Swihart v. Ohio Adult Parole Auth.

[Cite as Swihart v. Ohio Adult Parole Auth., 2014-Ohio-3305.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Michael Swihart, :

Plaintiff-Appellant, :

v. : No. 13AP-993

(C.P.C. No. 07CV-2229)

Chairman/Chairperson of the Ohio :

Adult Parole Authority et al., (REGULAR CALENDAR)

:

Defendants-Appellees.

:

D E C I S I O N

Rendered on July 29, 2014

Swope and Swope - Attorneys at Law, and Richard F. Swope,

for appellant.

Michael DeWine, Attorney General, and Peter L. Jamison, for

appellees.

APPEAL from the Franklin County Court of Common Pleas

O'GRADY, J.

{¶ 1} Plaintiff-appellant, Michael Swihart, appeals from a judgment of the Franklin

County Court of Common Pleas granting summary judgment to defendants-appellees

Chairman/Chairperson of the Ohio Adult Parole Authority ("OAPA"), current director of the

Ohio Department of Rehabilitation and Correction ("ODRC"), Dr. Sandra Mack, member of

the OAPA, William Oberdier, hearing officer for the OAPA, Richard E. Fitzpatrick, hearing

officer for the OAPA, and all former and current members of the OAPA (collectively

"defendants"). Because the trial court properly granted summary judgment to appellees, we

affirm.

No. 13AP-993 2

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In 1977, appellant, 18 years old at the time, confessed to killing his father,

mother, and two younger brothers with a baseball bat and then burning down his family's

home in an attempt to conceal the crime. He was subsequently indicted on one count of

aggravated murder, three counts of murder, and one count of aggravated arson. He entered

a plea of not guilty by reason of insanity. A three-judge panel conducted a trial, at which

both the state and the defense offered psychiatric evidence related to appellant's insanity

plea. The panel acquitted appellant of the murder of his father, but convicted him of the

aggravated murder of one brother, the murders of his mother and other brother, and

aggravated arson. On April 10, 1978, the trial court sentenced appellant to death for the

aggravated murder, 15 years to life for the two counts of murder, and 7 to 25 years for the

aggravated arson; the sentences were ordered to be served concurrently. On December 20,

1978, the Ninth District Court of Appeals, in response to the United States Supreme Court's

decision in Lockett v. Ohio, 438 U.S. 586 (1978), modified appellant's death sentence to life

imprisonment, making him eligible for parole. Under the parole eligibility statute in effect in

1978, appellant was eligible for parole after 15 years.

{¶ 3} Following parole hearings in 1992 and 2002, appellant was denied parole,

based primarily on the severity of his crimes. In September 2004, appellant, pro se, filed a

42 U.S.C. 1983 action in federal court against the then-director of the ODRC and former and

current members of the OAPA ("federal defendants"). Appellant asserted violations of his

federal constitutional rights stemming from his 1992 and 2002 parole hearings. He also

claimed a right to furlough release. The district court granted the federal defendants' motion

to dismiss for failure to state a claim upon which relief could be granted, and that decision

was affirmed on appeal. Swihart v. Wilkinson, 209 Fed.Appx. 450 (6th Cir.2006).

{¶ 4} In 2005, while his federal case and appeal were pending, appellant was again

considered for parole. Once again, he was denied parole based upon the serious nature of

his crimes.

{¶ 5} On February 15, 2007, appellant filed a pro se complaint against appellees

seeking, as relevant here, declaratory judgment and injunctive relief. Appellant alleged that

appellees had, in effect, unilaterally modified his sentence of 15 years to life to life without

No. 13AP-993 3

the possibility of parole by conducting "sham" parole hearings in which he was denied

meaningful consideration for parole. Appellant maintained that appellees predetermined

that he should never be granted parole and failed to consider factors other than the serious

nature of his crimes. Appellant further alleged that appellees, in contravention of R.C.

2967.26 and 2967.27, denied his right to furlough release. He also alleged he was unlawfully

denied honor status.

{¶ 6} In response to the complaint, appellees filed a Civ.R. 12(B)(6) motion to

dismiss, asserting that appellant's case should be dismissed on two grounds: (1) his claims

were barred by the doctrine of res judicata, as he did or could have litigated them in his

federal action, and (2) the discretionary nature of parole rendered his allegations without

merit as a matter of law. Appellant retained counsel, who filed a response to appellees'

motion to dismiss. The trial court granted appellees' motion; however, this court reversed

on appeal. Swihart v. Ohio Adult Parole Auth., 10th Dist. No. 08AP-222, 2008-Ohio-6420.

We concluded the trial court erred in granting the motion on res judicata grounds, having

inappropriately relied upon evidentiary materials outside the pleadings in doing so. Id. at ¶

24. We further concluded that, as a matter of law, appellant had pled sufficient allegations

regarding appellees' actions to survive a Civ.R. 12(B)(6) motion. Id. at ¶ 25-27. More

particularly, we stated, "[p]laintiff here asserts he was denied meaningful consideration

because, in determining his parole eligibility, defendants used a sentence different than the

one he received. The discretionary nature of parole does not afford defendants the right to

deny plaintiff meaningful consideration on the basis of a sentence other than the one he was

given." Id. at ¶ 27, citing Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-

6719, and Ankrom v. Hageman, 10th Dist. No. 04AP-984, 2005-Ohio-1546.

{¶ 7} In August 2007, while his state case and appeal were pending, appellant was

again considered for parole. Following the August 2007 hearing and an October 2007

review by the Ohio Parole Board ("OPB"), appellant was once again denied parole based

upon the severity of his crimes.

{¶ 8} On October 9, 2009, appellees filed a motion for summary judgment, arguing

that appellant received meaningful consideration for parole at his prior parole hearings and

was not unlawfully denied furlough and honor status. Appellant filed a memorandum contra

on November 10, 2009, asserting that he was denied meaningful consideration for parole

No. 13AP-993 4

because appellees considered only the severity of his crimes and ignored his positive

institutional behavior and that he was unlawfully denied furlough and honor status. In

support, appellant filed his own affidavit and a joint stipulation of the parties. Appellant

attached as Exhibits A and B to the joint stipulation his complete parole file, and the then-

current OPB guideline manual, respectively. In a decision and entry filed January 5, 2011,

the trial court denied appellees' motion for summary judgment, finding that appellant had

demonstrated genuine issues of material fact as to both prongs of appellees' summary

judgment motion.

{¶ 9} Appellees filed a second motion for summary judgment on April 4, 2011,

arguing that appellant's August 2007 parole hearing and October 2007 OPB review rendered

moot his claim that he was denied meaningful consideration for release on parole in 2005,

and that his claims were barred by res judicata, as they were already litigated, or should have

been litigated, in his federal action. In support of the motion, appellees attached the affidavit

of Cynthia Mausser, chairperson of the OPB. On April 29, 2011, the parties filed a joint

stipulation that the trial court was to consider the previously-filed record in ruling on the

summary judgment motion. In his May 12, 2011 memorandum contra, appellant argued his

claims were not barred by res judicata, as his federal action was concerned solely with

federal constitutional issues, not state issues as raised in his complaint. He further argued

that the issue of whether he was afforded meaningful consideration for parole in 2005

remained viable, as he was not provided meaningful consideration for parole in the 2007

proceedings. Appellant appended to his memorandum contra his own affidavits. By

decision and entry issued February 28, 2013, the trial court granted in part and denied in

part appellees' second motion for summary judgment. Specifically, the court concluded

appellant received meaningful consideration for parole during the 2007 parole proceedings,

rendering his claim for relief as to the 2005 proceedings moot. The court further found the

prior federal action did not preclude his furlough and honor status claims.

{¶ 10} On May 24, 2013, appellees filed a third motion for summary judgment,

contending that appellant's furlough claim should be dismissed because, even assuming,

arguendo, that the furlough statutes in effect in 1977 could still be applied to him, those

statutes established no right to furlough consideration because they were merely permissive

and did not mandate that every eligible inmate must be considered for furlough. As to his

No. 13AP-993 5

honor status claim, appellees argued that Ohio courts have consistently held that prison

inmates have no right to a particular security classification. Appellees supported their

motion with the affidavit of Austin Stout, assistant chief legal counsel in ODRC's Legal

Services section. Appellant filed a memorandum contra in response, supported by his own

affidavit. By decision and entry issued October 28, 2013, the trial court granted appellees'

motion for summary judgment and dismissed the case.

II. ASSIGNMENTS OF ERROR

{¶ 11} In a timely appeal, appellant sets forth the following eight assignments of

error:

ASSIGNMENT OF ERROR NO. 1. THE TRIAL COURT ERRED

IN GRANTING PARTIAL SUMMARY JUDGMENT ON

DEFENDANTS-APPELLEES' MOTION FOR SUMMARY

JUDGMENT FILED ON APRIL 4, 2011, THERE BEING A

FACTUAL DISPUTE AS TO PROVIDING PLAINTIFF-

APPELLANT A MEANINGFUL HEARING, INCLUDING THE

HEARING HELD IN 2002.

ASSIGNMENT OF ERROR NO. 2. THE TRIAL COURT ERRED

IN GRANTING SUMMARY JUDGMENT ON DEFENDANTS-

APPELLEES' MOTION FOR SUMMARY JUDGMENT FILED

ON MAY 24, 2013, AS TO FURLOUGH AND HONOR STATUS.

ASSIGNMENT OF ERROR NO. 3. THE TRIAL COURT, IN ITS

DECISION REGARDING DEFENDANTS-APPELLEES'

MOTION FOR SUMMARY JUDGMENT FILED ON APRIL 4,

2011, IMPROPERLY BASED ITS DECISION ON THE

AFFIDAVIT OF MS. MAUSSER, WHICH SIMPLY REITERATES

THE DEFENDANT-APPELLEE BOARD'S ASSERTION THAT

PLAINTIFF-APPELLANT CANNOT BE PAROLED BECAUSE

OF THE NATURE OF THE CRIME WHICH FACT WILL

NEVER CHANGE AND BY ASSERTING THERE WAS NO

EVIDENCE OF THE HEARING BEING UNFAIR.

ASSIGNMENT OF ERROR NO. 4. THE TRIAL COURT, IN

RULING ON THE APRIL 4, 2011 MOTION FOR SUMMARY

JUDGMENT ERRED BY RULING THE DEFENDANTS-

APPELLEES CANNOT ABUSE THEIR DISCRETION AND IN

FACT HAVE UNLIMITED DISCRETION.

ASSIGNMENT OF ERROR NO. 5. THE TRIAL COURT, IN

RULING ON THE APRIL 4, 2011 MOTION FOR SUMMARY

JUDGMENT, ERRONEOUSLY RULED THAT A CHANGE OF

No. 13AP-993 6

RULES IN EFFECT CHANGING PLAINTIFF-APPELLANT'S

SENTENCE IS NOT CONSTITUTIONALLY PROTECTED, TO

WIT: OHIO CONSTITUTION, ARTICLE 1, SECTION 16 AND

THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION.

ASSIGNMENT OF ERROR NO. 6. THE TRIAL COURT, IN

RELYING ON CURRENT LEGISLATION AND ADMINIS-

TRATIVE REGULATIONS TO DENY APPELLANT CON-

SIDERATION FOR FURLOUGH OR HONOR STATUS

COMMITTED ERROR.

ASSIGNMENT OF ERROR NO. 7. THE TRIAL COURT ERRED

IN RULING IN ITS DECISION ON DEFENDANTS-

APPELLEES' MOTION FOR SUMMARY JUDGMENT FILED

APRIL 4, 2011, THAT PLAINTIFF-APPELLANT'S CLAIMS

WERE MOOT.

ASSIGNMENT OF ERROR NO. 8. THE TRIAL COURT ERRED

IN RULING ON DEFENDANTS-APPELLEES' MOTION FOR

SUMMARY JUDGMENT FILED ON MAY 24, 2013, THAT

RETROACTIVE APPLICATION OF LEGIS-LATION OR

ADMINISTRATIVE REGULATION WHICH ENHANCE

PLAINTIFF-APPELLANT'S SENTENCE, CON-DITIONS OF

INCARCERATION OR RIGHT TO PAROLE CONSIDERATION,

DID NOT VIOLATE STATE OR FEDERAL CONSTITUTIONAL

PROTECTION, TO-WIT: OHIO CONSTITUTION, ARTICLE I,

SECTION 2, ARTICLE 1, SECTION 16 AND ARTICLE II,

SECTION 28; AND THE FIFTH, SIXTH, AND FOURTEENTH

AMENDMENTS TO THE U.S. CONSTITUTION.

III. DISCUSSION

{¶ 12} Appellant's eight assignments of error essentially raise two primary issues: (1)

whether he was afforded meaningful consideration for parole, and (2) whether he was

entitled to furlough release and honor status.

A. Standard of Review

{¶ 13} We begin our analysis with the applicable standard of review. Appellate review

of summary judgment is de novo, which requires an independent review of the record

without deference to the trial court's decision. New Destiny Treatment Ctr., Inc. v. Wheeler,

129 Ohio St.3d 39, 2011-Ohio-2266, ¶ 24; Miller v. J.B. Hunt Transport, Inc., 10th Dist. No.

13AP-162, 2013-Ohio-3892, ¶ 20. Pursuant to Civ.R. 56(C), summary judgment "shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

No. 13AP-993 7

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely

filed in the action, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Summary judgment "is appropriate

only under the following circumstances: (1) no genuine issue of material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the

evidence most strongly in favor of the nonmoving party, reasonable minds can come to but

one conclusion, that conclusion being adverse to the nonmoving party." Brown v. Ohio

Dept. of Rehab. & Corr., 1oth Dist. No. 12AP-891, 2013-Ohio-4207, ¶ 20, citing Stevens v.

Ohio Dept. of Mental Health, 10th Dist. No. 12AP-1015, 2013-Ohio-3014, ¶ 11, citing Harless

v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).

{¶ 14} Under Civ.R. 56(C), "the moving party bears the initial burden of informing

the trial court of the basis for the motion and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact." Anderson v. Preferred Title &

Guaranty Agency, Inc., 10th Dist. No. 13AP-385, 2014-Ohio-518, ¶ 14, citing Dresher v.

Burt, 75 Ohio St.3d 280, 293 (1996). "The moving party, however, cannot discharge its

initial burden under this rule with a conclusory assertion that the nonmoving party has no

evidence to prove its case; the moving party must specifically point to evidence of a type

listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no evidence

to support the nonmoving party's claims." Id., citing Dresher at 293, and Vahila v. Hall, 77

Ohio St.3d 421 (1997). "Once the moving party discharges its initial burden, summary

judgment is appropriate if the nonmoving party does not respond, by affidavit or as

otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for

trial." Id., citing Dresher at 293; Vahila at 430.

{¶ 15} With the foregoing principles in mind, we turn to appellant's arguments.

B. Meaningful Consideration for Parole

{¶ 16} Appellant contends he has not been provided meaningful consideration for

parole because appellees have consistently considered only the serious nature of his crimes

and have failed to consider other pertinent factors. Appellant maintains that appellees'

actions have effectively resulted in a de facto sentence of life imprisonment without the

possibility of parole in contravention of the indeterminate 15-to-life sentence imposed by the

trial court.

No. 13AP-993 8

{¶ 17} An inmate has no inherent or constitutional right to release on parole before

the expiration of his or her sentence. Chafin v. Ohio Adult Parole Auth., 10th Dist. No.

13AP-646, 2014-Ohio-1192, ¶ 18, citing Festi v. Ohio Adult Parole Auth., 10th Dist. No.

04AP-1372, 2005-Ohio-3622, ¶ 14, citing State ex rel. Miller v. Leonard, 88 Ohio St.3d 46,

47 (2000). "The decision whether and when to grant parole lies within the absolute

discretion of OAPA." Id., citing R.C. 2967.03; Walker v. Ghee, 10th Dist. No. 01AP-960

(Jan. 29, 2002); Festi; Woods v. Telb, 89 Ohio St.3d 504, 512 (2000).

{¶ 18} Ohio Adm.Code 5120:1-1-07(A) sets forth various factors parole authorities

must consider when determining whether an inmate should be released on parole. The

provision provides that parole authorities may decide not to release an inmate when:

(1) there is substantial reason to believe that the inmate will engage in further criminal

conduct, (2) there is substantial reason to believe that, due to the serious nature of the crime,

the release of the inmate into society would create undue risk to public safety or that, due to

the serious nature of the crime, the release of the inmate would not further the interest of

justice nor be consistent with the welfare and security of society, (3) there is substantial

reason to believe that the release of the inmate would not act as a deterrent to the inmate or

to other institutionalized inmates from violating institutional rules and regulations, and (4)

there is need for additional information upon which to make a release decision. Ohio

Adm.Code 5120:1-1-07(B)(1) through (18) provides 17 specific factors, plus an "any other

factors" catch-all factor, that parole authorities must consider when contemplating the

release of an inmate. Ohio Adm.Code 5120:1-1-07(C) provides that "[t]he consideration of

any single factor, or any group of factors, shall not create a presumption of release on parole,

or the presumption of continued incarceration. The parole decision need not expressly

address any of the foregoing factors."

{¶ 19} The evidence submitted in support of appellees' second motion for summary

judgment belies appellant's claim that he has not been provided meaningful consideration

for parole. As noted above, appellees submitted with their second motion for summary

judgment the affidavit of Cynthia Mausser, chairperson of the OPB. Mausser attested she

had reviewed appellant's parole records and concluded that parole authorities had

considered all the mandatory factors set forth in Ohio Adm.Code 5120:1-1-07 before denying

appellant release on parole.

No. 13AP-993 9

{¶ 20} Specifically, Mausser averred that the OPB decision sheet from appellant's

2002 parole hearing indicated that the OPB had considered his criminal history risk score

and his institutional conduct. As to appellant's 2005 parole hearing, Mausser averred the

decision sheet from that hearing indicated the OPB had considered his institutional conduct,

remorsefulness, institutional adjustment, and family support. Mausser acknowledged that

although the 2005 decision sheet also included the hearing officer's opinion that appellant

was given mercy by the Supreme Court of Ohio's decision to commute his death sentence

and that he should remain incarcerated for the rest of his natural life given the heinous

nature of his crimes, OPB member Dr. Mack conducted an independent review of the

hearing officer's recommendation, which included consideration of the Ohio Adm.Code

5120:1-1-07 factors, and ultimately concluded appellant should be denied parole. Mausser

attested that Dr. Mack "declined release on parole not because she felt that [appellant] was

not eligible for parole, nor because she (and the Board) unilaterally altered [appellant's]

sentence to life without the possibility of parole, but rather because in her professional

judgment [appellant] was not yet suitable for release." (Mausser Affidavit, ¶ 11.)

{¶ 21} Mausser further stated that appellant's August 2007 hearing and October 2007

OPB review complied with Ohio Adm.Code 5120:1-1-07, as all mandatory factors had been

considered. She further averred that appellant "had a genuine possibility of being granted

parole if the Board felt he was suitable." (Mausser Affidavit, ¶ 13.) Mausser attested that the

OPB recognized appellant's "good institutional conduct and good institutional

programming," that he had received his last disciplinary ticket in 1993, he had completed

several programs while in prison, and he had expressed remorse about the crimes he

committed. (Mausser Affidavit, ¶ 13.) She further attested, however, that despite

recognizing these positive factors, the OPB ultimately concluded appellant was not yet

suitable for release on parole. Mausser noted the OPB had determined there was substantial

reason to believe that appellant would engage in further criminal conduct or that he would

not conform to the conditions of release, and that due to the serious nature of his crimes,

appellant's release into society would create undue risk to public safety and/or would not

further the interest of justice or be consistent with the welfare and security of society.

{¶ 22} In his affidavit filed in response to appellees' second motion for summary

judgment, appellant contested Mausser's averment that the OPB considered all the Ohio

No. 13AP-993 10

Adm.Code 5120:1-1-07 factors before denying him release on parole. Specifically, appellant

averred that the OPB could not have complied with Ohio Adm.Code 5120:1-1-07 because he

was never given a psychological examination prior to any of his parole hearings as required

by Ohio Adm.Code 5120:1-1-07(B)(5). That provision states that, in consideration of the

release of an inmate, the OPB shall consider any reports of physical, mental or psychiatric

examination of the inmate. As noted by appellees, however, this provision directs the OPB to

consider any psychiatric reports, but does not direct them to order such examination.

Moreover, the parties' November 10, 2009 joint stipulation demonstrates that psychiatric

reports were part of the record reviewed in conjunction with appellant's August 2007 parole

hearing. The joint stipulation includes a psychiatric examination, which the sentencing

court had ordered to be conducted on appellant. The psychiatric examination includes the

author's opinion that appellant "was not mentally deficient at the time of the offense." (R.

93, at 180.)

{¶ 23} As noted above, Ohio Adm.Code 5120:1-1-07(A)(2) expressly provides that

parole authorities may rely upon the serious nature of the offense to determine whether the

inmate would create a risk to public safety or whether release on parole would further the

interests of justice or be consistent with the welfare and security of society. Further, R.C.

2967.03 vests discretion in the OAPA to "grant a parole to any prisoner for whom parole is

authorized, if in its judgment there is reasonable ground to believe that * * * paroling the

prisoner would further the interests of justice and be consistent with the welfare and security

of society." "R.C. 2967.03 has been construed as 'allow[ing] the board to consider any

evidence it feels is pertinent to the question of whether the prisoner is fit to be at liberty

without harming others.' " Nelson v. Mohr, 10th Dist. No. 13AP-130, 2013-Ohio-4506, ¶ 18,

quoting State ex rel. Thompson v. Clark, 7 Ohio App.3d 191, 192 (10th Dist.1982). See also

Fugett v. Ghee, 10th Dist. No. 02AP-618, 2003-Ohio-1510, ¶ 17 (finding that both the Ohio

Revised Code and the Ohio Administrative Code grant OAPA authority to investigate and

examine any matters affecting an inmate's ability to be at liberty without being a threat to

society).

{¶ 24} Appellant contends that appellees abused their discretion in denying him

parole because they ignored his post-incarceration behavior and accomplishments and chose

to focus on the serious nature of his crimes. However, Mausser's affidavit establishes that

No. 13AP-993 11

appellees considered those facts. It is clear that appellees, in a reasonable exercise of

discretion, have determined that the serious nature of appellant's crimes would create a risk

to public safety, would not further the interests of justice, and/or would not be consistent

with the welfare and security of society.

{¶ 25} This court has rejected claims similar to those asserted by appellant in the

present case. In Weatherspoon v. Mack, 10th Dist. No. 07AP-1083, 2008-Ohio-2288, an

inmate argued he was denied meaningful consideration for parole because the OPB only

considered "negative factors" and there was "no evidence" that the OPB considered any

positive factors. Id. at ¶ 19. This court rejected that argument, upholding the trial court's

finding that the OPB decision sheet contained "sufficient rationale" to justify its decision to

continue the inmate's incarceration. Id. at ¶ 22.

{¶ 26} In the present case, the trial court, in reviewing appellant's contention that he

did not receive meaningful consideration for parole, determined that the evidence advanced

by appellees in support of their second summary judgment motion demonstrated that

appellees considered all factors, both favorable and unfavorable. The court further found

that "[t]he rules and case law indicate that the Parole Authority may, in its discretion, base

its decision to grant or deny parole on any one factor, including the seriousness of the

offense." (Feb. 28, 2013 Decision and Entry, 10.) Upon review, we agree with the trial court

that the record before this court supports the OAPA's determination. As noted above, the

OAPA's decision is discretionary, and the OAPA was not required to find appellant suitable

for release on parole based on allegedly positive factors where the record contains sufficient

reasons weighing against his release.

{¶ 27} Finally, we note that appellant's reliance on Layne 456 and Ankrom is

misplaced. In Layne, the Supreme Court of Ohio concluded the defendants in that case were

not provided meaningful consideration for parole when the OPB treated them as having

committed offenses other than those for which they were convicted. Tran v. State, 10th Dist.

No. 09AP-587, 2009-Ohio-6784, ¶ 18, construing Layne at ¶ 24-28. In Ankrom, this court

held that a parole board denies an inmate meaningful consideration by adhering to

guidelines that do not allow for parole consideration until long after an inmate is legally

eligible. Id., construing Ankrom at ¶ 15, 34. In the present case, appellant does not argue

that appellees treated him as having committed offenses other than those for which he was

No. 13AP-993 12

convicted, nor does he argue appellees adhered to guidelines that do not allow for parole

consideration until long after he was eligible for parole. To the contrary, he argues appellees

placed too much emphasis on the seriousness of his offenses and not enough emphasis on

his positive institutional behavior. However, as we stated above, the record establishes that

appellees considered mitigating factors, including appellant's post-incarceration record, but

concluded this mitigation did not outweigh the need for appellant's further incarceration due

to the seriousness of his offenses.

{¶ 28} For the foregoing reasons, appellant's first, third, fourth, fifth and seventh

assignments of error are overruled.

C. Furlough and Honor Status

{¶ 29} Appellant contends that, pursuant to R.C. 2929.61(D) and 1.58, the laws in

effect when he was convicted in 1977 must still be applied to him, and under those laws he

has a right to furlough release. Appellant also contends he is entitled honor status.

{¶ 30} The evidence submitted in support of appellees' third motion for summary

judgment belies appellant's claim that he is entitled to furlough release or honor status. As

noted above, appellees submitted with their third motion for summary judgment the

affidavit of Austin Stout. In his affidavit, Stout attested to the following. At the time

appellant was convicted, the state of Ohio had a furlough release program authorized under

R.C. 2967.26 and 2967.27. R.C. 2967.26 governed vocational and educational furloughs;

R.C. 2967.27 governed non-vocational furloughs. These statutes required OAPA to adopt

rules and regulations to govern the furlough process and required that the rules and

regulations be approved by the director of the ODRC. In accordance with the statutes,

ODRC issued administrative rules concerning the administration of the furlough program.

Vocational and educational furloughs, authorized by R.C. 2967.26, were governed primarily

by Ohio Adm.Code 5120:1-1-23. Non-vocational furloughs, authorized by R.C. 2967.27, were

governed primarily by Ohio Adm.Code 5120-9-35.

{¶ 31} In 1998, the furlough statutes were amended and the program was

discontinued. Under the amended version of R.C. 2967.26, furlough was replaced with a

transitional control program. Under the amended version of R.C. 2967.27, inmates were no

longer permitted non-vocational furloughs; rather, they were permitted only escorted visits

for the purpose of visiting a dying relative or the funeral of a relative. Following the 1998

No. 13AP-993 13

amendments to R.C. 2967.26 and 2967.27, Ohio Adm.Code sections 5120:1-1-23 and 5120-9-

35 were rescinded. Presently, inmate eligibility for transitional control is governed by Ohio

Adm.Code 5120-12-01 and escorted visits are governed by Ohio Adm.Code 5120-9-50.

Consideration for furlough, transitional control or escorted visits was never mandatory

under R.C. 2967.26 and 2967.27.

{¶ 32} Stout further averred that security classification of inmates is governed by

Ohio Adm.Code 5120-9-52 and 5120-9-53, as well as ODRC Policy 53-CLS-01. ODRC Policy

53-CLS-01 was revised in 2013. Under the pre-2013 version of the policy, depending on the

nature of their conviction, an inmate could not receive the lowest possible security

classification. Under the 2013 version of the policy, all inmates may be classified at the

lowest security classification level.

{¶ 33} In his memorandum in response, appellant asserted that he was entitled to

furlough release and honor status. In his attached affidavit, appellant attested that several

inmates serving sentences for murder and other violent offenses received furloughs and had

been classified as honor status and worked in supervised and unsupervised positions outside

the prison.

{¶ 34} Appellant's argument regarding furlough release fails because, even if the

versions of R.C. 2967.26 and 2967.27 in effect when he was convicted were applicable to

him, the statutes were permissive and did not confer any right upon him. The version of

R.C. 2967.26 in effect when appellant was convicted stated, in pertinent part, that "[t]he

adult parole authority may grant furloughs to trustworthy prisoners confined in any state

penal or reformatory institution for the purpose of employment, vocational training,

educational programs, or other programs designated by the Director of correction within this

state." (Emphasis added.) See Am.H.B. No. 637. Similarly, R.C. 2967.27 provided, in

pertinent part, that "[t]he department of rehabilitation and correction may grant furloughs

to trustworthy prisoners confined in any state penal, reformatory, or other facility."

(Emphasis added.) See Am.H.B. No. 217. The statutes provided that OAPA and ODRC may

grant furloughs to eligible inmates, but did not state that eligible inmates must be granted

furloughs. In his affidavit, Stout attested that under R.C. 2967.26 and 2967.27, the granting

of furloughs to eligible inmates was permissive, not mandatory. Stout's attestation comports

with Ohio law establishing that "statutory usage of the term 'may' is generally construed to

No. 13AP-993 14

render optional, permissive, or discretionary the provision in which it is embodied." State ex

rel. Niles v. Bernard, 53 Ohio St.2d 31, 34 (1978), citing Dorrian v. Scioto Conservancy

Dist., 27 Ohio St.2d 102 (1971). Further, one court has recently stated that "prisoners do not

generally have a right to a furlough." State v. Gambrel, 4th Dist. No. 13CA17, 2014-Ohio-

2520, ¶ 4(d).

{¶ 35} Appellant's argument that he is entitled to honor status is similarly

unpersuasive. This court has rejected claims by inmates that they have a right to a particular

security classification. Indeed, in State ex rel. Richard v. Mohr, 10th Dist. No. 12AP-873,

2013-Ohio-676, this court recently rejected inmates' claims that they were entitled to

security classifications under the law that existed at the time of their convictions. See also

Semenchuk v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-19, 2010-Ohio-5551, ¶ 15-

16 (holding that security classification decisions are left to the discretion of prison officials

and inmates have no due process rights to a particular security classification).

{¶ 36} For the foregoing reasons, appellant's second, sixth and eighth assignments of

error are overruled.

IV. CONCLUSION

{¶ 37} Having overruled each of the eight assignments of error advanced by

appellant, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN and LUPER SCHUSTER, JJ., concur.