State ex rel. Mango v. Ohio Dept. of Rehab. & Corr.

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

ex rel. Mango v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2022-Ohio-1559.]

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. 2022-OHIO-1559

THE STATE EX REL . MANGO, APPELLANT , v. OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION, APPELLEE.

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

may be cited as State ex rel. Mango v. Ohio Dept. of Rehab. & Corr., Slip

Opinion No. 2022-Ohio-1559.]

Mandamus—Parole—Inmate failed to establish violation of due-process rights

during parole-revocation hearing—Inmate received effective assistance of

counsel at parole-revocation hearing—Hearing officer’s finding that

inmate violated terms of parole supported by sufficient evidence—Court of

appeals’ judgment denying request for writ affirmed.

(No. 2021-0646—Submitted January 25, 2022—Decided May 11, 2022.)

APPEAL from the Court of Appeals for Franklin County, No. 18AP-945,

2021-Ohio-1314.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Appellant, Raymond Mango, was ordered back to prison for violating

the conditions of his parole. He sought a writ of mandamus in the Tenth District

Court of Appeals to order appellee, Ohio Department of Rehabilitation and

Correction (“ODRC”), to either reinstate his parole or grant him a new parole-

revocation hearing. The Tenth District denied the writ; we affirm.

I. Factual and Procedural Background

{¶ 2} Mango was convicted of aggravated murder and aggravated robbery

in 1981 and sentenced to 20 years to life in prison. He was released on parole in

2016. Mango’s conditions of parole included (1) obeying federal, state, and local

laws and ordinances, (2) following all orders given by his supervising parole

officer, and (3) obtaining approval from the parole board before changing his

residence. In December 2016, Mango’s parole officer told him to have no contact

with a girlfriend, Gwendolyn Jarrett, after Mango and Jarrett reported having had

either physical or verbal altercations with each other.

{¶ 3} On March 28, 2018, police in Cleveland responded to a call from

Mango, who sought assistance in retrieving property from Jarrett’s residence. At

the scene, Mango informed the responding officers that he and Jarrett had been in

an altercation earlier in the day and that he wanted to get his clothes from the

residence and leave. Jarrett told officers that Mango had hit her. Jarrett had a minor

injury on her lip and indicated to an officer that Mango also hit her on the side of

her face.

{¶ 4} Mango initially denied touching Jarrett but ultimately admitted to the

officers that he had pushed her during an argument. When officers handcuffed

Mango to take him into custody, Jarrett recanted and told them that she did not want

Mango to go back to jail and that she had injured herself falling down the stairs.

Officers asked Jarrett again whether Mango had hit her and she responded, “[N]ot

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as hard as he could have.” Mango was arrested for domestic violence against

Jarrett, but no criminal charges were filed against him for the incident.

{¶ 5} The Ohio Adult Parole Authority (“APA”) charged Mango with

violating the terms of his parole by (1) causing or attempting to cause physical harm

to Jarrett, (2) failing to comply with his supervising officer’s order not to contact

Jarrett, and (3) failing to obtain parole-board approval before changing his address.

In the written hearing notification, Mango was advised of his right to request

counsel from the Office of the Ohio Public Defender and to request the presence of

witnesses to testify on his behalf. Mango requested counsel to represent him but

did not request to call witnesses.

{¶ 6} An APA hearing officer held a revocation hearing on May 2, 2018, at

which Mango was represented by counsel. Despite the APA’s issuance of a

subpoena to her, Jarrett did not appear at the hearing to testify. One of the officers

who arrested Mango testified, and police body-camera video from the incident was

introduced into evidence. The hearing officer found Mango guilty of causing or

attempting to cause physical harm to Jarrett and failing to comply with the condition

that he obtain parole-board approval before changing his address but not guilty of

failing to comply with a supervising officer’s order. Mango’s parole was revoked,

and the hearing officer recommended that he be ordered to serve an additional 36

months in prison before again becoming eligible for parole. The parole board

approved the hearing officer’s recommendation.

{¶ 7} On December 10, 2018, Mango filed an action for a writ of mandamus

in the Tenth District Court of Appeals. Mango alleged that he was deprived of the

effective assistance of counsel at his revocation hearing, that he was not permitted

to cross-examine witnesses against him, and that he was found guilty based solely

on hearsay evidence. Mango asked for an order reinstating his parole or granting

him a new revocation hearing. ODRC filed a motion to dismiss the action for

failure to state a claim for relief. The court of appeals referred the action to a

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magistrate, who recommended granting ODRC’s motion to dismiss, State ex rel.

Mango v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 18AP-945, 2019-

Ohio-4774, ¶ 37.

{¶ 8} Mango filed objections to the magistrate’s recommendation. The

court of appeals sustained Mango’s objections, finding that the magistrate

impermissibly weighed the evidence in considering ODRC’s motion to dismiss

under Civ.R. 12(B)(6). Id. at ¶ 8-11.

{¶ 9} On remand, the court of appeals referred the matter to a different

magistrate, to whom the parties submitted evidence and briefs on the merits. The

magistrate issued a decision that included findings of fact and conclusions of law.

To the extent that Mango sought release from prison through reinstatement of his

parole, the magistrate determined that “[h]abeas corpus, not mandamus, is the only

remedy for a claim of entitlement to immediate release.” 2021-Ohio-1314, ¶ 35.

And as for the mandamus claim seeking a new parole-revocation hearing, the

magistrate rejected all of Mango’s arguments and recommended that the court of

appeals deny the writ of mandamus. Id. at ¶ 38-44.

{¶ 10} Mango again objected to the magistrate’s recommendation. This

time, the court of appeals overruled Mango’s objections, adopted the magistrate’s

decision as its own, and denied the writ. Id. at ¶ 12. Mango appealed to this court

as of right.

II. Analysis

{¶ 11} To obtain a writ of mandamus, Mango “must establish (1) a clear

legal right to the requested relief, (2) a clear legal duty on the part of [ODRC] to

provide it, and (3) the lack of an adequate remedy in the ordinary course of the

law.” State ex rel. Marsh v. Tibbals, 149 Ohio St.3d 656, 2017-Ohio-829, 77

N.E.3d 909, ¶ 24. In this appeal, Mango argues that his due-process rights were

violated at his parole-revocation hearing. If Mango can prove that a due-process

violation occurred, mandamus is the appropriate remedy for compelling the parole

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authority to conduct a second hearing.1 See State ex rel. Ellison v. Black, 165 Ohio

St.3d 310, 2021-Ohio-3154, 178 N.E.3d 508, ¶ 12. This court reviews the court of

appeals’ judgment de novo. See State ex rel. Haynie v. Rudduck, 160 Ohio St.3d

99, 2020-Ohio-2912, 153 N.E.3d 91, ¶ 10 (court of appeals’ judgment in a

mandamus action is reviewed as if originally filed in this court).

A. Right of Confrontation and Right to Call Witnesses

{¶ 12} In his first proposition of law, Mango argues that the ODRC violated

his “minimum constitutional due process rights” at the parole-revocation hearing.

The revocation of parole implicates a liberty interest that cannot be denied without

certain procedural protections. Morrissey v. Brewer, 408 U.S. 471, 481-484, 92

S.Ct. 2593, 33 L.Ed.2d 484 (1972). Minimum due-process protections at a parole-

revocation hearing include the “opportunity to be heard in person,” the right to

“present witnesses and documentary evidence,” and “the right to confront and

cross-examine adverse witnesses (unless the hearing officer specifically finds good

cause for not allowing confrontation).” See id. at 489.

{¶ 13} Mango first complains that his due-process rights were violated by

the admission of what he alleges was impermissible hearsay evidence, namely “the

responding officer’s assumptions based on his observations of * * * Jarrett” and the

officer’s conversations with her. This evidence is especially problematic, Mango

argues, given that Jarrett, the alleged hearsay declarant, recanted her statement to

the officer at the scene and expressed her desire not to have Mango arrested. Mango

argues that the use of these statements violated his right to confront witnesses

against him.

1. Mango’s complaint also sought a writ of mandamus to compel the reinstatement of his parole.

As noted above, the court of appeals denied the writ as to this relief because habeas corpus, not

mandamus, is the proper remedy for obtaining release from confinement. 2021-Ohio-1314 at ¶ 6,

35. Mango does not appeal this aspect of the court of appeals’ ruling, noting that he is seeking only

a new parole-revocation hearing in this action.

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{¶ 14} Mango’s argument is without merit. Though a parolee has certain

due-process rights at a revocation hearing, he is not entitled to all the procedural

rights accorded the defendant in a criminal trial. See Morrissey at 480 (“the

revocation of parole is not part of a criminal prosecution and thus the full panoply

of rights due a defendant in such a proceeding does not apply to parole

revocations”); see also State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio

St.3d 12, 16, 577 N.E.2d 352 (1991). As relevant here, the parole board may admit

hearsay evidence because “a parolee contesting revocation does not have the same

confrontation rights as does a trial defendant.” Coulverson at 16. Accordingly, the

arresting officer’s testimony at the revocation hearing, even if it contained hearsay

statements of Jarrett, did not violate Mango’s due-process rights. Moreover, the

record shows that the hearing officer relied on more than the so-called hearsay

evidence of which Mango complains. Most notably, the evidence against Mango

included body-camera footage from the arresting officer, which contained the

officer’s observations from the scene and admissions by Mango that he had pushed

Jarrett during an argument.

{¶ 15} Mango also contends that he was deprived of his right to have his

sister, Vernell Reid, testify on his behalf. In the proceedings below, Mango

submitted an affidavit from Reid stating that Mango resided in her home from the

time he was released from prison in 2016 until he was arrested in 2018. Mango

argues that he should have been able to call Reid as a witness to refute the charge

that he was living with Jarrett without APA permission. But Mango does not show

a due-process violation here either. The record shows that Mango did not request

to call Reid to testify at his revocation hearing. The only witness Mango’s counsel

called on his behalf was Mango’s parole officer.

{¶ 16} For these reasons, Mango’s first proposition of law is without merit.

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January Term, 2022

B. Sufficiency of Evidence and Effective Assistance of Counsel

{¶ 17} In his second proposition of law, Mango argues that there was

insufficient evidence to support a finding that he violated his parole. Also under

this proposition, he argues that he was denied the effective assistance of counsel at

his hearing.

{¶ 18} While the United States Supreme Court has not held specifically that

due process requires sufficient evidence to support the revocation of parole,

probation, or other types of postrelease supervision, it has suggested as much. See

Black v. Romano, 471 U.S. 606, 615-616, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)

(finding that the state trial court’s decision to revoke an offender’s probation

satisfied due process, agreeing that “there was sufficient evidence to support the

state court’s finding that Romano had violated the conditions of his probation”).

There is sufficient evidence to sustain a revocation of parole when there is

“substantial evidence” to support the decision. State v. Delaney, 11 Ohio St.3d 231,

236, 465 N.E.2d 72 (1984). There is “substantial evidence” to support a finding of

a parole violation when the evidence presented by the APA, if believed, is sufficient

to satisfy the burden of proof. See Consol. Edison Co. of New York v. Natl. Labor

Relations Bd., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed.2d 126 (1938) (“Substantial

evidence * * * means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion”); see also Our Place, Inc. v. Ohio Liquor Control

Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992) (“ ‘Substantial’ evidence

is evidence with some weight; it must have importance and value”).

{¶ 19} The purpose of a parole-revocation hearing “is to determine whether

there is a preponderance of the evidence, taking the record as a whole, that the

releasee violated a condition of release or post-release control sanction.” Ohio

Adm.Code 5120:1-1-18(A)(3). Here, there is substantial evidence in the record to

support the hearing officer’s conclusion that the APA met its burden of proving that

Mango violated the terms of his parole. As noted above, the hearing officer relied

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on body-camera footage from one of the arresting officers, who also testified at the

revocation hearing. In the footage, Jarrett told the officer that she did not want

Mango in her house because of “the way he beat on me.” Jarrett had visible wounds

to her face and stated that Mango had struck her face multiple times. The officer

repeatedly asked Jarrett whether Mango hit her, and she repeatedly said yes. Jarrett

also told the officer that Mango had been living with her since August 2017.

Finally, the footage also shows admissions by Mango that he had pushed Jarrett

during a verbal altercation.

{¶ 20} Mango does not dispute the contents of the body-camera video

evidence. Rather, he argues that this evidence does not prove that he hit Jarrett or

that he was living with her. He emphasizes that Jarrett has recanted her claim that

he hit her and that there was no corroborating evidence to show that he was living

with Jarrett. But these arguments are focused on the hearing officer’s weighing of

the evidence and do not undermine the substantial evidence in the record that

supports the hearing officer’s determination. In any event, the hearing officer had

a reasonable basis to believe that Mango did, in fact, strike Jarrett. In context,

Jarrett’s recantation to the officer was not a denial that the incident happened, but

rather, an attempt to prevent Mango from going to jail. When the officer informed

Jarrett that he was going to arrest Mango “unless you’re telling me you’re lying,”

Jarrett responded, “I’m lying, I’m lying, I fell down the stairs. Just let him go.”

The hearing officer reasonably rejected this recantation when juxtaposed with

Jarrett’s visible wounds and her acknowledgment that Mango hit her with a closed

fist.

{¶ 21} Mango also argues that his counsel at the revocation hearing was

ineffective. Counsel is not automatically required for a parole-revocation hearing.

See Marsh, 149 Ohio St.3d 656, 2017-Ohio-829, 77 N.E.3d 909, at ¶ 27; see also

Ohio Adm.Code 5120:1-1-18(A)(5)(e) (specifying a right to counsel “if the parole

board member or hearing officer finds that the charges and/or the evidence to be

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presented are complex or otherwise difficult for the releasee to present”). Because

there is no automatic Sixth Amendment right to counsel at parole-revocation

hearings, it is not clear whether a parolee has a right to the effective assistance of

counsel at a revocation hearing. See United States v. Lofton, 810 Fed.Appx. 436,

442 (6th Cir.2020). But even if Mango had a right to the effective assistance of

counsel at his revocation hearing, he has not established that his counsel was

deficient.

{¶ 22} To establish ineffective assistance of counsel, Mango must show (1)

that his counsel was deficient and (2) that his counsel’s deficient performance

prejudiced him. State v. Phillips, 74 Ohio St.3d 72, 84, 656 N.E.2d 643 (1995),

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Counsel’s performance is deficient when it falls below an objective

standard of reasonable representation. State v. Jackson, 107 Ohio St.3d 53, 2005-

Ohio-5981, 836 N.E.2d 1173, ¶ 133.

{¶ 23} Mango contends that his counsel’s performance was deficient for

failing to seek a continuance to assure that Jarrett and Reid could testify on his

behalf. (Jarrett was subpoenaed but did not appear for the hearing.) Mango also

notes that Jarrett submitted a written statement after his revocation hearing, again

proclaiming Mango’s innocence and contending that she was never contacted about

testifying. And a post-hearing affidavit from Reid asserts that Mango lived with

her from the time of his release from prison in 2016 until his March 28, 2018 arrest.

{¶ 24} Though Mango’s counsel did not request a continuance when Jarrett

did not appear, he argued that the hearing officer should consider her failure to

appear when assessing the credibility of her allegations against Mango. Thus,

counsel’s strategy was to attack the credibility of Jarrett’s statements to the police

rather than request a continuance to obtain her testimony. Counsel’s strategic

decision in this regard does not form the basis for an ineffective-assistance claim.

See Phillips at 85 (“Debatable trial tactics generally do not constitute a deprivation

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of effective counsel”). For the same reasons, it cannot be said that Mango’s counsel

was deficient for failing to call Reid as a witness. “Generally, counsel’s decision

whether to call a witness falls within the rubric of trial strategy and will not be

second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490,

739 N.E.2d 749 (2001). At best, Mango has shown only that his trial counsel made

debatable strategic choices.

{¶ 25} For these reasons, Mango’s second proposition of law is without

merit.

III. Conclusion

{¶ 26} Mango has not shown that the parole-revocation proceedings

violated his constitutional right to due process. Accordingly, the court of appeals

correctly denied the writ of mandamus.

Judgment affirmed.

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

STEWART, JJ., concur.

BRUNNER, J., not participating.

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G. Michael Goins, for appellant.

Dave Yost, Attorney General, and Mark W. Altier, Assistant Attorney

General, for appellee.

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