State ex rel. Deters v. Wilkinson

[This opinion has been published in Ohio Official Reports at 72 Ohio St.3d 54.]

THE STATE EX REL. DETERS, PROS. ATTY., v. WILKINSON, DIR., ET AL.

[Cite as State ex rel. Deters v. Wilkinson, 1995-Ohio-79.]

Criminal procedure—Parole—For purposes of R.C. 2967.12(C), the hearing in

which full Parole Board considers and decides whether to grant parole is

the hearing which is subject to being continued—Notice requirement of R.C.

2967.121 not limited to aggravated felonies committed after July 1, 1983.

1. For purposes of R.C. 2967.12(C), the hearing in which the full Parole Board

considers and decides whether to grant parole is the hearing which is subject

to being continued.

2. The notice requirement of R.C. 2967.121 is not limited to aggravated felonies

committed after July 1, 1983.

(No. 94-2061—Submitted January 10, 1995—Decided April 19,1995.)

IN MANDAMUS.

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{¶ 1} The Ohio Adult Parole Authority ("APA" or "authority") notified

relator, the Hamilton County Prosecuting Attorney, that a release hearing for

convicted murderer Ricardo Woods would be held "on or after June 6, 1994." By

a letter dated May 25, 1994, relator's office acknowledged receipt of the notice,

advised the authority of its continued opposition to the parole, and attached,

incorporating by reference, past letters written by relator's office. On June 7, 1994,

a panel of the respondent Ohio Parole Board ("board") met to review the parole.

The panel consisted of a member of the board and a hearing officer. The panel made

no recommendation, but forwarded the case to the full board for decision. When

the panel forwarded the case to the full board, relator's May 25 response was not

included in the file. Previous letters from relator's office, however, were in the file.

On June 17, 1994, the full Parole Board voted to release Woods on parole. The

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APA did not give notice to relator of Woods' release from confinement on

September 2, 1994, as required by R.C. 2967.121.

{¶ 2} On September 26, 1994, relator filed a complaint for a writ of

mandamus to compel respondents to revoke the parole and comply with: (1) R.C.

2967.12(C), regarding a notice of a "continued" hearing; and (2) R.C. 2967.121,

requiring notice to prosecuting attorneys before a prisoner is released on parole.

This court allowed an alternative writ and set a briefing schedule. Woods filed a

motion to intervene, which this court granted. Relator filed a motion for judgment

on the pleadings, which is hereby denied.

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Joseph T. Deters, Hamilton County Prosecuting Attorney, William E.

Breyer and Philip R. Cummings, Assistant Prosecuting Attorney, for relator.

Betty D. Montgomery, Attorney General, and Charles L. Wille, Assistant

Attorney General, for respondents.

H. Fred Hoefle, for intervenor respondent.

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COOK, J.

{¶ 3} This case presents two issues involving statutes prescribing notices

from the Ohio Adult Parole Authority to county prosecutors attendant to paroling

an inmate. The first is whether, in this case, Woods' "hearing on * * * parole" was

"continued to a date certain," as contemplated in R.C. 2967.12(C), thereby

necessitating an additional notice of further parole consideration. We answer that

question in the negative. The second is whether R.C. 2967.121 requires the APA

to notify of the impending release of an inmate convicted of an aggravated felony

when such inmate's crime was committed before the effective date of the law which

established an "aggravated felony" as an offense classification in Ohio. We answer

that question in the affirmative.

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{¶ 4} The statute that controls the first issue is R.C. 2967.12. It states:

"(A) * * * [A]t least three weeks before the adult parole authority * * *

grants any parole, notice of the pendency of the * * * parole * * * shall be sent to

the prosecuting attorney * * * of the county in which the indictment against the

convict was found.

"* * *

"(C) When notice of the pendency of any * * * parole has been given as

provided in division (A) of this section, and hearing on the * * * parole is continued

to a date certain, notice of the further consideration of the * * * parole shall be

given by mail to the proper * * * prosecuting attorney at least ten days before the

further consideration." (Emphasis added.)

{¶ 5} The parties agree that a violation of R.C. 2967.12 is sufficient to

invalidate a release of an inmate and warrants the issuance of a writ of mandamus

to enforce the mandatory notice requirements of R.C. 2967.12. State ex rel. Leis v.

Clark (1978), 53 Ohio St. 2d 101, 7 O.O.3d 183, 372 N.E.2d 810. The parties also

seem to agree that the APA fulfilled the requirements of R.C. 2967.12 (A).

Accordingly, relator's right to relief hinges on whether a notice was required under

R.C. 2967.12 (C). The additional notice under subdivision (C) is triggered when

the "hearing on the * * * parole is continued to a date certain."

{¶ 6} We review the cause under the standard followed in State ex rel.

Myers v. Chiaramonte (1976), 46 Ohio St.2d 230, 75 O.O.2d 283, 348 N.E.2d 323.

When an asserted legal right is based on a statutory provision, the relator must

demonstrate that the statute, as applied and interpreted, gives rise to the requisite

clear legal right.

{¶ 7} Relator's position on this issue is best gleaned from his affidavit. It

states in pertinent part:

"In May, 1994, I received notice of a parole hearing for Ricardo Woods

scheduled for June 6[sic], 1994. This notice was sent to me pursuant to R.C.

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2967.12(A). I responded with a letter opposing release. * * * A parole hearing for

Ricardo Woods was held on June 6, 1994. At that time, the hearing was continued

to a date certain, June 17, 1994. * * * I was not given notice of the June 17, 1994

hearing, contrary to the provisions of R.C. 2967.12(C)."

{¶ 8} Respondents contend that there was only one hearing on Woods'

parole—the meeting of the full Parole Board, which granted the parole on June 17.

According to respondents, panels consisting of a member of the board and at least

one hearing officer regularly are convened, as was done in this case on June 7,

1994, to review the inmate's record and make a recommendation to the full Parole

Board. The meeting where the full board considers and decides whether to grant

parole is the hearing which is subject to being continued, not the panel review.

Therefore, respondents argue, since Woods was granted parole by the full Parole

Board on June 17, 1994, without a continuance to a date certain for further

consideration, relator can establish no right to an additional notice.

{¶ 9} A review of the applicable sections of the Revised Code, the Ohio

Administrative Code, and the record submitted by relator supports respondents'

view on this issue.

{¶ 10} Ohio Adm.Code 5120:1-1-11 is instructive on the roles of parole

panels and the Parole Board:

"(C) The hearing * * * may be conducted for the purpose of making a

recommendation for or against release to the Parole Board by a panel consisting of

one or more members of the Parole Board and one or more Parole Board hearing

officers as designated by the Chairman of the Parole Board.

"* * *

"(F) Following a release hearing, if the inmate is present and a decision is

made by the Parole Board, * * * the decision * * * shall be communicated

immediately * * *.

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"(G) In the event the decision of the Parole Board is to deny release of an

inmate * * *." (Emphasis added.)

{¶ 11} Although relator avers in his affidavit that he received notice of a

parole hearing scheduled for "June 6, 1994," relator's Exhibit A notifies him of a

release hearing to be held on or after June 6, 1994. This notice complies with

division (A) of the statute. Division (A) does not mandate that a prosecuting

attorney be notified of a hearing date, but rather that the prosecutor be sent notice

of "pendency of * * * parole." The statute times the notice to precede (by three

weeks) the "granting of parole" as opposed to timing it to precede a hearing date.

Thus, the notice of the pendency of parole for inmate Woods was not notice of a

parole hearing date of June 6, 1994.

{¶ 12} On June 7, 1994, according to the respondents' affidavits,

unchallenged by the relator, a panel of the Parole Board completed a "Parole

Candidate Evaluation" of inmate Woods with no recommendation to the board and

no notation by the panel that the matter was "continued to a date certain." No

notation thereon specifies that June 17 was the next date for consideration. Nothing

in the affidavit of William Hudson, one of the panel members, supports relator's

contention that the panel continued the hearing to June 17. Hudson's affidavit is

the only evidence submitted by any party to this case who was actually present at

the June 7 proceeding.

{¶ 13} Other sections of the Ohio Administrative Code support the view

that the term "continuance" has a particular meaning in the context of parole, and

one different from that implied by the relator's argument. See, e.g., Ohio Adm.Code

5120:1-1-15, 5120:1-1-18 and 5120:1-1-20. The common use of the term

"continuance" among trial lawyers and judges is to denote the rescheduling or delay

of a court date. Intervenor-respondent Woods argues that in the context of parole

matters, "continuance" is generally accepted to mean that a parole applicant will

not be released at present, but will be considered for parole again at some future

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time. Woods submits that this is the meaning of "further consideration" as

employed in R.C. 2967.12(C), and it is only that "further consideration" which

requires the additional notice. In support he cites Ohio Adm.Code 5120:1-1-10:

"(A) The initial hearing * * * shall be held on or about the date when they

first become eligible for parole * * *.

"(B) In any case in which parole is denied at the inmate's initial hearing, a

second hearing shall be held as determined by the parole board * * *. If a

continuance of six months or less is ordered, the parole board may consider

granting a furlough * * * for the period of such continuance. * * * The second

hearing shall not be scheduled later than five years * * *." (Emphasis added.)

Relator concedes in his complaint that it was on June 17 that the full board voted

to release inmate Woods on parole, without continuing that hearing for further

consideration.

{¶ 14} We hold that for purposes of R.C. 2967.12(C), the hearing in which

the full board considers and decides whether to grant parole is the hearing which is

subject to being continued. In this case, the decision-making hearing by the full

board on June 17 was the hearing subject to being continued, not the panel hearing

on June 7. The June 17 hearing was not continued to a date certain for further

consideration of the parole; therefore, R.C. 2967.12(C) does not apply. Relator's

argument that the parole is invalid based on R.C. 2967.12(C) is not well taken.

{¶ 15} Relator also argues that the proceedings before the Parole Board

were flawed and that the parole should be revoked because his May 25 letter

opposing the release of inmate Woods was not in the file when the board made its

decision. We note that the affidavits of the Chairman of the Parole Board and one

panel member confirm that the board and the panel were well aware of the total

opposition of the relator to the release of Woods. Although relator's last letter was

not with the file for the full board hearing, the prior letters detailing the crime and

the strenuous opposition were on file.

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{¶ 16} R. C. 2967.03 conditions paroling inmates on the board, considering

certain victim-impact information, if provided to the board. It does not afford that

status to information submitted by a prosecuting attorney. Since the General

Assembly appears to have considered what information must be considered by the

Parole Board and limited it to the victim-impact information, not letters from

prosecuting attorneys, we find that the failure to consider the last letter will not

support the granting of a writ of mandamus to revoke Woods' parole.

II

{¶ 17} Relator's other basis for seeking revocation of Woods' parole is the

APA's failure to comply with R.C. 2967.121.1 That statute mandated notice of

release of certain convicts as follows:

"(A) At least two weeks before any convict who is serving a sentence for

committing an aggravated felony is released from confinement in any state penal

or reformatory institution pursuant to a * * * parole, * * * the adult parole authority

shall send notice of the release to the prosecuting attorney of the county in which

the indictment of the convict was found.

"(B) The notice required by division (A) of this section may be contained

in a weekly list of all aggravated felons who are scheduled for release. The notice

shall contain all of the following:

"(1) The name of the convict being released;

"(2) The date of the convict's release;

"(3) The offense for the violation of which the convict was convicted and

incarcerated;

"(4) The date of the convict's conviction pursuant to which he was

incarcerated;

1. On October 6, 1994, R.C. 2967.121(A) was modified by replacing the phrase "confinement in

any state penal or reformatory institution" with the phrase "confinement in any state correctional

institution." This modification does not substantively affect the notice requirement of the statute.

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"(5) The sentence to which the convict was sentenced for that conviction;

"(6) The length of any supervision that the convict will be under;

"(7) The name, business address, and business phone number of the

convict's supervising officer;

"(8) The address at which the convict will reside."

{¶ 18} The authority admits not sending this notice as to the release of

inmate Woods based on an internal policy that such notice was unnecessary for

aggravated felonies committed before July 1, 1983. On July, 1, 1983, Am. Sub.

S.B. No. 199 introduced "aggravated felony" as a specific though undefined term

into the Revised Code, reclassifying certain offenses as aggravated felonies of the

first, second, and third degree, and setting enhanced penalties for crimes so

designated. R.C. 2901.02 (C) and (D). (139 Ohio Laws Part I, 523, 525.)

Therefore, the authority reasoned that because aggravated felonies did not exist

before July 1, 1983, notice need not be given of the release of any inmate whose

aggravated felony was committed before that date.2

{¶ 19} We determine that the introduction of the term "aggravated felony"

in the Revised Code on July 1, 1983, does not support the position taken by the

APA. The authority was not justified in according such a restrictive scope to that

term as used in R.C. 2967.121. As we previously noted, the term "aggravated

felony" is not defined in the Revised Code; therefore, it need not be accorded any

unique status because it is merely a classification of crime. Thus, we look to the

purpose of the statute. R.C. 2967.121's purpose is to make the community aware

when violent criminals will be paroled. The purpose, therefore, would not be

served by the limitation deduced by the authority. Further, the precipitating event

for the notice required in R.C. 2967.121 is the release of the convict and not the

2. The authority has revised its policy and now notifies prosecutors of the release of any convict

serving a sentence for an aggravated felony, regardless of the date the offense was committed,

apparently based on relator's challenge of the policy in this action.

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timing of the conviction nor the timing of the crime. Accordingly, we hold that the

notice requirement of R.C. 2967.121 is not limited to aggravated felonies

committed after July 1, 1983.

{¶ 20} Hence, respondents failed in their clear duty to notify relator, and

relator had a clear right to notice under R.C. 2967.121. These circumstances plainly

support the issuance of a writ requiring the authority to issue the notice. Such notice

is to be sent prior to an inmate's release. A writ compelling notice now, therefore,

will not precisely cure the breach of duty. Relator argues that the parole should be

vacated, and Woods returned to Ohio from California in order to give the two-week

notice prior to his re-release. The questions, however, become whether the failure

to comply with R.C. 2967.121 prohibits the APA from releasing a prisoner on

parole and whether there is any authority to vacate the parole.

{¶ 21} R. C. 2967.03 conditions granting parole on compliance with the

notice requirements of R.C. 2967.12 and consideration of victim-impact

statements. It does not prohibit the APA from releasing a prisoner on parole for

failure to comply with the notice requirement of R.C. 2967.121. Therefore,

although the authority had a clear legal duty to notify relator of Woods' release,

relator has not demonstrated that a clear legal right to revoke, vacate, or set aside

Woods' parole necessarily follows from the failure to notify. Woods, on the other

hand, argues that the only authority to revoke parole lies with the APA under the

circumstances where the parolee is deemed a parole violator. We, therefore, decline

to issue a writ which affects Woods' parole status.

{¶ 22} We hereby issue a limited writ ordering the APA to, forthwith,

complete the notice required by R.C. 2967.121 as to Woods, thereby providing the

community with the requisite information about his release.

Judgment accordingly.

MOYER, C.J., WRIGHT and PFEIFER, JJ., concur.

DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.

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DOUGLAS, J., dissenting.

{¶ 23} I respectfully dissent. I disagree with the holding and reasoning of

Part I of the majority opinion. The presentation seems, in some places, to be

internally contradictory, but I comment no further on this portion of the opinion

because the disposition of the second issue decides the case for me.

{¶ 24} The majority makes its point well throughout its discussion of the

second issue, but comes to the wrong conclusion. The majority says "[t]he APA

did not give notice to relator of Woods' release from confinement on September 2,

1994, as required by R.C. 2967.121." (Emphasis added.) The majority says, in

discussing R.C. 2967.121, that the "statute mandated notice of release of certain

convicts." (Emphasis added.) The majority says that "respondents failed in their

clear duty to notify relator, and relator had a clear right to notice under R.C.

2967.121." (Emphasis added.) The majority points out that "[t]hese circumstances

plainly support the issuance of a writ requiring the authority to issue the notice.

Such notice is to be sent prior to an inmate's release. A writ compelling notice

now, therefore, will not precisely cure the breach of duty." (Emphasis in original.)

The majority, having said all this and more, then concludes that, "although the

authority had a clear legal duty to notify relator of Woods' release, relator has not

demonstrated that a clear legal right to revoke, vacate or set aside Woods' parole

necessarily follows from the failure to notify."

{¶ 25} In pertinent part, R.C. 2967.121 provides:

"(A) At least two weeks before any convict who is serving a sentence for

committing an aggravated felony is released from confinement in any state penal

or reformatory institution pursuant to a * * * parole, * * * the adult parole authority

shall send notice of the release to the prosecuting attorney of the county in which

the indictment of the convict was found." (Emphasis added.)

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{¶ 26} R.C. 2967.121(B) sets forth what the notice must contain and again

the General Assembly uses the word "shall." Notwithstanding these clear and

unambiguous mandates, the majority simply reads them out of the statute and, in

effect, says that the required notice may be sent after the fact. In so deciding, the

majority not only negates the salutary goals of the statute, but the majority also

concludes, simply, that it makes no difference that the law says that the required

notice must be given "at least two weeks before" a convict is released. Given the

decision of the majority, the statute can now be ignored with impunity by those who

are charged with the responsibility of complying with the statute.

{¶ 27} Accordingly, I would grant the requested writ. Because the majority

does not do so, I must respectfully dissent.

RESNICK and F.E. SWEENEY, JJ., concur in the foregoing dissenting opinion.

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