THE STATE OF OHIO, APPELLANT, v. REED, APPELLEE.
No. 2019-0631
Supreme Court of Ohio
September 1, 2020
2020-Ohio-4255
KENNEDY, J.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Reed, Slip Opinion No. 2020-Ohio-4255.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-4255
THE STATE OF OHIO, APPELLANT, v. REED, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Reed, Slip Opinion No. 2020-Ohio-4255.]
Criminal law—
(No. 2019-0631—Submitted April 7, 2020—Decided September 1, 2020.)
APPEAL from the Court of Appeals for Erie County, No. E-17-037, 2019-Ohio-1266.
KENNEDY, J.
{1} In this discretionary appeal from the Sixth District Court of Appeals, we are asked to determine whether a defendant is entitled to jail-time credit for the days he was on postconviction house arrest and postconviction electronic monitoring. Before we can make that determination, we must first establish which statute applies to appellee Eric Reed‘s request for jail-time credit.
{2} The state‘s proposition of law and both parties’ arguments cite
{3} Based on the plain and unambiguous language of
FACTUAL AND PROCEDURAL BACKGROUND
{4} The Erie County Grand Jury returned a three-count indictment against Reed for (1) promoting or engaging in criminal conduct while actively participating in a criminal gang, in violation of
{5} Reed acknowledged the conditions of his release in a form issued by the Erie County Adult Probation Department. The form noted that Reed was required to obey all state laws and that the probation department had the authority to revoke or modify the conditions of his community-control sanctions.
{6} In December 2015, Reed was placed on house arrest after he violated terms of his community control, and in March 2016, he was placed on electronic monitoring after new charges were brought against him.
{7} On October 25, 2016, Reed made an initial appearance before the trial court for violating the terms and conditions of his community-control sanctions. After a series of continuances, a hearing was held on July 7, 2017. Reed admitted that he had violated the terms and conditions of his community control. He asserted during the hearing that he was entitled to jail-time credit for the time he was on standard house arrest and electronic monitoring. The trial court denied Reed‘s motion for
{8} The appellate court reversed, stating that as used in
{9} The state appealed, and we accepted one proposition of law:
A criminal defendant is not entitled to detention-time credit for time spent on postconviction house arrest, as the term “confinement” used in
R.C. 2949.08(C)(1) is not synonymous with the terms “detention” as defined inR.C. 2921.01(E) , a defendant‘s freedom of movement during house arrest is not restrained such that he or she could not leave his or her own home of his and her own volition, and the fact a defendant may face consequences for choosing to violate house arrest does not transform house arrest into confinement and should not be considered by a court.
See 156 Ohio St.3d 1463, 2019-Ohio-2892, 126 N.E.3d 1175. As stated above, we modify the state‘s proposition of law to address
POSITIONS OF THE PARTIES
{10} The state contends that the Sixth District erred in using the definition of “detention” from
{11} Reed points out that
LAW AND ANALYSIS
{12} Because the issue raised by the proposition of law involves “the interpretation of a statute, which is a question of law, we review the court of appeals’ judgment de novo.” State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9, citing Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.
{13} “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000).
“In the case of such unambiguity, it is the established policy of the courts to regard the statute as meaning what it says, and to avoid giving it any other construction than that which its words demand. The plain and obvious meaning of the language used is not only the safest guide to follow in construing it, but it has been presumed conclusively that the clear and explicit terms of a statute expresses [sic] the legislative intention, so that such plain and obvious provisions must control. A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.”
(Bracketed material added in Jasinsky.) Jasinsky v. Potts, 153 Ohio St. 529, 534, 92 N.E.2d 809 (1950), quoting 50 American Jurisprudence 2d, Section 22, at 205-207 (1944).
{14} The General Assembly provides for jail-time credit in
The department of rehabilitation and correction shall reduce the prison term of a prisoner, as described in division (B) of this section, 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. The department of rehabilitation and correction also 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, if any, that the prisoner previously
served in the custody of the department of rehabilitation and correction arising out of the offense for which the prisoner was convicted and sentenced.
{15} This statute uses the word “including,” and “use of the word ‘include’ can signal that the list that follows is meant to be illustrative rather than exhaustive,” Samantar v. Yousuf, 560 U.S. 305, 317, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010). In these circumstances, “the general or unstated terms in the definition should be determined with reference to the terms expressly included.” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 150-151, 735 N.E.2d 433 (2000). By providing an illustrative list of the types of confinement that qualify for a jail-time credit, the General Assembly has demonstrated that it intends that credit should not be given for all types of confinement. Otherwise, the General Assembly would not have included the illustrative list. But the list was included. It must be given effect; if not, it would be superfluous. But we are obligated to give effect to every word in a statute and avoid a construction that would render any provision superfluous. Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 23.
{16} The list sets out the types of confinement that entitle a defendant to jail-time credit. A defendant imprisoned for a felony or misdemeanor is entitled to a credit if he was confined while waiting for trial, for a determination of competency or sanity, or for transportation to the place where the sentence is to be served or if he was confined in a juvenile facility. See
{17} “The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.” Scalia and Garner, Reading Law: The Interpretation of Legal Texts, 56 (2012). “Judges have no inherent power to create sentences.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, citing Griffin & Katz, Ohio Felony Sentencing Law, Section 1:3, at 4 (2008), fn. 1. “Rather, judges are duty bound to apply sentencing laws as they are written.” Id.
{18} In this case, after violating the terms and conditions of his community-control sanctions, Reed was placed on standard house arrest and electronic monitoring. Because the General Assembly does not provide a credit for postconviction house arrest and electronic monitoring to be applied against the sentence imposed for a violation of the conditions of community control, the trial court did not err in denying Reed‘s motion for jail-time credit.
CONCLUSION
{19}
Judgment reversed.
FRENCH, FISCHER, and DEWINE, JJ., concur.
O‘CONNOR, C.J., concurs in judgment only.
DONNELLY, J., dissents, with an opinion joined by STEWART, J.
DONNELLY, J., dissenting.
{20} According to the majority, jail-time credit for confinement is earned by defendants who have been sentenced to serve time in a public or private facility but not by defendants sentenced to serve time on house arrest with electronic monitoring. But the majority‘s distinction is not supported by statutory law and is inconsistent with statutory history. Because I believe the Sixth District Court of Appeals reached the right result, I respectfully disagree with the majority‘s decision to reverse that court‘s judgment.
{21} The record here reflects that appellee, Eric Reed, entered a plea of guilty to one count of criminal-gang activity in violation of
{22} The majority says Reed‘s house arrest with electronic monitoring does not qualify as “confinement” that would make him eligible for jail-time credit under
{23}
The department of rehabilitation shall reduce the prison term of a prisoner, as described in division (B) of this section, 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.)
{24} ” ‘[I]ncluding’ implies that that which follows is a partial, not an exhaustive listing of all that is subsumed within the stated category. ‘Including’ is a word of expansion rather than one of limitation or restriction.” In re Hartman, 2 Ohio St.3d 154, 156, 433 N.E.2d 516 (1983). The General Assembly‘s use of the word “including” thus signifies that what follows is intended to be illustrative but not exhaustive. See, e.g., Trans Rail Am., Inc. v. Enyeart, 123 Ohio St.3d 1, 2009-Ohio-3624, 913 N.E.2d 948, ¶ 28 (“The statute says
{25}
{26} Specifically,
“House arrest” means a period of confinement of an offender that is in the offender‘s home or in other premises specified by the sentencing court or by the parole board pursuant to section 2967.28 of the Revised Code and during which all of the following apply:
(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 may be imposed by the sentencing court or by the parole board.
(Emphasis added.)
{27} Thus, by the express terms of
{28} In this case, Reed was sentenced to house arrest with electronic monitoring under
{29} According to the majority, however, “[t]he legislature has expressed the intent that credit is to be given only for the time the defendant is confined in a public or private facility. Confinement in a personal residence, therefore, does not qualify under the statute.” Majority opinion at ¶ 16. But the text of
{30} The majority cites Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 735 N.E.2d 433 (2000), in which the court, when reviewing a zoning ordinance, applied the canon of ejusdem generis to determine the general or unstated terms by referring to the terms expressly included in the ordinance‘s definition of an “accessory building.” But
{31} If it were the General Assembly‘s intent to deny jail-time credit for the time an offender served on electronically monitored house arrest, it certainly knew how to do so because it had done so previously. Former
If an eligible offender violates any of the restrictions or requirements imposed upon the eligible offender as part of the eligible offender‘s period of electronically monitored house arrest, the eligible offender shall not receive credit for any time served on electronically monitored house arrest toward any prison term or sentence of imprisonment imposed upon the eligible offender for the offense for which the period of electronically monitored house arrest was imposed.
{32} The General Assembly removed that language effective January 1, 2004. See 149 Ohio Laws, Part I, 9484, 9676. I am not aware of any other provision of the current Revised Code that revived its provisions. The removal of that language, coupled with the nonrestrictive language in
{33} I agree with the majority that “confinement” contemplates a restraint on a defendant‘s ability to come and go without permission. In my view, however, house arrest coupled with electronic monitoring imposes restraints on the defendant‘s freedom to come and go as he pleases. An electronic monitoring device tracks the defendant‘s movements and registers any attempts to remove, alter, or tamper with its operation. See
{34} The terms of Reed‘s house arrest expressly define any permitted departures from the premises and by implication prohibit any unauthorized departures. The electronic monitoring device operates in place of facility staff to regulate a defendant‘s permitted actions. All costs associated with the defendant‘s house arrest are borne by a defendant or the owner of the residential premises rather than by the public through the costs of incarceration and staffing of the public or private facility.
{35} Fundamentally, however, the relevant statutory law expressly authorizes jail-time credit for time spent in confinement for any reason arising out of the offense for which the defendant was convicted and sentenced.
{36} Because I believe the majority has misconstrued
STEWART, J., concurs in the foregoing opinion.
Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellant.
Brian A. Smith Law Firm, L.L.C., and Brian A. Smith, for appellee.