[Cite as State v. Boscarino, 2019-Ohio-3917.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28253 : v. : Trial Court Case No. 2011-CR-2802 : NIKOLAOS BOSCARINO : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 27th day of September, 2019.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
NIKOLAOS BOSCARINO, Inmate No. 676-278, London Correctional Institution, P.O. Box 69, London, Ohio 43140 Defendant-Appellant, Pro Se
.............
DONOVAN, J. -2-
{¶ 1} On December 21, 2012, following a jury trial, Nikolaos Boscarino was found
guilty of one count of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the
first degree; one count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the
first degree; and one count of resisting arrest, in violation of R.C. 2921.33(B), also a
misdemeanor of the first degree. The court found that Boscarino was a repeat violent
offender and imposed a mandatory prison term of seven years for felonious assault, as
well as 180 days in the Montgomery County Jail for each misdemeanor offense, to be
served concurrently to the felony offense. The court ordered that Boscarino receive 68
days of jail-time credit. This Court affirmed Boscarino’s conviction and sentence on May
2, 2014. State v. Boscarino, 2d Dist. Montgomery No. 25580, 2014-Ohio-1858.
{¶ 2} On September 4, 2018, Boscarino filed a pro se motion to receive jail-time
credit for an additional 441 days during which he “was confined to house arrest prior to
trial.” On September 17, 2018, the trial court filed an entry in which it reaffirmed its prior
determination that Boscarino was entitled to 68 days of jail-time credit and concluded that
Boscarino was not entitled to jail-time credit for a pre-trial period of electronically-
monitored house arrest. Boscarino appeals from this decision. We hereby affirm the
judgment of the trial court.
{¶ 3} On February 8, 2013, after his trial and sentencing, Boscarino filed a pro se
motion for jail-time credit. The motion stated that Boscarino had been on an electronic
home detention program (“EHDP”) from September 30, 2011 until November 2, 2012,
and that he was entitled to 400 days of jail-time credit. On February 12, 2013, a jail-time
credit report was filed by the Division of Court Services, which reflected that Boscarino
was entitled to 68 days of jail-time credit: one day on August 12, 2011; 18 days from -3-
September 13-30, 2011; and 49 days from November 2 - December 20, 2012. By that
time, Boscarino’s appeal was pending, and the trial court took no further action on his
motion at that time.
{¶ 4} On April 24, 2017, the court issued an order denying Boscarino’s request for
early release and credit for time served on electronic home detention. The order
referenced an April 4, 2017 correspondence from Boscarino to the court (which is not part
of the record before us), which requested early release and credit for time served on
EHDP. The court indicated that it construed the correspondence as a motion for judicial
release. The court concluded that, given his mandatory sentence, Boscarino was
ineligible for early release; it further concluded that credit for time served while on EHDP
only applies to postconviction detention.
{¶ 5} On September 4, 2018, Boscarino filed a pro se motion for jail-time credit, in
which he requested 509 days credit, rather than 68. The State filed a motion in
opposition. On September 17, 2018, the court’s reaffirmed its February 12, 2013
decision which awarded 68 days of jail-time credit. Citing State v. Cox, 2d Dist.
Montgomery No. 27276, 2017-Ohio-2606, ¶ 5, the court held that “[i]t is well settled that
pretrial [EHDP] as a condition of bail does not constitute confinement or detention for
purposes of awarding jail-time credit.”
{¶ 6} Boscarino asserts one assignment of error on appeal:
THE TRIAL COURT ERRED IN ITS CALCULATION OF JAIL TIME
CREDIT. BECAUSE, THE COURT FAILED TO CREDIT THE
DEFENDANT FOR THE 441 DAYS OF CONFINEMENT UNDER HOUSE
ARREST, RESULTING IN A VIOLATION OF DEFENDANT’S RIGHT OF -4-
DUE PROCESS EQUAL LAW [SIC] AS GUARANTEED, BY THE 5TH,
14TH AMENDMENT, UNITED STATES CONSTITUTION; SECTION 16,
ARTICLE 1, OHIO CONSTITUTION; R.C. 2929.19 AND R.C. 2967.191.
{¶ 7} Boscarino asserts that he was confined under “house arrest” for 441 days
while awaiting trial prior to his conviction on November 30, 2012, which amounts to 441
days of confinement for which he should get credit.
{¶ 8} R.C. 2967.191(A) 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
* * * and confinement in a juvenile facility. * * *
{¶ 9} As this court has noted:
At any time after sentencing, a defendant may file a motion in the
sentencing court to correct that court's jail-time credit determination, “and
the court may in its discretion grant or deny that motion.” R.C.
2929.19(B)(2)(g)(iii). As a result, a trial court's denial of an appellant's
motion to correct jail-time credit is subject to review under an abuse of
discretion standard. State v. Dean, 10th Dist. Franklin Nos. 14AP-173 & -5-
14AP-177, 2014-Ohio-4361, ¶ 5. “The term ‘abuse of discretion’ has been
defined as a decision that is unreasonable, arbitrary, or unconscionable.”
State v. Miller, 2d Dist. Montgomery No. 25893, 2014-Ohio-4508, ¶ 22,
quoting State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538,
¶ 10.
State v. Ragland, 2018-Ohio-3292, 118 N.E.3d 1051, ¶ 18 (2d Dist.).
{¶ 10} The trial court’s docket reflects that, on September 14, 2011, the court
imposed EHDP as a condition of bail.
{¶ 11} This court recently addressed this issue at length as follows:
* * * [W]e [have] stated that “[t]here is a consistent line of appellate
authority that house confinement with electronic monitoring, whether it is
called “arrest” or “detention” or otherwise, is not assessable as credit time
against imprisonment when it is a condition of bail prior to sentencing.”
State v. Holt, 2d Dist. Montgomery No. 18035, 2000 WL 569930, *1 (May
12, 2000). * * *
Recently, we again rejected a defendant's argument that the
conditions of his home confinement prior to conviction were so restrictive
that he should have been given jail-time credit. See State v. Cox, 2d Dist.
Montgomery No. 27276, 2017-Ohio-2606. In Cox, the defendant had
spent nearly a year on pretrial electronically monitored home arrest
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[Cite as State v. Boscarino, 2019-Ohio-3917.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28253 : v. : Trial Court Case No. 2011-CR-2802 : NIKOLAOS BOSCARINO : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 27th day of September, 2019.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
NIKOLAOS BOSCARINO, Inmate No. 676-278, London Correctional Institution, P.O. Box 69, London, Ohio 43140 Defendant-Appellant, Pro Se
.............
DONOVAN, J. -2-
{¶ 1} On December 21, 2012, following a jury trial, Nikolaos Boscarino was found
guilty of one count of felonious assault, in violation of R.C. 2903.11(A)(1), a felony of the
first degree; one count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the
first degree; and one count of resisting arrest, in violation of R.C. 2921.33(B), also a
misdemeanor of the first degree. The court found that Boscarino was a repeat violent
offender and imposed a mandatory prison term of seven years for felonious assault, as
well as 180 days in the Montgomery County Jail for each misdemeanor offense, to be
served concurrently to the felony offense. The court ordered that Boscarino receive 68
days of jail-time credit. This Court affirmed Boscarino’s conviction and sentence on May
2, 2014. State v. Boscarino, 2d Dist. Montgomery No. 25580, 2014-Ohio-1858.
{¶ 2} On September 4, 2018, Boscarino filed a pro se motion to receive jail-time
credit for an additional 441 days during which he “was confined to house arrest prior to
trial.” On September 17, 2018, the trial court filed an entry in which it reaffirmed its prior
determination that Boscarino was entitled to 68 days of jail-time credit and concluded that
Boscarino was not entitled to jail-time credit for a pre-trial period of electronically-
monitored house arrest. Boscarino appeals from this decision. We hereby affirm the
judgment of the trial court.
{¶ 3} On February 8, 2013, after his trial and sentencing, Boscarino filed a pro se
motion for jail-time credit. The motion stated that Boscarino had been on an electronic
home detention program (“EHDP”) from September 30, 2011 until November 2, 2012,
and that he was entitled to 400 days of jail-time credit. On February 12, 2013, a jail-time
credit report was filed by the Division of Court Services, which reflected that Boscarino
was entitled to 68 days of jail-time credit: one day on August 12, 2011; 18 days from -3-
September 13-30, 2011; and 49 days from November 2 - December 20, 2012. By that
time, Boscarino’s appeal was pending, and the trial court took no further action on his
motion at that time.
{¶ 4} On April 24, 2017, the court issued an order denying Boscarino’s request for
early release and credit for time served on electronic home detention. The order
referenced an April 4, 2017 correspondence from Boscarino to the court (which is not part
of the record before us), which requested early release and credit for time served on
EHDP. The court indicated that it construed the correspondence as a motion for judicial
release. The court concluded that, given his mandatory sentence, Boscarino was
ineligible for early release; it further concluded that credit for time served while on EHDP
only applies to postconviction detention.
{¶ 5} On September 4, 2018, Boscarino filed a pro se motion for jail-time credit, in
which he requested 509 days credit, rather than 68. The State filed a motion in
opposition. On September 17, 2018, the court’s reaffirmed its February 12, 2013
decision which awarded 68 days of jail-time credit. Citing State v. Cox, 2d Dist.
Montgomery No. 27276, 2017-Ohio-2606, ¶ 5, the court held that “[i]t is well settled that
pretrial [EHDP] as a condition of bail does not constitute confinement or detention for
purposes of awarding jail-time credit.”
{¶ 6} Boscarino asserts one assignment of error on appeal:
THE TRIAL COURT ERRED IN ITS CALCULATION OF JAIL TIME
CREDIT. BECAUSE, THE COURT FAILED TO CREDIT THE
DEFENDANT FOR THE 441 DAYS OF CONFINEMENT UNDER HOUSE
ARREST, RESULTING IN A VIOLATION OF DEFENDANT’S RIGHT OF -4-
DUE PROCESS EQUAL LAW [SIC] AS GUARANTEED, BY THE 5TH,
14TH AMENDMENT, UNITED STATES CONSTITUTION; SECTION 16,
ARTICLE 1, OHIO CONSTITUTION; R.C. 2929.19 AND R.C. 2967.191.
{¶ 7} Boscarino asserts that he was confined under “house arrest” for 441 days
while awaiting trial prior to his conviction on November 30, 2012, which amounts to 441
days of confinement for which he should get credit.
{¶ 8} R.C. 2967.191(A) 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
* * * and confinement in a juvenile facility. * * *
{¶ 9} As this court has noted:
At any time after sentencing, a defendant may file a motion in the
sentencing court to correct that court's jail-time credit determination, “and
the court may in its discretion grant or deny that motion.” R.C.
2929.19(B)(2)(g)(iii). As a result, a trial court's denial of an appellant's
motion to correct jail-time credit is subject to review under an abuse of
discretion standard. State v. Dean, 10th Dist. Franklin Nos. 14AP-173 & -5-
14AP-177, 2014-Ohio-4361, ¶ 5. “The term ‘abuse of discretion’ has been
defined as a decision that is unreasonable, arbitrary, or unconscionable.”
State v. Miller, 2d Dist. Montgomery No. 25893, 2014-Ohio-4508, ¶ 22,
quoting State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538,
¶ 10.
State v. Ragland, 2018-Ohio-3292, 118 N.E.3d 1051, ¶ 18 (2d Dist.).
{¶ 10} The trial court’s docket reflects that, on September 14, 2011, the court
imposed EHDP as a condition of bail.
{¶ 11} This court recently addressed this issue at length as follows:
* * * [W]e [have] stated that “[t]here is a consistent line of appellate
authority that house confinement with electronic monitoring, whether it is
called “arrest” or “detention” or otherwise, is not assessable as credit time
against imprisonment when it is a condition of bail prior to sentencing.”
State v. Holt, 2d Dist. Montgomery No. 18035, 2000 WL 569930, *1 (May
12, 2000). * * *
Recently, we again rejected a defendant's argument that the
conditions of his home confinement prior to conviction were so restrictive
that he should have been given jail-time credit. See State v. Cox, 2d Dist.
Montgomery No. 27276, 2017-Ohio-2606. In Cox, the defendant had
spent nearly a year on pretrial electronically monitored home arrest
(“EMHA”), during which he was not authorized to leave his house to go to
work; as a result, he claimed that he lost his job. Id. at ¶ 3 and fn. 2. The
defendant was also only allowed to leave home for medical or legal -6-
appointments. Id. at ¶ 6.
In rejecting the defendant's request for jail-time credit, we
emphasized the well-settled law that “pretrial EMHA as a condition of bail
does not constitute confinement or detention for purposes of awarding jail-
time credit.” Id. at ¶ 5, citing State v. Bennett, 2d Dist. Greene No. 2014-CA-
17, 2014-Ohio-4102, ¶ 7.
Notably, Bennett cited many cases, including State v. Gapen, 104
Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047. Bennett at ¶ 7. In
Gapen, the Supreme Court of Ohio observed that “Ohio courts of appeals
have generally held that persons under pretrial electronic home monitoring
are not entitled to credit for time served, because pretrial electronic home
monitoring is a ‘constraint in lieu of bail pursuant to R.C. 2967.191’ and is
not detention under R.C. 2921.01(E).” Id. at ¶ 68.
Based on the above authority, trial courts may not treat a defendant's
electronically-monitored home confinement, imposed as a condition of bail,
as here, as tantamount to being held in jail in lieu of bail for purposes of
allocating jail-time credit.
State v. Johnson, 2d Dist. Montgomery No. 27937, 2018-Ohio-4142, ¶ 17-21.
{¶ 12} Based upon the foregoing, we conclude that the trial court did not abuse its
discretion in denying Boscarino’s request for 441 additional days of jail-time credit.
{¶ 13} Boscarino’s assignment of error is overruled, and the judgment of the trial
court is affirmed.
............. -7-
FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Lisa M. Light Nikolaos Boscarino Hon. Steven L. Dankof