[Cite as State v. Bowling, 2017-Ohio-8539.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




STATE OF OHIO,                                      :
                                                          CASE NOS. CA2017-02-020
        Plaintiff-Appellant,                        :               CA2017-02-021
                                                                    CA2017-03-032
                                                    :
    - vs -                                                     OPINION
                                                    :          11/13/2017

HEATHER RENEE BOWLING, et al.,                      :

        Defendants-Appellees.                       :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 16CR31699



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellant

Kaufman & Florence, William R. Kaufman, 144 East Mulberry Street, P.O. Box 280,
Lebanon, Ohio 45036, for defendants-appellees



        RINGLAND, J.

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

County Court of Common Pleas awarding jail-time credit to defendants-appellees, Heather

Bowling, Shannon Melzer, and Ricky Blackford, for time they spent on curfew. For the

reasons detailed below, we reverse the decision of the trial court and remand this matter for

further proceedings.
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                                      Heather Bowling

        {¶ 2} On March 21, 2016, Bowling pled guilty to possession of heroin. The trial court

sentenced Bowling to three years of community control with 12 months reserved prison time

if she violated the terms of her community control.

        {¶ 3} As part of her community control, Bowling participated in the Warren County

Medication Assisted Treatment (WCMAT) drug court program. At different times during her

community control, Bowling was incarcerated, released and placed on electronically-

monitored house arrest (EMHA), and released subject to a curfew. Bowling spent 36 days

subject to a curfew where she was required to be at home during certain hours of the day.

        {¶ 4} Bowling violated the conditions of her community control and was sentenced to

a term of incarceration in the Warren County Jail. Following a hearing, the trial court

calculated the amount of jail-time credit earned and credited Bowling with 296 days jail-time

credit. That calculation included 36 days of jail-time credit for time Bowling spent on curfew.

After ordering that amount of jail-time credit, the trial court sentenced Bowling to 38 days in

jail.

                                      Shannon Melzer

        {¶ 5} Melzer was indicted on eight counts of nonsupport of dependents.             On

September 30, 2015, Melzer was granted intervention in lieu of conviction (ILC) after she

entered a guilty plea to four counts. On February 25, 2016, Melzer's ILC was revoked and

she was sentenced to community control for five years with 12 months reserved prison time if

she violated the terms of her community control.

        {¶ 6} Melzer participated in the WCMAT drug court program. Melzer was on EMHA

for a portion of her community control, but only subject to GPS monitoring with curfew at

other times. Melzer spent 51 days on GPS monitoring with curfew where she was required to


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be at home during certain hours of the day.

       {¶ 7} Melzer violated the terms of her community control. Following a hearing, the

trial court calculated the amount of jail-time credit earned and credited Melzer with 332 days

jail-time credit. That calculation included 51 days of jail-time credit for time Melzer spent on

curfew.

                                       Ricky Blackford

       {¶ 8} Blackford was indicted on one count of possession of dangerous drugs and one

count of tampering with evidence. On July 9, 2014, Blackford was granted ILC after he

entered a guilty plea to both counts. On April 30, 2015, Blackford's ILC was revoked and he

was sentenced to community control for three years with 18 months reserved prison time if

he violated the terms of his community control.

       {¶ 9} Blackford participated in the WCMAT drug court program. At different times

during his community control, Blackford was on EMHA, on GPS monitoring with curfew, and

was incarcerated in the Warren County Jail. Blackford spent 145 days on GPS monitoring

with curfew where he was required to be at home during certain hours of the day.

       {¶ 10} Blackford violated the terms of his community control. Following a hearing, the

trial court credited Blackford with 602 days of jail-time credit. That calculation included 145

days of jail-time credit for time Blackford spent on curfew. As that number exceeded the 18-

month-reserved sentence, the trial court discharged him from community control.

       {¶ 11} The trial court granted the state's motion for leave to appeal in these three

cases. This court consolidated those cases for appeal. The state raises a single assignment

of error for review:

       {¶ 12} THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEES' JAIL-TIME

CREDIT FOR CURFEW.


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       {¶ 13} In its sole assignment of error, the state argues the trial court erred by

awarding jail-time credit for the time that appellees spent on curfew. For the reasons detailed

below, we agree.

       {¶ 14} Ohio law provides for a reduction of sentence or prison term by the total

number of days that the person was "confined." R.C. 2967.191; R.C. 2949.08(B). The

Revised Code does not define the term "confined" as used in those statutes. Thus, the

calculation of jail-time credit has been subject to much interpretation. See State v. Fillinger,

12th Dist. Madison No. CA2016-04-015, 2016-Ohio-8455; 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; State v. Holmes,

6th Dist. Lucas No. L-08-1127, 2008-Ohio-6804.

       {¶ 15} In Fillinger, the majority opinion found that "house arrest" satisfied the

definition of "confined" for purposes of determining jail-time credit. In so doing, the majority

opinion relied on the statutory definition of "house arrest," which is defined as "a period of

confinement." R.C. 2929.01(P). As a result, the majority in Fillinger held that "when 'house

arrest,' is imposed as a community control sanction pursuant to R.C. 2929.17 for conviction

of a felony, it is 'confinement.'" Fillinger at ¶ 12.

       {¶ 16} The three consolidated appeals were all decided by the trial court following this

court's decision in Fillinger. As noted above, appellees were on community control subject to

various conditions. The sole issue before this court is whether the period of time that was

spent on curfew meets the definition of "confined" under the relevant statutes. The trial court

interpreted this court's decision in Fillinger to mean that a defendant on curfew is "confined"

for purposes of calculating jail-time credit.

       {¶ 17} Following review, we find the trial court erred by awarding jail-time credit for the


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time appellees spent on curfew. This court's decision in Fillinger is distinguishable from the

present case, as 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."

       {¶ 18} As the term curfew is not defined as a period of confinement, the trial court's

reliance on Fillinger was misplaced. In considering the issue of jail-time credit, a number of

courts have relied on the Ohio Supreme Court's decisions in State v. Nagle, 23 Ohio St.3d

185 (1986); and State v. Napier, 93 Ohio St.3d 646 (2001).

       {¶ 19} In Nagle, the defendant was ordered to attend a residential rehabilitation

facility pursuant to the terms of his conditional probation. Nagle at 186. Prior to the

completion of treatment, the defendant left the facility and was resentenced. Id. The

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

rehabilitation facility. Id. at 188. Important to its decision was the 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." Id. at 186.

       {¶ 20} In Napier, the Supreme Court found that a defendant was entitled to credit for

time spent at a community-based correctional facility. Napier at 646. In so doing, the Court

again referenced restraint of movement in its confinement analysis, noting that the defendant

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. Id. at 648. As

the defendant was not free to come and go, the court found that the defendant "was subject

to the control of the staff regarding personal liberties" and his time in the community-based

correctional facility constituted "confinement." Id. at 648.

       {¶ 21} Courts interpreting Nagle and Napier have concluded that "'confinement'


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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 held that a defendant was not entitled to jail-time credit where the offender

was placed on community control and subject to electronic monitoring and curfew. Id. at ¶

19-20. The defendant in that case 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. Id. at ¶ 18. 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.

       {¶ 22} In the present case, appellees were subject to curfew that required them to be

home at certain hours in the day. Aside from those times, appellees had freedom of

movement and were not in custody or restrained from movement. As a result, we find that

appellees were not "confined" for purposes of calculating jail-time credit for the time spent on

curfew. Fillinger is distinguishable from the present case, as there is no term in the Revised

Code that defines "curfew" as "confinement." R.C. 2929.01(P); R.C. 2929.01(G). Therefore,

the trial court erred by awarding credit for time served on curfew. The state's assignment of

error is sustained and this matter is remanded to the trial court for resentencing with

instructions to compute the appropriate amount of jail-time credit for each appellee, excluding

any time the appellees spent on curfew.

       {¶ 23} Judgment reversed and remanded.


       S. POWELL, J., concurs.


       HENDRICKSON, P.J., concurs separately.


       HENDRICKSON, P.J., concurring separately.

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       {¶ 24} I concur in the majority's judgment and determination that appellees, Heather

Bowling, Shannon Melzer, and Ricky Blackford, were not entitled to jail-time credit for the

time they spent on curfew. I write separately to reiterate my view, as previously expressed in

my dissent in State v. Fillinger, 12th Dist. Madison No. CA2016-04-015, 2016-Ohio-8455, ¶

18-27, that in determining whether a defendant is entitled to jail-time credit for being

"confined," the proper consideration is whether a defendant's freedom of movement was

restrained such that the defendant could not leave his or her home on his or her own volition.

       {¶ 25} As the majority recognizes, the Ohio Supreme Court has examined a

defendant's right to jail-time credit on two different occasions. See State v. Nagle, 23 Ohio

St.3d 185 (1986); 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" and he could

voluntarily leave the facility. 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.

       {¶ 26} Using the rationale applied by the supreme court in Nagle and Napier, in

determining whether a defendant is "confined" and therefore entitled to jail-time credit, a

court must consider the circumstances surrounding the restraint of the defendant's physical

movements without regard to whether the defendant's movements constitute a violation of

the terms of his or her community control or probation. Fillinger at ¶ 23. Accord State v.

Blankenship, 192 Ohio App.3d 639, 2011-Ohio-1601 (10th Dist.); State v. Kleinholz, 1st Dist.

Hamilton No. C-150276, 2015-Ohio-4280. Regardless of whether a defendant is placed on


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electronic monitoring house arrest, GPS monitoring with a curfew, or nonelectronically

monitored curfew, the proper focus is whether the defendant's freedom of movement was

restrained such that the defendant could not leave his or her home on his or her own volition.

As Bowling's, Melzer's, and Blackford's freedom of movement was not restrained and they

were free to leave their homes whenever they chose while on curfew and GPS monitored

curfew, I agree with the majority's determination that they were not "confined" and, therefore,

were not entitled to jail-time credit.




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