The opinion
[Cite as State ex rel. Cobb v. Ohio Adult Parole Auth., 2017-Ohio-1170.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Michael Cobb, :
Relator, :
v. : No. 16AP-199
Ohio Adult Parole Authority and : (REGULAR CALENDAR)
Andre Imbrogno,
Chair of the Ohio Parole Board, :
Respondents. :
D E C I S I O N
Rendered on March 30, 2017]\
Michael Cobb, pro se.
Michael DeWine, Attorney General, and B. Alexander
Kennedy, for respondents.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
{¶ 1} Relator, Michael Cobb, commenced this original action requesting a writ
of mandamus ordering respondents, Ohio Adult Parole Authority ("OAPA") and Andre
Imbrogno, Chair of the Ohio Parole Board, to correct allegedly inaccurate information in
his parole hearing file and provide him with a new parole board hearing.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued the appended decision,
including findings of fact and conclusions of law. The magistrate recommended that
this court grant summary judgment in favor of respondents and deny relator's requested
writ of mandamus. For the following reasons, we overrule relator's first and second
objections and sustain his third objection. As a result, we deny the requested writ.
No. 16AP-199 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} The following facts are undisputed. Relator is currently incarcerated at the
Richland Correctional Institution where he is serving a sentence of 18 years to life after
pleading guilty to robbery and murder with a gun specification. On June 11, 2015,
relator appeared before the parole board for his first release consideration hearing. The
parole board denied relator's release.
{¶ 4} The parole board's decision and minutes dated June 19, 2015 indicate that
the board considered mandatory factors in Ohio Adm.Code 5120:1-1-07 and found
substantial reason to believe that due to the serious nature of the crime, the release of
relator into society would create undue risk to public safety or would not further the
interest of justice or be consistent with the welfare and security of society. The parole
board additionally found that there was substantial reason to believe that due to serious
infractions of Ohio Adm.Code 5120-9-06, relator's release would not act as a deterrent
to the inmate or other institutionalized inmates from violating institutional rules. The
parole board's rationale states:
The Board by way of a Majority Vote has determined that a
release at this time would demean the serious nature of this
crime. The male victim in this offense was shot in the back by
the offender and was then robbed of his property that was on
his person. While the Board does find that the offender has
good insight into his crime and did display remorse for his
actions, they remain concerned about the inmate's
problematic conduct. He is encouraged to continue to
complete risk relevant programming and work on not
receiving any future conduct reports.
(Ohio Parole Board Decision and Minutes at 1.)
{¶ 5} The aggregate sentence listed on the parole board's decision and minutes
is "15-life + 3 gun cc/w/ 5 years." (Ohio Parole Board Decision and Minutes at 1.) The
parole board set the next parole hearing date for June 1, 2020. Relator filed a motion for
reconsideration dated January 17, 2016, which the parole board denied on January 29,
2016.
{¶ 6} On March 18, 2016, relator filed a complaint for a writ of mandamus to
"correct the false and inaccurate information" in his parole file and provide relator with
a new parole hearing. (Compl. for Writ of Mandamus at 11.) The complaint alleges five
No. 16AP-199 3
errors: (1) the parole board improperly considered that relator and his father physically
assaulted the victim prior to shooting and robbing the victim; (2) the parole board
information sheet and 2014 clemency minutes state that relator's aggregated sentence is
23 to life instead of 18 to life; (3) the parole board decision references relator's
"problematic conduct" when, at the hearing, parole board member Kathleen Kovach
verbally commended relator for his institutional good behavior; (4) that the parole
board asked about a juvenile felonious assault "conviction" by the board, when he only
had been charged with felonious assault as a juvenile and that complaint was dismissed;
and (5) he was verbally informed at the parole hearing that a transfer document showed
he was transferred from the Lorain Correctional Institution for "failure to adjust" at a
level 3 institution. (Compl. for Writ of Mandamus at 5, 6.) Appellant asserted that he
was entitled to the writ of mandamus pursuant to State ex rel. Keith v. Ohio Adult
Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270.
{¶ 7} On May 3, 2016, respondents filed a motion to dismiss. On May 31, 2016,
relator filed a brief in opposition to respondents' motion to dismiss, and respondents
filed a reply. On August 17, 2016, the magistrate converted respondents' motion to
dismiss into a motion for summary judgment and set it for submission on September 7,
2016. On August 25, 2016, respondents filed a motion to set aside the magistrate's
order. On September 1, 2016, relator filed a reply to respondents' converted motion for
summary judgment.
{¶ 8} On September 27, 2016, the magistrate denied respondents' motion to set
aside the order converting respondents' motion to a motion for summary judgment,
and, in a separate decision, addressed the merits of that motion. The magistrate
addressed each of relator's five alleged errors and concluded that relator had not made
the requisite showing under Keith that there are credible allegations, supported by
evidence, that the material relied on at his parole hearing were substantively inaccurate.
As such, the magistrate determined that this court should grant summary judgment in
favor of respondents and deny relator's request for a writ of mandamus.
II. OBJECTIONS
{¶ 9} Relator sets forth the following three objections:
[1.] The Magistrate's decision denying Relator's Writ of
Mandamus is Contrary to the Ohio Supreme Court's decision
No. 16AP-199 4
in State Ex rel. Keith, v. Ohio Adult Parole Authority, 141
Ohio St.3d 375; 2014-Ohio-4270; 24 N.E.3d 1132; 2014 Ohio
LEXIS 2516.
[2.] The Magistrate's decision erroneously grants
Respondents motion for summary judgment, contrary to
well establish law pertaining to the grant of summary
judgments.
[3.] The Magistrate's Decision erroneously failed to consider
Relator's timely filed evidence and Reply Brief to
Respondents converted motion to dismiss into one for
summary judgment.
(Sic passim.)
III. DISCUSSION
{¶ 10} For ease of discussion, we will address relator's third objection at the
outset. In his third objection, relator contends that the magistrate issued findings of fact
and conclusions of law without considering his reply brief and attachments filed on
September 1, 2016. The magistrate's order converting respondents' motion to dismiss
into a motion for summary judgment allowed briefing through September 7, 2016. As
such, respondents' reply brief was proper and timely, but the magistrate's decision does
not reference respondents' reply brief and attachments in the findings of fact or
conclusions of law. Accordingly, we sustain relator's third objection to the magistrate's
decision and consider relator's reply brief in resolving relator's remaining objections.
{¶ 11} Because relator's remaining objections involve the ultimate determination
of whether a clear legal right to relief exists pursuant to Keith, we will address the
objections together. Specifically, relator's first objection to the magistrate's decision
asks us to review the ultimate conclusion of the magistrate to deny the writ as contrary
to the Supreme Court of Ohio's decision in Keith. Relator's second assignment of error
challenges the magistrate's decision to grant summary judgment to respondents on
essentially procedural grounds. According to relator, respondents did not provide any
verified evidence permitted by Civ.R. 56 and did not meet their initial burden under the
established summary judgment standard of review. We disagree.
{¶ 12} Summary judgment procedure applies to an action in mandamus. State ex
rel. Wilson v. Preston, 173 Ohio St. 203 (1962), paragraph three of the syllabus. Under
No. 16AP-199 5
Civ.R. 56(B), a defending party may move with or without supporting affidavits for a
summary judgment in the party's favor as to all or any part of the claim. Furthermore,
as described in Hartman v. Dept. of Transp., 10th Dist. No. 16AP-222, 2016-Ohio-5208,
¶ 15, quoting Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996):
[A] party seeking summary judgment, on the ground that the
nonmoving party cannot prove its case, bears the initial
burden of informing the trial court of the basis for the
motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of material fact
on the essential element(s) of the nonmoving party's claims.
The moving party cannot discharge its initial burden under
Civ.R. 56 simply by making a conclusory assertion that the
nonmoving party has no evidence to prove its case. Rather,
the moving party must be able to specifically point to some
evidence of the type listed in Civ.R. 56(C) which affirmatively
demonstrates that the nonmoving party has no evidence to
support the nonmoving party's claims. If the moving party
fails to satisfy its initial burden, the motion for summary
judgment must be denied. However, if the moving party has
satisfied its initial burden, the nonmoving party then has a
reciprocal burden outlined in Civ.R. 56(E) to set forth
specific facts showing that there is a genuine issue for trial
and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the
nonmoving party.
"[S]ome evidence of the type listed in Civ.R. 56(C)" includes pointing to information in
the pleadings. (Emphasis sic.) Dresher at 293, 297-98 (noting that "summary
judgment may be rendered where the pleadings and the arguments of the party seeking
summary judgment clearly establish that the nonmoving party has no legally cognizable
cause of action"). Summary judgment is appropriate when the movant demonstrates
that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) reasonable minds can come to but one conclusion
and that conclusion is adverse to the party against whom the motion for summary
judgment is made, said party being entitled to have the evidence construed most
strongly in his favor. State ex rel. Nelson v. Ohio Adult Parole Auth., 10th Dist. No.
09AP-940, 2010-Ohio-4994, ¶ 21.
{¶ 13} Summary judgment in favor of OAPA in the context of a mandamus action
is proper where undisputed evidence, viewed strongly in relator's favor, fails to meet the
No. 16AP-199 6
standard for mandamus as a matter of law. State ex rel. Foster v. Ohio State Adult
Parole Auth., 10th Dist. No. 91AP-1109 (Aug. 6, 1992). To be entitled to a writ of
mandamus, relator must show by clear and convincing evidence that: (1) relator has a
clear legal right to the relief requested; (2) the parole board has a clear legal duty to
perform the act sought; and (3) that relator has no plain and adequate remedy in the
ordinary course of law. State ex rel. Townsend v. Mohr, 10th Dist. No. 15AP-681, 2016-
Ohio-5942, ¶ 5.
{¶ 14} As discussed previously, relator's legal argument that he has a clear legal
right to the relief requested and the parole board has a clear legal duty to perform is
based on Keith. Keith holds 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." Id. at ¶ 26. Thus, under Keith, "where there are credible allegations,
supported by evidence, that the material 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 ¶ 28.
{¶ 15} This court considered application of Keith in two recent opinions. In State
ex rel. Townsend v. Mohr, 10th Dist. No. 15AP-681, 2016-Ohio-5942, ¶ 8, 30-37, we
adopted the magistrate's recommendation to deny relator's request for writ of
mandamus where the evidence did not show or suggest the parole board was
misinformed when it rendered its decision to deny parole. Likewise, in State ex rel.
McDermott v. Ohio Adult Parole Auth., 10th Dist. No. 16AP-208, 2017-Ohio-754, ¶ 9,
we noted that where the OAPA's written decision for denying a prisoner parole does not
reference the alleged inaccurate information and the prisoner seeking mandamus has
not presented other evidence indicating OAPA denied him parole on that basis, the
prisoner is not entitled to his requested writ of mandamus.
{¶ 16} Here, respondents, in their converted motion for summary judgment,
pointed to multiple exhibits attached to relator's mandamus complaint to show that the
facts applied under Keith do not afford relator entitlement to mandamus as a matter of
law. We find this showing meets respondents' initial burden under Dresher.
{¶ 17} Furthermore, construing the evidence strongly in relator's favor, we find
no evidence of a substantive inaccuracy that may have influenced the OAPA's
consideration of his parole. The parole decision and minutes reflects the proper
No. 16AP-199 7
sentence and does not include in its rationale allegedly inaccurate information such as
relator allegedly assaulting the victim prior to shooting him or any purported juvenile
conviction or prison transfer. While the parole decision and minutes do reference
"problematic conduct," relator argues that this statement is inaccurate based on his
recollection of being commended for good institutional behavior during the parole
hearing and his job history sheet. (Ohio Parole Board Decision and Minutes at 1.) As
discussed by the magistrate, relator cannot demonstrate this statement was made at the
hearing and neither this alleged commendation or his job history sheet prove that the
problematic conduct statement is inaccurate, particularly in light of the rationale of the
parole decision encouraging relator to "continue to complete risk relevant programming
and work on not receiving any future conduct reports." (Ohio Parole Board Decision
and Minutes at 1.)
{¶ 18} Therefore, we find that, pursuant to Keith, Townsend, and McDermott,
relator is not entitled to the requested relief and the parole board does not have a clear
legal duty to perform the act sought as a matter of law. Therefore, on this record, the
magistrate did not err in granting summary judgment in favor of respondents or in
denying relator's request for a writ of mandamus. Foster.
{¶ 19} Accordingly, we overrule relator's first and second objections.
IV. CONCLUSION
{¶ 20} Following review of the magistrate's decision, an independent review of
the record, and due consideration of relator's objections, we find the magistrate
correctly granted summary judgment to respondents and determined that relator is not
entitled to the requested writ of mandamus. We adopt the magistrate's decision as our
own and modify it to reflect our consideration of relator's September 1, 2016 reply brief
and attachments. Therefore, in accordance with the magistrate's recommendation, the
requested writ of mandamus is denied.
Objections one and two overruled,
objection three sustained;
writ of mandamus denied.
BROWN and LUPER SCHUSTER, JJ., concur.
__________________
No. 16AP-199 8
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Michael Cobb, :
Relator, :
v. : No. 16AP-199
Ohio Adult Parole Authority : (REGULAR CALENDAR)
and
Andre Imbrogno, :
Chair of the Ohio Parole Board,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on September 27, 2016
Michael Cobb, pro se.
Michael DeWine, Attorney General, and B. Alexander
Kennedy, for respondents.
IN MANDAMUS
ON MOTION FOR SUMMARY JUDGMENT
{¶ 21} Relator, Michael Cobb, has filed this original action asking this court to
find that respondents, Ohio Adult Parole Authority and Andre Imbrogno, Chair of the
Ohio Parole Board (collectively "parole board"), considered incorrect information at his
last parole hearing, and order respondents to provide him a new parole hearing where
he will receive meaningful review of his eligibility for parole without the parole board
considering the inaccurate information.
No. 16AP-199 9
Findings of Fact:
{¶ 22} 1. Relator is an inmate currently incarcerated at Richland Correctional
Institution where he is serving a sentence of 18 years to life for a murder and robbery
conviction.
{¶ 23} 2. Relator received his first parole hearing on June 11, 2015.
{¶ 24} 3. Relator was denied parole.
{¶ 25} 4. Relator filed a request for reconsideration alleging that certain errors
occurred, and requesting that his records be corrected.
{¶ 26} 5. In a letter dated January 29, 2016, the parole board notified relator that
his request for reconsideration was denied, stating:
Your request for reconsideration of a previous Parole Board
decision was received on 01/26/2016 and processed. DRC
Policy No. 105-PBD-04 Requests for Reconsideration and
Amendments to Parole Board Actions outlines
circumstances under which rescission and reconsideration of
the outcome of a parole hearing is permitted. Requests for
reconsideration must be based on, and specifically refer to,
relevant and significant new information that was either
not available or not considered at the time of the hearing. In
addition, any new information that forms the basis of a
reconsideration request must be submitted without
reasonable delay.
Your request and all other relevant information was
reviewed. It has been determined that the request does not
meet the standard for reconsideration as set forth in policy.
Therefore, no modification will be made to the last action of
the Parole Board. The decision sheet you received clearly
outlines the Parole Board's rational. There was no new
information presented in your letter.
(Emphasis sic.)
{¶ 27} 6. Relator asserts that the parole board relied on the following inaccurate
information:
{¶ 28} (1) A verbal statement made by parole board member Kathleen Kovach,
where she stated that relator and his father, a co-defendant in the underlying criminal
case, assaulted the victim with a gun, their fists, and their feet. Relator attached a copy
No. 16AP-199 10
of the medical examiner's report of the murder victim as proof he had not been
assaulted.
{¶ 29} (2) Relator asserts that the parole board information sheet inaccurately
indicates that he is serving an aggregated sentence of 23 years to life when his sentence
is actually 18 years to life.
{¶ 30} (3) Relator asserts that the parole board decision sheet indicates that the
parole board was concerned about his "problematic conduct" despite the fact that
Kovach verbally commended him for his "good institutional behavior and growth."
{¶ 31} (4) Relator asserts that he was verbally asked to "elaborate on the
'felonious assault conviction he had as a juvenile.' " Relator indicates that he explained
to the parole board that he was not convicted of felonious assault as a juvenile and
attached a copy of a journal entry from the Cuyahoga County Court of Common Pleas
dismissing a complaint which accused him of felonious assault with a handgun.
{¶ 32} (5) Relator asserts that he was verbally informed that the parole board had
a "institutional transfer document signed by then Warden of the Lorain Correctional
Institution, stating he was transferred from the Lorain Correctional Institution in 2004
for 'failure to adjust' at a level 3 institution." Relator acknowledges that he was
transferred, but the reason for the transfer was not failure to adjust, asserting that if that
had been correct, he would have been transferred to a "level 4 facility."
{¶ 33} 7. On May 3, 2016, respondents filed a motion to dismiss.
{¶ 34} 8. On May 31, 2016, relator filed a brief in opposition to respondents'
motion to dismiss.
{¶ 35} 9. On June 7, 2016, respondents filed a reply to relator's response.
{¶ 36} 10. In an effort to fully consider the matter, the magistrate converted
respondents' May 3, 2016 motion to dismiss to a motion for summary judgment in an
order filed August 17, 2016.
{¶ 37} 11. On August 25, 2016, respondents filed a motion asking the magistrate
to set aside the order converting the motion to dismiss to a motion for summary
judgment on grounds that respondents would be severely disadvantaged if relator could
"incorporate an entire catalog of evidence and draw conclusions therefrom but to which
Respondent would have to remain silent."
No. 16AP-199 11
{¶ 38} 12. On September 27, 2016, the magistrate denied respondents' motion to
set aside the August 17, 2016 order.
{¶ 39} 13. The matter is currently before the magistrate on respondents' motion
for summary judgment.
Conclusions of Law:
{¶ 40} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
{¶ 41} 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).
{¶ 42} The appropriate standard of proof in mandamus cases is proof by clear
and convincing evidence. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141
(1967).
{¶ 43} A motion for summary judgment requires the moving party to set forth the
legal and factual basis supporting the motion. To do so, the moving party must identify
portions of the record which demonstrate the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280 (1996). Accordingly, any party moving for summary
judgment must satisfy a three-prong inquiry showing: (1) that there is no genuine issue
as to any material facts; (2) that the parties are entitled to judgment as a matter of law;
and (3) that reasonable minds can come to but one conclusion, which conclusion is
adverse to the party against whom the motion for summary judgment is made.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978).
{¶ 44} 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 on correct
information, that respondent has a corresponding clear legal duty to correct errors and
falsehoods from the 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
No. 16AP-199 12
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
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
No. 16AP-199 13
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
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. 16AP-199 14
"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.
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
No. 16AP-199 15
investigate and correct any significant errors in the record of
the prisoner.
Id. at 378-80.
{¶ 45} Pursuant to the decision in Keith, the magistrate must consider whether
relator has made a showing that there may be substantive errors in the record that may
influence OAPA's consideration of parole. The magistrate finds that relator has not
made that showing.
{¶ 46} The magistrate will consider relator's second asserted error first. Here,
relator asserts that the parole board inaccurately indicated that he was serving a
sentence of 23 years to life when he is actually serving a sentence of 18 years to life.
Relator is correct that he is serving a sentence of 18 years to life. The trial court
sentenced relator to 15 years to life on the murder conviction plus an additional 3 years
for the firearm specification, and 5 years for the robbery conviction, and further ordered
that the sentences run concurrently. Clearly, relator's sentence is 18 years to life.
{¶ 47} Despite the fact that the parole board incorrectly noted his sentence, the
magistrate finds that relator has failed to demonstrate that this is a substantive error
which could have inappropriately motivated the parole board to deny him parole.
{¶ 48} The magistrate will now consider relator's third, fourth, and fifth asserted
errors. All three of these errors stem from verbal statements that relator asserts were
made during his parole hearing. In his third alleged error, relator asserts that, while the
parole board decision sheet lists his problematic conduct as a rationale for denying him
parole, Kovach verbally commended him for his good institutional behavior and growth.
Relator attached a copy of the parole board decision and minutes citing the following
rational for denying him parole:
The Board by way of a Majority Vote has determined that a
release at this time would demean the serious nature of this
crime. The male victim in this offense was shot in the back by
the offender and was then robbed of his property that was on
his person. While the Board does find that the offender has
good insight into his crimes and did display remorse for his
actions, they remain concerned about the inmate's
problematic conduct. He is encouraged to continue to
complete risk relevant programming and work on not
receiving any future conduct reports.
No. 16AP-199 16
{¶ 49} It is clear that the parole board was concerned about relator's problematic
conduct and encouraged him to continue to complete risk relevant programming and
work on not receiving any future conduct reports. Relator asserts that this contradicts
the statement from Kovach commending him for his good institutional behavior and
growth. Aside from relator's recollection of what was said at his hearing, there is no way
for relator to present evidence demonstrating that this statement was made. Further, to
the extent that it may have been made, the parole board's rationale does indicate that he
was "encouraged to continue to complete risk relevant programming." This clearly
indicates that the parole board was aware that relator had participated in certain
programs but, in their opinion, he needed to continue participating in similar programs.
Relator simply fails to demonstrate that this is a substantive error.
{¶ 50} In his fourth alleged error, relator asserts that a parole board member
asked him to elaborate on a felonious assault conviction he had as a juvenile. Relator
has included a journal entry from the common pleas court dismissing a complaint which
accused relator of felonious assault with a handgun while he was a juvenile.
{¶ 51} The magistrate specifically notes the following: relator was charged with
felonious assault with a handgun while he was a juvenile and relator cannot present any
evidence that a parole board member asked him to elaborate on the matter by calling it a
conviction instead of noting that he had been accused of felonious assault as a juvenile.
There certainly is some evidence in the record that an event occurred when relator was a
juvenile, and he was charged with felonious assault with a handgun. Relator cannot
establish this as a substantive error.
{¶ 52} In his fifth alleged error, relator indicates that a parole board member
indicated that in 2004 he was transferred from Lorain Correctional Institution to
Mansfield Correctional Institution for his failure to adjust. Relator asserts as evidence
that both Lorain and Mansfield Correctional Institutions are Level 3 institutions and
that, had he been transferred for failure to adjust, he would have been transferred to a
Level 4 facility.
{¶ 53} First, relator's fifth alleged error again concerns verbal statements
allegedly made at his hearing, which he cannot corroborate. Second, as respondents
note, relator points to Ohio Department of Rehabilitation & Correction Policy #53-CLS-
01(F)(8), which specifically provides:
No. 16AP-199 17
An inmate may * * * be placed in Level 4 * * *. The
behavioral criteria that warrant placement at Level 4 * * *
are:
[One] The inmate caused or attempted to cause serious
physical harm to another.
[Two] The nature of the inmate's behavior presents a current
threat to the security and orderly operation of the institution
and the safety of others.
[Three] The inmate has planned or participated in a serious
disturbance or riot.
[Four] The inmate has possessed or attempted to possess
major contraband which poses a threat or danger to the
institution. This includes, but is not limited to, weapons,
drugs, escape materials, or currency.
[Five] The inmate has been identified as a disruptive security
threat group participant.
[Six] Escape and related acts:
a. The inmate escaped, attempted to escape, or committed
acts to facilitate an escape from a lower level facility; or,
b. The inmate escaped, attempted to escape, or committed
acts to facilitate an escape while under supervision outside of
the facility resulting in physical harm or threatened serious
physical harm to others, or caused serious destruction to the
physical plant.
[Seven] The inmate has established an inappropriate
relationship with a staff member.
[Eight] The inmate through repetitive or seriously disruptive
behavior has demonstrated an inability to adjust to Level 3
as evidenced by repeated findings of guilt by the Rules of
Infraction Board (RIB).
{¶ 54} The above policy negates relator's assertion that he would have
automatically been transferred to a Level 4 facility if indeed he had exhibited
problematic conduct. The above policy indicates that transfer to a Level 4 facility based
No. 16AP-199 18
on problematic conduct is discretionary. For these reasons, relator's fifth alleged error
is not demonstrated to a degree that establishes a substantive error.
{¶ 55} Turning now to relator's first alleged error, that the parole board
incorrectly considered that he beat his victim before he shot him in the back. With
regard to this allegation, relator attached as Exhibit C the May 20, 2015 parole board
information sheet completed by Lisa Hunter, a parole officer for the parole board.
Hunter provided the following details of the offense:
On 8-4-97, the offender and his father James Cobb (co-
offender), approached the victim and his friend and began
assaulting the victim with the butt of a gun, their fists, and
their feet. The co-offender then told the offender to "shoot
that nigger and let's go!" to which the offender responded by
shooting the victim in the back. He then took a necklace
valued at $100.00 from the victim's pocket. Another witness
advised that after beating the victim the offender began to
walk away when the co-offender told him to shoot the victim.
A third witness advised that the victim was accused of
torching the offender's car in July and on the above date the
offender was told the victim was across the street. The
offender then got his father and went across the street to
confront the victim about the car. After beating the victim,
the co-offender was heard to say, "[y]ou shouldn't have
fucked with my boy's shit." The offender then shot the victim
in the back. He then snatched a necklace from the victim's
neck and went back across the street.
{¶ 56} Relator also attached a copy of the autopsy of the deceased victim to
indicate that he had not been beaten.
{¶ 57} As an initial matter, the information sheet completed by Hunter clearly
provides details which were provided by more than one witness to the murder.
Apparently, there were witnesses who testified that relator hit his victim before he shot
him. The magistrate notes that relator pled guilty, as such, there are no details provided
by the trial court which this court can review in assessing the accuracy of relator's
allegation. However, as stated previously, to the extent that relator asserts that this
information that he beat his victim is inaccurate, the only evidence that relator presents
is his recollection that an unknown parole board member made this statement. The
information sheet he attached is not mentioned in the parole board's decision to deny
him parole and relator cannot establish that it was even considered. The magistrate
No. 16AP-199 19
finds that relator's mere allegation does not rise to the level of demonstrating a
substantive error which would warrant action from this court.
{¶ 58} Based on the foregoing, it is this magistrate's decision that relator has not
made the requisite showing that there are credible allegations, supported by evidence,
that the materials relied on at his parole hearing were substantively inaccurate, and this
court should grant summary judgment in favor of respondents, and deny relator's
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).