[Cite as State v. Williams, 2011-Ohio-6698.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-11-26
v.
CHRISTOPHER M. WILLIAMS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2008 CR 00255
Judgment Affirmed
Date of Decision: December 27, 2011
APPEARANCES:
Nathan T. Oswald for Appellant
Mark C. Miller and Drew A. Wortman for Appellee
Case No. 5-11-26
SHAW, J.
{¶1} Although originally placed on our accelerated calendar, we elect,
pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶2} On October 21, 2008, defendant-appellant Christopher Williams
(“Williams”) was indicted on three counts of breaking and entering in violation of
R.C. 2911.13(A), felonies of the fifth degree; one count of safecracking in
violation of R.C. 2911.31(A), a felony of the fourth degree; and one count of
receiving stolen property in violation of R.C. 2913.51(A), a felony of the fifth
degree. On March 16, 2009, Williams entered guilty pleas to all indicted charges.
{¶3} On May 12, 2009, the trial court sentenced Williams to serve a single
sentence of five years of community control for all five counts. As a condition of
his community control, the trial court ordered Williams to enter into and complete
a term of thirty days in the Hancock County Adult Probation Department’s
Electronic Monitoring Program at his own expense. Notably, this condition only
required Williams to be home by curfew. Williams successfully completed the
electronically monitored portion of his community control.
{¶4} However, on December 18, 2009, Williams’ probation officer filed a
motion to revoke his community control for failing to be home by the curfew, for
failing to comply with treatment, for failing to report as required to his probation
officer, for failing to notify his probation officer of his change of address, and for
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his use of marijuana. Each of these constituted violations of Williams’ community
control conditions. A hearing on the motion was held on December 21, 2009, and
Williams admitted to the violations. The trial court then sentenced Williams to
eleven months in prison for his convictions on each of the breaking and entering
counts and on the receiving stolen property count, all to run concurrently.
Williams was sentenced to seventeen months in prison for his conviction for
safecracking, with this sentence to be served consecutively to the others, for a total
prison term of twenty-eight months. Williams appealed from this sentence.
{¶5} On appeal, this court reversed the sentence of the trial court because it
ordered a lump sentence of five years community control rather than sentencing
Williams for each individual offense as required by statute. A resentencing
hearing was held on May 5, 2011. The trial court imposed the previous prison
sentence of twenty-eight months. The trial court granted Williams credit for 523
days of time served. At the resentencing hearing, Williams asked for an additional
30 days of credit for time served for the time he spent subject to electronic
monitoring. The trial court subsequently denied Williams’ request. Williams
appeals from this judgment and raises the following assignments of error.
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING [WILLIAMS]
JAIL TIME CREDIT FOR 30 DAYS OF ELECTRONIC
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HOME MONITORING SERVED AS A COMMUNITY
CONTROL CONDITION.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING AN UNREASONABLY HARSH SENTENCE FOR
[WILLIAMS’] SAFECRACKING CONVICTION.
THIRD ASSIGNMENT OF ERROR
[WILLIAMS] WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL HIS [SIC] BY TRIAL COUNSEL’S FAILURE TO
ADVOCATE FOR COMMUNITY CONTROL.
First Assignment of Error
{¶6} The first assignment of error claims that the trial court erred in
denying credit to Williams for the thirty days he spent on electronic monitoring
after his conviction.
{¶7} Section 2949.08 of the Revised Code provides, in pertinent part:
(A) When a person who is convicted of or pleads guilty to a felony is
sentenced to a community residential sanction in a community-based
correctional facility pursuant to section 2929.16 of the Revised Code or
when a person who is convicted of or pleads guilty to a felony or a
misdemeanor is sentenced to a term of imprisonment in a jail, the
judge or magistrate shall order the person into the custody of the
sheriff or constable, and the sheriff or constable shall deliver the
person with the record of the person’s conviction to the jailer,
administrator, or keeper, in whose custody the person shall remain
until the term of imprisonment expires or the person is otherwise
legally discharged.
***
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(C)(1) 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 pursuant to division (A) of this
section 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.
Ohio Appellate Courts have reached different conclusions as to whether electronic
monitoring constitutes “confinement” for purposes of calculating credit for time
served.
{¶8} In State v. Holmes, 6th Dist. No. L-08-1127, 2008-Ohio-6804, the
defendant was convicted of one count of possession of crack cocaine and
sentenced to community control. The defendant was placed on electronically
monitored house arrest (“EMHA”) for a period of thirty days as part of his
community control. After successfully completing the electronic monitoring
portion of his sentence, the defendant violated the terms of his community control
and was sentenced to prison. The defendant requested credit for time served for
the ninety days he spent on EMHA. The trial court denied his request and the
defendant appealed.
{¶9} The court in Holmes determined that “confinement” as used in R.C.
2949.08(C) is “synonymous” with the term “detention” as defined in R.C.
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2921.01(E). Id. at ¶12. Based on this rationale, the court relied heavily on a Fifth
District case, In re Nitaleen Gould, 5th Dist. No. 07-CA-0099, 2008-Ohio-900 and
arrived at the following conclusion.
In Gould, supra, the case involved a minor defendant who had
been adjudicated delinquent for the charge of gross sexual
imposition. The defendant was placed on community control,
and when she violated the terms of that sentence, she was
restored to probation. As part of her probation, she was placed
on electronically-monitored house arrest. At some point during
this portion of her sentence, the defendant cut off the ankle
bracelet portion of her electronic monitoring device and left
home without permission. As a result of her actions, she was
charged with delinquency by reason of committing escape, in
violation of R.C. 2921.034.
The question for the court in Gould was whether the defendant’s
electronic home monitoring constituted a form of detention
pursuant to R.C. 2921.01(E), so as to support her conviction for
the charge of escape. The court, relying solely on the current
version of the statute-which, unlike the previous versions, makes
no exclusion for supervision and restraint incidental to
probation, parole and release on bail-determined that it was. On
the basis of that determination, the court concluded that the
defendant’s adjudication for the charge of escape was not
against the sufficiency of the evidence.
We agree with the court’s analysis in Gould, and find that it
applies equally in cases where electronic monitoring is imposed
pursuant to community control.
Taking the analysis a step further, we find that the interests of
justice require that 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. Stated otherwise,
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if electronic monitoring is “detention” for prosecuting the crime
of escape, it should likewise be “detention” for time-crediting
purposes.
Holmes, at ¶¶ 16-19.1
{¶10} Notably, the court in Gould did not specifically address the issue of
whether an offender is entitled to credit for time served for the period of time he or
she spent on post-conviction electronic home monitoring.
{¶11} However, when confronted with this issue, the same court that
decided Gould elected not to follow the reasoning in Holmes, but instead resolved
the question by arriving to the opposite conclusion. In State v. Tabor, 5th Dist.
No. 111 CA 33, 2011-Ohio-3200, the Fifth District held that the defendant, who
was convicted of a felony offense, was not entitled to credit for time served under
R.C. 2949.08(C) for time spent under electronic monitoring as condition of his
community control, which required him to be home between the hours of 10:00
p.m. and 6:00 a.m. In doing so, the court in Tabor was strongly persuaded by
reasoning of the Tenth District in State v. Blankenship, 192 Ohio App.3d 369,
2011-Ohio-1601, 949 N.E.2d 1087.
1
In State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, the Supreme Court of Ohio
concluded that pretrial electronic home monitoring does not constitute detention for the purpose of
prosecuting the crime of escape because it was not intended to be a form of detention under R.C.
2921.01(E). However, the Supreme Court has not resolved the issue of whether post-conviction electronic
home monitoring constitutes detention under R.C. 2921.01(E).
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{¶12} In Blankenship, the defendant was convicted of a misdemeanor
offense and placed on a ninety-day term of EMHA. The defendant subsequently
failed to complete the conditions of his probation, which prompted the trial court
to revoke his probation and impose a jail sentence. The defendant then requested
credit for time served for the time he spent on EMHA, which the trial court
denied.
{¶13} On appeal, the Tenth District determined that the defendant was not
entitled to credit for time served for the time he spent on EMHA. The court in
Blankenship began its analysis by examining the word “confinement” used in R.C.
2949.08(C), and noting that “confinement” is not separately defined under R.C.
2929.01. Id. at ¶ 9. The court acknowledged that some courts have determined
“confinement” to be synonymous with “detention,” but that those cases were not
binding on its decision and ultimately concluded that it was not necessary to
determine whether the two words have the same meaning when resolving this
issue.
{¶14} Rather, the court in Blankenship reviewed decisions of the Supreme
Court of Ohio to evaluate how “confinement” is considered in the context of
calculating an offender’s credit for time served when the offender has spent time
in a residential rehabilitation facility and a community-based corrections facility as
a condition of community control.
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{¶15} In State v. Nagle (1986), 23 Ohio St.3d 185, 23 OBR 348, 492
N.E.2d 158, the Supreme Court considered whether time spent in a residential
rehabilitation facility as a condition of probation constituted “confinement” under
R.C. 2949.08(C). The Supreme Court reversed the court of appeals, which gave
Nagle time served credit for time he spent in the rehabilitation facility. Id. at 188.
The court in Blankenship noted that
Central to this holding was the Supreme Court’s observation
that “in none of [the examples of confinement under R.C.
2949.08(C) ] may the defendant leave official custody of his own
volition.” By contrast, although the rehabilitation facility
imposed restrictions on the defendant’s freedom of
communication with those outside the facility, “[his] freedom of
movement was not so severely restrained, i.e., he indeed did
voluntarily depart the facility.” Therefore, time spent in this
residential rehabilitation facility as a condition of postconviction
probation was not a form of “confinement” eligible for time-
served credit under R.C. 2949.08(C).
By contrast, in State v. Napier (2001), 93 Ohio St.3d 646, 758
N.E.2d 1127, the Supreme Court of Ohio concluded that time
spent in a community-based correctional facility constituted
confinement under R.C. 2967.191. * * * The Supreme Court
noted that although the defendant could leave the facility after
the “lockdown” period, his ability to leave was subject to
requesting permission and submitting a detailed written
description of when he was leaving the facility, where he was
going, and when he planned to return. Because the defendant
was not free to come and go as he wished and “was subject to the
control of the staff regarding personal liberties,” the defendant’s
time in the community-based correctional facility constituted
“confinement” for purposes of R.C. 2967.191.
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Blankenship, 2011-Ohio-1601 at ¶¶ 12-13 (internal citations omitted). 2
{¶16} In applying this framework set forth by the Supreme Court to the
case before it, the court in Blankenship noted that the order imposing EMHA
permitted the defendant to leave his home for both anger-management treatment
and employment. The court concluded that “like the defendant in Nagle, the
appellant was apparently able to leave the home of his own volition, because he
must have done so to violate the terms of his EMHA. The fact that he faced
possible consequences for choosing to violate his EMHA did not transform the
EMHA into a condition imposing ‘such a restraint on [his] freedom of movement
that he [could not] leave official custody of his own volition.’ ” Id. at ¶ 16 quoting
State v. Slager, 10th Dist. No. 08AP-581, 2009-Ohio-1804, ¶ 20 (concluding that
pre-arrest hospitalization for treatment of injuries sustained while fleeing the
police did not constitute confinement for purposes of R.C. 2967.191); see also
State v. Ober, 2nd Dist. No. 2003-CA-27, 2004-Ohio-3568, ¶ 20 (determining that
the defendant had not been confined for purposes of R.C. 2967.191 because his
house arrest “was less restrictive, or at least no more restrictive, than the situation
of the defendant in State v. Nagle”).
2
As noted in Blankenship, R.C. 2949.08(C) and R.C. 2967.191 contain nearly identical language with
respect to the provision for the calculation of credit for time served and therefore the analysis of this issue
under R.C. 2967.191 is applicable to the matter at hand.
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{¶17} Even though the court in Blankenship specifically limited its holding
to misdemeanor offenses, we, like the court in Tabor, find the underlying rationale
of Blankenship to be persuasive and applicable to felony offenses.
{¶18} Furthermore, we note that the conditions of Williams’ electronic
monitoring were even less restrictive than the order imposing EMHA in
Blankenship. Unlike the defendant in Blankenship, Williams was not on house
arrest, which requires the offender to remain in the home except when authorized
to leave for employment or other designated purposes. But rather, Williams was
placed on electronic monitoring, which simply involves the use of an electronic
device to monitor and determine an individual’s location. R.C. 2929.01(TT) and
(UU).
{¶19} In reviewing the conditions of electronic monitoring imposed on
Williams as a part of his community control, the only restriction on Williams’
movements was that he had to “abide by curfew, which will be set out by the
Adult Probation Officer.” (State’s Ex. 2, 12/21/09). Other than this restriction,
Williams had unfettered liberty to leave his house on his own volition. Consistent
with the reasoning expressed in Nagle and Blankenship, we conclude that under
the terms of Williams’ electronic monitoring his freedom of movement was not so
severely restrained so as to constitute “confinement” under R.C. 2949.08(C). The
first assignment of error is overruled.
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Second Assignment of Error
{¶20} In the second assignment of error, Williams argues that the trial court
abused its discretion by imposing an unusually harsh sentence for safecracking
without any evidence that it was any more serious than any other offense of
safecracking. Specifically, Williams alleges that the trial court abused its
discretion in applying the factors set forth in R.C. 2929.12(B).
[A] court that imposes a sentence under this chapter upon an
offender for a felony has discretion to determine the most
effective way to comply with the purposes and principles of
sentencing set forth in [R.C. 2929.11]. In exercising that
discretion, the court shall consider the factors set forth in
divisions (B) and (C) of this section relating to the seriousness of
the conduct and the factors provided in divisions (D) and (E) of
this section relating to the likelihood of the offender’s recidivism
and, in addition, may consider any other factors that are
relevant to achieving those purposes and principles of
sentencing.
R.C. 2929.12(A). To find an abuse of discretion, the record must reveal that the
trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Trial courts have
discretion to impose a prison sentence within the statutory range for the offense
from which the conviction stems. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-
856, 845 N.E.2d 470.
{¶21} Here, Williams claims that the trial court’s application of the factors
was arbitrary because the trial court had no evidence that this safecracking offense
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was worse than any other safecracking offense. However, the record reflects that
the trial court did consider the sentencing factors set forth in R.C. 2929.12. (May
5, 2011 Hrg. at 11). The pre-sentence report reveals that Williams has an
extensive juvenile record and has broken the law as an adult on more than one
occasion. The victims in this case were churches and a family center. Williams
has demonstrated a history of theft charges and violating court orders and admits
to occasional marijuana use. According to the institutional summary report,
Williams was disciplined for stealing from the café twice and for disobeying a
direct order. The sentence imposed by the trial court was within the statutory
range for a felony of the fourth degree. Contrary to Williams’ claim, the record
demonstrates that the trial court did apply the appropriate factors under R.C.
2929.12 and that its application of those factors in sentencing Williams was not
unreasonable, arbitrary, or unconscionable.
{¶22} Although Williams correctly alleges that the factors in R.C.
2929.12(B) do not indicate that this offense of safecracking was more serious than
any other safecracking charge, the analysis does not end there. The trial court
must apply the factors in R.C. 2929.12(C), (D), & (E) as well. There were no
applicable factors in R.C. 2929.12(C) which would reduce the seriousness of the
offense. A review of the record indicates that Williams is at a high risk for
recidivism due to his history of juvenile and adult criminal convictions and his
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failure to favorably respond to prior sanctions. R.C. 2929.12(D)(2) and (3).
Williams was sent to prison after his community control was revoked a mere
seven months after it was ordered. R.C. 2929.12(D)(1). The only factor that
reduced the likelihood of recidivism was that Williams expressed some remorse
by cooperating with the police, which was why Williams was originally placed
upon community control. R.C. 2929.12(E). Given the facts before it, the trial
court did not abuse its discretion in applying the factors set forth in R.C. 2929.12.
Thus, the second assignment of error is overruled.
Third Assignment of Error
{¶23} Finally, Williams alleges that he was denied effective assistance of
counsel because his attorney did not advocate for community control. “Reversal
of convictions on ineffective assistance requires the defendant to show ‘first that
counsel’s performance was deficient and second that the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial.’” State v.
Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶105, 772 N.E.2d 81. The defendant
must show that there was a reasonable probability that but for counsel’s error, the
result of the trial would have been different. Id. at ¶108. See also State v. Risch,
3d Dist. No. 16-10-14, 2011-Ohio-3633 and State v. Baughman, 3d Dist. No. 1-
10-34, 2010-Ohio-4951.
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{¶24} Williams argues that counsel was ineffective because she did not
argue for community control at the sentencing. The sentencing hearing from
which Williams is appealing occurred after Williams was originally, though
incorrectly, sentenced to community control for the offenses. Then community
control was revoked for the numerous violations and he was sentenced to prison
for the offenses. On appeal from that sentence, this court remanded to have the
original sentence corrected. This appeal is from that resentencing. Thus,
community control was not a likely outcome regardless of what counsel argued.
Regardless of that fact, counsel argued to have the trial court release Williams
with time served by imposing concurrent sentences rather than consecutive
sentences. (May 5, 2011 Hrg. at 8). A review of the record does not indicate that
counsel’s performance was deficient or that any other course of action would have
resulted in a different outcome. Therefore, the third assignment of error is
overruled.
{¶25} For all these reasons, the judgment of the Hancock County Court of
Common Pleas is affirmed.
Judgment Affirmed
PRESTON, J., concurs.
/jlr
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WILLAMOWSKI, J. Dissenting in Part and Concurring in Part.
{¶26} I dissent from the majority as to the first assignment of error because
I would follow the logic of the Sixth District Court of Appeals in State v. Holmes.
Under the current version of R.C. 2921.01(E), the statutory definition of
“detention” does not exclude supervision and restraint incidental to community
control. In re Nataleen Gould, 5th Dist. No. 07-CA-0099, 2008-Ohio-900.
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 * * *.
R.C. 2949.08(C)(1). In State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819
N.E.2d 1047, the Ohio Supreme Court determined that pre-sentence electronic
home monitoring is not detention and thus not subject to either credit for time
served or as a basis for an escape charge. Id. However, the Supreme Court did
not address the issue as to post-conviction electronic home monitoring. The
Supreme Court was very clear to distinguish pre-sentence forms of detention from
post-conviction forms of detention. Id. at ¶70, 72.
{¶27} In State v. Holmes, 6th Dist. No. L-08-1127, 2008-Ohio-6804, the
defendant was convicted of one count of possession of crack cocaine, a felony of
the fourth degree, and sentenced to community control. As part of his community
control, he was placed on electronically monitored house arrest for 30 days, which
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was completed without violation. Subsequently he violated the terms of his
community control and was sentenced to prison.
The issue in the instant case is whether appellant, while on
electronically monitored house arrest in connection with his
community control was “confined” within the meaning of R.C.
2949.08(C)(1) and, thus, eligible for credit for time so served.
The term “confinement” as used in R.C. 2949.08(C)(1) has been
deemed synonymous with the term “detention” as defined in
R.C. 2921.01(E). * * *
***
In Gould, supra, the case involved a minor defendant who had
been adjudicated delinquent for the charge of gross sexual
imposition. The defendant was placed on community control,
and when she violated the terms of that sentence, she was
restored to probation. As part of her probation, she was placed
on electronically-monitored house arrest. At some point during
this portion of her sentence, the defendant cut off the ankle
bracelet portion of her electronic monitoring device and left
home without permission. As a result of her actions, she was
charged with delinquency by reason of committing escape, in
violation of R.C. 2921.034.
The question for the court in Gould was whether the defendant’s
electronic home monitoring constituted a form of detention
pursuant to R.C. 2921.01(E), so as to support her conviction for
the charge of escape. The court, relying solely on the current
version of the statute-which, unlike the previous versions, makes
no exclusion for supervision and restraint incidental to
probation, parole and release on bail-determined that it was. On
the basis of that determination, the court concluded that the
defendant’s adjudication for the charge of escape was not
against the sufficiency of the evidence.
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We agree with the court’s analysis in Gould, and find that it
applies equally in cases where electronic monitoring is imposed
pursuant to community control.
Taking the analysis a step further, we find that the interests of
justice require that 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. Stated otherwise,
if electronic monitoring is “detention” for prosecuting the crime
of escape, it should likewise be “detention” for time-crediting
purposes.
Holmes, at ¶¶12-19. The logic in Holmes is extremely persuasive. If Williams
had absconded while on electronic monitoring supervision, he could have been
charged with escape. Thus, he should be entitled for time-served credit for the
time he was monitored. Given the logic of Gapen, I find the logic of Holmes to be
much more persuasive than that of Blankenship and Tabor. Therefore, I would
dissent from the majority on the first assignment of error. There clearly is a
dispute among the districts and this is an issue that needs to be addressed by the
Supreme Court. Thus, I would also recommend that the parties apply for
certification of the conflict to the Supreme Court for a determination.
{¶28} I concur in the remaining assignments of error.
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