[Cite as State v. Tabor, 2011-Ohio-3200.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :      Hon. Julie A. Edwards, J.
                                            :      Hon. Patricia A. Delaney, J.
-vs-                                        :
                                            :
BRIAN TABOR                                 :      Case No. 11CA33
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. 2007CR100D



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                         June 24, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

DANIEL J. BENOIT                                BRIAN TABOR, PRO SE
38 South Park Street                            Inmate No. A574-130
Mansfield, OH 44902                             N.C.C.T.F.
                                                2000 South Avon-Belden Road
                                                Grafton, OH 44044
Richland County, Case No. 11CA33                                                           2

Farmer, P.J.

       {¶1}    On August 28, 2007, appellant, Brian Tabor, was sentenced to five years

of community control in the case sub judice. On May 13, 2008, appellant was ordered

to complete a treatment program at the Licking–Muskingum Community Correction

Center (hereinafter "LMCCC"). Thereafter, appellant was released from treatment and

placed on electronic monitoring. Due to repeated probation violations, appellant was

ordered to serve twelve months in prison. See, Journal Entry filed December 8, 2009.

       {¶2}    On March 4, 2011, appellant filed a motion for jail time credit for the period

of time he spent in the LMCCC and on electronic monitoring. By order filed March 11,

2011, the trial court credited appellant with 88 days for his time spent in the LMCCC,

and denied credit for the electronic monitoring as that was not "confinement" within the

meaning of the jail time credit statute.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶4}    "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 FOURTEENTH AMENDMENT OF THE U.S.

CONSTITUTION AND THE ARTICLE 1, SECTION 10 OF THE CONSTITUTION OF

THE STATE OF OHIO, AND CONTRARY TO OHIO REVISED CODE SECTION

2967.191 AND OHIO REVISED CODE, SECTION 2949.08(D)."
Richland County, Case No. 11CA33                                                              3


        {¶5}   This case comes to us on the accelerated calendar pursuant to App.R.

11.1 which states the following in pertinent part:

        {¶6}   "(E) Determination and judgment on appeal

        {¶7}   "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.

        {¶8}   "The decision may be by judgment entry in which case it will not be

published in any form.***"

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

rule.

                                               I

        {¶10} Appellant claims the trial court erred in failing to give him jail time credit for

the electronic monitoring he served while on community control. We disagree.

        {¶11} By order filed March 11, 2011, the trial court found "[e]lectronic monitoring

is not 'confinement' within the meaning of the jail credit statute, and that portion of

defendant's motion is overruled."

        {¶12} A copy of the electronic monitoring requirements is not included in the file.

All we have before us is an affidavit by appellant filed on March 4, 2011 wherein he

averred the following:

        {¶13} "I am the Defendant in the above captioned case. The Defendant was

required to participate in Electronic Monitoring during Re-Entry Program as part of his

sentence in Case No. #07-CR-0100, and would have been subject to an escape charge

under O.R.C. Section 2929.34 if he had left without permission, failed to return to home,
Richland County, Case No. 11CA33                                                          4


or removed, altered or in any way tampered with electronic monitor. The Defendant

was not permitted to leave home between 10 PM till 6 AM. until after the Defendant

finished his programming. Likewise, the Defendant could not have visits during this

period. Defendant was never allowed to leave Richland County, without permission.

He was required to attend twelve step recovery meetings, and he was required to have

his attendance verified. During Re-Entry programming the Defendant remained under

significant restrictions."

       {¶14} Pursuant to R.C. 2949.08(C)(1):

       {¶15} "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***."

       {¶16} The issue in this case is whether appellant's electronic monitoring

constitutes "confinement."     Because the word "confinement" is not defined in the

criminal code, courts use the word "detention" as a substitute which is defined in R.C.

2921.01(E) as follows:

       {¶17} " 'Detention' means arrest; confinement in any vehicle subsequent to an

arrest; confinement in any public or private facility for custody of persons charged with

or convicted of crime in this state or another state or under the laws of the United States

or alleged or found to be a delinquent child or unruly child in this state or another state

or under the laws of the United States; hospitalization, institutionalization, or

confinement in any public or private facility that is ordered pursuant to or under the
Richland County, Case No. 11CA33                                                           5


authority of section 2945.37, 2945.371, 2945.38, 2945.39, 2945.40, 2945.401, or

2945.402 of the Revised Code; confinement in any vehicle for transportation to or from

any facility of any of those natures; detention for extradition or deportation; except as

provided in this division, supervision by any employee of any facility of any of those

natures that is incidental to hospitalization, institutionalization, or confinement in the

facility but that occurs outside the facility; supervision by an employee of the department

of rehabilitation and correction of a person on any type of release from a state

correctional institution; or confinement in any vehicle, airplane, or place while being

returned from outside of this state into this state by a private person or entity pursuant to

a contract entered into under division (E) of section 311.29 of the Revised Code or

division (B) of section 5149.03 of the Revised Code. For a person confined in a county

jail who participates in a county jail industry program pursuant to section 5147.30 of the

Revised Code, 'detention' includes time spent at an assigned work site and going to and

from the work site."

       {¶18} In this case, appellant was only required to be at home between the hours

of 10:00 p.m. and 6:00 a.m. which was merely a curfew requirement. Appellant 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.

       {¶19} In State v. Blankenship, Franklin App. No. 10AP-651, 2011-Ohio-1601,

¶19, our brethren from the Tenth District held, "[i]n light of the case law and statutory

analysis set forth above, we hold that a person convicted of a misdemeanor offense is

not entitled to time-served credit under R.C. 2949.08(C) for time spent under EMHA as
Richland County, Case No. 11CA33                                                          6

a condition of postconviction probation." Although Blankenship involved a misdemeanor

case, we agree with the well-reasoned analysis therein.

       {¶20} Upon review, we find the trial court did not err in denying appellant jail time

credit for his time spent on electronic monitoring.

       {¶21} The sole assignment of error is denied.

       {¶22} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, P.J.

Edwards, J. and

Delaney, J. concur.




                                              _s/Sheila G. Farmer__________________




                                              _s/ Julie A. Edwards__________________




                                              _s/ Patricia A. Delaney________________


                                                        JUDGES



SGF/sg 614
Richland County, Case No. 11CA33                                                   7


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
BRIAN TABOR                               :
                                          :
       Defendant-Appellant                :         CASE NO. 11CA33




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

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

appellant.




                                          _s/Sheila G. Farmer__________________




                                          _s/ Julie A. Edwards__________________




                                          _s/ Patricia A. Delaney________________


                                                    JUDGES
