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State ex rel. Cobb v. Ohio Adult Parole Authority

Court of Appeals of Ohio, Tenth District

March 30, 2017

The State ex rel. Michael Cobb, Relator,
v.
Ohio Adult Parole Authority and Andre Imbrogno, Chair of the Ohio Parole Board, Respondents.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

          Michael Cobb, pro se.

          Michael DeWine, Attorney General, and B. Alexander Kennedy, for respondents.

          DECISION

          SADLER, J.

         {¶ 1} Relator, Michael Cobb, commenced this original action requesting a writ of mandamus ordering respondents, Ohio Adult Parole Authority ("OAPA") and Andre Imbrogno, Chair of the Ohio Parole Board, to correct allegedly inaccurate information in his parole hearing file and provide him with a new parole board hearing.

         {¶ 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 who issued the appended decision, including findings of fact and conclusions of law. The magistrate recommended that this court grant summary judgment in favor of respondents and deny relator's requested writ of mandamus. For the following reasons, we overrule relator's first and second objections and sustain his third objection. As a result, we deny the requested writ.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 3} The following facts are undisputed. Relator is currently incarcerated at the Richland Correctional Institution where he is serving a sentence of 18 years to life after pleading guilty to robbery and murder with a gun specification. On June 11, 2015, relator appeared before the parole board for his first release consideration hearing. The parole board denied relator's release.

         {¶ 4} The parole board's decision and minutes dated June 19, 2015 indicate that the board considered mandatory factors in Ohio Adm.Code 5120:1-1-07 and found substantial reason to believe that due to the serious nature of the crime, the release of relator into society would create undue risk to public safety or would not further the interest of justice or be consistent with the welfare and security of society. The parole board additionally found that there was substantial reason to believe that due to serious infractions of Ohio Adm.Code 5120-9-06, relator's release would not act as a deterrent to the inmate or other institutionalized inmates from violating institutional rules. The parole board's rationale states:

The Board by way of a Majority Vote has determined that a release at this time would demean the serious nature of this crime. The male victim in this offense was shot in the back by the offender and was then robbed of his property that was on his person. While the Board does find that the offender has good insight into his crime and did display remorse for his actions, they remain concerned about the inmate's problematic conduct. He is encouraged to continue to complete risk relevant programming and work on not receiving any future conduct reports.

(Ohio Parole Board Decision and Minutes at 1.)

         {¶ 5} The aggregate sentence listed on the parole board's decision and minutes is "15-life 3 gun cc/w/ 5 years." (Ohio Parole Board Decision and Minutes at 1.) The parole board set the next parole hearing date for June 1, 2020. Relator filed a motion for reconsideration dated January 17, 2016, which the parole board denied on January 29, 2016.

         {¶ 6} On March 18, 2016, relator filed a complaint for a writ of mandamus to "correct the false and inaccurate information" in his parole file and provide relator with a new parole hearing. (Compl. for Writ of Mandamus at 11.) The complaint alleges five errors: (1) the parole board improperly considered that relator and his father physically assaulted the victim prior to shooting and robbing the victim; (2) the parole board information sheet and 2014 clemency minutes state that relator's aggregated sentence is 23 to life instead of 18 to life; (3) the parole board decision references relator's "problematic conduct" when, at the hearing, parole board member Kathleen Kovach verbally commended relator for his institutional good behavior; (4) that the parole board asked about a juvenile felonious assault "conviction" by the board, when he only had been charged with felonious assault as a juvenile and that complaint was dismissed; and (5) he was verbally informed at the parole hearing that a transfer document showed he was transferred from the Lorain Correctional Institution for "failure to adjust" at a level 3 institution. (Compl. for Writ of Mandamus at 5, 6.) Appellant asserted that he was entitled to the writ of mandamus pursuant to State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270.

         {¶ 7} On May 3, 2016, respondents filed a motion to dismiss. On May 31, 2016, relator filed a brief in opposition to respondents' motion to dismiss, and respondents filed a reply. On August 17, 2016, the magistrate converted respondents' motion to dismiss into a motion for summary judgment and set it for submission on September 7, 2016. On August 25, 2016, respondents filed a motion to set aside the magistrate's order. On September 1, 2016, relator filed a reply to respondents' converted motion for summary judgment.

         {¶ 8} On September 27, 2016, the magistrate denied respondents' motion to set aside the order converting respondents' motion to a motion for summary judgment, and, in a separate decision, addressed the merits of that motion. The magistrate addressed each of relator's five alleged errors and concluded that relator had not made the requisite showing under Keith that there are credible allegations, supported by evidence, that the material relied on at his parole hearing were substantively inaccurate. As such, the magistrate determined that this court should grant summary judgment in favor of respondents and deny relator's request for a writ of mandamus.

         II. OBJECTIONS

         {¶ 9} Relator sets forth the following three objections:

[1.] The Magistrate's decision denying Relator's Writ of Mandamus is Contrary to the Ohio Supreme Court's decision in State Ex rel. Keith, v. Ohio Adult Parole Authority, 141 Ohio St.3d 375; 2014-Ohio-4270; 24 N.E.3d 1132; 2014 Ohio LEXIS 2516.
[2.] The Magistrate's decision erroneously grants Respondents motion for summary judgment, contrary to well establish law pertaining to the grant of summary judgments.
[3.] The Magistrate's Decision erroneously failed to consider Relator's timely filed evidence and Reply Brief to Respondents converted motion to dismiss into one for summary judgment.

(Sic passim.)

         III. DISCUSSION

         {¶ 10} For ease of discussion, we will address relator's third objection at the outset. In his third objection, relator contends that the magistrate issued findings of fact and conclusions of law without considering his reply brief and attachments filed on September 1, 2016. The magistrate's order converting respondents' motion to dismiss into a motion for summary judgment allowed briefing through September 7, 2016. As such, respondents' reply brief was proper and timely, but the magistrate's decision does not reference respondents' reply brief and attachments in the findings of fact or conclusions of law. Accordingly, we sustain relator's third objection to the magistrate's decision and consider relator's reply brief in resolving relator's remaining objections.

         {¶ 11} Because relator's remaining objections involve the ultimate determination of whether a clear legal right to relief exists pursuant to Keith, we will address the objections together. Specifically, relator's first objection to the magistrate's decision asks us to review the ultimate conclusion of the magistrate to deny the writ as contrary to the Supreme Court of Ohio's decision in Keith. Relator's second assignment of error challenges the magistrate's decision to grant summary judgment to respondents on essentially procedural grounds. According to relator, respondents did not provide any verified evidence permitted by Civ.R. 56 and did not meet their initial burden under the established summary judgment standard of review. We disagree.

         {¶ 12} Summary judgment procedure applies to an action in mandamus. State ex rel Wilson v. Preston, 173 Ohio St. 203 (1962), paragraph three of the syllabus. Under Civ.R. 56(B), a defending party may move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part of the claim. Furthermore, as described in Hartman v. Dept. of Transp., 10th Dist. No. 16AP-222, 2016-Ohio-5208, ¶ 15, quoting Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996):

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

         "[S]ome evidence of the type listed in Civ.R. 56(C)" includes pointing to information in the pleadings. (Emphasis sic.) Dresher at 293, 297-98 (noting that "summary judgment may be rendered where the pleadings and the arguments of the party seeking summary judgment clearly establish that the nonmoving party has no legally cognizable cause of action"). Summary judgment is appropriate when the movant demonstrates that: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, said party being entitled to have the evidence construed most strongly in his favor. State ex rel. Nelson v. Ohio Adult Parole Auth., 10th Dist. No. 09AP-940, 2010-Ohio-4994, ¶ 21.

         {¶ 13} Summary judgment in favor of OAPA in the context of a mandamus action is proper where undisputed evidence, viewed strongly in relator's favor, fails to meet the standard for mandamus as a matter of law. State ex rel. Foster v. Ohio State Adult Parole Auth., 10th Dist. No. 91AP-1109 (Aug. 6, 1992). To be entitled to a writ of mandamus, relator must show by clear and convincing evidence that: (1) relator has a clear legal right to the relief requested; (2) the parole board has a clear legal duty to perform the act sought; and (3) that relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Townsend v. Mohr, 10th Dist. No. 15AP-681, 2016-Ohio-5942, ¶ 5.

         {¶ 14} As discussed previously, relator's legal argument that he has a clear legal right to the relief requested and the parole board has a clear legal duty to perform is based on Keith. Keith holds that "in any parole determination involving indeterminate sentencing, the OAPA may not rely on information that it knows or has reason to know is inaccurate." Id. at ¶ 26. Thus, under Keith, "where there are credible allegations, supported by evidence, that the material relied on at a parole hearing were substantively inaccurate, the OAPA has an obligation to investigate and correct any significant errors in the record of the prisoner." Id. at ¶ 28.

         {¶ 15} This court considered application of Keith in two recent opinions. In State ex rel. Townsend v. Mohr, 10th Dist. No. 15AP-681, 2016-Ohio-5942, ¶ 8, 30-37, we adopted the magistrate's recommendation to deny relator's request for writ of mandamus where the evidence did not show or suggest the parole board was misinformed when it rendered its decision to deny parole. Likewise, in State ex rel. McDermott v. Ohio Adult Parole Auth., 10th Dist. No. 16AP-208, 2017-Ohio-754, ¶ 9, we noted that where the OAPA's written decision for denying a prisoner parole does not reference the alleged inaccurate information and the prisoner seeking mandamus has not presented other evidence indicating OAPA denied him parole on that basis, the prisoner is not entitled to his requested writ of mandamus.

         {¶ 16} Here, respondents, in their converted motion for summary judgment, pointed to multiple exhibits attached to relator's mandamus complaint to show that the facts applied under Keith do not afford relator entitlement to mandamus as a matter of law. We find this showing meets respondents' initial burden under Dresher.

         {¶ 17} Furthermore, construing the evidence strongly in relator's favor, we find no evidence of a substantive inaccuracy that may have influenced the OAPA's consideration of his parole. The parole decision and minutes reflects the proper sentence and does not include in its rationale allegedly inaccurate information such as relator allegedly assaulting the victim prior to shooting him or any purported juvenile conviction or prison transfer. While the parole decision and minutes do reference "problematic conduct, " relator argues that this statement is inaccurate based on his recollection of being commended for good institutional behavior during the parole hearing and his job history sheet. (Ohio Parole Board Decision and Minutes at 1.) As discussed by the magistrate, relator cannot demonstrate this statement was made at the hearing and neither this alleged commendation or his job history sheet prove that the problematic conduct statement is inaccurate, particularly in light of the rationale of the parole decision encouraging relator to "continue to complete risk relevant programming and work on not receiving any future conduct reports." (Ohio Parole Board Decision and Minutes at 1.)

         {¶ 18} Therefore, we find that, pursuant to Keith, Townsend, and McDermott, relator is not entitled to the requested relief and the parole board does not have a clear legal duty to perform the act sought as a matter of law. Therefore, on this record, the magistrate did not err in granting summary judgment in favor of respondents or in denying relator's request for a writ of mandamus. Foster.

         {¶ 19} Accordingly, we overrule relator's first and second objections.

         IV. ...


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