State v. Reed (Slip Opinion) , 2020 Ohio 4255 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Reed, Slip Opinion No. 2020-Ohio-4255.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4255
THE STATE OF OHIO, APPELLANT, v. REED, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Reed, Slip Opinion No. 2020-Ohio-4255.]
Criminal law—R.C. 2967.191(A)—Jail-time credit—Postconviction house arrest
and electronic monitoring—Jail-time credit is given for confinement in a
public or private facility, not in a residence—A defendant is not entitled to
jail-time credit for days he spent in postconviction house arrest.
(No. 2019-0631—Submitted April 7, 2020—Decided September 1, 2020.)
APPEAL from the Court of Appeals for Erie County,
No. E-17-037, 2019-Ohio-1266.
_________________
KENNEDY, J.
{¶ 1} In this discretionary appeal from the Sixth District Court of Appeals,
we are asked to determine whether a defendant is entitled to jail-time credit for the
days he was on postconviction house arrest and postconviction electronic
SUPREME COURT OF OHIO
monitoring. Before we can make that determination, we must first establish which
statute applies to appellee Eric Reed’s request for jail-time credit.
{¶ 2} The state’s proposition of law and both parties’ arguments cite R.C.
2949.08(C)(1). However, R.C. 2949.08(C)(1) applies to the reduction of a sentence
when a person is sentenced to jail for a felony or misdemeanor. Reed’s sentence
was to be served in prison, not jail. R.C. 2967.191(A), which guides the reduction
of a sentence for a person sentenced to a term in prison, applies to the determination
whether Reed is entitled to jail-time credit for the time he spent on postconviction
house arrest. Because the relevant language is the same in both R.C. 2967.191(A)
and 2949.08(C)(1), the parties’ arguments apply with equal force to an
interpretation of R.C. 2967.191(A).
{¶ 3} Based on the plain and unambiguous language of R.C. 2967.191(A),
we conclude that a defendant is not entitled to jail-time credit for those days.
Therefore, we reverse the judgment of the court of appeals, which reversed the trial
court’s judgment denying credit for the days the defendant was on house arrest and
electronic monitoring, and we reinstate the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 4} The Erie County Grand Jury returned a three-count indictment against
Reed for (1) promoting or engaging in criminal conduct while actively participating
in a criminal gang, in violation of R.C. 2923.42, (2) aggravated rioting, in violation
of R.C. 2917.02(A)(2), and (3) assault, in violation of R.C. 2903.13(A). On July
14, 2015, Reed pleaded guilty to the charge involving criminal-gang activity. The
remaining charges—aggravated rioting and assault—were dismissed. The trial
court sentenced him to community-control sanctions for a period of five years,
beginning on August 25, 2015, and stated that if he failed to comply with those
sanctions, he would serve a term of imprisonment of five years.
{¶ 5} Reed acknowledged the conditions of his release in a form issued by
the Erie County Adult Probation Department. The form noted that Reed was
2
January Term, 2020
required to obey all state laws and that the probation department had the authority
to revoke or modify the conditions of his community-control sanctions.
{¶ 6} In December 2015, Reed was placed on house arrest after he violated
terms of his community control, and in March 2016, he was placed on electronic
monitoring after new charges were brought against him.
{¶ 7} On October 25, 2016, Reed made an initial appearance before the trial
court for violating the terms and conditions of his community-control sanctions.
After a series of continuances, a hearing was held on July 7, 2017. Reed admitted
that he had violated the terms and conditions of his community control. He asserted
during the hearing that he was entitled to jail-time credit for the time he was on
standard house arrest and electronic monitoring. The trial court denied Reed’s
motion for jail-time credit, found that he had violated the terms of his community-
control sanctions, and imposed a “definite sentence for the term of five (5) years.”
Reed appealed to the Sixth District Court of Appeals.
{¶ 8} The appellate court reversed, stating that as used in R.C.
2949.08(C)(1), the term “confinement” is “synonymous with the term ‘detention’
as defined in R.C. 2921.01(E).” 2019-Ohio-1266, 133 N.E.3d 1068, ¶ 11, citing
State v. Holmes, 6th Dist. Lucas No. L-08-1127, 2008-Ohio-6804, ¶ 12, and State
v. Sutton, 6th Dist. Lucas No. L-03-1104, 2004-Ohio-2679, ¶ 13. The court of
appeals explained that R.C. 2921.01(E) had at one time excluded “ ‘supervision and
restraint incidental to probation, parole and release on bail,’ ” id. at ¶ 12, quoting
Holmes at ¶ 15, but that the current statute did not contain that exclusion. The
court held that Reed was entitled to jail-time credit for the time he was on house
arrest and electronic monitoring. Id. at ¶ 18.
{¶ 9} The state appealed, and we accepted one proposition of law:
A criminal defendant is not entitled to detention-time credit
for time spent on postconviction house arrest, as the term
3
SUPREME COURT OF OHIO
“confinement” used in R.C. 2949.08(C)(1) is not synonymous with
the terms “detention” as defined in R.C. 2921.01(E), a defendant’s
freedom of movement during house arrest is not restrained such that
he or she could not leave his or her own home of his and her own
volition, and the fact a defendant may face consequences for
choosing to violate house arrest does not transform house arrest into
confinement and should not be considered by a court.
See 156 Ohio St. 3d 1463, 2019-Ohio-2892, 126 N.E.3d 1175. As stated above, we
modify the state’s proposition of law to address R.C. 2967.191(A).
POSITIONS OF THE PARTIES
{¶ 10} The state contends that the Sixth District erred in using the definition
of “detention” from R.C. 2921.01(E), which by its express terms applies only to
R.C. 2921.01 through 2921.45, to define the word “confinement” in R.C.
2949.08(C)(1). For this reason, the state maintains that the court of appeals
improperly relied on its precedent holding that postconviction house arrest is
detention for the purpose of awarding jail-time credit. Further, the state argues that
house arrest does not fall under the definition of “detention,” because an offender’s
home is not a “public or private facility for custody of persons charged with or
convicted of crime,” R.C. 2921.01(E). According to the state, house arrest is not
“confinement,” because a defendant’s freedom of movement is not severely
restrained while on house arrest and a defendant can leave his home of his own
accord.
{¶ 11} Reed points out that R.C. Chapter 2949 does not define the word
“confinement,” and he argues that it was reasonable for the Sixth District, in giving
the word its common, ordinary, and accepted meaning, to use “the next closest term
for which a Revised Code definition existed—the analogous term of ‘detention’
under R.C. 2921.01(E).” He contends that the word “confinement” is ambiguous
4
January Term, 2020
and therefore that the rule of lenity should apply to construe its meaning in favor of
reducing his sentence. Reed maintains that he could have been prosecuted for
escape if he had walked away from his house without authorization, just as if he
had escaped from prison. He notes that he was not free to come and go as he wished
but that his schedule was set by his probation officer in advance, and he argues that
therefore, his house arrest was a detention in a private facility for the custody of a
person convicted of a crime.
LAW AND ANALYSIS
{¶ 12} Because the issue raised by the proposition of law involves “the
interpretation of a statute, which is a question of law, we review the court of
appeals’ judgment de novo.” State v. Pariag, 137 Ohio St. 3d 81, 2013-Ohio-4010,
998 N.E.2d 401, ¶ 9, citing Med. Mut. of Ohio v. Schlotterer, 122 Ohio St. 3d 181,
2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.
{¶ 13} “When the statutory language is plain and unambiguous, and
conveys a clear and definite meaning, we must rely on what the General Assembly
has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St. 3d 330, 2003-Ohio-
1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio
St.3d 549, 553, 721 N.E.2d 1057 (2000).
“In the case of such unambiguity, it is the established policy of the
courts to regard the statute as meaning what it says, and to avoid
giving it any other construction than that which its words demand.
The plain and obvious meaning of the language used is not only the
safest guide to follow in construing it, but it has been presumed
conclusively that the clear and explicit terms of a statute expresses
[sic] the legislative intention, so that such plain and obvious
provisions must control. A plain and unambiguous statute is to be
applied, and not interpreted, since such a statute speaks for itself,
5
SUPREME COURT OF OHIO
and any attempt to make it clearer is a vain labor and tends only to
obscurity.”
(Bracketed material added in Jasinsky.) Jasinsky v. Potts, 153 Ohio St. 529, 534,
92 N.E.2d 809 (1950), quoting 50 American Jurisprudence 2d, Section 22, at 205-
207 (1944).
{¶ 14} The General Assembly provides for jail-time credit in R.C.
2967.191(A) for those sentenced to prison. While both the state and Reed focus on
the meaning of the word “confinement,” we focus instead on the language
describing the types of confinement that entitle a defendant to jail-time credit. The
statute provides:
The department of rehabilitation and correction shall reduce
the prison term of a prisoner, as described in division (B) of this
section, 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, confinement while
awaiting transportation to the place where the prisoner is to serve
the prisoner’s prison term, as determined by the sentencing court
under division (B)(2)(g)(i) of section 2929.19 of the Revised Code,
and confinement in a juvenile facility. The department of
rehabilitation and correction also 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, if any,
that the prisoner previously served in the custody of the department
6
January Term, 2020
of rehabilitation and correction arising out of the offense for which
the prisoner was convicted and sentenced.
Id.
{¶ 15} This statute uses the word “including,” and “use of the word
‘include’ can signal that the list that follows is meant to be illustrative rather than
exhaustive,” Samantar v. Yousuf, 560 U.S. 305, 317, 130 S. Ct. 2278, 176 L. Ed. 2d
1047 (2010). In these circumstances, “the general or unstated terms in the
definition should be determined with reference to the terms expressly included.”
Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St. 3d 142, 150-151, 735
N.E.2d 433 (2000). By providing an illustrative list of the types of confinement
that qualify for a jail-time credit, the General Assembly has demonstrated that it
intends that credit should not be given for all types of confinement. Otherwise, the
General Assembly would not have included the illustrative list. But the list was
included. It must be given effect; if not, it would be superfluous. But we are
obligated to give effect to every word in a statute and avoid a construction that
would render any provision superfluous. Rhodes v. New Philadelphia, 129 Ohio
St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 23.
{¶ 16} The list sets out the types of confinement that entitle a defendant to
jail-time credit. A defendant imprisoned for a felony or misdemeanor is entitled to
a credit if he was confined while waiting for trial, for a determination of
competency or sanity, or for transportation to the place where the sentence is to be
served or if he was confined in a juvenile facility. See R.C. 2152.04 (permitting a
juvenile to be confined in a juvenile detention facility for up to 90 days prior to
disposition of charges against the juvenile). Each of these situations involves a
public or private facility intended for penal confinement. The legislature has
expressed the intent that credit is to be given only for the time the defendant is
7
SUPREME COURT OF OHIO
confined in a public or private facility. Confinement in a personal residence,
therefore, does not qualify under the statute.
{¶ 17} “The words of a governing text are of paramount concern, and what
they convey, in their context, is what the text means.” Scalia and Garner, Reading
Law: The Interpretation of Legal Texts, 56 (2012). “Judges have no inherent power
to create sentences.” State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942
N.E.2d 332, ¶ 22, citing Griffin & Katz, Ohio Felony Sentencing Law, Section 1:3,
at 4 (2008), fn. 1. “Rather, judges are duty bound to apply sentencing laws as they
are written.” Id. R.C. 2967.191(A) therefore does not provide a credit for
postconviction confinement in a personal residence.
{¶ 18} In this case, after violating the terms and conditions of his
community-control sanctions, Reed was placed on standard house arrest and
electronic monitoring. Because the General Assembly does not provide a credit for
postconviction house arrest and electronic monitoring to be applied against the
sentence imposed for a violation of the conditions of community control, the trial
court did not err in denying Reed’s motion for jail-time credit.
CONCLUSION
{¶ 19} R.C. 2967.191(A) is plain and unambiguous and limits a jail-time
credit to specific types of confinement, those in which the defendant is confined in
a public or private facility. The statute does not provide for a reduction in sentence
for a term of postconviction house arrest or electronic monitoring imposed for
violating community-control sanctions.
Judgment reversed.
FRENCH, FISCHER, and DEWINE, JJ., concur.
O’CONNOR, C.J., concurs in judgment only.
DONNELLY, J., dissents, with an opinion joined by STEWART, J.
_________________
DONNELLY, J., dissenting.
8
January Term, 2020
{¶ 20} According to the majority, jail-time credit for confinement is earned
by defendants who have been sentenced to serve time in a public or private facility
but not by defendants sentenced to serve time on house arrest with electronic
monitoring. But the majority’s distinction is not supported by statutory law and is
inconsistent with statutory history. Because I believe the Sixth District Court of
Appeals reached the right result, I respectfully disagree with the majority’s decision
to reverse that court’s judgment.
{¶ 21} The record here reflects that appellee, Eric Reed, entered a plea of
guilty to one count of criminal-gang activity in violation of R.C. 2923.42. The trial
court sentenced him to the maximum five years of community control, beginning
on August 25, 2015, stating that a failure to comply with those sanctions could
result in a five-year prison term. See R.C. 2929.15(A)(1). After Reed violated the
terms of community control, the trial court imposed more restrictive sanctions
pursuant to R.C. 2929.15(B)(1)(b) and 2929.17(B), consisting of a term of house
arrest with electronic monitoring. Reed was charged several months later with
violating the terms and conditions of his community-control sanctions, and the trial
court ultimately revoked Reed’s sanctions, sentenced him to serve a five-year
prison term, and denied his motion for jail-time credit.
{¶ 22} The majority says Reed’s house arrest with electronic monitoring
does not qualify as “confinement” that would make him eligible for jail-time credit
under R.C. 2967.191(A). For the reasons that follow, I respectfully disagree.
{¶ 23} R.C. 2967.191(A) reads as follows:
The department of rehabilitation shall reduce the prison term of a
prisoner, as described in division (B) of this section, 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,
9
SUPREME COURT OF OHIO
confinement for examination to determine the prisoner’s
competence to stand trial or sanity, confinement while awaiting
transportation to the place where the prisoner is to serve the
prisoner’s prison term, as determined by the sentencing court under
division [(B)(2)(g)(i)] of section 2929.19 of the Revised Code, and
confinement in a juvenile facility.
(Emphasis added.)
{¶ 24} “ ‘[I]ncluding’ implies that that which follows is a partial, not an
exhaustive listing of all that is subsumed within the stated category. ‘Including’ is
a word of expansion rather than one of limitation or restriction.” In re Hartman, 2
Ohio St. 3d 154, 156, 433 N.E.2d 516 (1983). The General Assembly’s use of the
word “including” thus signifies that what follows is intended to be illustrative but
not exhaustive. See, e.g., Trans Rail Am., Inc. v. Enyeart, 123 Ohio St. 3d 1, 2009-
Ohio-3624, 913 N.E.2d 948, ¶ 28 (“The statute says that ‘action’ or ‘act’ includes
certain things, thus showing the General Assembly’s intent to illustrate the types of
actions that may be appealable, rather than to set out an exhaustive list” [emphasis
sic]).
{¶ 25} R.C. 2967.191(A) unequivocally permits jail-time credit for the total
number of days that the defendant “was confined for any reason arising out of the
offense for which the [defendant] was convicted and sentenced.” R.C. 2967.191(A)
does not on its face limit or restrict the form of confinement for which jail-time
credit shall be given. And the General Assembly has made clear that house arrest
is confinement.
{¶ 26} Specifically, R.C. 2929.01(P) provides:
“House arrest” means a period of confinement of an offender
that is in the offender’s home or in other premises specified by the
10
January Term, 2020
sentencing court or by the parole board pursuant to section 2967.28
of the Revised Code and during which all of the following apply:
(1) The offender is required to remain in the offender’s home
or other specified premises for the specified period of confinement,
except for periods of time during which the offender is at the
offender’s place of employment or at other premises as authorized
by the sentencing court or by the parole board.
(2) The offender is required to report periodically to a person
designated by the court or parole board.
(3) The offender is subject to any other restrictions and
requirements that may be imposed by the sentencing court or by the
parole board.
(Emphasis added.)
{¶ 27} Thus, by the express terms of R.C. 2929.01(P), house arrest that
contains the three elements set forth is “confinement.”
{¶ 28} In this case, Reed was sentenced to house arrest with electronic
monitoring under R.C. 2929.17(B). His ability to leave his residence was restricted
and subject to stringent conditions imposed by his probation officer. To the extent
his house arrest met the test of R.C. 2929.01(P), it was confinement. And because
he was confined for a reason arising out of the offense for which he was convicted
and sentenced, the time he served under house arrest qualifies for jail-time credit
under R.C. 2967.191(A).
{¶ 29} According to the majority, however, “[t]he legislature has expressed
the intent that credit is to be given only for the time the defendant is confined in a
public or private facility. Confinement in a personal residence, therefore, does not
qualify under the statute.” Majority opinion at ¶ 16. But the text of R.C.
2967.191(A) does not limit or restrict jail-time credit to time served in a “public or
11
SUPREME COURT OF OHIO
private facility.” To reach its result, the majority effectively adds those words to
the text of R.C. 2967.191(A) to justify its newfound limitation. That is improper,
for in matters of statutory construction, our duty is to give effect to the words used,
not to delete words that were used or insert words that were not used. See Cleveland
Elec. Illum. Co. v. Cleveland, 37 Ohio St. 3d 50, 524 N.E.2d 441 (1988), paragraph
three of the syllabus. See also Griffith v. Aultman Hosp., 146 Ohio St. 3d 196, 2016-
Ohio-1138, 54 N.E.3d 1196, ¶ 18 (“We apply the statute as written * * * and we
refrain from adding or deleting words when the statute’s meaning is clear and
unambiguous”).
{¶ 30} The majority cites Henley v. Youngstown Bd. of Zoning Appeals, 90
Ohio St. 3d 142, 735 N.E.2d 433 (2000), in which the court, when reviewing a
zoning ordinance, applied the canon of ejusdem generis to determine the general or
unstated terms by referring to the terms expressly included in the ordinance’s
definition of an “accessory building.” But R.C. 2967.191(A) is not definitional,
and the mere fact that it lists examples of confinement does not by any means
suggest a legislative intent to restrict the allowance of jail-time credit to only those
days a person was confined in a public or private facility.
{¶ 31} If it were the General Assembly’s intent to deny jail-time credit for
the time an offender served on electronically monitored house arrest, it certainly
knew how to do so because it had done so previously. Former R.C. 2929.23(B)(2),
148 Ohio Laws, Part IV, 8353, 8386, provided as follows:
If an eligible offender violates any of the restrictions or
requirements imposed upon the eligible offender as part of the
eligible offender’s period of electronically monitored house arrest,
the eligible offender shall not receive credit for any time served on
electronically monitored house arrest toward any prison term or
sentence of imprisonment imposed upon the eligible offender for the
12
January Term, 2020
offense for which the period of electronically monitored house arrest
was imposed.
{¶ 32} The General Assembly removed that language effective January 1,
2004. See 149 Ohio Laws, Part I, 9484, 9676. I am not aware of any other provision
of the current Revised Code that revived its provisions. The removal of that
language, coupled with the nonrestrictive language in R.C. 2967.191(A), shows
that it is no longer the General Assembly’s intent to deny jail-time credit for time
that offenders serve under electronically monitored house arrest.
{¶ 33} I agree with the majority that “confinement” contemplates a restraint
on a defendant’s ability to come and go without permission. In my view, however,
house arrest coupled with electronic monitoring imposes restraints on the
defendant’s freedom to come and go as he pleases. An electronic monitoring device
tracks the defendant’s movements and registers any attempts to remove, alter, or
tamper with its operation. See R.C. 2929.01(UU).
{¶ 34} The terms of Reed’s house arrest expressly define any permitted
departures from the premises and by implication prohibit any unauthorized
departures. The electronic monitoring device operates in place of facility staff to
regulate a defendant’s permitted actions. All costs associated with the defendant’s
house arrest are borne by a defendant or the owner of the residential premises rather
than by the public through the costs of incarceration and staffing of the public or
private facility.
{¶ 35} Fundamentally, however, the relevant statutory law expressly
authorizes jail-time credit for time spent in confinement for any reason arising out
of the offense for which the defendant was convicted and sentenced. R.C.
2967.191(A). To the extent there may be ambiguity in R.C. 2967.191(A), I would
apply the rule of lenity, which requires that statutes defining offenses or penalties
be strictly construed against the state and liberally construed in favor of an accused,
13
SUPREME COURT OF OHIO
R.C. 2901.04(A); State v. Pendergrass, __ Ohio St.3d __, 2020-Ohio-3335, ___
N.E.3d ___, ¶ 25. The rule of lenity must be applied to the interpretation of criminal
statutes.
{¶ 36} Because I believe the majority has misconstrued R.C. 2967.191(A)
in a way that is contrary to its terms and legislative intent, I respectfully dissent and
would affirm the judgment of the Sixth District Court of Appeals.
STEWART, J., concurs in the foregoing opinion.
_________________
Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista
III, Assistant Prosecuting Attorney, for appellant.
Brian A. Smith Law Firm, L.L.C., and Brian A. Smith, for appellee.
_________________
14