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State ex rel. Keith v. Ohio Department of Rehabilitation and Correction

Court of Appeals of Ohio, Tenth District

June 20, 2017

The State ex rel. Bernard R. Keith, Relator,
v.
Ohio Department of Rehabilitation and Correction et al., Respondents.

         

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

On Brief:

          Bernard R. Keith, pro se.

          Michael DeWine, Attorney General, and George Horvath, for respondents.

          DECISION

          TYACK, P.J.

         {¶ 1} Bernard R. Keith filed this action in mandamus seeking a writ to compel various state entities to review a March 12, 2015 denial of parole for him and to force them to immediately conduct another parole hearing.

         {¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was referred to a magistrate to conduct appropriate proceedings. The magistrate reviewed the matter, including a decision of the Supreme Court of Ohio in State ex rel. Keith v. Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270. The magistrate also had the benefit of briefs filed by the parties.

         {¶ 3} On February 17, 2017, the magistrate issued a magistrate's decision which is appended hereto.

         {¶ 4} The magistrate has recommended that we find that the various respondents have complied with a writ of mandamus issued previously in the course of this litigation (first issue).

         {¶ 5} Addressing the second issue, the magistrate indicated that we should find that Keith's completion of a program entitled "Criminal and Addictive Thinking" had been appropriately considered.

         {¶ 6} As to the third issue, the magistrate indicates that Ohio Adm.Code 5120:1-07(C) supports the way in which the parole board's form was completed in Keith's case.

         {¶ 7} As to the fourth issue, the magistrate indicates that the records regarding Keith getting his G.E.D. certificate were not harmful.

         {¶ 8} In summary, the magistrate's decision did not recommend that we grant Keith another writ of mandamus.

         {¶ 9} Keith has filed objections to the magistrate's decision. The office of the Attorney General has filed a memorandum in response. The case is now before the court for a full, independent review.

         {¶ 10} Keith's objections run some 30 pages. It includes an argument that additional evidence has surfaced since the magistrate issued his magistrate's decision and that the additional evidence demonstrates noncompliance with the original writ of mandamus. We have reviewed the additional evidence and do not find a failure of the state entities to abide by the earlier writ.

         {¶ 11} Turning to the objections, there is simply no proof that parole for Keith was not given meaningful consideration. Keith has failed to complete parole on numerous occasions which presents a challenge for him. The fact that parole has been denied recently does not mean it was not considered meaningfully.

         {¶ 12} Further, Keith faces the challenge of trying to address the mental state of the members of the state entities involved in parole considerations. He cannot do anything but speculate as to the mental state and we cannot grant a writ of mandamus based on his speculation.

         {¶ 13} Keith also seems to be asserting that the state entities have to list in writing all the evidence they considered and all the issues considered or a court should infer that the evidence and issues were not considered. Such listing of all issues considered is not required by the Ohio Administrative Code. If there are assumptions to be made, the assumptions are that the governmental entities knew what was expected of them and did what was required.

         {¶ 14} We have considered all the documents submitted by Keith, with or without notary seals. We find in them no basis for issuing a writ to compel the state entities to conduct a new parole hearing, although we note that Keith was apparently scheduled for a parole hearing on April 2, 2017. We have no evidence regarding that hearing or the result of that hearing.

         {¶ 15} We overrule the objections to the magistrate's decision and adopt the findings of fact and conclusions of law contained therein. As a result, we deny the request for a writ of mandamus.

         Objections overruled; writ of mandamus denied.

          SADLER and BRUNNER, JJ., concur.

         APPENDIX

         Rendered on February 17, 2017

         IN MANDAMUS

         MAGISTRATE'S DECISION

          KENNETH W. MACKE MAGISTRATE JUDGE.

         {¶ 16} In this original action, relator, Bernard R. Keith, an inmate of the Pickaway Correctional Institution ("PCI"), requests a writ of mandamus ordering respondents, the Director of the Ohio Department of Rehabilitation and Correction ("ODRC"), the Ohio Adult Parole Authority ("OAPA"), and the Chair of the Ohio Parole Board, to vacate the March 12, 2015 decision of the Ohio Parole Board (Central Office Board Review) that denies relator parole and continues his next parole board hearing to April 1, 2017, and to immediately conduct another parole board hearing.

         Findings of Fact:

         {¶ 17} 1. A review of the decision of the Supreme Court of Ohio in State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270 ("Keith II "), will assist the determination of the instant action. In Keith II, the Supreme Court reversed the judgment of this court rendered in State ex rel Keith v. Ohio Adult Parole Auth., 10th Dist. No. 12AP-408, 2013-Ohio-2514 ("Keith I ").

         {¶ 18} In November 2011, Keith entered Lorain Correctional Institution to serve a six-month sentence. In December 2011, a hearing officer determined that Keith's previous parole should be revoked, and a parole release hearing was scheduled for February 2012. Keith II at ¶ 5.

         {¶ 19} That hearing was held by video conference on February 17, 2012. The parole board denied parole and set the next parole hearing for 62 months later. In explaining its rationale, the board cited several factors and stated that Keith had been paroled eight times. Keith II at ¶ 6.

         {¶ 20} Keith sent a letter to Cynthia Mausser, then the Chair of the Ohio Parole Board. In his letter, Keith requested that the decision be corrected to reflect the correct number of times he had been paroled and that the parole board grant him a new hearing. Keith II at ¶ 7. The board responded that Keith's request did not meet the standard for reconsideration of a board decision and that it would make no modification of the decision. Id.

         {¶ 21} In May 2012, Keith filed an action in mandamus in this court requesting that the OAPA be compelled to correct the record and to provide Keith with a rehearing. Keith II at ¶ 8.

         {¶ 22} The OAPA filed a motion to dismiss Keith's case, and Keith responded with a memorandum and a motion for summary judgment to which two affidavits and several exhibits were appended. Keith then moved to supplement the pleadings with another affidavit and more exhibits, raising additional claims of further errors in his records. Keith II at ¶ 9.

         {¶ 23} The OAPA responded with an affidavit from Mausser in which she asserted that Keith's record had been corrected to reflect the correct number of times he had been paroled. She further asserted that after the correction was made, she had submitted the matter to the parole board to consider the correction. The board voted not to modify its previous decision and not to grant Keith a new hearing. Keith II at ¶ 10.

         {¶ 24} The magistrate appointed by this court granted Keith's motion to supplement the pleadings. The magistrate also converted OAPA's motion to dismiss into a motion for summary judgment and gave notice that both motions for summary judgment were set for a non-oral hearing on August 2, 2012. Keith II at ¶ 11.

         {¶ 25} On the merits, the magistrate recommended that this court grant OAPA's motion for summary judgment and deny Keith's motion for summary judgment. The magistrate found that, even if Keith had the right to the correction of an error, his request was moot, as the OAPA records had been corrected to reflect that Keith had been paroled six times. Keith II at ¶ 12.

         {¶ 26} Keith filed objections to the decision of the magistrate. This court overruled the objections finding that, based on Mausser's affidavit, the board had performed the acts sought in Keith's request for relief, and that the magistrate was correct in declaring the case moot. Keith II at ¶ 13.

         {¶ 27} Keith appealed as of right the decision of this court to the Supreme Court of Ohio. Keith II at ¶ 14.

         {¶ 28} On appeal to the Supreme Court, Keith asserted five propositions of law. In his first proposition of law, Keith asserted that this court failed to consider all his claims. The Supreme Court found that Keith is correct. "Because Keith was allowed to supplement the complaint, Keith's assertions of additional errors in his parole records are at issue and should have been considered by the court of appeals." Keith II at ¶ 17.

         {¶ 29} In granting the writ and reversing the judgment of this court, the Supreme Court in Keith II explains:

We recognize that the OAPA's discretion in parole matters is wide-ranging. [Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-6719] ¶ 28, citing State ex rel. Lipschutz v. Shoemaker, 49 Ohio St.3d 88, 90, 551 N.E.2d 160 (1990). R.C. 2967.03 vests discretion in OAPA to "grant a parole to any prisoner for whom parole is authorized, if in its judgment there is reasonable ground to believe that * * * paroling the prisoner would further the interests of justice and be consistent with the welfare and security of society." However, as in Layne, that discretion must yield to statutory or regulatory requirements. Therefore, we hold 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.
This is not to say that the OAPA must conduct an extensive investigation on the information it reviews for every prisoner to ensure accuracy, nor does it mean that the OAPA must credit every unsupported allegation by a prisoner that the information is inaccurate.
But where there are credible allegations, supported by evidence, that the materials 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.
Here, Keith's assertions go beyond mere allegation. For example, he points out that a memorandum of August 12, 2010 from Ohio Department of Rehabilitation and Correction employee Lora Turjanica indicates that Keith had been continuously incarcerated from May 1991 until May 2000. This makes it impossible for him to have been permitted to "remain on supervision" in July 1992 despite a parole violation, as asserted in OAPA member Trayce Thalheimer's letter of June 5, 2012.
Thus, Keith has made a showing that there may be substantive errors in his record that may influence the OAPA's consideration of his parole. There is no evidence on the record that any error beyond the number of times Keith was paroled has been corrected. OAPA must therefore conduct an investigation into Keith's allegations and correct any substantive errors discovered in the record it uses to consider him for parole.
Conclusion
The OAPA has and retains wide-ranging discretion in parole matters. A prisoner lacks any constitutional or statutory right to parole. However, having established a parole system, and having put in place statutory and regulatory language requiring the OAPA to consider relevant information regarding a prisoner it is considering for parole, the state has created a minimal due-process expectation that the information will actually and accurately pertain to the prisoner whose parole is being considered. Therefore, where a credible allegation of substantive inaccuracies in a prisoner's record is made, the OAPA is obligated to correct those errors before considering the inmate for parole. We therefore reverse and grant a writ ordering appellees to investigate Keith's allegations and correct any substantive errors in the record used to consider him for parole.

Keith II at ¶ 26-30, 32.

         {¶ 30} 2. On October 7, 2014, the Supreme Court filed its judgment entry in Keith II. The entry states:

This cause, here on appeal from the Court of Appeals for Franklin County, was considered in the manner prescribed by law. On consideration thereof, the judgment of the court of appeals is reversed, and a writ of mandamus is granted ordering appellees to investigate Bernard Keith's allegations and correct any substantive errors in the record used to consider him for parole, consistent with the opinion rendered herein.
It is further ordered that a mandate be sent to and filed with the clerk of the Court of Appeals for Franklin County.

         {¶ 31} 3. On October 24, 2014, this court issued its judgment entry in case No. 12AP-408 in Keith I. This court's judgment entry states:

Pursuant to the mandate of the Supreme Court of Ohio in case No. 2013-1064, decided October 7, 2014, reversing the judgment of this court, the journal entry of judgment journalized on June 26, 2013, is vacated and a writ of mandamus is granted ordering respondents to investigate Bernard Keith's allegations and correct any substantive errors in the record used to consider him for parole, consistent with the opinion of the Supreme Court.

         {¶ 32} 4. On October 27, 2014, the Franklin County Clerk of Court issued a writ of mandamus.

         {¶ 33} 5. Appended to Keith's complaint filed in this mandamus action is a copy of a two-page letter dated October 16, 2014 from Assistant Attorney General Gene D. Park to relator. Addressed to relator at PCI, Park's letter states:

As you may have been aware, the Ohio Supreme Court issued a judgment in this case in your favor, reversing the decision of the Tenth District Court of Appeals. In their order, the Ohio Supreme Court stated the following:
[W]here a credible allegation of substantive inaccuracies in a prisoner's record is made, the OAPA is obligated to correct those errors before considering the inmate for parole. We therefore reverse and grant a writ ordering appellees to investigate Keith's allegations and correct any substantive errors in the record used to consider him for parole.
Pursuant to the Court's order, the Ohio Parole Board has examined your claims of error in the lower court record. Attached to this letter is the original decision sheet from your February 17, 2012 parole hearing, which stated that you were paroled eight times in the past. The Board has stamped that sheet as "void." The Board has elected to ...

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