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State ex rel. McDermott v. Ohio Adult Parole Authority

Court of Appeals of Ohio, Tenth District

March 2, 2017

State of Ohio ex rel. John P. McDermott, Relator,
v.
Ohio Adult Parole Authority, Respondent.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          John P. McDermott, pro se.

         On brief:

          Michael DeWine, Attorney General, and William D. Maynard, for respondent.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Relator John P. McDermott, who is currently incarcerated for the murder of Karen Barnes in 1980, initiated this original action requesting that this court find that respondent Ohio Adult Parole Authority ("OAPA" or "parole board") considered incorrect information at his last parole hearing, and order OAPA to provide him a new parole hearing where he will receive meaningful review of his eligibility for parole without OAPA considering inaccurate information.

         {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53 and LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate determined that McDermott failed to establish by clear and convincing evidence that OAPA had considered inaccurate evidence and denied him parole based on that inaccurate evidence. Thus, the magistrate recommends this court deny McDermott's request for a writ of mandamus.

         {¶ 3} McDermott 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). McDermott presents six objections, which we will address in turn.

         {¶ 4} McDermott's first and second objections concern the magistrate's factual findings. First, McDermott argues the magistrate failed to acknowledge that the documents he attached to his complaint were verified. This argument is unpersuasive. The magistrate did not reject McDermott's documents as not being what he purported them to be. Before the parties submitted their merit briefs, the magistrate indicated that she accepted as evidence McDermott's certified exhibits attached to his complaint. Additionally, in her decision recommending this court deny McDermott's requested writ, the magistrate stated that "[a]side from the documents relator attached as exhibits to his complaint, relator did not present any additional evidence." (Mag. Decision at ¶ 31.) Thus, the magistrate reviewed the substance of McDermott's submitted documents to determine whether they provide clear and convincing evidence that OAPA considered inaccurate evidence at McDermott's parole hearing and denied him parole based on that inaccurate evidence. Consequently, we reject McDermott's assertion that the magistrate did not duly consider the documents he attached to his complaint. McDermott's first objection is overruled.

         {¶ 5} Second, McDermott asserts that the magistrate's eleventh finding of fact erroneously states that he filed a motion on July 20, 2016, and that he asserted that OAPA "took * * * action on [a protection order] in 2009." (Relator's Objs. at 3.) The magistrate's eleventh finding of fact states: "On June 6 and July 20, 2016, relator filed a motion for production of documents asserting that respondent has proof there was no restraining order filed against relator, and further asserted that, in 2009, respondent used this document, and reconsidered his 2000 parole hearing." (Mag. Decision at ¶ 32.) McDermott contends that he filed a single motion for document production, and that he filed that motion on June 6, 2016. We find that the record supports McDermott's assertion that he filed his motion for document production only on June 6, 2016. Thus, we agree that the magistrate's decision mistakenly indicates that McDermott filed his motion for document production on both June 6 and July 20, 2016.

         {¶ 6} McDermott's other challenge to the magistrate's eleventh finding of fact relates to OAPA's alleged receipt of a court document establishing there was no protection order filed against him. McDermott's June 6, 2016 motion for document production stated that since approximately May 2000, OAPA has been in possession of a court document establishing there was no protection order filed against him. He further stated that "upon [OAPA's] initial receipt of the document, " OAPA reconsidered its March 2000 parole hearing decision. (June 6, 2016 Relator's Mot. to Order Production of Document at 1.) Thus, we agree with McDermott's contention that his motion asserted that OAPA reconsidered the March 2000 parole hearing decision in 2000 and not 2009 as indicated in the magistrate's decision. While we acknowledge these clerical mistakes in the magistrate's eleventh finding of fact, they were inconsequential to the magistrate's analysis.[1] Accordingly, we overrule McDermott's second objection.

         {¶ 7} McDermott's third and fourth objections are related. McDermott argues in his third objection that there was no factual or legal basis for the magistrate to deny his request for document production. McDermott's fourth objection challenges the magistrate's conclusion that he has not shown that OAPA considered inaccurate evidence and denied him parole based on that inaccurate evidence. In support of his fourth objection, McDermott reasons that his inability to meet that burden was due to the magistrate erroneously denying his request for document production. Thus, McDermott's fourth objection is essentially premised on the merits of his third objection.

         {¶ 8} We find that the magistrate did not err in denying McDermott's June 6, 2016 motion for document production. On May 5, 2016, the magistrate ordered the parties, in the absence of either party filing a motion for conference within ten days of the filing of the order, to submit their stipulated or certified evidence on or before May 24, 2016. On May 13, 2016, McDermott requested a conference. Five days later, the magistrate denied McDermott's request for a conference. McDermott did not move this court to set aside the magistrate's order denying his request for a conference. See Civ.R. 53(D)(2)(b) ("Any party may file a motion with the court to set aside a magistrate's order. The motion shall state the moving party's reasons with particularity and shall be filed not later than ten days after the magistrate's order is filed."). On May 23, 2016, OAPA requested an extension of time until June 2, 2016 to submit evidence. The magistrate granted OAPA's request for an extension. McDermott did not, however, file any request for an extension regarding the evidentiary submission deadline. Despite the expiration of the evidentiary submission deadline, McDermott filed his request for document production together with his merit brief on June 6, 2016.

         {¶ 9} Furthermore, even assuming McDermott could submit a court document in this case indicating there was no protection order in place at the time of the murder, he would not be entitled to his requested writ. Under State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, OAPA may not deny parole based on its reliance on information that it knows or has reason to know is inaccurate. Id. Here, OAPA's decision for denying McDermott parole at his most recent parole hearing in 2015 does not reference a protection order or stalking, and McDermott has not presented any other evidence indicating that OAPA denied him parole in 2015 on that basis.

         {¶ 10} For these reasons, we find the magistrate did not err in denying McDermott's motion for document production. Consequently, we further reject McDermott's assertion that he was unable to meet his evidentiary burden in this case because the magistrate erroneously denied his motion for document production.

         {¶ 11} Accordingly, we overrule McDermott's third and fourth objections.

         {¶ 12} In his fifth objection, McDermott contends that the magistrate failed to discuss his assertion that OAPA presented false information to the General Assembly regarding his case. He argues the magistrate erred in not acknowledging that OAPA falsely reported to the General Assembly that he violated a protection order when he went to the victim's residence and murdered her. We disagree.

         {¶ 13} Effective September 30, 2011, uncodified section 10 of 2011 Am.Sub.H.B. No. 86 required the Ohio Department of Rehabilitation and Correction ("ODRC") to review the cases of all parole-eligible inmates who were age 65 years or older and who already had a statutory first parole consideration hearing. Upon completion of the review, ODRC was required to provide a report to the leadership of the General Assembly summarizing the findings of its review and explaining why each inmate had not been paroled.

         {¶ 14} McDermott attached to his complaint what appear to be pages from ODRC's December 2011 report to the General Assembly submitted pursuant to uncodified section 10 of 2011 Am.Sub.H.B. No. 86. In the report, ODRC explained why OAPA deemed McDermott unsuitable for release in 2009, noting in part that his "conviction involved him violating a protection order by going to his ex-wife's home and stabbing her to death while her two young children were in the home. The victim suffered approximately 30 stab wounds." (Dec. 30, 2011 ODRC Report at 41.) According to McDermott, the magistrate should have acknowledged that the report contained incorrect information regarding the existence of a protection order against him when he murdered the victim. However, in McDermott's petition for a writ of mandamus, he requests an order directing OAPA to provide him with a new parole hearing. His petition does not seek a writ requiring ODRC to deliver a new or amended report to the General Assembly concerning his 2009 parole denial. Furthermore, in objecting to the magistrate's decision, McDermott does not explain why the existence of allegedly inaccurate information in ODRC's 2011 report to the General Assembly regarding his 2009 parole denial entitles him to a writ requiring OAPA to provide him a new parole hearing. Instead, he simply argues that the magistrate should have referenced the allegedly inaccurate information in the report to ensure a complete record for the purpose of appeal.

         {¶ 15} For these reasons, McDermott's fifth objection is overruled.

         {¶ 16} Finally, McDermott's sixth objection is a general challenge to the magistrate's recommendation to deny the requested writ of mandamus. McDermott states that this objection is entirely based on the arguments he has presented in support of his other objections. For the reasons stated above regarding McDermott's other objections, we overrule his sixth objection.

         {¶ 17} Following our independent review of the record pursuant to Civ.R. 53, we find the magistrate correctly determined that McDermott is not entitled to the requested writ of mandamus. The magistrate properly determined the facts and applied the pertinent law to the salient facts. Therefore, we adopt the magistrate's decision as our own, including the findings of fact (with the clerical corrections noted above) and conclusions of law contained therein. Accordingly, we overrule McDermott's objections to the magistrate's decision and deny his request for a writ of mandamus.

         Objections overruled; writ of mandamus denied.

          BROWN and SADLER, JJ., concur.

         APPENDIX

         Rendered on ...


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