Phelps v. Ohio Parole Bd.

[Cite as Phelps v. Ohio Parole Bd., 2023-Ohio-284.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Larry Phelps, :

Plaintiff-Appellant, : No. 22AP-175

(C.P.C. No. 21CV-2478)

v. :

(REGULAR CALENDAR)

Ohio Parole Board, :

Defendant-Appellee. :

D E C I S I O N

Rendered on January 31, 2023

On brief: Larry Phelps, pro se.

On brief: Dave Yost, Attorney General, and George Horvath

for appellee.

APPEAL from the Franklin County Court of Common Pleas

JAMISON, J.

{¶ 1} Plaintiff-Appellant, Larry Phelps ("Phelps"), appeals from a judgment

granting summary judgment to defendant-appellee, Ohio Parole Board ("Board"), in a

declaratory judgment action brought by Phelps. For the reasons that follow, we affirm the

judgment of the Franklin County Court of Common Pleas.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} In May 1995, Phelps was convicted by jury of aggravated robbery

(R.C. 2911.01), kidnapping (R.C. 2905.01), and aggravated murder (R.C. 2901.01), and

received a total sentence of 40 years to life. The judgment was affirmed on direct appeal.

Phelps is currently incarcerated at the Richland Correctional Institution.

No. 22AP-175 2

{¶ 3} Phelps had his first parole hearing before the Board in September 2020 and

was denied parole.1 His next eligibility date will be in 2030.

{¶ 4} Phelps requested the Board provide him with information considered at his

parole hearing. The Board, citing its public records policy, did not release any information.

{¶ 5} Phelps then filed a declaratory judgment action requesting the common pleas

court declare that the Board has denied him meaningful consideration for parole and award

him attorney fees and costs. Phelps submitted a request for discovery for documents

relating to his parole hearing, and the Board provided disclosable records and information

permitted by Ohio Adm.Code 5120:1-1-36.

{¶ 6} The Board filed a motion to dismiss pursuant to Civ.R. 12(B)(6), which was

denied. The Board then moved for summary judgment. Phelps did not file a reply to the

motion for summary judgment, and the motion was granted.

{¶ 7} Phelps appealed the decision.

II. ASSIGNMENT OF ERROR

{¶ 8} Phelps assigns the following as trial court error:

The trial court abused its discretion in violation of appellant's

Fourteenth Amendment rights to equal protection of the law

under the United States Constitution and Article I Section 10 of

the Ohio Constitution when the court granted summary

judgment without the opportunity to complete discovery.

III. STANDARD OF REVIEW

{¶ 9} We review a grant of summary judgment de novo. Coventry Twp. v. Ecker,

101 Ohio App.3d 38 (9th Dist.1995). We are required to conduct an independent review of

the record with no deference to the decision of the trial court. Swihart v.

Chairman/Chairperson of the Ohio Adult Parole Auth., 10th Dist. No. 13AP-993, 2014-

Ohio-3305, ¶ 13.

IV. LEGAL ANALYSIS

{¶ 10} Summary judgment is proper when, (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law,

and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable

1 Phelps had a Board hearing in September 2020 that was referred for a Central Office Board Review

("COBR"), for release consideration by at least a majority of the members of the Board. The COBR was

conducted on November 4, 2020, and parole was denied.

No. 22AP-175 3

minds can reach a conclusion only in favor of the moving party. Temple v. Wean United,

Inc., 50 Ohio St.2d 317, 327 (1977). Once the moving party meets its initial burden, the

nonmoving party must set forth facts to demonstrate a genuine issue exists for trial.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

{¶ 11} There is no default summary judgment. The lack of a response by a

nonmovant "cannot, of itself, mandate the granting of summary judgment." State ex rel.

Dayton Legal News, Inc. v. Drubert, 2d Dist. No. 24825, 2012-Ohio-564, ¶ 7. The Supreme

Court of Ohio has held that, "where the nonmoving party fails completely to respond to the

motion, summary judgment is improper unless reasonable minds came come to only one

conclusion and that conclusion is adverse to the nonmoving party." (Emphasis sic.) Morris

v. Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 47 (1988). "A trial court must examine all

appropriate materials filed by the parties before ruling on a motion for summary

judgment." Owensby v. Fresenius Dialysis Unit, 10th Dist. No. 04AP-1382, 2005-Ohio-

6467, ¶ 17.

{¶ 12} Phelps did not respond to the motion for summary judgment with any Civ.R.

56(E) material, and therefore, did not meet his reciprocal burden to set forth specific facts

showing triable issues remained to be litigated. "If the party does not so respond, summary

judgment, if appropriate, shall be entered against the party." Civ.R. 56(E).

{¶ 13} "A prisoner has no constitutional or statutory right to parole." State ex rel.

Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, ¶ 19. The Board has

wide discretion in parole matters and may refuse to grant parole to an eligible offender.

State v. Clark, 119 Ohio St.3d 239, 246, 2008-Ohio-3748. There is no constitutional right

to be released before the expiration of a prison sentence. Collins v. Ohio Adult Parole Auth.,

10th Dist. No. 02AP-1161, 2003-Ohio-2952, ¶ 11. Therefore, because parole in Ohio is

entirely discretionary, there is no violation of due process rights or deprivation of a

protected liberty interest. R.C. 2967.03.

{¶ 14} However, the Board must adhere to a minimal due process standard that the

reviewed information is accurate, so an inmate eligible for parole "will receive meaningful

consideration for parole." Keith at ¶ 21. The Board considers reports and other information

to determine an inmate's fitness for release. Even though the Board is granted broad

discretion, "an inmate is not afforded meaningful parole consideration if the parole

No. 22AP-175 4

authority bases its decision on information in an inmate's file that is substantially

incorrect." State ex rel. Bailey v. Ohio Parole Bd., 152 Ohio St.3d 426, 2017-Ohio-9202,

¶ 10.

{¶ 15} The Board is not required to "conduct an extensive investigation on the

information it reviews for every prisoner to ensure accuracy." Keith at ¶ 27. But, "where

there are credible allegations, supported by evidence, that the materials relied on at a parole

hearing were substantively inaccurate, the [Board] has an obligation to investigate and

correct any significant errors in the record of the prisoner." Id. at ¶ 28. The inmate must

make a showing that the parole record contains substantive errors that may impact his

parole. Relief will lie "when there is a credible claim of an error that may prevent the

inmate's application from receiving meaningful consideration." State ex rel. Edwards v.

Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-195, 2020-Ohio-2799, ¶ 15.

{¶ 16} Ohio Adm. Code 5120:1-1-07(A) empowers the Board to deny an inmate

parole for one or more of the following reasons:

(1) There is substantial reason to believe that the inmate will

engage in further criminal conduct, or that the inmate will not

conform to such conditions of release as may be established

under rule 5120:1-1-12 of the Administrative Code;

(2) There is substantial reason to believe that as the unique

factors of the offense of conviction significantly outweigh the

inmate’s rehabilitative efforts, the release of the inmate into

society would create undue risk to public safety and/or would

not further the interest of justice nor be consistent with the

welfare and security of society;

(3) There is substantial reason to believe that due to serious

infractions of rule 5120-9-06 of the Administrative Code, the

release of the inmate would not act as a deterrent to the inmate

or to other institutionalized inmates from violating

institutional rules and regulations;

(4) There is need for additional information upon which to

make a release decision.

The Board "was not required to find appellant suitable for release on parole based on

allegedly positive factors where the record contains sufficient reasons weighing against his

release." Swihart at ¶ 26.

No. 22AP-175 5

{¶ 17} The Board considered Phelps for parole and determined that there is

substantial reason to believe that he would either reoffend or not conform to the rules of

parole if released and that he would be a risk to society if released. The Board cited as

rationale for its denial:

The Board finds that given the seriousness of Offender Phelps'

extensive criminal history (with multiple opportunities on

supervision), the extremely brutal and heinous nature of this

crime, strong community opposition to release, poor

institutional behavior, limited programming and an unrealistic

release plan, his release at this time would create an undue risk

to public safety, thereby rendering him unsuitable for parole.

(Apr. 21, 2021 Ohio Parole Board Decision and Minutes at 1.)

The decision contains sufficient rationale to support its decision to deny parole to Phelps.

{¶ 18} While a declaratory judgment action is appropriate to determine if the Board

is applying parole guidelines in a constitutional manner, the Board's decision is not subject

to judicial review unless parole was denied for an unconstitutional reason. Akbar-El v.

Ohio State Adult Parole Auth., 10th Dist. No. 07AP-13, 2007-Ohio-4414, ¶ 15. To succeed

on a challenge to a parole release decision and the broad discretion of the Board, a party

must show "exceptionally clear proof" that this discretion was abused. Collins at ¶ 15,

quoting Mayrides v. Ohio State Adult Parole Auth., 10th Dist. No. 97APE08-1035, 1998

Ohio App. LEXIS 1865, 13-14 (Apr. 30, 1998).

{¶ 19} Phelps requested, through discovery, his post-sentence report, a copy of the

materials submitted to the Board members participating in the hearing, a copy of his video

hearing and/or a transcript, and other documents. The ODRC has declared certain records

releasable, and they have been provided to Phelps. However, some documents requested

by Phelps have been deemed non-public records not available to Phelps.

{¶ 20} The ODRC operated under a public records policy that "broadly exempted

records that relate or refer to inmates." State ex. Rel. Hogan Lovells U.S., L.L.P. v. Ohio

Dept. of Rehab. & Corr., 165 Ohio St.3d 368, 2021-Ohio-1762, ¶ 36. The court then

considered whether information from an inmate's disciplinary file and copies of kites

transmitted electronically in a prison are subject to disclosure, and granted the inmate a

writ compelling the release of the information. State ex rel. Mobley v. Ohio Dept. of Rehab.

& Corr., __ Ohio St.3d __, 2022-Ohio-1765. The court declined "to adopt a categorical rule

No. 22AP-175 6

that all records that somehow relate to an inmate are exempt from public-records

disclosure under R.C. 5120.21(F)." Id. at 16.

{¶ 21} This court addressed R.C. 5120.21(F) when it considered a mandamus action

by an inmate who was denied transitional control because of a sex offense conviction and

sought the release of any such information from ODRC because he denies any sex or arson

convictions. State ex rel. Hill v. Campbell, 10th Dist. No. 20AP-510, 2022-Ohio-354. The

broad mandate in Hogan Lovells was tailored to allow an inmate to receive certain records

that relate solely to that inmate, and a limited writ was granted to compel the ODRC to

produce the information forming the basis for denial of Hill's inmate's transitional control.

Id. See State ex rel. McCarley v. Dept. of Rehab. & Corr., 10th Dist. No. 20AP-337, 2022-

Ohio-3397 (Emails from specified individuals during specific timeframes that related solely

to the inmate were disclosable to inmate without redaction where ODRC refused release

based on R.C. 5120.21(F), but exclusions based on other exceptions or involving other

inmates remain in force.).

{¶ 22} Phelps contends that because he was not provided copies of the materials and

he was not questioned about material submitted on his behalf, the Board considered

inaccurate information in its parole decision. As a result, he did not receive meaningful

consideration for parole.

{¶ 23} The trigger to a meaningful consideration matter is a fact-based and credible

allegation that the Board relied on information that was substantively inaccurate. Keith,

supra, at ¶ 28 (Keith pointed out a memo from ODRC stating he had been incarcerated

during a time period when another ODRC memo states he was permitted to remain on

supervision during that same time and that ODRC believed he had been paroled eight times

when it was six times.). An inmate must make a credible showing that the parole board

relied on substantively inaccurate information at the parole hearing.

{¶ 24} Phelps makes no specific allegation of an error that the Board made, and his

action is based on unsubstantiated assertions that there are substantive errors in his

records.

{¶ 25} Ohio Adm.Code 5120:1-1-36(B) identifies determinations, orders, and

minutes as public records of the parole board. Non-public records of the parole board "may

be made available after a written request is received which specifically identifies the records

No. 22AP-175 7

being requested." Ohio Adm.Code 5120:1-1-36(F). Further, the request will be denied if

"the disclosure of the records would foreseeably result in harm to any person, would present

a security risk * * * or materially interfere with the achievement of a fair parole hearing."

Id.

{¶ 26} Phelps received meaningful consideration for parole. We find no evidence of

a substantive inaccuracy that would impact the parole decision and trigger judicial review

of the Board's determination. Phelps' sole assignment of error is overruled.

V. CONCLUSION

{¶ 27} Having overruled Phelps' sole assignment of error, this court hereby affirms

the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and DORRIAN, JJ., concur.

DORRIAN, J., concurring.

{¶ 28} I concur with the majority and would affirm the judgment of the trial court

because in filing his declaratory judgment action the remedy Phelps sought was meaningful

consideration for parole. I agree with the majority that Phelps did not make a showing as

required in State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-

4270, ¶ 28-30. He merely alleged, with nothing more, that "upon information and belief,"

the records reviewed by the parole board were inaccurate and/or incomplete.

{¶ 29} I write separately, however, to acknowledge that in his complaint, Phelps

referred to the public records requests he made in order to obtain and review the

documents which he believes were the basis of the parole board's denial of his parole.

Notwithstanding his reference to these public records requests, Phelps did not file a

complaint for writ of mandamus pursuant to R.C. 149.43(C) nor did he file a complaint with

the Court of Claims pursuant to R.C. 2743.75(D)—the two options for resolving public

records disputes. Such complaints require an examination of compliance with Ohio

Adm.Code 5120:1-1-36 and R.C. 5120.21(F) as well as consideration of the holdings in State

ex rel. Mobley v. Ohio Dept. of Rehab. & Corr., __ Ohio St.3d __, 2022-Ohio-1765, State

ex rel. Hill v. Adult Parole Officer Campbell, 10th Dist. No. 20AP-510, 2011-Ohio-354, and

No. 22AP-175 8

State ex rel. McCarley v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-337, 2022-

Ohio-3397.

{¶ 30} For these reasons, I concur with the majority.

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