State v. PorterState v. Porter
Lead Opinion
{¶ 1} Pursuant to
{¶ 2} After holding an en banc conference pursuant to Loc.R. 18(D), a majority of the judges of this court have determined that a defendant is not entitled to jail-time credit for the time he or she is subject to house arrest. As such, the law of this district is now settled, and sentencing courts in the Twelfth District shall analyze the matter as set forth in State v. Porter .
{¶ 3} In Porter , the state appealed the manner in which the Warren County Court of Common Pleas determined Porter's jail-time credit after sentencing him to two years in prison. Porter pled guilty to one count of burglary and was sentenced to two years in prison. Porter was incarcerated for several months before he was granted judicial release and placed on three years of community control. Thereafter, Porter violated the terms of his community control by absconding and absenting himself from the jurisdiction without the trial court's permission. Porter also tested positive for drug use. The trial court then imposed more restrictive community control sanctions, which included electronically-monitored house arrest and a curfew.
{¶ 4} Porter violated the terms of his community control again when he tested positive for cocaine. The trial court revoked Porter's community control and imposed the two-year prison term originally announced. The trial court awarded jail-time credit, which included the time that Porter spent on house arrest but did not include the amount of time Porter was subject to a curfew.
{¶ 5} On appeal, the state argued that the trial court improperly calculated jail-time credit. In determining jail-time credit toward the two-year sentence, the trial court gave Porter credit for the time he was under house arrest pursuant to State v. Fillinger , 12th Dist. Madison,
{¶ 6} In a well-reasoned dissent, Judge Robert A. Hendrickson determined that the statutory definition of house arrest should not be dispositive when deciding if one is subject to jail-time credit while on house arrest. Rather, Judge Hendrickson's dissent focused on the different ways the word "confinement" has been treated by the legislature, and that a sentencing court's final determination should be based on "circumstances surrounding the restraint of the defendant's physical movements without regard to whether the defendant's movements may constitute a violate of probation or community control." Fillinger ,
{¶ 7} Having considered the matter en banc, we find that Porter's accountability to a designated location (his home) is not tantamount to confinement associated with the loss of liberties and the restraint of choices the same as, or similar to, being confined in jail. While on house arrest, Porter was not subject to the direct control of officials of a government facility regarding his personal decisions and self-determination. We therefore hold that an individual subjected to house arrest may not be awarded jail-time credit for the time spent while exercising the freedoms of house arrest. This is because an individual's liberties, freedom of choices, and movement are not restrained to an extent reasonably associated with being "confined" in a facility.
{¶ 8} Being "confined" for purposes of jail-time credit as found in
{¶ 9} Porter had significant and substantial freedom from restraint while on house arrest. Thus, jail-time credit was improperly given to Porter for the time he was on house arrest. As previously stated in Porter , and now upheld after en banc consideration, this court overrules our prior decision in State v. Fillinger to the extent that it permits jail-time credit for those on house arrest.
{¶ 10} The record herein is undisputed that Porter's freedom was minimally restrained while he was subject to house arrest. Throughout the final probation hearing, testimony revealed that Porter wore an electronic monitoring device that merely beeped when he moved away from the beacon, but such monitoring did not
{¶ 11} In fact, nothing about Porter's house arrest was consistent with traditional confinement. Porter's personal liberties were not curtailed, as he was not physically restrained, and instead, was merely monitored from afar by the probation department or court services. Porter was not locked in his home or subject to shackles or restraints. Porter controlled his own schedule, including moving freely about, choosing his roommates, planning meals, welcoming guests, and doing whatever he wanted, whenever he wanted. In fact, Porter violated his community control while living on house arrest for using cocaine.
{¶ 12} Porter could have left his home at any time, as it was not locked or protected by probation or court services in any manner. Simply by choice, Porter could go anywhere, and do anything, because he was never "confined." Porter was granted the comfort and convenience of residing at home and later at a motel with his girlfriend. Such is not equivalent to being subject to moment-to-moment control by officials regarding personal liberties. The individual autonomy one experiences when required to be at a certain location, like house arrest, with all of its freedom and other choices, cannot remotely be compared to the substantial restrictions imposed by the confinement found in a government-operated facility.
{¶ 13} We note the dissent attempts to obtain the same result it reached in Fillinger . Yet, the law is not devoid of common sense, nor is
{¶ 14} We note that none of the examples of being "confined" for which one is entitled to jail-time credit include circumstances that equate to the "confinement" as defined in the house arrest statute. The dissent suggests that the two different statutes carry the same meaning via a gymnastic exercise of statutory construction, and ironically "construes" its interpretation under the guise of "judicial restraint" and legislative deference. The dissent's vainglorious pronouncement that it alone applies
{¶ 15} While Porter may have faced consequences for his choice to leave his house, such consequences for disobeying a court
{¶ 16} To secure and maintain uniformity of the court's decisions, the court hereby confirms and adopts the holding in State v. Porter , 12th Dist. Warren,
S. POWELL, P.J., HENDRICKSON and PIPER, JJ., concur.
RINGLAND and M. POWELL, JJ., dissent.
Notes
This court has unanimously determined that no jail-time credit may be awarded for time subject to curfew. State v. Bowling , 12th Dist. Warren,
The dissent suggests that Porter I relied upon "dubious" authority when citing Nagle , Napier , Blankenship , and Tabor . However, even a cursory review of Porter I demonstrates that those cases were discussed when addressing the issue of curfew , not house arrest. While Porter I and the majority herein discuss the general rule from Napier that circumstances control a determination of confinement, such general rule did not form the basis of the analysis for Porter I or our current majority. As stated in the previous footnote, this court, including the dissenting members, has been unanimous on the issue of curfew and that no jail-time credit may be awarded to those subject to a curfew, and the curfew issue was not before this court en banc. As such, the dissent's disdain for cases cited in Porter I on an issue that is not before us is both unfounded and perplexing.
The dissent cavalierly dismisses the differences in the types of confinement as being "mental imagery," yet, the two statutes function separately and without reference to one another due to the significant differences of the various types of confinement. While
Dissenting Opinion
{¶ 17} We respectfully dissent from the majority's opinion that house arrest is not "confinement" for purposes of
{¶ 18} "House arrest" as "confinement" for which a prisoner is entitled to credit against a prison term, necessarily depends upon whether the words "confined" and "confinement," as used in
{¶ 19} Pursuant to
(1) The offender is required to remain in the offender's home or other specified premises for the specified period of confinement, except for periods of time during which the offender is at the offender's place of employment or at other premises as authorized by the sentencing court or by the parole board.
(2) The offender is required to report periodically to a person designated by the court or parole board.
(3) The offender is subject to any other restrictions and requirements that maybe imposed by the sentencing court or by the parole board.
(Emphasis added.)
{¶ 20}
The department of rehabilitation and correction shall reduce the stated prison term of a prisoner or, if the prisoner is serving a term for which there is parole eligibility, the minimum and maximum term or the parole eligibility date of the 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, confinement for examination to determine the prisoner's competence to stand trial or sanity, confinement while awaiting transportation to the place where the prisoner is to serve the prisoner's prison term, as determined by the sentencing court under division (B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a juvenile facility.
(Emphasis added.)
{¶ 21} Considering whether "confinement" as used in each of the statutes has the same meaning, requires that we ascertain and give effect to the Legislature's intent in enacting the statutes. State v. Lowe ,
{¶ 22} Additionally, in applying the usual rules of statutory construction, we should be mindful that there is a special rule of construction for statutes defining criminal penalties.
{¶ 23} Reading
{¶ 24} As mentioned above,
{¶ 25} Today the majority adopts Porter I as the law of our appellate district. However, a review of Porter I discloses that it is based upon dubious authority. In holding that
{¶ 26} Nagle and Napier resolved the issue of whether a particular sanction was "confinement" for which a prisoner was entitled to credit by considering the nature and extent of the restraint upon the prisoner's liberty imposed by the sanction. However, neither of these cases involved house arrest or another sanction which is defined by statute as "confinement." Neither of these cases construed
{¶ 27} Blankenship and Tabor each involve a denial of confinement credit for house arrest. Blankenship and Tabor, as well as the dissent in Fillinger , cite State v. Dickinson ,
It must be noted, however, that the definition of a word in a civil statute does not necessarily import the same meaning to the same word in interpreting a criminal statute. The result may be desirable, but criminal statutes, unlike civil statutes, must be construed strictly against the state. Thus, where two statutes do not expressly state that the word has the same meaning in both, it is apparent that it might have different meanings.
Dickinson at 70,
{¶ 28} In Dickinson , the supreme court was commenting upon whether a word in a civil statute, which is not subject to strict construction against the state, would necessarily have the same meaning when also used in a criminal statute, which is strictly construed against the state. In this case, we are not dealing with a civil statute and a criminal statute but with two criminal statutes. Blankenship , Tabor , and the Fillinger dissent misconstrue Dickinson to rationalize a different meaning of "confinement" as used in
{¶ 29} We agree with the majority's philosophical aversion to treating house arrest as "confinement" for which credit is due under
Judges are men and women just like everyone else in society. We are not infallible, but we do have a job to do. But in performing our duties, we should do so fairly and impartially, setting aside our own personal opinions and feelings, and render decisions in accordance with the law as adopted by the General Assembly and not attempt to impose ourown personal views of what the law should be, in order to remake and control society in our own personal concept of what society should be.
Cox v. Franklin Cty. Court of Common Pleas ,
{¶ 30} The doctrine of separation of powers and related principles of judicial deference demand that we defer to the General Assembly's judgment in enacting legislation. In this regard, absent the statutory definition of house arrest as "confinement," we would also agree with the majority's reasoning that house arrest is not "confinement" pursuant to the Nagle / Napier analysis. However, the General Assembly has spoken on the matter and we must adhere to "[t]he cardinal principle of upholding legislative enactments, unless clearly in excess of the power conferred upon the legislature by the constitution, [having] its source in the division of the powers of government into three branches and the deference to be properly shown by each of those branches to the others." State ex rel. Durbin v. Smith ,
{¶ 31} With regard and respect for our colleagues in the majority, we dissent from their holding that house arrest is not "confinement" for which an offender is entitled to credit for purposes of
"Confined" and "confinement," as used in
The majority characterizes our criticism of Nagel , Napier , Blankenship , and Tabor as authority supporting their position as "unfounded and perplexing" because those cases were relied upon in Porter I only in its analysis of whether curfew, as opposed to house arrest, is "confinement" for purposes of