State v. Reed

[Cite as State v. Reed, 2019-Ohio-1266.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-17-037
Appellee Trial Court No. 2014-CR-509
v.
Eric Reed DECISION AND JUDGMENT
Appellant Decided: April 5, 2019
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Anthony A. Battista III, Assistant Prosecuting Attorney,
for appellee.
Brian A. Smith, for appellant.
*****
SINGER, J.
Introduction
{¶ 1} Appellant, Eric Reed, appeals the July 11, 2017 judgment of the Erie County
Court of Common Pleas revoking his community control and imposing a five-year
sentence for participating in a criminal gang in violation of R.C. 2923.42(A), a felony of
the second degree. For the reasons that follows, we reverse the judgment and remand the
matter to the trial court for resentencing.
Assignment of Error
The trial court committed reversible error by failing to give all
required jail time credit to Appellant.
Background
{¶ 2} On December 18, 2014, appellant was indicted on three counts:
participating in a criminal gang in violation of R.C. 2923.42(C); aggravated rioting in
violation of R.C. 2917.02(A)(2); and assault in violation of R.C. 2903.13(A).
{¶ 3} On July 14, 2015, appellant entered a guilty plea to the participating in a
criminal gang charge. The remaining counts were dismissed, and the prosecution
recommended community control sanctions.
{¶ 4} On August 25, 2015, a sentencing hearing was held and appellant was
sentenced to five years community control.
{¶ 5} Appellant was to comply with certain conditions while on community
control, including to obey federal, state and local laws and ordinances. Appellant
violated this condition because he committed aggravated burglary, burglary, or assault, in
November 2016, as charged in Erie C.P. case No. 2017-CR-0012.
{¶ 6} The trial court found probable cause existed, and a hearing was scheduled
for January 6, 2017. The hearing was continued numerous times and was held on July 7,
2017. Appellant admitted, and the trial court found, that he violated his conditions.
2.
{¶ 7} The trial court set the matter for sentencing on July 10, 2017. At the
hearing, appellant’s counsel requested the court decide whether electronic monitoring or
standard house arrest is to be credited as days of confinement. The court denied applying
credit for the electronic monitoring or standard house arrest, and subsequently proceeded
to sentence appellant after revoking his community control.
{¶ 8} The court sentenced appellant to five years in prison, and gave him 316 days
of credit for time served as of July 10, 2017. The judgment was journalized July 11,
2017, and appellant now appeals.
Analysis
{¶ 9} In his sole assignment of error, appellant asserts the trial court failed to
properly apply 171 days of confinement credit to his sentence in accordance with State v.
Holmes, 6th Dist. Lucas No. L-08-1127, 2008-Ohio-6804. Appellee contends that
appellant’s postconviction house arrest was not a restraint on his liberty such that he
could not come and go on his own volition.
{¶ 10} R.C. 2949.08(C)(1) relevantly provides:
If [a] person is sentenced to 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 * * *.
See Holmes at ¶ 11.
3.
{¶ 11} The term “confinement” as used in R.C. 2949.08(C)(1), is synonymous
with the term “detention” as defined in R.C. 2921.01(E). See id. at ¶ 12, citing State v.
Sutton, 6th Dist. Lucas No. L-03-1104, 2004-Ohio-2679, ¶ 13.
{¶ 12} The statutory definition of detention once excluded “supervision and
restraint incidental to probation, parole and release on bail.” Id. at ¶ 15. However, the
current statutory definition “clearly does not.” Id. See also R.C. 2921.01(eff. Sept. 29,
2013).
{¶ 13} Appellant asserted below that he should be awarded confinement credit for
time spent on house arrest. The prosecution argued no confinement credit should be
awarded for the house arrest because it was imposed after appellant violated his
community control. The trial court recognized Holmes, yet denied appellant’s request.
{¶ 14} In Holmes, we reversed the trial court and held that Holmes was entitled to
confinement credit for his time served on house arrest. Holmes specifically sought credit
“for the 90 days time that he spent on electronic monitoring as part of his community
control sentence.” Id. at ¶ 8. We granted the credit. Id. at ¶ 20.
{¶ 15} Our analysis in Holmes initially consisted of an explanation of how
electronic monitoring house arrest constitutes a form of detention pursuant to R.C.
2921.34. Id. at ¶ 17-18. We found this applied where electronic monitoring was imposed
pursuant to community control. Then, we took the analysis a “step further,” finding that
in the interest of justice, “where an individual can be prosecuted for escape from
electronic monitoring imposed pursuant to community control or probation, that
individual should be entitled to credit for time served in that way.” Id. at ¶ 19.
4.
{¶ 16} Based on our review, the record in this case demonstrates that appellant
served days on house arrest after being sentenced to community control in September of
2015. Although the house arrest was not explicitly imposed in the trial court judgment,
we hold that appellant is entitled to credit for those days he was confined because he
could have been prosecuted for escape during that time when a condition of the court-
imposed community control was to abide by what conditions the probation officer set,
which the probation officer Gale testified included electronic monitoring and standard
house arrest.
{¶ 17} Gale explained and testified in detail about the type and time period of
restraint imposed on appellant, as follows:
[Appellant’s counsel]: All right. And that’s [(imposing house
arrest)] something that you’re allowed to do as a result of the Court
originally putting Mr. Reed on probation, correct?
[Gale]: That’s correct.
[Appellant’s counsel]: Okay, all right. And so do you know when
or what dates that you would have put Mr. Reed on electronic monitoring
house arrest?
[Gale]: On electronic monitoring or standard house arrest?
[Appellant’s counsel]: Well—
[Gale]: He was on both.
[Appellant’s counsel]: Okay. So let me—let me go through the
difference because I didn’t realize there was a difference.
5.
[Gale]: Okay.
[Appellant’s counsel]: So there’s an electronic monitoring first,
right?
[Gale]: Correct.
[Appellant’s counsel]: Okay. And what is that?
[Gale]: Electronic monitoring is a bracelet they put around their
ankle with GPS capabilities and then standard house arrest is a bracelet they
wear around their wrist. It’s a lower level of supervision on house arrest.
[Appellant’s counsel]: All right. So let’s go with the electronic
monitoring first. What are the restrictions or how does that work?
[Gale]: It depends on what they’re allowed to do, what they’re not
allowed to do. Some people are on total lockdown. They can’t leave their
house except for Court appointments.
[Appellant’s counsel]: Okay.
[Gale]: Mr. Reed was granted work privileges. He could go to
work. He also asked to go to the bank on Fridays, I believe, to cash his
check or do something with his finances. And, of course, he was able to
come see me, along with any type of counseling.
[Appellant’s counsel]: All right. So absent those exceptions with
the electronic monitoring, was he otherwise supposed to stay at a certain
residence?
[Gale]: Yeah, he was supposed to stay at his listed residence.
6.
[Appellant’s counsel]: Okay. All right. And besides authorizing
him to go to work and to the bank, would he have to seek otherwise
authorization to leave the residence otherwise?
[Gale]: Yes. He had a caseworker with LECCC that facilitates the
house arrest and turns in schedules to her, because I know at one point he
asked to work overtime and that was granted as well.
[Appellant’s counsel]: All right. And this may sound silly, but with
the electronic monitoring that’s continuous, so there would not have been
any breaks in that?
[Gale]: Well, he actually had a break, because he had come off of
it—
[Appellant’s counsel]: Okay, but while it— but while—
[Gale]: --and then was put back on again.
[Appellant’s counsel]: I’m sorry. But while it was on, though, I
mean, the fact is that that was continue— that was continuous in nature.
[Gale]: Yes, yes.
[Appellant’s counsel]: All right. All right. And then while he was
on the electronic monitoring, as you said before, he was still required to
check in with you?
[Gale]: Yes.
[Appellant’s counsel]: All right. All right. And then he— even
though he’s on electronic monitoring, besides checking in with you, he still
7.
has to follow all the conditions that we talked about in Defendant’s Exhibit
A, correct?
[Gale]: That’s correct.
[Appellant’s counsel]: All right, okay. So can you tell me, then, do
you know how long he was on the electronic monitoring?
[Gale]: Yes. He was originally placed on electronic monitoring on
March 31st of 2016 until May 29th of 2016.
* * * [Appellant’s counsel]: Okay. And then you talked about the
fact that separate from electronic monitoring, then, is house arrest, correct?
[Gale]: Standard house arrest, correct.
[Appellant’s counsel]: Standard house arrest.
[Gale]: Correct.
[Appellant’s counsel]: All right. And for Mr. Reed, was he on
standard house arrest then?
[Gale]: Initially he was, yes.
[Appellant’s counsel]: Okay. And what does that entail then?
[Gale]: The same conditions, it’s just you’re not monitored by a
GPS. It’s a bracelet that’s put on your wrist and it’s kind of like at your
word that you’ll be home, and we send house arrest officers out to check on
you randomly.
8.
[Appellant’s counsel]: So I want to be very clear about this. So then
on standard house arrest he does not— he’s got a bracelet, but I was going
to say it’s nothing that’s electronically monitored, correct?
[Gale]: That’s correct.
[Appellant’s counsel]: But, otherwise, all of the conditions, though,
for electronic monitoring apply, though, for standard house arrest.
[Gale]: That’s correct.
[Appellant’s counsel]: All right. And how long was he on standard
house arrest?
[Gale]: From December 3rd, 2015 until March 31st of 2016, at
which time he was placed on electronic monitoring that same day.
{¶ 18} Consistent with Holmes, Gale’s explanation and testimony of the detention
imposed precisely details the type of restraint on liberty we decided is to be credited as
confinement. See Holmes, 6th Dist. Lucas No. L-08-1127, 2008-Ohio-6804, at ¶ 20.
Accordingly, we hold that appellant is entitled to confinement credit for those days he
was on electronic monitoring or standard house arrest, and his sole assignment of error is
found well-taken.
Conclusion
{¶ 19} For the foregoing reasons, the judgment of the Erie County Court of
Common Pleas is reversed and the matter is remanded. The trial court is ordered to
9.
proceed in a manner consistent with this decision. Appellee is ordered to pay the costs of
this appeal pursuant to App.R. 24. We note this decision is in conflict with, among
others, the Twelfth District Court of Appeals in State v. Porter, 2018-Ohio-3123, 106
N.E.3d 125 (12th Dist.). Pursuant to Ohio Constitution, Article IV, Section 3(B)(4), we
sua sponte certify a conflict to the Supreme Court of Ohio for review and final
determination. The parties are directed to S.Ct.Prac.R. 7.01 and 7.08 for further
proceedings.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
10.