State of Ohio ex rel. John P. McDermott, Relator,
Ohio Adult Parole Authority, Respondent.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
P. McDermott, pro se.
Michael DeWine, Attorney General, and William D. Maynard, for
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. Accordingly, we overrule McDermott's
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
overruled; writ of mandamus denied.
and SADLER, JJ., concur.