{¶ 1} Defendant-appellant, Anthony Blankenship, appeals from a judgment of the Franklin County Court of Common Pleas revoking his probation and imposing the balance of his original jail sentence for a conviction of misdemeanor theft. For the reasons that follow, we affirm in part and reverse in part.
{¶ 2} On November 20, 2008, appellant pleaded guilty to one count of theft, a first-degree misdemeanor, in violation of R.C. 2913.02. The trial court sentenced appellant to 180 days in jail and suspended the jail days, placing appellant on probation for one year. The conditions of his probation included obtaining employment, paying restitution, and completing an anger-management class. In June 2009, appellant stopped reporting to his probation officer. Subsequently, appellant was declared to be an absconder and his probation was suspended. On March 31, 2010, following an administrative hearing, the court restored appellant’s probation, imposing a 90-day term of electronically monitored house arrest (“EMHA”) and extending the probation for one year. On May 21, 2010, appellant violated the EMHA. He also failed to complete other conditions of his probation. On June 25, 2010, the trial court conducted a hearing on the probation department’s request to revoke appellant’s probation. At the hearing, appellant argued that if his probation was revoked and the jail sentence was reimposed, he was entitled to time-served credit against the jail sentence for 50 days spent under EMHA. Appellant also argued that he was entitled to credit for 90 days of actual time spent in jail related to the theft conviction and that the probation department had miscalculated in asserting that he was entitled to credit for only 81 days spent in jail. The trial court revoked appellant’s probation, reimposed the 180-day jail sentence, and ordered that appellant was entitled to receive time-served credit of 81 days for the time he spent in jail. No credit was given for the time appellant spent under EMHA.
ASSIGNMENT OF ERROR NUMBER ONE
The trial court erred by not crediting the time the defendant was sentenced to electronically monitored house arrest toward the maximum jail sentence that it imposed upon the defendant because house arrest is defined as confinement and detention by the Revised Code and the courts are obligated to credit the amount of time a defendant is confined “for any reason arising out of the offense for which the person was convicted and sentenced” towards the sentence imposed upon an offender.
ASSIGNMENT OF ERROR NUMBER TWO
The trial court erred when it failed to correct an obvious clerical error in the calculation of the time that the defendant spent in pretrial detention.
{¶ 4} Appellant’s first assignment of error asserts that when the trial court revoked his probation, it should have given credit against his jail term for the time he spent under EMHA.
{¶ 5} Generally, an appellate court will not overturn the sentence imposed on a misdemeanor offender absent an abuse of discretion by the trial court. See Columbus v. Repine, 10th Dist. No. 07AP-250,
{¶ 6} In imposing a sentence for a misdemeanor offense, a trial court is “guided by the overriding purposes of misdemeanor sentencing,” which are “to protect the public from future crime by the offender and others and to punish the offender.” R.C. 2929.21(A). The sentencing court “has discretion to determine the most effective way to achieve” these purposes. R.C. 2929.22(A). Unless a specific sanction is required, the court may sentence an offender to a jail term, community-control sanctions, or both. R.C. 2929.25(A)(1). The range of available community-control sanctions includes residential sanctions, such as a term in a halfway house; nonresidential sanctions, such as a period of house arrest; and financial sanctions, such as restitution. R.C. 2929.26 to 2929.28. The total time of all community-control sanctions imposed for a misdemeanor offense may not exceed
{¶ 7} “House arrest” is defined as “a period of confinement of an offender that is in the offender’s home or in other premises specified by the sentencing court” during which the offender is required to remain in the home except when authorized to leave for employment or other designated purposes. R.C. 2929.01(P). The offender is required to periodically report to a designated person and may be subject to other restrictions or conditions. Id. Electronic monitoring involves the use of an electronic device to monitor and determine an individual’s location. R.C. 2929.01(TT) and (UU).
{¶ 8} Ohio law provides that when a person is sentenced to jail for a felony or misdemeanor offense, his sentence shall be reduced “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). Appellant argues that because the law defines house arrest as “a period of confinement,” time served in postconviction EMHA qualifies for a reduction of his jail sentence under R.C. 2949.08(C)(1).
{¶ 9} The term “confinement” is not separately defined under R.C. 2929.01. However, the fact that house arrest is defined using the term “confinement” does not necessarily mean that it qualifies for time-served credit under R.C. 2949.08(C)(1). “[W]here two statutes do not expressly state that the word has the same meaning in both, it is apparent that it might have different meanings.” State v. Dickinson (1971),
{¶ 10} It is clear that house arrest does not always qualify as “confinement.” This court has previously held that time served under EMHA as a condition of bail prior to sentencing cannot be credited toward a jail sentence. State v. Furlong (Feb. 6, 2001), 10th Dist. No. 00AP-637,
{¶ 11} The case before this court involves a misdemeanor offender and the application of the time-served-credit provision of R.C. 2949.08(C)(1). Our holding is accordingly limited to these circumstances. We note, however, that much of the existing case law regarding credit for time served arises in the context of felony offenses. We also note that some of these cases involve application of the time-served credit provision of R.C. 2967.191. In relevant part, R.C. 2949.08(C)(1) and 2967.191 contain nearly identical language. Therefore, we find that the analysis, reasoning, and conclusions of these cases may be analogous to the matter before us. With this in mind, we begin our analysis with a discussion of two decisions of the Supreme Court of Ohio evaluating whether other forms of restrictions on offenders qualified for time-served credit.
{¶ 12} In State v. Nagle (1986),
{¶ 13} By contrast, in State v. Napier (2001),
{¶ 14} Consistent with the reasoning of these decisions, this court has previously noted that “ ‘confinement’ requires such a restraint on the defendant’s freedom of movement that he cannot leave official custody of his own volition.” State v. Slager, 10th Dist. No. 08AP-581,
{¶ 15} The Second District Court of Appeals considered a case similar to the present appeal in State v. Ober, 2d Dist. No. 2003-CA-27,
{¶ 16} The order imposing EMHA on appellant indicates that he was permitted to leave his home for both anger-management treatment and employment. Moreover, like the defendant in Nagle, 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.” Slager at ¶ 20, citing Nagle,
{¶ 17} In addition to case law supporting a finding that EMHA does not constitute confinement for purposes of R.C. 2949.08(C), statutory analysis also supports this conclusion. In construing a statute, “ ‘[statutes relating to the same matter or subject * * * are in pan materia and should be read together to ascertain and effectuate if possible the legislative intent.’ ” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health,
{¶ 18} Appellant’s position is also contrary to the authority given to trial courts to remedy violations of community-control sanctions. Under R.C. 2929.25(C)(2), a court may impose additional penalties on a person who violates a condition of a community-control sanction, including a longer time under the same community-control sanction or a more restrictive community-control sanction. The statute provides that “[t]he court may reduce the longer period of time that the violator is required to spend under the longer sanction or the more restrictive sanction * * * by all or part of the time the violator successfully spent under the sanction that was initially imposed.” R.C. 2929.25(C)(3). (Emphasis added.) This statute vests trial courts with discretionary authority to give violators credit for time served under a community-control sanction when imposing additional punishment for violating that community-control sanction. Thus, under this statute, if the court below had sentenced appellant to an extended term of EMHA as a penalty for violating the original EMHA sanction, the court would have had discretionary authority to reduce the extended term to give appellant credit for time served under the original EMHA sanction. Appellant argues that when the trial court reimposed the original jail sentence after he violated EMHA, the court was required to give him credit for time served under EMHA. However, if credit must be given for time served under EMHA when reinstating a jail sentence, then it would follow that time-served credit would be mandatory when imposing an extended community-control sanction. The General Assembly has clearly provided otherwise. Accepting appellant’s position would be logically inconsistent with the authority granted to trial courts under R.C. 2929.25(C)(3).
{¶ 19} In 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 a condition of postconviction probation.
{¶ 20} We note finally that although we find that the trial court is not required to give appellant time-served credit for his time under EMHA, we disagree with the state’s assertion that only preconviction confinement may be credited under R.C. 2949.08(C). The state argues that both the title of R.C. 2949.08, “Confinement of convicts; reduction of sentence for confinement prior to
{¶ 21} For the reasons set forth above, appellant’s first assignment of error is without merit and is overruled.
{¶ 22} In his merit brief, appellant asked this court, in the event that we overruled the first assignment of error, to certify our decision as being in conflict with the decision in State v. Holmes, 6th Dist. No. L-08-1127,
{¶ 23} In Whitelock v. Gilbane Bldg. Co. (1993),
First, the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be “upon the same question.” Second, the alleged conflict must be on a rule of law — not facts. Third, the journal entry or opinion of the certifying court must clearly set forth that rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals.
(Emphasis sic.) Id. at 596.
{¶ 24} In Holmes, the Sixth District considered whether a defendant who had been convicted of felony drug possession was entitled to credit for time served
{¶ 25} Appellant’s second assignment of error claims that the trial court erred by granting credit for only 81 days of time served in jail, when he had actually spent a total of 90 days in jail at various times for this offense. Appellant asserts that this nine-day discrepancy arises from the time of his original sentencing in November 2008. Appellant was arrested on October 2, 2008, and was released from jail on bond on November 6, 2008. Thus, it appears that appellant spent 36 days in jail prior to his release on bond. At the original sentencing, however, the court ordered that he was entitled to 27 days of credit for time served in jail prior to conviction. This alleged mathematical error remained on the record and formed part of the trial court’s calculation in the order revoking appellant’s probation.
{¶ 26} While suggesting that res judicata might apply to this assignment of error, the state “concedes that a limited remand is appropriate to correct the original sentencing entry.” In light of the facts asserted by appellant, it appears that the trial court erred in its original calculation of appellant’s time-served credit and that this error led to a subsequent error in the order revoking appellant’s probation.
{¶ 27} Accordingly, appellant’s second assignment of error is sustained.
{¶ 28} For the foregoing reasons, appellant’s first assignment of error is overruled and his second assignment of error is sustained. We affirm the judgment of the Franklin County Court of Common Pleas denying time-served credit for the time appellant spent under EMHA, but reverse the trial court’s judgment granting only 81 days of credit for time served in jail. We remand this matter to the trial court to vacate its July 1, 2010 revocation entry and to re-issue a new corrected order regarding the credit for actual time served in jail to which appellant is entitled.
Judgment affirmed in part and reversed in part; and cause remanded with instructions.
Notes
. "Detention” is defined in R.C. 2921.01(E) and is relevant to the crime of escape, prohibited under R.C. 2921.34. Some courts have determined that "confinement” has the same meaning as "detention.” See State v. Faulkner (1995),
. We also note that section headings should not be considered part of the law for purposes of interpreting a statute, because these headings may vary by publisher. Baldwin’s Ohio Revised Code Annotated labels R.C. 2949.08 "Confinement of convicts; reduction of sentence for confinement prior to conviction." Page’s Ohio Revised Code Annotated labels R.C. 2949.08 "Confinement upon conviction; reduction of sentence for prior confinement." The online version of the Ohio Revised Code labels R.C. 2949.08 "Custody upon conviction — reduction of sentence for days served.”