State v. SuttonState v. Sutton
{¶ 1} Mаrvin Sutton appeals his conviction for escape from the Lucas County Court of Common Pleas. Because we conclude that when Sutton was on pre-trial electronic monitoring he was not in detention and, therefore, could not be convicted of escape, we reverse.
{¶ 2} On January 6, 2003, Sutton had been placed on a supervised own recognizance bond with a condition of electronic monitoring to ensure his appearances on charges of burglary and felonious assault, both second degree felonies. He appeared for court as required on January 17, 2003, and the matter was scheduled for a further pre-trial on January 30, 2003. Sometime on January 17, 2003, Sutton removed his аnkle bracelet and left his home without permission of the electronic monitoring department. He was indicted January 28, 2003 for the second degree felony of escape, a violation of R.C.
{¶ 3} Sutton now appeals and raises a sole assignment of error: “Defendant-Appellant‘s conviction for escape is not supported by the evidence and is contrаry to law.”
{¶ 4} Initially, we note that, normally, when a defendant enters a no contest plea, any error is waived that could have been alleged concerning the trial court‘s denial of a motion to dismiss. State v. Oshodin, 6th Dist. No. L-03-1169, 2004-Ohio-1186, at ¶ 4. When it is clear from the record thаt the express purpose for the no contest plea is to appeal the trial court‘s denial of the motion to dismiss, an appellate court may review the trial court‘s decision. State v. Dumas (1990), 68 Ohio App.3d 174, 176; State v. Lewis (July 30, 1999), Mahoning App. No. 97 CA 161. The standard of review in such a case is de novo. State v. Webb (Nov. 30, 2001), Lucas App. No. L-01-1007. Contra, State v. Wantz, 11th Dist. No. 2002-G-2482, 2003-Ohio-7203; State v. Carter (June 16, 2000), Hamilton App. No. C-99-914; Cleveland v. Criss (Dec. 10, 1998), Cuyahoga App. No. 72862; State v. Zawacki (July 11, 1997), Montgomery App. No. 16177 (grant or denial of a motion to dismiss is reviewed under an abuse of discretion standard).
{¶ 5} Sutton argues that he could not be convicted of escape when he breached his condition of pre-trial electronic monitoring because such a condition is not detention.
{¶ 6} A kеy element for prosecuting escape is whether the alleged offender is “under detention.”
{¶ 7}
{¶ 8} Electronic monitoring is not specifically included within the definition of detention. Former
{¶ 9} Electronic monitoring, however, was defined in Ohio‘s sentencing statute.
{¶ 10} Former
{¶ 11} When electronic monitoring is a condition of sentence, it is considered it to be “detention” under
{¶ 12} Pre-trial electronic monitoring at home is different from house arrest or electronic monitoring after conviction. A defendant receives no credit for time served before trial under
{¶ 13} The term “confinement” as used in the time crediting statutes
{¶ 14} Therefore, a person not under detention/confinement while awaiting trial does not obtain credit for time served. Pre-trial electronic monitoring does not count as сustody time for speedy trial purposes under
{¶ 15} Only one district has ruled that pre-trial electronic home monitoring is detention and one who violates it can be convicted for escape. State v. West (Aug. 21, 1998), Montgomery App. No. 16888.5 Later decisions by that district have rejected that position. State v. Holt (May 12, 2000), Montgomery App. No. 18035. We have determined that a defendant‘s pre-trial “period of electronic home monitoring clearly does not equate to confinement in [jail].” State v. Shearer (Dec. 17, 1999), Wood App. No. WD-98-078, citing Bailey v. Chance (Sept. 18, 1998), Mahoning App. No. 98 CA 169. Other appellate courts concur. State v. Kyser (Aug. 10, 2000), Mahoning App. No. 98 CA 144; State v. Peters (May 13, 1999), Licking App. Nos. 98-CA-00118, 98-CA-00119. Additionally, it is commonly held that pre-trial electronic mоnitoring is a condition of bond. State v. Kyser (Aug. 10, 2000), Mahoning App. No. 98 CA 144; Akron v. Stutz (Nov. 1, 2000), Summit App. No. 19925; State v. Peters (May 13, 1999), Licking App. Nos. 98-CA-00118, 98-CA-00119; State v. Setting (Mar. 20, 1996), Wayne App. No. 95CA0057; State v. Faulkner (1995), 102 Ohio App.3d 602, 604.
{¶ 16} If pre-trial electronic monitoring is not detention for crediting purposes, it is not detention for prosecuting the crime of escape. The Supreme Court of the United States, Reno v. Koray (1995), 515 U.S. 50, 57, 61 fn.4, as well as other federal and state courts, Dawson v. Scott (C.A. 11, 1995), 50 F.3d 884, 890 fn. 10; Bush v. State (1999), 338 Ark. 772, 778-780; State v. Magnuson (2000), 233 Wis.2d 40, 49, 51, 56; State v. Tackett (2002), 259 Wis.2d 481, at ¶ 10, have held that if a defendant is not entitled to a sentence credit for time served on pre-trial electronic monitoring, that individual may not be prosecuted for escape. Likewise, other state courts have ruled that if an individual can be prosecuted for escape in the pre-trial context, that individual is also entitled to sentence credit for time he or she spent on pre-trial electronic monitoring. People v. Pottorff (1996), 47 Cal.App. 4th 1709, 1716-1717; Dedo v. State (1996), 343 Md. 2, 11-13; Spriggs v. State (2003), 152 Md. App. 62, 66-67; Toney v. State (2001), 140 Md. App. 690, 695; State v. Guillen (2001), 130 N.M. 803, 804, 806; State v. Martinez (1998), 125 N.M. 83, 84-85; State v. Fellhauer (1997), 123 N.M. 476, 481; State v. Ammons (1998), 136 Wn.2d 453, 459; State v. McCullough (Wash.App. 2003), Spokane App. Nos., 21180-1-III, 21181-9-III. Only a few courts allow for an individual tо be prosecuted for escape and yet be denied sentence credit for electronic monitoring time spent pre-trial. Grabarczyk v. State (Ind.App. 2002), 772 N.E.2d 428, 431-432; Buford v. Commonwealth (Ky.App. 2001), 58 S.W.3d 490, 491-492.
{¶ 17} Sutton‘s electronic monitoring was not a sentencing condition; it was a pre-trial condition of bоnd. As a condition of bond, it does not constitute detention. Without detention, one cannot be convicted of escape. Such conclusions logically follow from treatment of pre-trial electronic monitoring for the purposes of credit for time served and speedy trial.
{¶ 18} The trial court and the prosecution, however, are not rendered powerless by this decision because if a defendant violates bond conditions, the trial court has the power to revoke the bond and take other steps to assure a defendant‘s compliance. As we stated in State v. Shearer: “Placing conditions on bond is a power specifically granted to the trial court under Crim.R. 46.” State v. Shearer (Dec. 17, 1999), Wood App. No. WD-98-078, citing Bailey v. Chance (Sept. 18, 1998), Mahoning App. No. 98 CA 169. Also, the trial court may determine whаt the conditions of a bond are. Id. “Crim.R. 46(I) specifically states `if there is a breach of condition of bond, the court may amend the bail.’
{¶ 19} Based on the foregoing, we find Sutton‘s sole assignment of error well-taken. The judgment of the Lucas County Court of Common Pleas is revеrsed, and Sutton‘s escape charge is dismissed with prejudice. Appellee is ordered to pay the costs of this appeal.
Judgment Reversed.
Handwork, P.J., Lanzinger, J., Singer, J., concur.
Notes
“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, and confinement while awaiting transportation to the place where the prisoner is to serve the prisoner‘s prison term.” (Emphasis added.)
“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 * * * 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, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the person‘s competence to stand trial or to determine sanity, and confinement while awaiting transportation to the place where the person is to serve the sentence.” (Emphasis added.)
“For purposes of computing time * * *, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days.”