After reading State v. Fillinger, 2016-Ohio-8455, it was very clear to me that the issue of awarding or not awarding jail-time credit for time on house arrest will be heading up to the Ohio Supremes for their take on the subject.
In Fillinger, Fillinger pled no contest was convicted of one count of attempted gross sexual imposition and was sentenced to community control and, as part of that sentence, was placed on Electronic Monitored House Arrest (EMHA). The sentencing entry did not provide any exceptions to Fillinger’s EMHA, stating only that the Defendant is placed on House Arrest with Electronic Monitoring Device.
About six months later, Fillinger was removed from EMHA, but shortly after being removed from EMHA, Fillinger violated the terms of his community control. Fillinger admitted to the violation and the trial court imposed an 18 month prison sentence. During his sentencing hearing, Fillinger requested credit for the time spent on EMHA. Taking the matter under advisement, the trial court granted Fillinger’s request and credited him with jail-time credit for the time spent on postconviction EMHA. The State appealed.
On appeal, both parties acknowledge that there was a split amongst Ohio appellate districts regarding the calculation of jail-time credit for postconviction EMHA. Specifically, State v. Blankenship, 2011-Ohio-1601, out of the Tenth District and State v. Holmes, 2008-Ohio-6804, out of the Sixth District.
In Blnkenship, the court held that a defendant who had been convicted of a misdemeanor and placed on a 90-day period of EMHA, but was permitted to leave his home to go to work and anger-management treatment, was not entitled to confinement credit. The court goes on to find that “confinement” requires such a restraint on the defendant’s freedom of movement that he cannot leave official custody of his own volition.
In Holmes, the court held that a defendant should have been granted jail-time credit under R.C. 2949.08 for his time on postconviction EMHA. The court reasoned that because electronic monitoring constituted detention for purposes of an escape conviction, it should also warrant, in the interest of justice, credit as time served.
With those two cases in hand, the court in Fillinger declined to adopt the reasoning in Blankenship and decided to turn to the relevant statutes to determine whether or not they should consider EMHA as jail-time credit.
So hold on tight, because we are about to get into some super fun statutory interpretation!
R.C. 2949.08(B) provides:
“The record of the person’s conviction shall specify the total number of days, if any, that the person was confined for any reason arising out of the offense for which the person was convicted and sentenced prior to delivery to the jailer.” (Emphasis added)
R.C. 2967.191 provides:
“The department of rehabilitation and correction shall reduce the stated prison term of a prisoner***by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial.” (Emphasis added)
Unfortunately for the purpose of the appellate court’s analysis, the Revised Code does not define the term “confined” as used in the above statues.
However, the appellate court looked to the definition of “house arrest” which is “a period of confinement of an offender that is in the offender’s home or in the other premises specified by the sentencing court.” R.C. 2929.01(P) (Emphasis added). Based on that definition, the appellate court found 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.”
Not ending their argument there, the appellate court discusses pre-trial confinement and postconviction confinement as it relates to EMHA. The appellate court looked to State v. Gapen, 2004-Ohio-6548, for their analysis.
In Gapen, the Ohio Supremes held that pre-trial 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). The appellate court admits they have used Gapen to find that “pretrial EMHA does not constitute confinement for the purpose of receiving jail-time credit.” State v. Delaney, 2013-Ohio-2282.
The appellate court goes on to recognize that there will often be no practical distinction between pretrial house arrest and house arrest imposed as a postconviciton sanction. However, the appellate court notes there is a legal distinction based upon R.C. 2929.01(P) specifically defining the later as “confinement.” The appellate court, own their own accord, found that the Ohio Supremes also recognized this distinction between pretrial and postconviction house arrest as they carefully restricted their holding in Gapen by continually emphasizing that the case involved “pretrial” home monitoring.
To really drive it home, the appellate court stated that “any resulting inequity in the disparate treatment of pretrial and postconviction house arrest is a matter to be resolved by the legislature, not the judiciary.”
Whew!! Almost to the end!
Based on all of the above, the appellate court found that Fillinger was “confined” for purposes of receiving jail-time credit for the time spent on postconviciton EMHA.
There is no doubt in my mind that based on the Twelfth District’s decision in Fillinger, the Ohio Supremes will be seeing this issue on their docket very soon!