court in Blankenship noted that the order imposing EMHA

permitted the defendant to leave his home for both anger-management treatment

and employment. The court concluded that “like the defendant in Nagle, the

appellant was apparently able to leave the home of his own volition, because he

must have done so to violate the terms of his EMHA. The 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. at ¶ 16 quoting

State v. Slager, 10th Dist. No. 08AP-581, 2009-Ohio-1804, ¶ 20 (concluding that

pre-arrest hospitalization for treatment of injuries sustained while fleeing the

police did not constitute confinement for purposes of R.C. 2967.191); see also

State v. Ober, 2nd Dist. No. 2003-CA-27, 2004-Ohio-3568, ¶ 20 (determining that

the defendant had not been confined for purposes of R.C. 2967.191 because his

house arrest “was less restrictive, or at least no more restrictive, than the situation

of the defendant in State v. Nagle”).




2
  As noted in Blankenship, R.C. 2949.08(C) and R.C. 2967.191 contain nearly identical language with
respect to the provision for the calculation of credit for time served and therefore the analysis of this issue
under R.C. 2967.191 is applicable to the matter at hand.

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Case No. 5-11-26



        {¶17} Even though the court in Blankenship specifically limited its holding

to misdemeanor offenses, we, like the court in Tabor, find the underlying rationale

of Blankenship to be persuasive and applicable to felony offenses.

        {¶18} Furthermore, we note that the conditions of Williams’ electronic

monitoring were even less restrictive than the order imposing EMHA in

Blankenship. Unlike the defendant in Blankenship, Williams was not on house

arrest, which requires the offender to remain in the home except when authorized

to leave for employment or other designated purposes. But rather, Williams was

placed on electronic monitoring, which simply involves the use of an electronic

device to monitor and determine an individual’s location. R.C. 2929.01(TT) and

(UU).

        {¶19} In reviewing the conditions of electronic monitoring imposed on

Williams as a part of his community control, the only restriction on Williams’

movements was that he had to “abide by curfew, which will be set out by the

Adult Probation Officer.” (State’s Ex. 2, 12/21/09). Other than this restriction,

Williams had unfettered liberty to leave his house on his own volition. Consistent

with the reasoning expressed in Nagle and Blankenship, we conclude that under

the terms of Williams’ electronic monitoring his freedom of movement was not so

severely restrained so as to constitute “confinement” under R.C. 2949.08(C). The

first assignment of error is overruled.

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                            Second Assignment of Error

       {¶20} In the second assignment of error, Williams argues that the trial court

abused its discretion by imposing an unusually harsh sentence for safecracking

without any evidence that it was any more serious than any other offense of

safecracking.   Specifically, Williams alleges that the trial court abused its

discretion in applying the factors set forth in R.C. 2929.12(B).

       [A] court that imposes a sentence under this chapter upon an
       offender for a felony has discretion to determine the most
       effective way to comply with the purposes and principles of
       sentencing set forth in [R.C. 2929.11]. In exercising that
       discretion, the court shall consider the factors set forth in
       divisions (B) and (C) of this section relating to the seriousness of
       the conduct and the factors provided in divisions (D) and (E) of
       this section relating to the likelihood of the offender’s recidivism
       and, in addition, may consider any other factors that are
       relevant to achieving those purposes and principles of
       sentencing.

R.C. 2929.12(A). To find an abuse of discretion, the record must reveal that the

trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Trial courts have

discretion to impose a prison sentence within the statutory range for the offense

from which the conviction stems. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-

856, 845 N.E.2d 470.

       {¶21} Here, Williams claims that the trial court’s application of the factors

was arbitrary because the trial court had no evidence that this safecracking offense

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was worse than any other safecracking offense. However, the record reflects that

the trial court did consider the sentencing factors set forth in R.C. 2929.12. (May

5, 2011 Hrg. at 11).     The pre-sentence report reveals that Williams has an

extensive juvenile record and has broken the law as an adult on more than one

occasion. The victims in this case were churches and a family center. Williams

has demonstrated a history of theft charges and violating court orders and admits

to occasional marijuana use.     According to the institutional summary report,

Williams was disciplined for stealing from the café twice and for disobeying a

direct order. The sentence imposed by the trial court was within the statutory

range for a felony of the fourth degree. Contrary to Williams’ claim, the record

demonstrates that the trial court did apply the appropriate factors under R.C.

2929.12 and that its application of those factors in sentencing Williams was not

unreasonable, arbitrary, or unconscionable.

      {¶22} Although Williams correctly alleges that the factors in R.C.

2929.12(B) do not indicate that this offense of safecracking was more serious than

any other safecracking charge, the analysis does not end there. The trial court

must apply the factors in R.C. 2929.12(C), (D), & (E) as well. There were no

applicable factors in R.C. 2929.12(C) which would reduce the seriousness of the

offense.   A review of the record indicates that Williams is at a high risk for

recidivism due to his history of juvenile and adult criminal convictions and his

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Case No. 5-11-26



failure to favorably respond to prior sanctions.      R.C. 2929.12(D)(2) and (3).

Williams was sent to prison after his community control was revoked a mere

seven months after it was ordered. R.C. 2929.12(D)(1). The only factor that

reduced the likelihood of recidivism was that Williams expressed some remorse

by cooperating with the police, which was why Williams was originally placed

upon community control. R.C. 2929.12(E). Given the facts before it, the trial

court did not abuse its discretion in applying the factors set forth in R.C. 2929.12.

Thus, the second assignment of error is overruled.

                            Third Assignment of Error

       {¶23} Finally, Williams alleges that he was denied effective assistance of

counsel because his attorney did not advocate for community control. “Reversal

of convictions on ineffective assistance requires the defendant to show ‘first that

counsel’s performance was deficient and second that the deficient performance

prejudiced the defense so as to deprive the defendant of a fair trial.’” State v.

Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶105, 772 N.E.2d 81. The defendant

must show that there was a reasonable probability that but for counsel’s error, the

result of the trial would have been different. Id. at ¶108. See also State v. Risch,

3d Dist. No. 16-10-14, 2011-Ohio-3633 and State v. Baughman, 3d Dist. No. 1-

10-34, 2010-Ohio-4951.



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Case No. 5-11-26



       {¶24} Williams argues that counsel was ineffective because she did not

argue for community control at the sentencing. The sentencing hearing from

which Williams is appealing occurred after Williams was originally, though

incorrectly, sentenced to community control for the offenses. Then community

control was revoked for the numerous violations and he was sentenced to prison

for the offenses. On appeal from that sentence, this court remanded to have the

original sentence corrected.   This appeal is from that resentencing.      Thus,

community control was not a likely outcome regardless of what counsel argued.

Regardless of that fact, counsel argued to have the trial court release Williams

with time served by imposing concurrent sentences rather than consecutive

sentences. (May 5, 2011 Hrg. at 8). A review of the record does not indicate that

counsel’s performance was deficient or that any other course of action would have

resulted in a different outcome.   Therefore, the third assignment of error is

overruled.

       {¶25} For all these reasons, the judgment of the Hancock County Court of

Common Pleas is affirmed.

                                                            Judgment Affirmed

PRESTON, J., concurs.

/jlr



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Case No. 5-11-26



WILLAMOWSKI, J. Dissenting in Part and Concurring in Part.

       {¶26} I dissent from the majority as to the first assignment of error because

I would follow the logic of the Sixth District Court of Appeals in State v. Holmes.

Under the current version of R.C. 2921.01(E), the statutory definition of

“detention” does not exclude supervision and restraint incidental to community

control. In re Nataleen Gould, 5th Dist. No. 07-CA-0099, 2008-Ohio-900.

       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 * * *.

R.C. 2949.08(C)(1). In State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819

N.E.2d 1047, the Ohio Supreme Court determined that pre-sentence electronic

home monitoring is not detention and thus not subject to either credit for time

served or as a basis for an escape charge. Id. However, the Supreme Court did

not address the issue as to post-conviction electronic home monitoring. The

Supreme Court was very clear to distinguish pre-sentence forms of detention from

post-conviction forms of detention. Id. at ¶70, 72.

       {¶27} In State v. Holmes, 6th Dist. No. L-08-1127, 2008-Ohio-6804, the

defendant was convicted of one count of possession of crack cocaine, a felony of

the fourth degree, and sentenced to community control. As part of his community

control, he was placed on electronically monitored house arrest for 30 days, which

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Case No. 5-11-26



was completed without violation.    Subsequently he violated the terms of his

community control and was sentenced to prison.

      The issue in the instant case is whether appellant, while on
      electronically monitored house arrest in connection with his
      community control was “confined” within the meaning of R.C.
      2949.08(C)(1) and, thus, eligible for credit for time so served.
      The term “confinement” as used in R.C. 2949.08(C)(1) has been
      deemed synonymous with the term “detention” as defined in
      R.C. 2921.01(E). * * *

      ***

      In Gould, supra, the case involved a minor defendant who had
      been adjudicated delinquent for the charge of gross sexual
      imposition. The defendant was placed on community control,
      and when she violated the terms of that sentence, she was
      restored to probation. As part of her probation, she was placed
      on electronically-monitored house arrest. At some point during
      this portion of her sentence, the defendant cut off the ankle
      bracelet portion of her electronic monitoring device and left
      home without permission. As a result of her actions, she was
      charged with delinquency by reason of committing escape, in
      violation of R.C. 2921.034.

      The question for the court in Gould was whether the defendant’s
      electronic home monitoring constituted a form of detention
      pursuant to R.C. 2921.01(E), so as to support her conviction for
      the charge of escape. The court, relying solely on the current
      version of the statute-which, unlike the previous versions, makes
      no exclusion for supervision and restraint incidental to
      probation, parole and release on bail-determined that it was. On
      the basis of that determination, the court concluded that the
      defendant’s adjudication for the charge of escape was not
      against the sufficiency of the evidence.




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Case No. 5-11-26



       We agree with the court’s analysis in Gould, and find that it
       applies equally in cases where electronic monitoring is imposed
       pursuant to community control.

       Taking the analysis a step further, we find that the interests of
       justice require that 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. Stated otherwise,
       if electronic monitoring is “detention” for prosecuting the crime
       of escape, it should likewise be “detention” for time-crediting
       purposes.

Holmes, at ¶¶12-19. The logic in Holmes is extremely persuasive. If Williams

had absconded while on electronic monitoring supervision, he could have been

charged with escape. Thus, he should be entitled for time-served credit for the

time he was monitored. Given the logic of Gapen, I find the logic of Holmes to be

much more persuasive than that of Blankenship and Tabor. Therefore, I would

dissent from the majority on the first assignment of error. There clearly is a

dispute among the districts and this is an issue that needs to be addressed by the

Supreme Court.      Thus, I would also recommend that the parties apply for

certification of the conflict to the Supreme Court for a determination.

       {¶28} I concur in the remaining assignments of error.




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