Court of Appeals of Ohio, Twelfth District, Warren
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No.
P. Fornshell, Warren Prosecuting Attorney, Kirsten A. Brandt,
520 Justice Drive, Lebanon, Ohio 45036, for
Kaufman & Florence, William Robert Kaufman, 144 East
Mulberry, P.O. Box 280, Lebanon, Ohio 45036, for
1} Plaintiff-appellant, the state of Ohio, appeals
the decision of the Warren County Court of Common Pleas
granting defendant-appellee, Ashley N. Hurst, 17 days of
jail-time credit for the time she spent on electronically
monitored house arrest ("EMHA") in accordance with
this court's prior decision in State v.
Fillinger, 12th Dist. Madison No. CA2016-04-015,
2016-Ohio-8455. For the reasons outlined below, we reverse
the trial court's decision and remand for further
and Procedural History
2} On January 17, 2017, the Warren County Grand Jury
returned an indictment charging Hurst with single counts of
unauthorized use of property in violation of R.C. 2913.04(A)
and misuse of credit cards in violation of R.C.
2913.21(B)(2), both fifth-degree felonies. Hurst was
subsequently arraigned and released on her own recognizance
upon entering a plea of not guilty to both charges.
3} On March 1, 2017, after accepting the state's
plea offer, Hurst pled guilty to the unauthorized use of
property charge in exchange for dismissal of the misuse of a
credit card charge. After accepting Hurst's guilty plea,
the trial court committed Hurst to the Warren County Jail
pending sentencing. Two weeks later, on March 15, 2017, the
trial court sentenced Hurst to three years of community
control. As part of her community control sanctions, Hurst
was ordered to enter and successfully complete the Warren
County drug court program, including any aftercare as
4} On March 24, 2017, the trial court issued an
order directing the Warren County jail to place Hurst on EMHA
prior to her release. Thereafter, on April 11, 2017, several
days after Hurst was released, Hurst's probation officer
filed a report alleging Hurst had violated the conditions of
her community control by submitting a positive drug screen
indicating she had used opiates. The report also alleged that
Hurst had admitted to using heroin.
5} On April 12, 2017, the trial court held a hearing
on the community control violation, wherein Hurst pled guilty
to violating community control as alleged. After entering her
guilty plea, which the trial court accepted, the trial court
continued Hurst on community control with more restrictive
sanctions and further ordered Hurst to remain in the Warren
County drug court program.
6} On April 19, 2017, Hurst's probation officer
filed another report alleging Hurst had again violated the
conditions of her community control by submitting a positive
drug screen which indicated she had used opiates. That same
day, the trial court held a hearing on Hurst's reported
violation, wherein Hurst once again pled guilty to violating
community control as alleged. After accepting Hurst's
guilty plea, the trial court committed Hurst to the Warren
County Jail pending a further review hearing.
7} On April 26, 2017, the trial court held a review
hearing and again continued Hurst's community control
with even more restrictive sanctions. The trial court also
ordered Hurst be placed on EMHA for 60 days. As part of this
hearing, and over the state's objection, the trial court
then granted Hurst 129 days of jail-time credit, which in
accordance with this court's prior decision in
Fillinger, included 17 days that Hurst had
previously spent on EMHA. It is undisputed that while on
EMHA, Hurst could have left her home on her own volition at
any time and was in fact permitted to leave her home to
attend AA and NA meetings for nine hours a week, her
cognitive intervention program for three hours a week, and to
visit her probation officer one hour a week, as well as to
attend court hearings and for any medical emergencies. Hurst
was also permitted to return to her previous residence to
pick up her belongings so that she could move to a new home.
8} With leave from this court, the state now appeals
the trial court's decision to grant Hurst 17 days of
jail-time credit for the time she spent on EMHA in accordance
with this court's prior decision in Fillinger.
Holding in State v. Fillinger, Jail-Time ...