State v. Pope

[Cite as State v. Pope, 2012-Ohio-5452.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
GERALD POPE : Case No. 2012CA00159
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2010CR0893
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 13, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GERALD A. POPE, PRO SE
Prosecuting Attorney Inmate No. 623-245
Lake Erie Correctional Institution
By: RENEE M. WATSON P.O. Box 8000
Assistant Prosecuting Attorney Conneaut, OH 44030
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00159 2
Farmer, J.
{¶1} On June 30, 2010, the Stark County Grand Jury indicted appellant, Gerald
Pope, on five counts of nonsupport of dependents in violation of R.C. 2919.21.
Appellant pled guilty to the charges on August 18, 2010. By judgment entry filed
October 4, 2010, the trial court sentenced appellant to five years of community control
with conditions, including electronically monitored house arrest.
{¶2} On October 27, 2011, appellant's probation officer filed a motion to revoke
appellant's probation for violating several rules. On December 20, 2011, an addendum
to the motion to revoke was filed to add appellant's active warrants for passing bad
checks.
{¶3} A hearing was held on March 14, 2012. By judgment entry filed March 23,
2012, the trial court revoked appellant's community control and sentenced him to
fourteen months in prison.
{¶4} On July 23, 2012, appellant filed a motion for jail time credit for his time
spent on electronic monitored house arrest. By judgment entry filed July 26, 2012, the
trial court denied the motion.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "I FEEL AS THOUGH THE TRIAL COURT VIOLATED MY DUE
PROCESS RIGHTS BY NOT CREDITING THE TIME I SPENT ON ELECTRONICALLY
MONITORED HOUSE ARREST AS PART OF MY COMMUNITY CONTROL."
Stark County, Case No. 2012CA00159 3
II
{¶7} "THE TRIAL COURT ERRED WHEN IT DENIED MY JAIL TIME CREDIT
FOR DAYS SUCCESSFULLY COMPLETED ON ELECTRONICALLY MONITORED
HOUSE ARREST WHEN A SUBSEQUENT PRISON TERM WAS IMPOSED FOR A
VIOLATION."
I, II
{¶8} Appellant challenges the trial court's failure to give him jail time credit for
time spent on electronically monitored house arrest as such constituted detention. We
disagree.
{¶9} This court examined this same issue in State v. Tabor, 5th Dist. No.
11CA33, 2011-Ohio-3200. In Tabor, this court analyzed the meaning of "detention" and
concluded the following at ¶ 18-20:
In this case, appellant was only required to be at home between the
hours of 10:00 p.m. and 6:00 a.m. which was merely a curfew
requirement. Appellant was free to move around within the county and
could leave the county with permission as long as he abided by the terms
of his community control.
In State v. Blankenship, Franklin App. No. 10AP–651, 2011–Ohio–
1601, ¶ 19, our brethren from the Tenth District held, "[i]n light of the case
law and statutory analysis set forth above, we hold that a person convicted
of a misdemeanor offense is not entitled to time-served credit under R.C.
2949.08(C) for time spent under EMHA as a condition of postconviction
Stark County, Case No. 2012CA00159 4
probation." Although Blankenship involved a misdemeanor case, we
agree with the well-reasoned analysis therein.
Upon review, we find the trial court did not err in denying appellant
jail time credit for his time spent on electronic monitoring.
{¶10} In the case sub judice, the trial court sentenced appellant to five years of
community control and placed him in the Intensive Supervision Probation Program.
Judgment Entry filed October 4, 2010. Appellant was ordered to serve "house arrest
followed by a 9:00 p.m. curfew" and was assigned to the Stark County Day Reporting
Program. Appellant was also informed of his freedom and lack of detention as follows:
2. The Defendant shall keep the supervising officer informed of his
residence and place of employment. The Defendant shall obtain
permission from the supervising officer before changing residence or
employment. The Defendant understands that if he is released and
absconds supervision, he may be prosecuted for the crime of escape,
under section 2921.34 of the Revised Code.
3. The Defendant shall not leave the State of Ohio without written
permission of the Adult Parole/Probation Department.
16. The Defendant shall follow the following Special Conditions:
f. That this defendant shall obtain and maintain verifiable full-time
employment.
Stark County, Case No. 2012CA00159 5
{¶11} Given the nature of appellant's community control, we find our decision in
Tabor to be controlling.
{¶12} Assignments of Error I and II are denied.
{¶13} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_______________________________
_______________________________
_______________________________
JUDGES
SGF/sg 1029
[Cite as State v. Pope, 2012-Ohio-5452.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
GERALD POPE :
:
Defendant-Appellant : CASE NO. 2012CA00159
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.
_______________________________
_______________________________
_______________________________
JUDGES