dissenting. As a general proposition, time spent in a residential treatment house as an express condition of probation should be credited towards the sentence imposed if and when the probation is revoked. Most jurisdictions, including Ohio, have enacted statutes providing that a defendant receive credit on a prison sentence for time during which the defendant was in “custody” or “confinement” as a result of the offense for which he is being sentenced. See Campbell, Law of Sentencing (1978) 262, Section 82; R.C. 2949.08.3
*189I believe R.C. 2949.08 requires that, when time is spent in a highly restrictive environment as a condition of probation, credit must be given if the nature of the restrictions was equivalent to “confinement” -within the meaning of the statute. The majority holds that commitment that is not penal in character does not constitute “confine[ment] * * * arising out of the offense * * *,” and would deny credit to anyone placed in any type of treatment facility except those specifically found to be penal. I think that under certain circumstances the restraints imposed as conditions of probation may be so substantial that the defendant is, in legal effect, “in custody,” although on probation. See McNeil v. Director, Patuxent Institution (1972), 407 U.S. 245. The defendant need not be in a penal setting in order to be “confined” within the meaning of R.C. 2949.08. Custodial confinement takes many forms and has been interpreted to include time spent in a mental hospital,4 a juvenile detention center,5 a diagnostic center,6 a hospital,7 a halfway house,8 and a hotel room.9
I believe that, in enacting R.C. 2949.08, the General Assembly intended that credit be given, upon sentencing, for time spent in special facilities and treatment programs. Upon revocation of probation, a defendant should be entitled to credit against his sentence on the original offense for time spent, as a condition of probation, in a rehabilitation program which imposes substantial restrictions on one’s freedom of movement and behavior.
The restrictions imposed on the appellee in the “Help Is Possible” drug rehabilitation program were sufficiently severe to require credit for the time spent in the program. The “Help Is Possible” program is designed to meet the comprehensive needs of its drug abusing clientele. It is long-term, residential, highly structured and supervised. Residents of this program do not leave the premises, unsupervised, for an initial period of eight to ten months. The residents are not permitted to communicate, in writing, by phone or in visitation with former friends. Communication with family members is subject to screening and approval by the primary counselor. The staff are accustomed to working with court-referred clients and keeping the court apprised of the client’s progress. Should the client leave treatment, the program immediately contacts the referring court.
*190The program emphasizes individual treatment and stresses behavior modification of its residents. Because of its intense emotional development and treatment, the program only takes twenty-five residents at a time. Finally, the resident must meet the requirements of his treatment program prior to being considered for entry into the final phase, which is reintegration to community living. The program imposed on the appellee was rigidly enforced and was emotionally and physically exhausting.
Appellee’s decision to spend eighteen months in-residence at the facility could hardly be said to be “voluntary,” nor was the institution one of his “choice.” Instead, appellee opted for what he perceived to be the lesser of two evils, the alternative being four to fifteen years at the Ohio State Reformatory. The appellee was well aware that he would be returned to jail if he did not comply with the program’s rules or if he left the program without permission. This, coupled with the fact that the appellee did leave the program, apparently preferring to be in jail, further establishes that the appellee was subjected to severe restraints on his freedom of movement.
Accordingly, I would affirm the court of appeals.
The issue of a defendant’s right to credit is also treated in terms of time that the defendant has spent in “custody” or “confinement” in the American Bar Association Standards for Criminal Justice, the Model Penal Code and the Model Sentencing and Corrections Act. Standard 18-4.7 in III ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures (2 Ed. 1980), requires that a defendant receive credit for “all time spent in custody,” with credit specifically granted for time spent in custody prior to trial, during trial, pending sentence, pending resolution of appeal and prior to the arrival at the institution where the sentence will be served. The Model Sentencing and Corrections Act (1978), Section 3-502, 10 U.L.A. (Sped. Pamph. 1985) 98, requires that a defendant be given credit “for all time spent in confinement” prior to the commencement of sentence. In contrast to the ABA Standards for Criminal Justice and the Model Sentencing and Corrections Act, the Model Penal Code (1962), Section 301.1(3), denies credit for time spent in jail as a condition of probation.
People v. Gravlin (1974), 52 Mich. App. 467, 217 N.W. 2d 404, 405.
State v. Hersman (W. Va. 1978), 242 S.E. 2d 559, 561.
State v. Shaw (1979), 202 Neb. 766, 772, 277 N.W. 2d 106, 111.
People, ex rel. Broderick, v. Noble (1960), 26 Misc. 2d 903, 904, 207 N.Y.Supp. 2d 467, 469.
People v. Rodgers (1978), 79 Cal. App. 3d 26, 144 Cal. Rptr. 602.
People, ex rel. Cohalan, v. Warden of City Prison (S. Ct. 1950), 96 N.Y.Supp. 2d 749, 750.