[Cite as State v. Tabor, 2011-Ohio-3200.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : 

 : 

BRIAN TABOR : 

 : 

 Defendant-Appellant : 

JUDGES: 

Hon. Sheila G. Farmer, P.J. 

Hon. Julie A. Edwards, J. 

Hon. Patricia A. Delaney, J. 

Case No. 11CA33 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, 

Case No. 2007CR100D 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 24, 2011 

 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

DANIEL J. BENOIT BRIAN TABOR, PRO SE 

38 South Park Street Inmate No. A574-130 

Mansfield, OH 44902 N.C.C.T.F. 

 2000 South Avon-Belden Road 

 Grafton, OH 44044 
Richland County, Case No. 11CA33 2

Farmer, P.J. 

{¶1} On August 28, 2007, appellant, Brian Tabor, was sentenced to five years 

of community control in the case sub judice. On May 13, 2008, appellant was ordered 

to complete a treatment program at the Licking–Muskingum Community Correction 

Center (hereinafter "LMCCC"). Thereafter, appellant was released from treatment and 

placed on electronic monitoring. Due to repeated probation violations, appellant was 

ordered to serve twelve months in prison. See, Journal Entry filed December 8, 2009. 

{¶2} On March 4, 2011, appellant filed a motion for jail time credit for the period 

of time he spent in the LMCCC and on electronic monitoring. By order filed March 11, 

2011, the trial court credited appellant with 88 days for his time spent in the LMCCC, 

and denied credit for the electronic monitoring as that was not "confinement" within the 

meaning of the jail time credit statute. 

{¶3} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignment of error is as follows: 

I 

{¶4} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO 

GIVE THE DEFENDANT/APPELLANT JAIL TIME CREDIT AGAINST THE IMPOSED 

PRISON SENTENCE FOR TIME CONFINED ON ELECTRONIC MONITORED HOUSE 

ARREST, WHILE ON COMMUNITY CONTROL. THIS DENIED HIS DUE PROCESS 

RIGHTS IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE U.S. 

CONSTITUTION AND THE ARTICLE 1, SECTION 10 OF THE CONSTITUTION OF 

THE STATE OF OHIO, AND CONTRARY TO OHIO REVISED CODE SECTION 

2967.191 AND OHIO REVISED CODE, SECTION 2949.08(D)." 
Richland County, Case No. 11CA33 3

{¶5} This case comes to us on the accelerated calendar pursuant to App.R. 

11.1 which states the following in pertinent part: 

{¶6} "(E) Determination and judgment on appeal 

{¶7} "The appeal will be determined as provided by App.R. 11.1. It shall be 

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's 

decision as to each error to be in brief and conclusionary form. 

{¶8} "The decision may be by judgment entry in which case it will not be 

published in any form.***" 

{¶9} This appeal shall be considered in accordance with the aforementioned 

rule. 

I 

{¶10} Appellant claims the trial court erred in failing to give him jail time credit for 

the electronic monitoring he served while on community control. We disagree. 

{¶11} By order filed March 11, 2011, the trial court found "[e]lectronic monitoring 

is not 'confinement' within the meaning of the jail credit statute, and that portion of 

defendant's motion is overruled." 

{¶12} A copy of the electronic monitoring requirements is not included in the file. 

All we have before us is an affidavit by appellant filed on March 4, 2011 wherein he 

averred the following: 

{¶13} "I am the Defendant in the above captioned case. The Defendant was 

required to participate in Electronic Monitoring during Re-Entry Program as part of his 

sentence in Case No. #07-CR-0100, and would have been subject to an escape charge 

under O.R.C. Section 2929.34 if he had left without permission, failed to return to home, 
Richland County, Case No. 11CA33 4

or removed, altered or in any way tampered with electronic monitor. The Defendant 

was not permitted to leave home between 10 PM till 6 AM. until after the Defendant 

finished his programming. Likewise, the Defendant could not have visits during this 

period. Defendant was never allowed to leave Richland County, without permission. 

He was required to attend twelve step recovery meetings, and he was required to have 

his attendance verified. During Re-Entry programming the Defendant remained under 

significant restrictions." 

{¶14} Pursuant to R.C. 2949.08(C)(1): 

{¶15} "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***." 

{¶16} The issue in this case is whether appellant's electronic monitoring 

constitutes "confinement." Because the word "confinement" is not defined in the 

criminal code, courts use the word "detention" as a substitute which is defined in R.C. 

2921.01(E) as follows: 

{¶17} " 'Detention' means arrest; confinement in any vehicle subsequent to an 

arrest; confinement in any public or private facility for custody of persons charged with 

or convicted of crime in this state or another state or under the laws of the United States 

or alleged or found to be a delinquent child or unruly child in this state or another state 

or under the laws of the United States; hospitalization, institutionalization, or 

confinement in any public or private facility that is ordered pursuant to or under the 
Richland County, Case No. 11CA33 5

authority of section 2945.37, 2945.371, 2945.38, 2945.39, 2945.40, 2945.401, or 

2945.402 of the Revised Code; confinement in any vehicle for transportation to or from 

any facility of any of those natures; detention for extradition or deportation; except as 

provided in this division, supervision by any employee of any facility of any of those 

natures that is incidental to hospitalization, institutionalization, or confinement in the 

facility but that occurs outside the facility; supervision by an employee of the department 

of rehabilitation and correction of a person on any type of release from a state 

correctional institution; or confinement in any vehicle, airplane, or place while being 

returned from outside of this state into this state by a private person or entity pursuant to 

a contract entered into under division (E) of section 311.29 of the Revised Code or 

division (B) of section 5149.03 of the Revised Code. For a person confined in a county 

jail who participates in a county jail industry program pursuant to section 5147.30 of the 

Revised Code, 'detention' includes time spent at an assigned work site and going to and 

from the work site." 

{¶18} 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. 

{¶19} 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 
Richland County, Case No. 11CA33 6

a condition of postconviction probation." Although Blankenship involved a misdemeanor 

case, we agree with the well-reasoned analysis therein. 

{¶20} Upon review, we find the trial court did not err in denying appellant jail time 

credit for his time spent on electronic monitoring. 

{¶21} The sole assignment of error is denied. 

{¶22} The judgment of the Court of Common Pleas of Richland County, Ohio is 

hereby affirmed. 

By Farmer, P.J. 

Edwards, J. and 

Delaney, J. concur. 

 _s/Sheila G. Farmer__________________ 

 _s/ Julie A. Edwards__________________ 

 _s/ Patricia A. Delaney________________ 

 JUDGES 

SGF/sg 614 
Richland County, Case No. 11CA33 7

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

BRIAN TABOR : 

 : 

 Defendant-Appellant : CASE NO. 11CA33 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to 

appellant. 

 

 _s/Sheila G. Farmer__________________ 

 _s/ Julie A. Edwards__________________ 

 _s/ Patricia A. Delaney________________ 

 JUDGES