State v. Nagle

Locher, J. In this case, one of first impression in this state, we are called upon to determine whether appellee has a right to credit for time spent in a rehabilitation center. For the reasons to follow, we hold no such right exists and reverse the court of appeals on this issue. I Under Ohio law no statutory requirement is given the courts to credit time spent in a rehabilitation facility prior to commencement of sentence. While some states, such as California, expressly provide that time spent in a rehabilitation center be credited prior to commencement of sentence (see Cal. Penal Code Section 2900.5), Ohio’s analogous statute, R.C. 2949.08, makes no similar provision. R.C. 2949.08(C) states: “The jailer, administrator, or keeper in charge of a jail or workhouse shall reduce the sentence of a person delivered into his custody pursuant to division (A) of this section by the total number of days 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 his competence to stand trial or to determine sanity, and confinement while awaiting transportation to the place where he is to serve his sentence.” The operative language of the statute is: “confined for any reason arising out of the offense for which the prisoner was convicted and sentenced.” Our preliminary inquiry must be to construe “confined” to ascertain whether a stay in a rehabilitation center is envisioned thereunder. It is also important in our analysis to note that appellee had been convicted and sentenced prior to his stay at the rehabilitation facility. The execution of sentence was suspended contingent upon probation which, in turn, was conditioned upon spending eighteen months in the rehabilitation facility. Examination of R.C. 2949.08(C) shows the legislative view of confinement includes “confinement in lieu of bail while awaiting trial, confinement for examination to determine his competence to stand trial or to determine sanity, and confinement while awaiting transportation to the place where he is to serve his sentence.” It is instructive to note that in none of these specified circumstances may the defendant leave official custody of his own volition. In contrast, the rehabilitation facility imposed restrictions upon appellee’s freedom of action to the [187] extent communications with family or friends were restricted or monitored. Yet, appellee’s freedom of movement was not so severely restrained, i.e., he indeed did voluntarily depart the facility. R.C. 2951.04(F) indicates in pertinent part: “* * * If, at any time after treatment [at a rehabilitation facility] has commenced, the treating facility or program reports to the probation officer that the offender fails to submit to or follow the prescribed treatment * * *, [s]uch failure and removal shall be considered by the court as a violation of the conditions of probation and dealt with according to law as in other cases of probation violation.” (Emphasis added.) It seems to us apparent that no special treatment is afforded a stay in a rehabilitation facility beyond that accorded to any other condition of probation subsequently violated.1 II Appellee suggests that there is out-of-state precedent to support his position. Several of the cases cited by appellee, however, most notably People v. Rodgers (1978), 79 Cal. App. 3d 26, 144 Cal. Rptr. 602; People v. Sylvestry (1980), 112 Cal. App. 3d Supp. 1, 169 Cal. Rptr. 575; People v. Stange (1979), 96 Mich. App. 596, 283 N.W. 2d 806; and Lock v. State (Alaska 1980), 609 P. 2d 539, are distinguishable from the instant case. In Rodgers and Sylvestry, the relevant California credit for time statute, Cal. Penal Code Section 2900.5, expressly included rehabilitation facilities. In Stange the result was premised upon Michigan’s pre-sentencing statute, Mich. Comp. Laws. Ann. Section 769.11b. Cf. People v. Chamberlain (1984), 136 Mich. App. 642, 358 N.W.2d 572 (contrary result reached in a post-sentencing case). The Lock case also involved a pre-sentencing statute, Alaska Stat. 11.05.040. In short, “most jurisdictions do not credit time spent on probation upon subsequent revocation and resentencing.” Annotation, Defendant’s Right to Credit for Time Spent in Halfway House, Rehabilitation Center, or Other Restrictive Environment as Condition of Probation (1983), 24 A.L.R. 4th 789, 791. See, e.g., State v. Babcock (1979), 226 Kan. 356, 597 P. 2d 1117; Grant v. State (Nev. 1983), 659 P. 2d 878. It is our view that appellee’s position is not supported by the statute providing reduction of sentence for prior confinement, R.C. 2949.08, taken in the context of the examples of confinement therein and when read in pari materia with R.C. 2951.04(F), which indicates failure to follow prescribed rehabilitation treatment is to be treated the same as any other probation violation. Similarly, we are not persuaded by decisions in other jurisdictions which are based upon particular statutes inapposite to [188] our own.2 Accordingly, we hold that when a defendant’s sentence has been suspended and he has been placed on conditional probation pursuant to R.C. 2951.04 and later violates the terms of such probation, the trial court is not required to credit time spent in a rehabilitation facility against any sentence originally imposed. We therefore reverse the judgment of the court of appeals herein on the issue; the judgment of the trial court is reinstated. Judgment reversed in part and judgment of trial court reinstated. Celebrezze, C.J., Sweeney, Holmes, C. Brown and Douglas, JJ., concur. Wright, J., dissents. Footnotes [1] In such instances this court has indicated a judge is at liberty to impose an even greater sentence than originally suspended. State v. McMullen (1983), 6 Ohio St. 3d 244. See, also, State, ex rel. Freeman, v. Dept. of Rehabilitation & Correction (1982), 10 Ohio App. 3d 172. [2] Appellee also raised the point that the failure to give him credit would be a denial of the Equal Protection Clauses of the United States and Ohio Constitutions. This argument, however, is raised for the first time herein and was not argued or raised below. Accordingly, it is not timely raised. Moreover it has been noted, “[t]hose courts which have faced the issue have been in general agreement that the right to credit for time spent in a restrictive environment other than jail as a condition of probation is not a question involving any right of the defendant under the state or federal constitutions.” Annotation, Defendant’s Right to Credit for Time Spent in Halfway House, Rehabilitation Center or Other Restrictive Environment as Condition of Probation (1983), 24 A.L.R. 4th 789, 792; Harkins v. Wyrick (C.A. 8,1979), 589 F. 2d 387; Makal v. Arizona (C.A. 9, 1976), 544 F. 2d 1030, certiorari denied (1977), 430 U.S. 936.