State ex rel. Brust v. Chambers-Smith (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Brust v. Chambers-Smith, Slip Opinion No. 2019-Ohio-857.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2019-OHIO-857

THE STATE EX REL. BRUST, APPELLANT, v. CHAMBERS-SMITH, DIR., ET AL.,

APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Brust v. Chambers-Smith, Slip Opinion No.

2019-Ohio-857.]

Mandamus—Inmate failed to make credible claim of parole-record error that may

prevent his parole request from receiving meaningful consideration and

failed to prove clear legal right to review his parole record prior to a

scheduled parole hearing—Court of appeals’ denial of writ affirmed.

(No. 2018-0583—Submitted January 8, 2019—Decided March 14, 2019.)

APPEAL from the Court of Appeals for Franklin County, No. 17AP-275,

2018-Ohio-1067.

________________

Per Curiam.

{¶ 1} Appellant, Shawn K. Brust, appeals the judgment of the Tenth District

Court of Appeals denying his petition for a writ of a mandamus against appellees,

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Annette Chambers-Smith, director of the Ohio Department of Rehabilitation and

Correction, and Trayce Thalheimer, acting chair of the Ohio Parole Board

(collectively, “DRC”).1 Brust seeks to compel DRC to correct alleged factual errors

in his parole file and grant him a new hearing. We affirm the judgment of the court

of appeals.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Brust was indicted for the shooting death of Anthony Truff. In 1998,

a jury rejected an aggravated-murder charge but found Brust guilty of the lesser

included offense of murder. The jury also rejected a drive-by specification, finding

that Brust did not cause harm to another by discharging a firearm from a motor

vehicle. He was sentenced to prison for 15 years to life with an additional three

years for a gun specification.

{¶ 3} At his July 2015 parole hearing, Brust’s Parole Board Information

Sheet (“parole information sheet”) contained the following summary of the offense:

On 8/5/97, the inmate shot and killed the male victim. The

victim was riding his bicycle at the intersection of Agustus [sic]

Court and Urban Hollow Court in Columbus when the inmate shot

him from his tan Isuzu Trooper. On 8/17/97, the Franklin County

Sheriff’s Office received information that the inmate was the

shooter. The next day, deputies searched his parent’s house and

found the gun that was used in the murder. A short time before the

shooting, the inmate was heard bragging about going to the

Urbancrest area to get some people back for pulling a gun on him.

1. This case was instituted against then director Gary Mohr and then chairman Andre Imbrogno.

Director Chambers-Smith and Acting Chair Thalheimer subsequently succeeded Mohr and

Imbrogno, respectively, and have been automatically substituted as appellees in this case.

S.Ct.Prac.R. 4.06(B); Civ.R. 25(D)(1).

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The parole board concluded that Brust was not suitable for release and scheduled

his next parole hearing for 2020. Brust then sought reconsideration from DRC,

alleging several factual errors in his parole record.

{¶ 4} On April 20, 2017, Brust filed a petition for a writ of mandamus in

the court of appeals, arguing that the parole board had a legal duty to correct alleged

inaccuracies in his parole record. Brust sought an order directing DRC to

investigate and correct the alleged inaccuracies to reflect the facts contained in the

record in his criminal case and schedule a new parole hearing based on the correct

facts.

{¶ 5} After Brust filed his mandamus action, the parole board removed from

the parole information sheet the statement that Brust shot Truss “from [Brust’s] tan

Isuzu Trooper” and held another hearing. Brust declined to attend the hearing, and

the board again denied parole.

{¶ 6} In November 2017, a magistrate recommended that the court of

appeals deny the writ of mandamus. In March 2018, the court of appeals adopted

the magistrate’s recommendation over Brust’s objections and denied the writ.

LAW AND ANALYSIS

{¶ 7} To obtain a writ of mandamus, Brust is required to show a clear legal

right to the requested relief, a clear legal duty on DRC’s part to provide it, and the

lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters

v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. A relator must

prove entitlement to a writ of mandamus by clear and convincing evidence. State

ex rel. McDermott v. Ohio Adult Parole Auth., 152 Ohio St.3d 144, 2017-Ohio-

9242, 93 N.E.3d 967, ¶ 7.

Overview of State ex rel. Keith v. Ohio Adult Parole Auth.

{¶ 8} The leading case on factual inaccuracies in parole records is State ex

rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, 24

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N.E.3d 1132 (“Keith I”), in which an inmate sought to compel the parole board to

correct allegedly erroneous information in his parole record and conduct a new

hearing using the corrected information. We held that “in any parole determination

involving indeterminate sentencing the [Ohio Adult Parole Authority (“OAPA”)]

may not rely on information that it knows or has reason to know is inaccurate.” Id.

at ¶ 26.

{¶ 9} However, we did not conclude in Keith I that any information in

Keith’s parole record was erroneous nor did we order a new parole hearing.

Instead, we held that “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 ¶ 28. Finding that Keith “ha[d] made a showing that

there may be substantive errors in his record that may influence the OAPA’s

consideration of his parole,” we ordered the parole board to investigate the

allegations and to “correct any substantive errors discovered in the record it uses to

consider him for parole.” Id. at ¶ 30.

{¶ 10} After the parole board again denied Keith parole, he filed a second

petition for a writ of mandamus. The court of appeals again denied a writ, and we

affirmed, reiterating that “this court in Keith I did not hold that a writ of mandamus

will issue every time an inmate identifies a factual error in his parole record.

Rather, a writ will issue when there is a credible claim of an error that may prevent

the inmate’s application from receiving meaningful consideration.” State ex rel.

Keith v. Dept. of Rehab. & Corr., 153 Ohio St.3d 568, 2018-Ohio-3128, 109 N.E.3d

1171 (“Keith II”), ¶ 16.

Analysis of the merits of the appeal

Brust’s first, second, and third propositions of law

{¶ 11} In his first three propositions of law, Brust makes essentially the

same argument—that the alleged factual errors in his parole record are substantive

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and may prevent him from receiving meaningful consideration for parole. He

argues that he is therefore entitled to a writ of mandamus requiring the parole board

to correct the alleged errors. For ease of discussion, these three propositions of law

will be addressed together.

First alleged factual error

{¶ 12} First, Brust alleges that the statement in the parole information

sheet’s summary that “[o]n 8-5-97, the inmate shot and killed the male victim” is

inaccurate. Brust argues that although he did shoot Truss on August 5, 1997, Truss

did not die until August 9, four days later. He contends that this discrepancy

constitutes a substantive error in his parole record that the board has a legal duty,

under Keith I, to correct.

{¶ 13} Brust has failed to establish that the phrasing used in the parole

information sheet was material to his parole request or that this alleged factual error

prevents his application from receiving meaningful consideration by the parole

board. See Keith II, 153 Ohio St.3d 568, 2018-Ohio-3128, 109 N.E.3d 1171, at

¶ 16.

Second alleged factual error

{¶ 14} Brust acknowledges that the parole board corrected his second

alleged error regarding the drive-by specification. Brust’s argument regarding this

error is now moot.

Third alleged factual error

{¶ 15} Brust next argues that the statement in his parole information sheet

that “[a] short time before the shooting the inmate was heard bragging about going

to the Urbancrest area to get some people back for pulling a gun on him” is a

material factual inaccuracy.

{¶ 16} Brust asserts that before the shooting, he said only that he was going

to confront people to recover drugs that had been taken from him. Thus, Brust

argues, there is no evidence that prior to the shooting, he was bragging or

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threatening to kill anyone. He also argues that the evidence at the trial did not show

a prior calculation and design to cause the death of the victim, as shown by the fact

that he was acquitted of aggravated murder.

{¶ 17} The parole board’s minutes do not mention prior calculation or

design but, rather, focus on Brust’s poor behavior in prison and opine that he needed

additional time “to increase his insight into the offense.” Therefore, Brust has failed

to prove “a credible claim of an error that may prevent [his] application from

receiving meaningful consideration,” Keith II, 153 Ohio St.3d 568, 2018-Ohio-

3128, 109 N.E.3d 1171, at ¶ 16.

Fourth alleged factual error

{¶ 18} Brust next argues that the parole board’s Offender Background

Information Report inaccurately states, “On 8-5-97, Anthony Truss was gunned

down while riding a bicycle.” Brust argues that the phrase “gunned down” is

ambiguous and that the evidence at trial showed that Truss was walking after the

shooting.

{¶ 19} The verb to “gun” is “usu[ally] foll[owed] by down” and is defined

as to “shoot (a person) with a gun.” (Italics sic.) Oxford Encyclopedic English

Dictionary 631 (1991). The evidence at trial showed that Truss was shot with a

gun, and thus, there was evidence to support the parole report’s statement that he

was “gunned down while riding a bicycle.” Therefore, Brust has failed to prove

that this phrasing was inaccurate and may prevent his application from receiving

meaningful consideration by the parole board. See Keith II, 153 Ohio St.3d 568,

2018-Ohio-3128, 109 N.E.3d 1171, at ¶ 16.

Brust’s fourth proposition of law

{¶ 20} Brust argues that a parole-eligible inmate has a minimal due-process

right to review his or her parole record for error and introduce testimony or other

evidence relating to any factual inaccuracies prior to a parole hearing. Contrary to

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DRC’s assertion, Brust did preserve this argument by first raising it in the court of

appeals.

{¶ 21} In Keith I, this court held that the OAPA was not required to conduct

an extensive investigation in every prisoner’s case to ensure the accuracy of its files.

141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132, at ¶ 27. Nor does Keith I

or Keith II require the parole board to allow inmates to review their parole records

and formally respond prior to a hearing. Under current DRC policy, each inmate

is permitted to respond to the factual information discussed at the hearing and to

submit verbally or in writing any additional information that is pertinent. Ohio

Department of Rehabilitation and Correction, Policy No. 105-PBD-03, at 9,

https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies/105-PBD-03%20(July%

202017).pdf?ver=2017-07-31-141430-577 (accessed Jan. 22, 2019). Brust was

permitted to raise his claims, and he did have an error corrected. He has failed to

prove a clear legal right to review his parole record prior to a scheduled parole

hearing. See Hall v. Adult Parole Auth., N.D.Ohio No. 3:13-cv-0548, 2013 U.S.

Dist. LEXIS 131941, *8-10 (Sept. 16, 2013) (no constitutional right to review and

edit information in a parole record).

Brust’s fifth proposition of law

{¶ 22} Brust argues that the court of appeals abused its discretion by

denying his motion to stay his scheduled parole hearing while his mandamus action

was pending in the court of appeals. He argues that until the alleged errors in his

parole record were considered and corrected by the court, it would have been a

“futile endeavor” to participate in the second parole hearing.

{¶ 23} Brust cannot show that he was prejudiced by the court of appeals’

refusal to stay the parole hearing, since he has failed to prove that the three

remaining alleged errors exist, are substantive, and adversely affected the parole

board’s consideration of his parole request. Keith II, 153 Ohio St.3d 568, 2018-

Ohio-3128, 109 N.E.3d 1171, at ¶ 17.

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{¶ 24} The court of appeals did not err in denying Brust’s petition for a writ

of mandamus.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,

and STEWART, JJ., concur.

_________________

Shawn K. Brust, pro se.

Dave Yost, Attorney General, and Byron D. Turner, Assistant Attorney

General, for appellees.

_________________

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