The opinion
[Cite as State ex rel. Shine v. Ohio Dept. of Rehab. & Corr., Chambers-Smith, Dir., 2021-Ohio-4459.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Michael Shine, :
Relator, :
v. : No. 21AP-163
Ohio Department of Rehabilitation : (REGULAR CALENDAR)
and Correction, Annette Chambers-Smith,
Director, :
Respondent. :
D E C I S I O N
Rendered on December 16, 2021
On brief: Patituce & Associates, LLC, Megan M. Patituce,
and Joseph C. Patituce, for relator.
On brief: Dave Yost, Attorney General, and Tony H. Shang,
for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Michael Shine, initiated this original action requesting that this court
issue a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and
Correction ("ODRC"), Annette Chambers-Smith, Director, to modify the date of Shine's
next parole hearing so that it is no more than ten years from the date he was first eligible
for parole. ODRC filed a motion to dismiss Shine's petition for a writ of mandamus.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate of this court. The magistrate issued the appended
decision, including findings of fact and conclusions of law. The magistrate determined that
No. 21AP-163 2
Shine could show neither a clear legal right to the requested relief nor a clear legal duty on
the part of ODRC to provide such relief. Thus, the magistrate recommends this court grant
ODRC's motion to dismiss Shine's petition for a writ of mandamus.
{¶ 3} Shine 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). Shine
does not challenge the magistrate's recitation of the pertinent facts; however, he objects the
magistrate's conclusions that Shine had no clear legal right to the requested relief and that
ODRC had no clear legal duty to provide the requested relief.
{¶ 4} As the magistrate sets forth in the recitation of facts, within months Shine
was convicted and sentenced in two different criminal cases: (1) on July 28, 1999, a federal
court sentenced Shine to 262 months of incarceration ("federal case"), and (2) on August 6,
1999, the Cuyahoga County Court of Common Pleas sentenced Shine to an aggregate term
of 15 years to life ("state case"). The state case included instructions that Shine's sentence
in the state case run concurrently with his sentence in the federal case. Shine served his
sentence in the federal case from September 17, 1999 to November 2, 2017, at which point
he was transferred to the custody of ODRC. Shortly after his transfer to ODRC custody,
Shine received notice of his first parole eligibility hearing with an expected date of February
2018. Following a continuance, the parole board denied Shine parole on May 17, 2018, by
which time Shine had served 19 years in prison, and scheduled his next parole eligibility
hearing for May 2028. Shine argues that when ODRC held his first parole eligibility hearing
more than four years after it was required to under Ohio Adm.Code 5120:1-1-10(A). Thus,
because Shine asserts his first parole eligibility hearing was untimely, he seeks a writ of
mandamus to compel ODRC to hold his second hearing earlier to compensate for his
untimely first hearing.
{¶ 5} For this court to issue the requested writ of mandamus, Shine must show a
clear legal right to the relief sought and that ODRC has a clear legal duty to provide such
relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). As relevant here,
Ohio Adm.Code 5120:1-1-10(B)(2) provides that "[i]n any case in which parole is denied at
an inmate's regularly constituted parole hearing, the parole board shall * * * [s]et the time
for a subsequent hearing, which shall not be more than ten years after the date of the
No. 21AP-163 3
hearing." When ODRC denied Shine parole at the May 2018 hearing, it set the date for his
next eligibility hearing for May 2028, ten years from the date of the parole hearing.
Because he asserts his first parole eligibility hearing was untimely, Shine argues he has a
clear legal right to have his next parole hearing occur on an accelerated schedule so that it
occurs no more than ten years after when his first parole hearing should have taken place.
{¶ 6} In recommending that this court dismiss Shine's petition for writ of
mandamus, the magistrate agreed with ODRC that Shine could not show he was entitled to
an earlier date of his first parole eligibility hearing because he was in federal custody until
November 2, 2017 and ODRC had no authority to determine Shine's parole eligibility until
he was transferred to ODRC custody. We do not find it necessary to reach the question of
whether ODRC had a clear legal duty to hold the first parole eligibility hearing for Shine
while he was still in federal custody. Instead, we find that Shine cannot demonstrate he is
entitled to the requested writ of mandamus because he does not demonstrate he has a clear
legal right to have his next parole eligibility hearing occur less than ten years after the date
of his first hearing.
{¶ 7} Based on the plain language of Ohio Adm.Code 5120:1-1-10(B)(2), when an
inmate is denied parole at a hearing, the parole board shall set the time for the next hearing,
and that time "shall not be more than ten years after the date of the hearing." Stated
another way, the only clear legal right Shine has, under the express terms of the
administrative code provision, is for the parole board to set a time for his next eligibility
hearing and for that time to be not more than ten years after the date of the hearing at which
his parole was denied. Here, ODRC held the first hearing on May 17, 2018, denied Shine's
parole at that hearing, and set the date of the next hearing for May 2028, ten years after the
date of the hearing. Thus, ODRC complied with the requirements of Ohio Adm.Code
5120:1-1-10(B)(2) in setting the time for Shine's next parole eligibility hearing. Shine
simply does not point to any authority that would create a clear legal right for Shine to have
his next parole eligibility hearing set for a date four years earlier than what ODRC has
scheduled.
{¶ 8} Though Shine acknowledges the language of Ohio Adm.Code 5120:1-1-
10(B)(2), he argues that ODRC's technical compliance with the administrative code
provision in setting the date of his next parole eligibility hearing nonetheless deprives him
No. 21AP-163 4
of due process. However, as this court has stated, "[b]ecause an Ohio inmate has no
constitutional or statutory right to parole, he similarly has no right to earlier consideration
for parole." Festi v. Ohio Adult Parole Auth., 10th Dist. No. 04AP-1372, 2005-Ohio-3622,
¶ 15 (also stating "[j]ust as OAPA's denial of parole deprives an inmate of no protected
liberty interest, OAPA's continuance of appellant's next parole hearing deprived appellant
of no protected liberty interest"), citing State ex rel. Vaughn v. Ohio Adult Parole Auth., 85
Ohio St.3d 378, 379 (1999). Moreover, the crux of Shine's argument here is that ODRC's
scheduling of his first parole hearing may have violated his due process rights; however, he
does not explain how ODRC's scheduling of the next hearing in compliance with Ohio
Adm.Code 5120:1-1-10(B)(2) deprives him of due process. And as his petition for a writ of
mandamus seeks to change the date of his next parole eligibility hearing, we find Shine is
unable to demonstrate a clear legal right to anything other than what happened here: ODRC
setting the time for a subsequent hearing not more than ten years after the date of the
hearing. Thus, Shine cannot demonstrate he is entitled to a writ of mandamus.
{¶ 9} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined Shine is not entitled to the requested writ of
mandamus, though we reach that conclusion for different reasons than the magistrate.
Accordingly, we adopt the magistrate's factual findings, and, as outlined above, we adopt
the magistrate's conclusions of law as modified. Therefore, we overrule Shine's objections
to the magistrate's decision and grant ODRC's motion to dismiss Shine's petition for writ
of mandamus.
Objections overruled;
motion to dismiss granted.
DORRIAN, P.J., and JAMISON, J., concur.
No. 21AP-163 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Michael Shine, :
Relator, :
v. : No. 21AP-163
Ohio Department of Rehabilitation : (REGULAR CALENDAR)
and Correction, Annette Chambers-Smith,
Director, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on August 31, 2021
Patituce & Associates, LLC, Megan M. Patituce, and
Joseph C. Patituce, for relator.
Dave Yost, Attorney General, and Tony H. Shang, for
respondent.
IN MANDAMUS
{¶ 10} Relator, Michael Shine, has filed this original action seeking a writ of
mandamus ordering respondent, Ohio Department of Rehabilitation and Correction
("ODRC"), Annette Chambers-Smith, Director, to modify the date for relator's next parole
hearing so that it is no more than ten years from the date he was first eligible for parole.
ODRC has filed a motion to dismiss relator's petition for writ of mandamus. Relator has
also filed a motion for leave to amend his petition to include "State ex rel." in the case
caption.
No. 21AP-163 6
Findings of Fact:
{¶ 11} 1. Relator is a prisoner incarcerated at Marion Correctional Institution
("MCI").
{¶ 12} 2. ODRC is a state governmental agency. The Ohio Adult Parole Authority
("OAPA") operates under ODRC.
{¶ 13} 3. Annette Chambers-Smith is the director of ODRC.
{¶ 14} 4. On July 15, 1998, relator was indicted in federal court ("federal case"). He
subsequently plead guilty to two charges on April 28, 1999.
{¶ 15} 5. On February 19, 1999, relator was indicted in the Cuyahoga County Court
of Common Pleas ("state case"). He subsequently pled guilty to two charges on May 10,
1999.
{¶ 16} 6. On July 28, 1999, relator was sentenced to 262 months of incarceration
in the federal case.
{¶ 17} 7. On August 6, 1999, relator was sentenced to an aggregate term of
incarceration of 15 years to life in the state case, to run concurrently with his sentence in
the federal case.
{¶ 18} 8. Relator served his sentence in the federal case from September 17, 1999,
to November 2, 2017, at which point he was transferred to the custody of ODRC.
{¶ 19} 9. On November 16 and December 27, 2017, relator received notices of his
first parole hearing. The parole board indicated in a February 2018 decision and minutes
document that relator's first statutory eligibility date was "February 2018 Actual." The
February 2018 parole hearing was continued, and relator had his first parole hearing on
May 17, 2018.
{¶ 20} 10. On May 17, 2018, the parole board denied relator parole and scheduled
his next parole hearing for May 2028. The May 17, 2018, parole board decision and
minutes document indicates that relator had served 228 months, or 19 years, at that time.
{¶ 21} 11. On April 16, 2021, relator filed a petition for writ of mandamus. In his
petition, relator argued that: (1) the parole board has a clear legal duty to continue parole
hearings for no more than 10 years; (2) the parole board effectively extended his term of
incarceration by 14 years from the time he was first eligible until his second parole hearing
No. 21AP-163 7
by failing to conduct his first parole hearing in a timely fashion in compliance with Ohio
Adm.Code 5120:1-1-10; (3) the 14-year period between his first and second parole
hearings is in excess of the maximum 10-year period permitted by Ohio Adm.Code
5120:1-1-10(B); and (4) he is entitled to an accelerated parole hearing date that is no more
than 10 years from the date at which he originally became eligible for parole.
{¶ 22} 12. On May 18, 2021, ODRC filed a motion to dismiss relator's petition for
writ of mandamus, pursuant to Civ.R. 12(B)(6), asserting the following two grounds for
dismissal: (1) relator failed to bring his petition in the name of the state on the relation of
the person applying, as required by R.C. 2731.04; and (2) relator was not entitled to an
earlier parole hearing because he was in federal custody until November 2, 2017, and
ODRC had no authority to determine relator's parole eligibility until he was transferred
to the custody of ODRC at that time.
{¶ 23} 13. On June 2, 2021, relator filed a motion for leave to amend his complaint
to include "State ex rel." in the case caption.
{¶ 24} 14. Also on June 2, 2021, relator filed a brief in response to ODRC's motion
to dismiss.
{¶ 25} 15. On June 8, 2021, ODRC filed a reply to relator's brief in response to
ODRC's motion to dismiss.
Conclusions of Law:
{¶ 26} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of the
law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 27} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the
complaint. In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6), it must
appear beyond doubt from the complaint that the plaintiff can prove no set of facts
entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d
242 (1975), syllabus. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court
must presume that all factual allegations in the complaint are true and make all
No. 21AP-163 8
reasonable inferences in the plaintiff's favor. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio
St.3d 323, 2007-Ohio-3608, ¶ 14.
{¶ 28} ODRC first asserts that relator's petition should be dismissed because
relator did not follow R.C. 2731.04 when he failed to name the State of Ohio on the relation
in his petition. R.C. 2731.04 provides that an "[a]pplication for the writ of mandamus
must be * * * in the name of the state on the relation of the person applying." While it is
true that relator did not name the State of Ohio on the relation in his petition, and such
deficiency is grounds for dismissal, see Blankenship v. Blackwell, 103 Ohio St.3d 567,
2004-Ohio-5596, ¶ 35-36, a relator may seek leave to amend the complaint to comply
with R.C. 2731.04. Id. Here, relator has filed a motion for leave to amend his complaint
to name the State of Ohio on the relation of relator. The magistrate grants relator's motion
to amend the petition. Therefore, ODRC's motion to dismiss on this ground is denied.
{¶ 29} ODRC next argues that relator's petition must be dismissed because relator
cannot show that he had a clear legal right to an earlier parole hearing in 2014 because he
was in federal custody until November 2, 2017, and ODRC had no authority to determine
relator's parole eligibility or provide him a parole-eligibility hearing until he was
transferred to the custody of ODRC at that time. Thus, ODRC contends, relator cannot
demonstrate he had a clear legal right to a first parole hearing by ODRC after he had
served 15 years and was still in the custody of federal prison.
{¶ 30} Relator counters that Ohio Adm.Code 5120:1-1-10 requires that the initial
parole hearing for an individual serving a sentence such as relator must be held on or
about the date when the prisoner first becomes eligible pursuant to Ohio Adm.Code
5120:1-1-03(A). Relator contends that ODRC has effectively denied him of the May 1999
plea agreement that he entered into whereby he would be parole eligible in 15 years, or
May 2014, by failing to conduct his first parole hearing in a timely fashion in compliance
with Ohio Adm.Code 5120:1-1-10. Relator points out that ODRC did not consider his
parole eligibility for his first hearing until February 2018, where it determined that his
first statutory eligibility date was February 2018, and the parole eligibility hearing did not
actually occur until May 17, 2018. Relator claims that ODRC's determination to extend
his sentence by an additional 14 years from the date of his first eligibility was in violation
of the statute.
No. 21AP-163 9
{¶ 31} Ohio Adm.Code 5120:1-1-10 provides, in pertinent part:
(A) The initial hearing for each inmate serving an
indeterminate sentence shall be held on or about the date
when the prisoner first becomes eligible for parole pursuant
to rule 5120:1-1-03 of the Administrative Code.
(B) In any case in which parole is denied at a inmate’s
regularly constituted parole hearing, the parole board shall:
(1) Set a projected release date in accordance with paragraph
(D) of this rule; or
(2) Set the time for a subsequent hearing, which shall not be
more than ten years after the date of the hearing.
{¶ 32} Relator's mandamus petition raises two related questions. First, pursuant
to Ohio Adm.Code 5120:1-1-10, is a prisoner who is presently serving a term of
incarceration in federal prison, which is running concurrent to a term of incarceration
ordered in a state court, entitled to a parole-eligibility hearing on or about the date when
the prisoner first becomes eligible for parole in the state court case? If not, pursuant to
Ohio Adm.Code 5120:1-1-10, is a prisoner who was serving a term of incarceration in
federal prison at the time he first became eligible for a parole related to a state conviction,
and who is released from federal prison and subsequently denied parole eligibility at his
first parole eligibility hearing, entitled to a subsequent parole eligibility hearing that is no
later than ten years after the date when he first became eligible for parole?
{¶ 33} Unfortunately, neither relator nor ODRC cite any authority that answers
either of the above questions. The magistrate also can find no authority that squarely
answers the questions. However, there is some case law that tends to support ODRC's
contention that it had no authority to determine relator's parole eligibility or provide a
parole eligibility hearing until he was transferred from federal prison to the custody of
ODRC. In a case concerning a delay in conducting a parole-revocation hearing, the court
in State ex rel. Glover v. May, 5th Dist. No. 2020 CA 0028, 2020-Ohio-3353, held that
because the prisoner was serving a sentence in Georgia while on parole for his Ohio
sentence, he was not entitled to a revocation hearing until the OAPA took custody of him
after he completed his Georgia sentence. Id. at ¶ 24, citing State ex rel. Taylor v. Ohio
No. 21AP-163 10
Adult Parole Auth., 66 Ohio St.3d 121, 125 (1993) (finding that neither due process of law
nor R.C. 2967.15 or former Ohio Adm.Code 5120:1-1-19(A)'s "reasonable time"
requirement compels a final revocation parole hearing while an alleged parole violator is
imprisoned pending prosecution for, or after conviction of, another crime), and State ex
rel. Brantley v. Ghee, 83 Ohio St.3d 521, 522 (1998) (finding that the OAPA has no legal
duty to hold a final parole revocation hearing for the prisoner during the time he is
incarcerated on new criminal charges).
{¶ 34} In State ex rel. Marsh v. Tibbals, 149 Ohio St.3d 656, 2017-Ohio-829, which
also concerns the timeliness of a parole-revocation hearing, the prisoner argued that the
OAPA was obligated to hold a revocation hearing as soon as the federal prison agreed to
make him available for the hearing by videoconferencing technology. The court concluded
that, irrespective of the prisoner's request that the OAPA hold a revocation hearing by
videoconference, the OAPA was under no duty to do so during his federal incarceration.
The court explained that the OAPA's duty to hold a revocation hearing did not arise until
the prisoner completed his federal sentence and federal authorities transferred him into
state custody, and the availability of videoconferencing technology did not trigger the
OAPA's duty to hold a revocation hearing. Therefore, the court concluded, because the
prisoner was serving a sentence for federal convictions while on parole from his Ohio
sentence, he was not entitled to a revocation hearing until the OAPA took custody of him
after he completed his federal sentence. Id. at ¶ 23-24.
{¶ 35} Although these cases do not arise from the same procedural or regulatory
background as the present case, the magistrate finds the general principles discussed
therein to be helpful in analyzing the present case. Applying the concepts from Marsh and
Glover to the present case, because relator was serving a federal sentence at the time he
would have been eligible for his initial parole-eligibility hearing for his state convictions,
ODRC was under no duty to hold a parole hearing during his federal incarceration.
ODRC's duty to hold his first parole hearing did not arise until relator completed his
federal sentence, the federal authorities transferred him into state custody, and ODRC
took custody of him. See, e.g. Marsh and Glover. Therefore, lacking citation to any
authority to the contrary, relator has failed to show a clear legal right to a parole hearing
for his state sentence while serving his concurrent term of incarceration in federal prison
No. 21AP-163 11
or a clear legal duty on the part of ODRC to provide such a hearing during his federal
incarceration, pursuant to Ohio Adm.Code 5120:1-1-10.
{¶ 36} As for the second question raised by relator's petition—that after he was
released from federal prison and denied parole at his first eligibility hearing, he was
entitled to a subsequent parole eligibility hearing that was no later than 10 years after the
date when he first became eligible for parole in May 2014—relator has also failed to show
a clear legal right to such. Ohio Adm.Code 5120:1-1-10(B)(2) provides that in any case in
which parole is denied at the inmate's regularly constituted parole hearing, the parole
board shall set the time for a subsequent hearing, which shall not be more than 10 years
after the date of the hearing. Here, ODRC denied relator parole at his initial parole
hearing in May 2018, and set the time for a subsequent hearing in May 2028, consistent
with the guidelines in Ohio Adm.Code 5120:1-1-10. In sum, although the magistrate
appreciates the perceived unfairness about which relator complains, relator has failed to
show he had a clear legal right to the requested relief or that ODRC had a clear legal duty
to perform the requested relief, which is the standard in mandamus cases. The cited
regulations do not provide the legal rights or duties relator urges, and there is no authority
to support relator's contentions.
{¶ 37} Accordingly, it is the magistrate's decision that relator can show neither a
clear legal right to the requested relief nor a clear legal duty on the part of ODRC to
provide such relief. Therefore, the magistrate grants relator's motion for leave to amend
his complaint and recommends that this court grant ODRC's motion to dismiss relator's
petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 21AP-163 12
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).