State ex rel. McDermott v. Ohio Adult Parole Auth.

[Cite as State ex rel. McDermott v. Ohio Adult Parole Auth., 2017-Ohio-754.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. John P. McDermott, :

Relator, :

v. : No. 16AP-208

Ohio Adult Parole Authority, : (REGULAR CALENDAR)

Respondent. :

D E C I S I O N

Rendered on March 2, 2017

On brief: John P. McDermott, pro se.

On brief: Michael DeWine, Attorney General, and

William D. Maynard, for respondent.

IN MANDAMUS

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.

{¶ 1} Relator John P. McDermott, who is currently incarcerated for the murder of

Karen Barnes in 1980, initiated this original action requesting that this court find that

respondent Ohio Adult Parole Authority ("OAPA" or "parole board") considered incorrect

information at his last parole hearing, and order OAPA to provide him a new parole

hearing where he will receive meaningful review of his eligibility for parole without OAPA

considering inaccurate information.

{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53

and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the

appended decision, including findings of fact and conclusions of law. The magistrate

determined that McDermott failed to establish by clear and convincing evidence that

No. 16AP-208 2

OAPA had considered inaccurate evidence and denied him parole based on that

inaccurate evidence. Thus, the magistrate recommends this court deny McDermott's

request for a writ of mandamus.

{¶ 3} McDermott has filed objections to the magistrate's decision. Therefore, we

must independently review the decision to ascertain whether "the magistrate has properly

determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).

McDermott presents six objections, which we will address in turn.

{¶ 4} McDermott's first and second objections concern the magistrate's factual

findings. First, McDermott argues the magistrate failed to acknowledge that the

documents he attached to his complaint were verified. This argument is unpersuasive.

The magistrate did not reject McDermott's documents as not being what he purported

them to be. Before the parties submitted their merit briefs, the magistrate indicated that

she accepted as evidence McDermott's certified exhibits attached to his complaint.

Additionally, in her decision recommending this court deny McDermott's requested writ,

the magistrate stated that "[a]side from the documents relator attached as exhibits to his

complaint, relator did not present any additional evidence." (Mag. Decision at ¶ 31.)

Thus, the magistrate reviewed the substance of McDermott's submitted documents to

determine whether they provide clear and convincing evidence that OAPA considered

inaccurate evidence at McDermott's parole hearing and denied him parole based on that

inaccurate evidence. Consequently, we reject McDermott's assertion that the magistrate

did not duly consider the documents he attached to his complaint. McDermott's first

objection is overruled.

{¶ 5} Second, McDermott asserts that the magistrate's eleventh finding of fact

erroneously states that he filed a motion on July 20, 2016, and that he asserted that OAPA

"took * * * action on [a protection order] in 2009." (Relator's Objs. at 3.) The

magistrate's eleventh finding of fact states: "On June 6 and July 20, 2016, relator filed a

motion for production of documents asserting that respondent has proof there was no

restraining order filed against relator, and further asserted that, in 2009, respondent used

this document, and reconsidered his 2000 parole hearing." (Mag. Decision at ¶ 32.)

McDermott contends that he filed a single motion for document production, and that he

filed that motion on June 6, 2016. We find that the record supports McDermott's

No. 16AP-208 3

assertion that he filed his motion for document production only on June 6, 2016. Thus,

we agree that the magistrate's decision mistakenly indicates that McDermott filed his

motion for document production on both June 6 and July 20, 2016.

{¶ 6} McDermott's other challenge to the magistrate's eleventh finding of fact

relates to OAPA's alleged receipt of a court document establishing there was no protection

order filed against him. McDermott's June 6, 2016 motion for document production

stated that since approximately May 2000, OAPA has been in possession of a court

document establishing there was no protection order filed against him. He further stated

that "upon [OAPA's] initial receipt of the document," OAPA reconsidered its March 2000

parole hearing decision. (June 6, 2016 Relator's Mot. to Order Production of Document

at 1.) Thus, we agree with McDermott's contention that his motion asserted that OAPA

reconsidered the March 2000 parole hearing decision in 2000 and not 2009 as indicated

in the magistrate's decision. While we acknowledge these clerical mistakes in the

magistrate's eleventh finding of fact, they were inconsequential to the magistrate's

analysis.1 Accordingly, we overrule McDermott's second objection.

{¶ 7} McDermott's third and fourth objections are related. McDermott argues in

his third objection that there was no factual or legal basis for the magistrate to deny his

request for document production. McDermott's fourth objection challenges the

magistrate's conclusion that he has not shown that OAPA considered inaccurate evidence

and denied him parole based on that inaccurate evidence. In support of his fourth

objection, McDermott reasons that his inability to meet that burden was due to the

magistrate erroneously denying his request for document production. Thus, McDermott's

fourth objection is essentially premised on the merits of his third objection.

{¶ 8} We find that the magistrate did not err in denying McDermott's June 6,

2016 motion for document production. On May 5, 2016, the magistrate ordered the

parties, in the absence of either party filing a motion for conference within ten days of the

filing of the order, to submit their stipulated or certified evidence on or before May 24,

2016. On May 13, 2016, McDermott requested a conference. Five days later, the

1 Although not raised as an error by McDermott, we note that page ten of the magistrate's decision

mistakenly refers to a "practice order issue" instead of "protection order issue." This additional clerical

error is so corrected.

No. 16AP-208 4

magistrate denied McDermott's request for a conference. McDermott did not move this

court to set aside the magistrate's order denying his request for a conference. See Civ.R.

53(D)(2)(b) ("Any party may file a motion with the court to set aside a magistrate's order.

The motion shall state the moving party's reasons with particularity and shall be filed not

later than ten days after the magistrate's order is filed."). On May 23, 2016, OAPA

requested an extension of time until June 2, 2016 to submit evidence. The magistrate

granted OAPA's request for an extension. McDermott did not, however, file any request

for an extension regarding the evidentiary submission deadline. Despite the expiration of

the evidentiary submission deadline, McDermott filed his request for document

production together with his merit brief on June 6, 2016.

{¶ 9} Furthermore, even assuming McDermott could submit a court document in

this case indicating there was no protection order in place at the time of the murder, he

would not be entitled to his requested writ. Under State ex rel. Keith v. Ohio Adult Parole

Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, OAPA may not deny parole based on its

reliance on information that it knows or has reason to know is inaccurate. Id. Here,

OAPA's decision for denying McDermott parole at his most recent parole hearing in 2015

does not reference a protection order or stalking, and McDermott has not presented any

other evidence indicating that OAPA denied him parole in 2015 on that basis.

{¶ 10} For these reasons, we find the magistrate did not err in denying

McDermott's motion for document production. Consequently, we further reject

McDermott's assertion that he was unable to meet his evidentiary burden in this case

because the magistrate erroneously denied his motion for document production.

{¶ 11} Accordingly, we overrule McDermott's third and fourth objections.

{¶ 12} In his fifth objection, McDermott contends that the magistrate failed to

discuss his assertion that OAPA presented false information to the General Assembly

regarding his case. He argues the magistrate erred in not acknowledging that OAPA

falsely reported to the General Assembly that he violated a protection order when he went

to the victim's residence and murdered her. We disagree.

{¶ 13} Effective September 30, 2011, uncodified section 10 of 2011 Am.Sub.H.B.

No. 86 required the Ohio Department of Rehabilitation and Correction ("ODRC") to

review the cases of all parole-eligible inmates who were age 65 years or older and who

No. 16AP-208 5

already had a statutory first parole consideration hearing. Upon completion of the review,

ODRC was required to provide a report to the leadership of the General Assembly

summarizing the findings of its review and explaining why each inmate had not been

paroled.

{¶ 14} McDermott attached to his complaint what appear to be pages from ODRC's

December 2011 report to the General Assembly submitted pursuant to uncodified section

10 of 2011 Am.Sub.H.B. No. 86. In the report, ODRC explained why OAPA deemed

McDermott unsuitable for release in 2009, noting in part that his "conviction involved

him violating a protection order by going to his ex-wife's home and stabbing her to death

while her two young children were in the home. The victim suffered approximately 30

stab wounds." (Dec. 30, 2011 ODRC Report at 41.) According to McDermott, the

magistrate should have acknowledged that the report contained incorrect information

regarding the existence of a protection order against him when he murdered the victim.

However, in McDermott's petition for a writ of mandamus, he requests an order directing

OAPA to provide him with a new parole hearing. His petition does not seek a writ

requiring ODRC to deliver a new or amended report to the General Assembly concerning

his 2009 parole denial. Furthermore, in objecting to the magistrate's decision,

McDermott does not explain why the existence of allegedly inaccurate information in

ODRC's 2011 report to the General Assembly regarding his 2009 parole denial entitles

him to a writ requiring OAPA to provide him a new parole hearing. Instead, he simply

argues that the magistrate should have referenced the allegedly inaccurate information in

the report to ensure a complete record for the purpose of appeal.

{¶ 15} For these reasons, McDermott's fifth objection is overruled.

{¶ 16} Finally, McDermott's sixth objection is a general challenge to the

magistrate's recommendation to deny the requested writ of mandamus. McDermott

states that this objection is entirely based on the arguments he has presented in support

of his other objections. For the reasons stated above regarding McDermott's other

objections, we overrule his sixth objection.

{¶ 17} Following our independent review of the record pursuant to Civ.R. 53, we

find the magistrate correctly determined that McDermott is not entitled to the requested

writ of mandamus. The magistrate properly determined the facts and applied the

No. 16AP-208 6

pertinent law to the salient facts. Therefore, we adopt the magistrate's decision as our

own, including the findings of fact (with the clerical corrections noted above) and

conclusions of law contained therein. Accordingly, we overrule McDermott's objections to

the magistrate's decision and deny his request for a writ of mandamus.

Objections overruled;

writ of mandamus denied.

BROWN and SADLER, JJ., concur.

No. 16AP-208 7

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. John P. McDermott, :

Relator, :

v. : No. 16AP-208

Ohio Adult Parole Authority, : (REGULAR CALENDAR)

Respondent. :

MAGISTRATE'S DECISION

Rendered on September 14, 2016

John P. McDermott, pro se.

Michael DeWine, Attorney General, and William D.

Maynard, for respondent.

IN MANDAMUS

{¶ 18} Relator, John P. McDermott, filed this original action asking this court to

find that respondent, Ohio Adult Parole Authority ("OAPA" or "parole board")

considered incorrect information at his last parole hearing, and order respondent to

provide him a new parole hearing where he will receive meaningful review of his

eligibility for parole without OAPA considering the inaccurate information.

Findings of Fact:

{¶ 19} 1. Relator is an inmate currently incarcerated at Grafton Correctional

Institution where he is serving a sentence of 15 years to life for the murder of Karen

Barnes.

No. 16AP-208 8

{¶ 20} 2. Relator has been considered for parole on several occasions; however,

on each occasion, parole has been denied.

{¶ 21} 3. According to his complaint, the parole board began considering

incorrect information as early as 1995. Relator asserts that the parole board has

considered the following incorrect information: (1) "In March, 1995, following the 60-

month continuance imposed in 1990, the 'seizure defense' was again raised;" (2) "In

March, 2000, following the completion of the second 60-month continuance, Parole

Board Member Larry Matthews created a non-existant [sic] 'violation of a protective

order while committing the offense' falsehood;" (3) "On April 9, 2009, following the

completion of the most recent 36-month continuance and referral to COBR, Petitioner

was continued for an additional 36 months based on the written reason of 'nature of the

offense' and the spoken reason of the 'seizure defense' and an assertion that the

Petitioner did not 'accept responsibility;' " (4) "On May 15, 2012, Petitioner's parole was

rescinded based upon a clear error of fact, the asserted claim 'The Board finds

aggravating the well documented history of stalking, violence and threats toward the

victim…;' (5) "During the May 15, 2012, hearing, the panel again raised the 'seizure

defense' claiming that Petitioner 'lacks remorse' and again raised the false specter of

non-existent protective orders, as well as considering a manila envelope consisting of

unidentified documents which were not disclosed to counsel or to Petitioner;" and (6)

"On August 3, 2015, * * * he was again referred to COBR which, on August 14, 2015,

imposed yet another continuance of 36 months based upon the written statement that

Petitioner, now over seventy years of age, had forgotten some of the details of the

programming he had taken a decade ago, and thus 'lacks insight from said

programming.' "

{¶ 22} 4. Aside from his own statements as to what he remembers parole board

members saying, relator has presented very little evidence in support of his allegations

that the parole board is considering inaccurate information when it denies him parole.

With regard to the March 2000 hearing, relator has attached what appears to be records

from OAPA dated March 15, 2000. Pursuant to this document, one board member

recommended:

No. 16AP-208 9

[One] range departure to 240 [to] 300 months based on

inmate violating a protection order, and murdering the

victim while her [two] children were in the residence. Inmate

indicated that he had a seizure attack and don't [sic]

remember stabbing the victim. This was a heinous crime in

which the victim was stabbed 30 times.

{¶ 23} 5. Concerning the April 2009 hearing, relator has again attached what

appears to be copies of parole board forms. Relator asserts that the parole board

specifically considered the seizure defense and the assertion that he did not accept

responsibility. However, upon review of the documents relator has attached from his

2009 hearing, the magistrate finds no reference to a seizure disorder.

{¶ 24} 6. Regarding the May 2012 hearing, relator has submitted two documents.

The first is the Wednesday, April 4, 2012 letter from the Ohio Department of

Rehabilitation and Correction notifying him that a majority of the parole board

members had voted to propose parole in his case, but that decision was deferred until

the Office of Victims Services determined whether the victim or victim's representative

wished to petition for a full board hearing which was scheduled for May 15, 2012.

Relator also submitted copies of what appeared to be from the parole board dated

May 15, 2012. That document specifically states:

Board finds aggravating the well-documented history of

stalking, violence and threats toward the victim that suggests

an inability to control his behavior, and a lack of

acknowledgement of this history through his failure to

sufficiently address it.

{¶ 25} 7. On March 21, 2016, relator filed this petition for a writ of mandamus.

As noted in the opening paragraph, relator alleges that he has not been granted

meaningful review because the parole board is considering and basing its denials of

parole, in part, on inaccurate information. Relator asks this court to order the parole

board to refrain from considering the information he asserts is inaccurate and ordering

the board to provide him with a new parole hearing.

{¶ 26} 8. Having met the filing requirements, the magistrate put on a briefing

order.

No. 16AP-208 10

{¶ 27} 9. Respondent filed documents which have been verified. This evidence

includes the decision and minutes from the August 14, 2015 parole board hearing which

corroborate relator's assertion that it was specifically noted that "[h]e has completed

programming, but lacks insight from said programming."

{¶ 28} Respondent's evidence also includes a letter dated June 17, 2015 from

relator directed to the parole board. In that letter, relator set out his assertion that the

parole board was considering erroneous or inaccurate information. He also asserts that

at various times, certain parole board members have told him that they would vote in

favor of him being released on parole at the next hearing.

{¶ 29} Respondent has also submitted numerous documents which appear to

have been prepared in light of his August 2015 hearing and include letters from family

and relator's plans in the event that he is granted parole.

{¶ 30} Respondent's evidence also includes several letters from both relator and

an assistant public defender addressed to certain public officials, as well as their replies.

In those letters, relator continued to assert that inaccurate information was being used

to deny him parole and asking the parole board to reconsider its decision to deny him

parole.

{¶ 31} 10. Aside from the documents relator attached as exhibits to his

complaint, relator did not present any additional evidence.

{¶ 32} 11. On June 6 and July 20, 2016, relator filed a motion for production of

documents asserting that respondent has proof there was no restraining order filed

against relator, and further asserted that, in 2009, respondent used this document, and

reconsidered his 2000 parole hearing.

{¶ 33} 12. On September 12, 2016, the magistrate denied relator's motions.

{¶ 34} 13. The matter has been fully briefed and is submitted on the magistrate's

docket for consideration.

Conclusions of Law:

{¶ 35} For the reasons that follow, it is this magistrate's decision that this court

should deny relator's request for a writ of mandamus.

No. 16AP-208 11

{¶ 36} The Supreme Court of Ohio has set forth three requirements which must

be met in establishing a right to a writ of mandamus: (1) that relator has a clear legal

right to the relief prayed for; (2) that respondent is under a clear legal duty to perform

the act requested; and (3) that relator has no plain and adequate remedy in the ordinary

course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).

{¶ 37} The appropriate standard of proof in mandamus cases is proof by clear

and convincing evidence. See State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141

(1967).

{¶ 38} Relator relies on the Supreme Court of Ohio's decision in State ex rel.

Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, to assert that he

has a clear legal right to a meaningful parole consideration hearing based upon correct

information, that respondent has a corresponding clear legal duty to correct errors and

falsehoods from his record, and conduct a new hearing without consideration of false

information. In that case, Bernard R. Keith, an inmate, requested a writ of mandamus

ordering OAPA and Cynthia Mausser, former Chair of the Ohio Parole Board, to correct

erroneous information in his records. In determining that a writ of mandamus should

issue, the Keith court explained:

A prisoner has no constitutional or statutory right to parole.

State ex rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81

Ohio St.3d 267, 268, 1998 Ohio 631, 690 N.E.2d 887 (1998).

Because there is no such right, a prisoner who is denied

parole is not deprived of liberty as long as state law makes

the parole decision discretionary. Id. at 125. Under R.C.

2967.03, the parole decision in Ohio is discretionary. Id. And

we have held that because a potential parolee was not

deprived of life, liberty, or property by being denied parole,

he could not invoke due process to challenge his allegedly

inaccurate scoresheet. State ex rel. Hattie v. Goldhardt, 69

Ohio St.3d 123, 126, 1994 Ohio 81, 630 N.E.2d 696 (1994).

Therefore, relying upon that authority, the court of appeals

was not unreasonable in concluding that the parole board

had no clear legal duty to correct Keith's records. Id.

Keith cites Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d

456, 2002-Ohio-6719, 780 N.E.2d 548, to support his

argument that he has a right to a corrected record. In that

case, the OAPA used a formula for projecting an inmate's

No. 16AP-208 12

earliest possible release on parole. The formula relied on two

numbers, one of which reflected the inmate's "offense

category score." The inmates in Layne had been assigned

incorrect offense category scores, resulting in potential

release dates that were substantially later than the dates that

would have resulted from the correct scores. We held that by

assigning each inmate a score corresponding to an offense

more serious than the offense for which he was actually

convicted, the OAPA breached the state's plea agreement

with the inmate. Id. at ¶ 25.

While none of the errors alleged here breached a plea

agreement as they did in Layne, Layne establishes a minimal

standard for the OAPA, that is, that statutory language

"ought to mean something." Id. at ¶ 27. At issue in Layne

were the words "eligible for parole" in former R.C.

2967.13(A). We held there that inherent in the language is

"the expectation that a criminal offender will receive

meaningful consideration for parole." Id.

Here, the language at issue involves the procedures relating

to parole of a prisoner. The regulation setting forth the

procedure for parole requires that in deciding on release of

an inmate, the parole board is to consider numerous factors,

including:

(1) Any reports prepared by any institutional staff member

relating to the inmate's personality, social history, and

adjustment to institutional programs and assignments;

(2) Any official report of the inmate's prior criminal record,

including a report or record of earlier probation or parole;

(3) Any presentence or postsentence report;

(4) Any recommendations regarding the inmate's release

made at the time of sentencing or at any time thereafter by

the sentencing judge, presiding judge, prosecuting attorney,

or defense counsel and any information received from a

victim or a victim's representative;

(5) Any reports of physical, mental or psychiatric

examination of the inmate;

(6) Such other relevant written information concerning the

inmate as may be reasonably available, except that no

No. 16AP-208 13

document related to the filing of a grievance under rule

5120-9-31 of the Administrative Code shall be considered;

(7) Written or oral statements by the inmate, other than

grievances filed under rule 5120-9-31 of the Administrative

Code.

Ohio Adm.Code 5120:1-1-07(B). As in Layne, this language

"ought to mean something."

Inherent in the language of Ohio Adm.Code 5120:1-1-07(B)

is that the board must consider various reports and "other

relevant written information" pertaining to the inmate whose

parole is being considered. The existence of this formal

process for considering parole rightly gives parolees some

expectation that they are to be judged on their own

substantively correct reports. Requiring the board to

consider specific factors to determine the parolee's fitness for

release would not mean anything if the board is permitted to

rely on incorrect, and therefore irrelevant, information about

a particular candidate.

Our decision today does not overrule the holding in

Henderson, 81 Ohio St.3d 267, 1998 Ohio 631, 690 N.E.2d

887, and similar cases. Keith and other prisoners still have

"no constitutional or statutory right to parole." Id. at 268.

See also State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d

489, 490, 1994 Ohio 39, 633 N.E.2d 1128 (1994). A state may

set up a parole system, but it has no duty to do so.

Greenholtz v. Inmates of Nebraska Penal & Corr. Complex,

442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Having

established a parole system, the state may design that system

to be entirely discretionary, and the state "may be specific or

general in defining the conditions for release and the factors

that should be considered by the parole authority." Id. at 8.

Moreover, there need be no "prescribed or defined

combination of facts which, if shown, would mandate release

on parole." Id. As mentioned above, Ohio's system is entirely

discretionary and creates no expectation of parole and no

due-process right to parole itself.

However, having set up the system and defined at least some

of the factors to be considered in the parole decision, the

state has created a minimal due-process expectation that the

factors considered at a parole hearing are to be as described

in the statute or rule and are to actually and accurately

pertain to the prisoner whose parole is being considered.

No. 16AP-208 14

We recognize that the OAPA's discretion in parole matters is

wide-ranging. Layne, 97 Ohio St.3d 456, 2002-Ohio-6719,

780 N.E.2d 548, ¶ 28, citing State ex rel. Lipschutz v.

Shoemaker, 49 Ohio St.3d 88, 90, 551 N.E.2d 160 (1990).

R.C. 2967.03 vests discretion in 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."

However, as in Layne, that discretion must yield to statutory

or regulatory requirements. Therefore, we hold that in any

parole determination involving indeterminate sentencing,

the OAPA may not rely on information that it knows or has

reason to know is inaccurate.

This is not to say that the OAPA must conduct an extensive

investigation on the information it reviews for every prisoner

to ensure accuracy, nor does it mean that the OAPA must

credit every unsupported allegation by a prisoner that the

information is inaccurate.

But where there are credible allegations, supported by

evidence, that the materials relied on at a parole hearing

were substantively inaccurate, the OAPA has an obligation to

investigate and correct any significant errors in the record of

the prisoner.

Id. at 378-80.

{¶ 39} Pursuant to the decision in Keith, the magistrate must consider whether

relator has made a showing that there may be substantive errors in his record that may

influence OAPA's consideration of his parole. The magistrate finds that relator has not

made that showing.

{¶ 40} First, relator argues that the parole board erroneously considered a seizure

defense which corresponds to relator's unwillingness to accept responsibility for his

actions. As noted in the findings of fact, relator did not present evidence that this

seizure defense was ever considered in denying him parole. However, the United States

Court of Appeals, Sixth Circuit, released a decision on December 4, 1986 in

McDermott v. E.P. Perini, 811 F.2d 606 (6th Cir.1986), denying relator's request for a

writ of habeas corpus. The court's decision includes the following relevant information:

No. 16AP-208 15

The evidence showed that petitioner regularly visited the

victim, Karen Barnes, at her apartment. On the afternoon of

November 4, 1980, when petitioner arrived at the apartment,

Ms. Barnes was not yet home from work, although her two

children, Greg, age eleven, and Steven, age eight, were

already home from school. Ms. Barnes arrived around 5:00

p.m.

At 11:00 p.m., Greg was awakened in his upstairs bedroom

by the telephone, which rang six times; no one answered it.

Greg heard petitioner and Ms. Barnes arguing downstairs.

Ms. Barnes was yelling about petitioner's going through her

personal things. Greg then heard his mother call for him.

Greg went to the landing and observed petitioner stabbing

Ms. Barnes. Petitioner ran upstairs and ordered Greg to get

in bed. Petitioner then went into the bathroom and washed

his hands. He then went back downstairs, but returned

upstairs shortly to Ms. Barnes' bedroom, where he

disconnected the telephone. Petitioner went downstairs

again, turned the television on with the volume on high, and

exited the apartment. After about fifteen minutes, Greg and

Steven went downstairs and found their mother dead in the

kitchen. Greg then went to a neighbor's house, and the police

were notified.

When the police arrived, they discovered on the wall next to

the victim's body a knife rack with two knives, although there

were spaces for three. The murder weapon was not in the

apartment. The third knife, which was the murder weapon,

was later found in a nearby river. An autopsy revealed at

least thirty stab wounds.

Petitioner's pleas of not guilty and not guilty by reason of

insanity were based upon the same medical defense, viz.,

that the murder was the result of petitioner's suffering a

psychomotor seizure as a result of a brain disease known as

psychomotor epilepsy. Petitioner presented a great deal of

medical evidence in support of his theory. It is sufficient to

note for the present purposes that evidence was adduced that

petitioner had suffered from psychomotor epilepsy for a

period of years prior to the murder, that he was suffering

from a seizure at the time of the murder, and that,

consequently, petitioner was unable to make a distinction

between right and wrong or to control his behavior; i.e.,

petitioner's actions were involuntary.

No. 16AP-208 16

The jury rejected petitioner's insanity defense and returned a

verdict of guilty.

Id. at 2-4.

{¶ 41} To the extent that relator argues that the parole board is incorrectly

considering a seizure disorder defense and relator's failure to acknowledge his wrong

doing, the above language from the court's decision indicates that, at trial, relator

alleged that he was experiencing a seizure at the time he stabbed Karen Barnes 30 times,

and that he was unable to control his actions. The magistrate specifically finds that this

is not erroneous information and the parole board may consider it in determining

whether or not relator should be released on parole.

{¶ 42} Concerning relator's allegation that the parole board incorrectly noted that

there was a protective order in place at the time he murdered Barnes, relator asserts that

he presented evidence that no such protective order exists. However, the magistrate

finds that the documents relator attached to his complaint do not prove that there was

not a protective order in place at the time he murdered Barnes.

{¶ 43} Specifically, the magistrate points to Appendix M of the attachment to

relator's complaint. This is a letter from the Chardon Municipal Court which provides:

In response to your letter inquiring about information on a

protection order on case number 80 C 1168, our court has

found nothing. However, that case number given indicates

that it would be found in Court of Common Pleas. You

would need to contact their office to request that

information.

{¶ 44} The magistrate finds that this document does not prove that there was not

a protective order in place at the time he murdered Barnes. Relator had been instructed

to address his request to the common pleas court. Relator has failed to present any

evidence that he did so and the magistrate finds that he has not established by clear and

convincing evidence that there was no protective order in place. To the extent that

relator filed a motion and asserted that respondent has documentation that there was

no protective order, relator also stated that respondent already reconsidered the 2000

decision to deny him parole and, if relator is correct in asserting this, then, to the extent

No. 16AP-208 17

he is correct, the practice order issue was not considered in 2012 when he was last

denied parole.

{¶ 45} Lastly, relator asserts that the parole board relied on information that he

had been stalking Barnes before he murdered her. Relator did attach information from

the parole board which would indicate that, in 2015, the board discussed relator's well-

documented history of stalking. In support of his assertion, relator submitted as part of

Appendix M to his complaint the November 10, 2015 letter from Victoria Godfrey, pre-

trial release officer for the Chardon Municipal Court which provides as follows:

Per your request on October 30, 2015 I went ahead and

researched any and all cases regarding you in the Chardon

Municipal Court. I was unable to find any charges involving

Stalking in our court docket or records during the years of

1979 and 1980.

{¶ 46} Chardon Municipal Court provides a website to assist victims in obtaining

various protection orders. A temporary protection order is available in the Chardon

Municipal Court when a criminal complaint alleging violence has been filed. A civil

protective order ("CPO") is available through the common pleas court and no criminal

charges need to be filed in order to obtain a CPO. A civil stalking or sexually oriented

offense protection order is available in the common pleas court in the county in which

the victim resides and does not require the filing of criminal charges. The fact that

relator submitted evidence that no stalking charges had been filed against him in the

Chardon Municipal Court does not constitute clear and convincing evidence that no

stalking charges had been filed against him. As above indicated, a civil stalking

protection order is available in the common pleas court. Relator has presented no

evidence from the Geauga County Court of Common Pleas which would indicate that

stalking had not been involved.

{¶ 47} Contrary to relator's arguments, he is not able to establish by clear and

convincing evidence that OAPA is considering inaccurate evidence and denying him

parole based on that inaccurate evidence. Relator did allege at trial that he suffered

from a seizure disorder and was therefore not responsible for killing Barnes and relator

did not present evidence from Geauga County Court of Common Pleas to support his

assertion that there were no protective orders issued and that there had been no

No. 16AP-208 18

allegations of stalking. Based on the foregoing, it is this magistrate's decision that

relator has not demonstrated that OAPA has abused its discretion, and this court should

deny his request for a writ of mandamus.

/S/ MAGISTRATE

STEPHANIE BISCA

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as

error on appeal the court's adoption of any factual finding or

legal conclusion, whether or not specifically designated as a

finding of fact or conclusion of law under Civ.R.

53(D)(3)(a)(ii), unless the party timely and specifically objects

to that factual finding or legal conclusion as required by Civ.R.

53(D)(3)(b).