State v. FranklinState v. Franklin
{¶1} Appellant Thomas Franklin appeals the decision of the Stark County Court of Common Pleas denying his second motion for jail time credit. Plaintiff-appellеe is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} By Judgment Entry filed September 10, 2008 appellant was found guilty of three counts of Trafficking in Cocaine in violation of
{¶3} By Judgment Entry filed October 10, 2008, appellant was sentenced to three years of community control which included an intensive supervision probation prоgram.
{¶4} Appellant was released from the residential program at SRCCC on March 31, 2009 and remained on intensive supervision.
{¶5} On January 5, 2010, appellant‘s probation officer filed a motion to revoke his probation. Thе trial court conducted a hearing upon the motion to revoke on January 11, 2010. By Judgment Entry filed January 20, 2010 appellant‘s community control was revoked and he was sentenced to a term of twelve months on each count. The trial court further ordered that the sentences be served consecutively, for an aggregate prison term of three years. The trial court, on February 1, 2010, issued an order granting appellant 61 days credit for timе served in the Stark County Jail.
{¶7} On December 15, 2010, appellant filed a motion requesting credit for the time he spent in SRCCC from November 17, 2008 to March 23, 2009. The trial court granted appellant‘s motion and by Judgment Entry filed January 4, 2011 gave appellant credit for 135 days of credit for the time that he had spent in SRCCC.
{¶8} On February 2, 2011, appellant filed a second motion for jail time credit, this time asking to have his electronic monitored house arrest (EMHA) time from October 15, 2009 to December 15, 2009 counted as jail time credit. By Judgment Entry filed February 10, 2011 the trial court denied appellant‘s motion.
{¶9} It is from the trial court‘s February 10, 2011 Judgment Entry denying his second motion for jail time credit that appellant has appеaled, pro se, raising as his sole assignment of error:
{¶10} “I. 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
I.
{¶11} In his sole Assignment of Error, appellant asserts that when the trial court revoked his judicial release, it should have given credit against his prison term for the time he spent under EMHA. We disagree.
{¶12} We begin by noting that the rules dealing with a violation of an original sentence of community control (
{¶13} The Court of Appeals for the Third District further explained, in Mann, the differences between the rules dealing with a violation of an original sentence of community control and the rules dealing with judicial release. In doing so, the court stated:
{¶14} ”
{¶15} “In contrast, an offender who has been granted early judiсial release has already been ordered to serve a term of incarceration as part of the original sentence but, upon motion by the “eligible offender,” is released early from prison. * * * If a trial court chooses to grant early judicial release to an eligible offender,
{¶16}
{¶17} “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 рurposes.
{¶19} “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 reаson arising out of the offense for which the person was convicted and sentenced* * *.”
{¶20} However, in the case at bar the trial court did not impose the term of house arrest as a part of appellant‘s оriginal sentence. Rather, the court imposed the term of house arrest as a condition of judicial release.
{¶21} Although
{¶22} In State v. Nagle (1986), 23 Ohio St.3d 185, 492 N.E.2d 158, the Supreme Court of Ohio considered whether time spent in a residential rehabilitation facility as a condition оf probation constituted confinement under
{¶23} 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 cоrrectional facility constituted confinement under
{¶24} Consistent with the reasoning of these decisions, courts have concluded 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, 2009-Ohio-1804, 2009 WL 1027182, ¶ 20; Blankenship, supra at ¶14; State v. Ober, 2d Dist. No. 2003–CA–27, 2004-Ohio-3568; State v. Tabor, Richland App. No. 11CA33, 2011-Ohio-3200.
{¶25} In light of the case law and statutory analysis set forth above we hold that appellant is not entitled to time-served credit under either
{¶27} The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.
By Gwin, P.J.,
Wise, J., and
Edwards, J., concur
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
WSG:clw 0719
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. JULIE A. EDWARDS