The opinion
[Cite as State ex rel. Massimiani v. Ohio Adult Parole Auth., 2024-Ohio-1181.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Brian Massimiani, :
Relator, :
No. 23AP-371
v. :
[Ohio] Adult Parole Authority, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on March 28, 2024
On brief: Brian Massimiani, pro se.
On brief: Dave Yost, Attorney General, and Andrew Gatti,
for respondent.
IN MANDAMUS
ON MOTION FOR SUMMARY JUDGMENT
BOGGS, J.
{¶ 1} Relator, Brian Massimiani, has filed this original action seeking a writ of
mandamus ordering respondent, Ohio Adult Parole Authority (“OAPA”), to grant him an
additional 43 days of jail-time credit. OAPA has filed an answer and a motion for summary
judgment, to which relator has not responded.
{¶ 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. The magistrate considered the action on the merits
and issued a decision, including findings of fact and conclusions of law, which is appended
hereto.
{¶ 3} The magistrate concluded that relator’s claim for jail-time credit is moot
because the materials OAPA submitted in support of its motion for summary judgment
demonstrate that relator was released from incarceration on August 29, 2023. See State ex
rel. Brown v. Ohio Dept. of Rehab. & Corr., 139 Ohio St.3d 433, 2014-Ohio-2348, ¶ 2, citing
No. 23AP-371 2
State ex rel. Gordon v. Murphy, 112 Ohio St.3d 329, 2006-Ohio-6572, ¶ 6 (An offender’s
action in mandamus for jail-time credit is moot when the offender has served the full term
of incarceration). Further, to the extent relator’s petition could be construed as seeking
relief in mandamus on the basis of double jeopardy, the magistrate concluded that relator
had an adequate remedy at law, because alleged violations of double jeopardy may be
addressed through direct appeal. Accordingly, the magistrate recommends that the court
grant OAPA’s motion for summary judgment and deny relator’s request for a writ of
mandamus.
{¶ 4} No objections have been filed to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.”
Civ.R. 53(D)(4)(c).
{¶ 5} Upon review, we find no error in the magistrate’s findings of fact or
conclusions of law. We therefore adopt the magistrate’s decision, including the magistrate’s
findings of fact and the conclusions of law, as our own. In accordance with the magistrate’s
decision, we grant OAPA’s motion for summary judgment and deny relator’s request for a
writ of mandamus.
Respondent’s motion for summary
judgment granted; writ denied.
MENTEL, P.J. and JAMISON, J., concur.
No. 23AP-371 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Brian Massimiani, :
Relator, :
v. : No. 23AP-371
:
[Ohio] Adult Parole Authority, (REGULAR CALENDAR)
:
Respondent.
:
MAGISTRATE’S DECISION
Rendered on October 26, 2023
Brian Massimiani, pro se.
Dave Yost, Attorney General, and Andrew Gatti, for
respondent.
IN MANDAMUS
ON MOTION FOR SUMMARY JUDGMENT
{¶ 6} Relator, Brian Massimiani, has filed this original action seeking a writ of
mandamus ordering respondent, Ohio Adult Parole Authority (“OAPA”), to grant him 43
days of jail-time credit.
I. Findings of Fact
{¶ 7} 1. At the time of the filing of this action, relator was incarcerated at Lorain
Correctional Institution in Grafton, Ohio.
{¶ 8} 2. OAPA is a division of the Ohio Department of Rehabilitation and
Correction (“ODRC”), which is responsible for duties as provided under R.C. 5149.03.
No. 23AP-371 4
{¶ 9} 3. Relator filed his petition for writ of mandamus on June 20, 2023. In his
petition, relator made the following allegations:
On April 21, 2023, Relator placed the following issue before
Respondent: I sent a kite to BOSC then I was redirected to
kiting APA. I told them about me being heald in Lakewood
and Portage County from Jan 25, 2023-Mar 8th, 2023 for a
total of 43 days. I was not credited any of this time towards
sanction. I also explained to APA via kite system I was charged
twice.
Relator brought this issue to Respondent’s attention by: Filing
a kite on JPAY to the APA and BOSC.
(Sic passim.) (Petition at 2.)1 Relator requested “[t]hat a writ of mandamus issue to the
Respondent directing them to take action as follows: to credit Relator 43 days of jailtime
credit changing Massimianis outdate to July 16, 2023. Please terminate Massimianis PRC
on release for violating Massimianis rights of being charged twice ‘Double Jeopardy.’ ”
(Sic passim.) (Petition at 4.)2
{¶ 10} 4. On July 3, 2023, OAPA filed a motion to dismiss pursuant to Civ.R.
12(B)(6). Relator did not file a response to OAPA’s motion.
{¶ 11} 5. On July 24, 2023, the magistrate filed an order denying OAPA’s motion to
dismiss.
{¶ 12} 6. On August 4, 2023, relator filed a letter stating that he would “get released
from LORCI August 29, 2023.” (Relator’s Aug. 4, 2023 Letter at 1.) Relator asked that the
court “terminate my PRC on my release from LORCI Aug[ust] 29th, 2023.” (Relator’s Aug.
4, 2023 Letter at 1.)
{¶ 13} 7. On August 7, 2023, OAPA filed an answer.
{¶ 14} 8. On September 7, 2023, OAPA filed a motion for summary judgment.
Attached to OAPA’s motion was the affidavit of Charlene Gregory, correctional records
sentence auditor with the Bureau of Sentence Computation, an administrative division of
ODRC. Gregory provided a sentence computation letter in response to this mandamus
1 “A ‘kite’ is a communication ‘written by an inmate to a member of the prison staff and is “a means for inmates
to contact staff members inside [an] institution.” ’ ” State ex rel. Mobley v. Ohio Dept. of Rehab. & Corr., 169
Ohio St.3d 39, 2022-Ohio-1765, ¶ 2, fn. 1, quoting State ex rel. Martin v. Greene, 156 Ohio St.3d 482, 2019-
Ohio-1827, ¶ 3, fn. 1, quoting State v. Elmore, 5th Dist. No. 16CA52, 2017-Ohio-1472, ¶ 15.
2 “PRC” is a commonly used abbreviation for “postrelease control.” See State v. Jordan, 10th Dist. No. 13AP-
666, 2014-Ohio-1193, ¶ 3.
No. 23AP-371 5
action, which was attached to the affidavit. Gregory stated in the affidavit that relator was
released on supervision on August 29, 2023. (Respondent’s Ex. 1, Gregory Aff. at 2.)
{¶ 15} 9. Relator has not filed a response to OAPA’s motion for summary judgment.
II. Discussion and Conclusions of Law
{¶ 16} Relator seeks a writ of mandamus ordering OAPA to grant him an additional
43 days of jail-time credit. OAPA argues it is entitled to summary judgment because relator
has received the appropriate amount of jail-time credit. OAPA also argues that relator’s
petition fails due to mootness because relator has been released from incarceration.
A. Summary Judgment and Mandamus Standard
{¶ 17} Summary judgment is appropriate only when the moving party
demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled
to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion
and that conclusion is adverse to the party against whom the motion for summary judgment
is made. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181,
183 (1997).
{¶ 18} In order for a court to issue a writ of mandamus, a relator must establish
(1) the relator has a clear legal right to the requested relief, (2) the respondent is under a
clear legal duty to provide the relief, and (3) the 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, 29
(1983), citing State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 42 (1978). The relator bears
the burden of establishing entitlement to a writ of mandamus by clear and convincing
evidence. State ex rel. Ware v. Crawford, 167 Ohio St.3d 453, 2022-Ohio-295, ¶ 14. “Clear
and convincing evidence is ‘that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is required
“beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’ ” State ex
rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, ¶ 18, quoting
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
B. Application
{¶ 19} Here, the materials submitted in support of summary judgment by OAPA
reflect that relator was released from incarceration on August 29, 2023. Where an offender
No. 23AP-371 6
has served the full term of incarceration, an action in mandamus seeking jail-time credit
for such offender is rendered moot. State ex rel. Brown v. Ohio Dept. of Rehab. & Corr.,
139 Ohio St.3d 433, 2014-Ohio-2348, ¶ 2, citing State ex rel. Gordon v. Murphy, 112 Ohio
St.3d 329, 2006-Ohio-6572, ¶ 6. Furthermore, “ ‘[t]he fact that [an individual seeking jail-
time credit] remains on post-release control does not preclude a finding of mootness with
regard to jail-time credit.’ ” State v. Jama, 10th Dist. No. 17AP-569, 2018-Ohio-1274, ¶ 16,
quoting State v. Bennett, 2d Dist. No. 2014-CA-60, 2015-Ohio-2779, ¶ 5, citing Brown at ¶
1-2. Therefore, because relator has been released from incarceration, his claim for jail-time
credit is moot.
{¶ 20} Finally, insofar as relator’s petition could be construed as seeking relief in
mandamus on the basis of double jeopardy, such claim also fails. Alleged violations of the
Double Jeopardy Clause of the United States and Ohio Constitutions may be addressed
through appeal.3 Because there exists a valid remedy at law, such claim is not cognizable in
mandamus. State ex rel. Hawk v. Athens Cty., 106 Ohio St.3d 183, 2005-Ohio-4383, ¶ 6
(stating that the petitioner’s “double-jeopardy claim is not cognizable in mandamus”). See
State ex rel. Dix v. McAllister, 81 Ohio St.3d 107, 108 (1998); Borsick v. State, 73 Ohio St.3d
258, 259 (1995) (finding that “because there is an adequate remedy at law, habeas corpus
does not lie for appellant’s double-jeopardy claim”); Wenzel v. Enright, 68 Ohio St.3d 63
(1993), paragraph two of the syllabus (stating that “the proper remedy for seeking judicial
review of the denial of a motion to dismiss on the ground of double jeopardy is a direct
appeal to the court of appeals at the conclusion of the trial court proceedings”); State ex rel.
Martin v. Russo, 8th Dist. No. 96328, 2011-Ohio-3268, ¶ 8 (stating that “appeal, and not
mandamus, is the proper remedy for addressing issues of double jeopardy and ex post facto
law”); State ex rel. Thomas v. Gaul, 8th Dist. No. 109080, 2019-Ohio-5131, ¶ 13.
Additionally, the Supreme Court of Ohio has held that “ ‘jeopardy does not attach when a
defendant receives a term of incarceration for the violation of conditions of postrelease
control’ ” because “ ‘[s]uch a term of incarceration is attributable to the original sentence
and is not a “criminal punishment” for Double Jeopardy Clause purposes.’ ” Clark v. Adult
3 Historically, Ohio courts have considered the protections afforded by the Double Jeopardy Clauses of the
United States and Ohio Constitutions to be coextensive. State v. Gustafson, 76 Ohio St.3d 425, 432 (1996).
“[T]he Double Jeopardy Clause of each constitution prohibits (1) a second prosecution for the same offense
after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments
for the same offense.” Id.
No. 23AP-371 7
Parole Auth., 151 Ohio St.3d 522, 2017-Ohio-8391, ¶ 13, quoting State v. Martello, 97 Ohio
St.3d 398, 2002-Ohio-6661, ¶ 26. The court further held that the sanctions imposed for a
parole violation were not criminal punishments, because such sanctions were attributable
to the original sentence. Id. Thus, relator cannot meet the requirements for the issuance of
a writ of mandamus on this basis.
C. Conclusion
{¶ 21} Based on the foregoing, relator cannot establish entitlement to the
extraordinary writ of mandamus. Accordingly, it is the decision and recommendation of the
magistrate that summary judgment should be granted in favor of OAPA and relator’s
request for a writ of mandamus should be denied.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.