Opinion
29207
11-22-2021
DANIEL BETTIS Petitioner v. MICHAEL J. FLANNERY, DIRECTOR, MONDAY COMMUNITY CORRECTIONAL INST. Respondent
Andrew French Montgomery County Prosecutor's Office Attorney for Respondent, Director Michael J. Flannery Peter Galyardt Andrew Hartman Office of the Ohio Public Defender Attorneys for Relator, Daniel Bettis
[Original Action in Habeas Corpus]
Andrew French Montgomery County Prosecutor's Office Attorney for Respondent, Director Michael J. Flannery
Peter Galyardt Andrew Hartman Office of the Ohio Public Defender Attorneys for Relator, Daniel Bettis
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM.
{¶ 1} Daniel Bettis filed a Petition for a writ of habeas corpus pro se on July 27, 2021. He alleged that, while on post-release control, he had been summarily confined for several months without due process. He alleged that his confinement was initiated by a Sanction issued by his parole officer on behalf of the Adult Parole Authority, but that he was given no opportunity to contest the allegations in the Sanction in a formal or informal hearing. He asked for a hearing and to be released from Monday Community Correctional Institution, the community based correctional facility in which he was confined. Michael J. Flannery is the director of that institution and the properly-named respondent here.
The July 27 Petition was Bettis' second habeas corpus petition. This court dismissed his first petition as required because of defects in the form of the petition. See Bettis v. Flannery, Director, 2d Dist. Montgomery No. 29127 (filed May 14, 2021; dismissed May 20, 2021).
{¶ 2} On August 5, 2021, this court allowed the writ and ordered Director Flannery to file a return. On August 12, 2021, he filed a return on the writ as well as a response to the Petition, represented by the Montgomery County Prosecutor's Office. Director Flannery argued that the Adult Parole Authority is permitted by statute to impose a "residential sanction" in a community based correctional facility for a violation of post-release control, for up to six months. See R.C. 2967.28(F)(2); R.C. 2916(A)(1). He asserted that the APA may so confine a person without a hearing. Id.
"If the adult parole authority * * * determines that a releasee has violated a post-release control sanction or any conditions described in division (A) of section 2967.131 of the Revised Code imposed upon the releasee and that a more restrictive sanction is appropriate, the authority or court may impose a more restrictive sanction upon the releasee, in accordance with the standards established under division (E) of this section * * *, or may report the violation to the parole board for a hearing pursuant to division (F)(3) of this section. The authority * * * may not, pursuant to this division, increase the duration of the releasee's post-release control or impose as a post-release control sanction a residential sanction that includes a prison term, but the authority * * * may impose on the releasee any other residential sanction * * * that the sentencing court was authorized to impose pursuant to sections 2929.16, 2929.17, and 2929.18 of the Revised Code." R.C. 2967.28(F)(2).
"[T]he court imposing a sentence for a felony upon an offender who is not required to serve a mandatory prison term may impose any community residential sanction or combination of community residential sanctions under this section.
Community residential sanctions include, but are not limited to, the following:
(1) Except as otherwise provided in division (A)(6) of this section, a term of up to six months at a community-based correctional facility that serves the county[.]" R.C. 2929.16(A)(1).
{¶ 3} We appointed counsel for Bettis. Counsel filed a reply on Bettis' behalf on September 7, 2021. He emphasized that parole and post-release control sanctions must comport with the minimum due process standards set out in Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see also R.C. 2967.28(E) (discussing the due process standards to be applied under R.C. 2967.28(F)(2)); Ohio Adm.Code 5120:1-1-17(C).
"They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole." Morrissey at 488-489.
"The department of rehabilitation and correction, in accordance with Chapter 119. of the Revised Code, shall adopt rules that do all of the following:
(5) Establish standards to be used by the adult parole authority or parole board in imposing further sanctions under division (F) of this section on releasees who violate post-release control sanctions, including standards that do the following:
(a) Classify violations according to the degree of seriousness;
(b) Define the circumstances under which formal action by the parole board is warranted;
(c) Govern the use of evidence at violation hearings;
(d) Ensure procedural due process to an alleged violator;
(e) Prescribe nonresidential community control sanctions for most misdemeanor and technical violations;
(f) Provide procedures for the return of a releasee to imprisonment for violations of post-release control." R.C. 2967.28(E)(5).
"Sanctions that may be imposed by the adult parole authority without a hearing include, but are not limited to, the following:
(1) Community service;
(2) Office reporting;
(3) Upgrades in supervision levels;
(4) Mandatory employment;
(5) Structured supervision activities;
(6) Summons before a unit supervisor;
(7) Substance abuse monitoring/treatment;
(8) Residential curfew;
(9) More frequent reporting requirements;
(10) Formal written reprimand;
(11) Program placement;
(12) Summons to appear before the parole board for review of the offender's performance on release.
(13) Electronic monitoring." O.A.C. 5120:1-1-17(C).
{¶ 4} This court held a telephone scheduling conference with counsel on September 21, 2021. At the conference, counsel informed the court that Bettis had been released from Monday Correctional Institution earlier in the day. See also Stipulations of Fact Agreed to By Petitioner and Respondent, filed September 24, 2021, at ¶ 8. The parties then filed simultaneous briefs addressing whether this matter must be dismissed as moot.
{¶ 5} " '[H]abeas corpus in Ohio is generally appropriate in the criminal context only if the petitioner is entitled to immediate release from prison or some other type of physical confinement.'" Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 13, quoting State ex rel. Smirnoff v. Greene (1998), 84 Ohio St.3d 165, 167, 702 N.E.2d 423 (1998). As the parties both recognize, "[i]f a habeas corpus petitioner seeking release is subsequently released, the petitioner's habeas corpus claim is normally rendered moot." Larsen v. State, 92 Ohio St.3d 69, 748 N.E.2d 72 (2001), citing Pewitt v. Lorain Correctional Inst, 64 Ohio St.3d 470, 472, 597 N.E.2d 92 (1992).
{¶ 6} Bettis urges this court to consider the merits of his Petition under an exception for matters that are capable of repetition yet evading review. This "exception applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000), citing Spencer v. Kemna, 523 U.S. 1, 17-18, 118 S.Ct. 978, 988, 140 L.Ed.2d 43 (1998).
{¶ 7} We question whether this exception makes sense in the context of an extraordinary writ of habeas corpus that is being heard in the first instance. In such a case, it is not just that there has ceased to be an active controversy between the parties, but that the fundamental purpose of the writ of habeas corpus, and the fundamental wrong it is designed to protect against, no longer exist.
{¶ 8} Habeas corpus relief may be available to a person who is "unlawfully restrained of his liberty," R.C. 2725.01, but a person who is not restrained cannot, by definition, succeed; the factual predicate for his claim is lacking. See White v. Wolfe, 7th Dist. Noble No. 305, 2003-Ohio-3883, ¶ 11 ("Habeas corpus will lie only to grant release from some type of physical confinement, such as a prison"). Moreover, release from that restraint is the remedy available in a habeas corpus action. See R.C. 2725.17 ("Discharge of Prisoner"); State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746 (1995), citing Pewitt at 472 ("habeas corpus lies only if the petitioner is entitled to immediate release from confinement"). To put aside the fundamental requirement of custody or incarceration, to ignore that the remedy cannot be ordered, and to consider the constitutional issues underlying the extraordinary writ seem the epitome of a disfavored advisory opinion. See Davis v. Butterworth, 3rd Dist. Marion No. 9-98-62, 1999 WL 253120, *2 (Apr. 15, 1999), citing State ex rel. Colby v. Reshetylo, 30 Ohio App.2d 183, 284 N.E.2d 188 (1972) ("It is axiomatic that if the unlawful restraint has been terminated, its legality may not be determined in a habeas corpus proceeding"). This is particularly so when the advisory opinion is offered as a merits decision by a trial court hearing the matter the first instance.
{¶ 9} The evading-review exception is often invoked on appellate review where an issue has been once decided, but the appeal has become moot. See, e.g., Adkins v. McFaul, 76 Ohio St.3d 350, 350, 667 N.E.2d 1171 (1996) ("Ordinarily when there is no case in controversy, there will be no appellate review unless the underlying legal issue is capable of repetition yet evading review"); Larsen at 69 (finding the appeal moot); Leis at ¶ 17 ("because this appeal presents a constitutional question of great public interest, its mootness is no bar to our consideration of the merits of Smith's claims"); State v. Bistricky, 51 Ohio St.3d 157, 158, 555 N.E.2d 644 (1990) ("Ordinarily when there is no case in controversy or any ruling by an appellate court that would result in an advisory opinion, there will be no appellate review unless the underlying legal question is capable of repetition yet evading review") (all emphases added).
{¶ 10} The case before us is not on appellate review. This court is sitting as the trial court in the first instance, looking at whether a petitioner is entitled to the most extraordinary of writs against a governmental actor. We are asked to opine that a particular procedure offends constitutional dictates despite the fact that the petitioner cannot succeed in his claim, because he is not currently in custody. See White v. Wolfe, 7th Dist. Noble No. 305, 2003-Ohio-3883, ¶ 13, citing State ex rel. Rhinehart v. Celebreeze, 147 Ohio St. 24, 26, 67 N.E.2d 776 (1946) (court must consider "presently existing facts and conditions" in evaluating a habeas corpus petition); Maxwell v. Jones, 12th Dist. Butler No. CA2009-07-179, 2010-Ohio-1633, ¶ 11, 20 (applying the exception on appeal, finding error, but affirming the denial of a habeas corpus petition "for the reason that [petitioner] is not entitled to a writ of habeas corpus because he is no longer incarcerated"). We are not entirely convinced that this court can reach the important constitutional questions raised here by way of the evading-review exception applied in the first instance.
{¶ 11} However, the exception has been applied or at least discussed in cases hearing a habeas corpus matter in the first instance, suggesting that it may be applicable in this extraordinary type of trial court proceedings. See, e.g., Waterhouse v. Warden of Belmont Correctional Inst, 7th Dist. Belmont No. 04 BE 44, 2004-Ohio-7207, ¶ 10 (hearing a habeas corpus petition and finding, without further analysis, that the "the underlying legal issue in petitioner's application is not capable of repetition yet evading review, so as to provide this court with discretionary authority to address the merits even upon a finding of mootness"); State ex rel. Bray v. Russell, 12th Dist. Warren No. CA98-06-068, 1998 WL 778373, *3 (Nov. 9, 1998), rev'd on other grounds, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000) (agreeing that habeas corpus petition was moot but reviewing it under either the evading-review or public-importance exceptions). Thus, assuming arguendo that the exception could apply here, we consider whether we should apply it.
{¶ 12} As discussed above, we are skeptical that the constitutional issues presented in this case are appropriately reached where the action is moot and where the petitioner cannot succeed. We are also not convinced that this case is a good vehicle for deciding the issues, given that the relevant governmental actors - the Adult Parole Authority and/or Bettis' Parole Officer - are not parties to this case. Counsel for Director Flannery is not counsel for the APA or the Parole Officer and is not in the best position to defend their actions with respect to Bettis or their policies more broadly. See, e.g., APA Policy 100-APA-14 (addressing "Sanctions for Violations of Conditions of Supervision").
"Parole officers, unit supervisors, and TRC facility staff shall make every effort to ensure local sanctions are identified and used appropriately. The following sanctions may be imposed at the unit level:
a. Day Reporting
b. Upgrades in supervision levels (must be staffed with supervisor/designee)
c. Mandatory employment d. Structured supervision activities
e. Summons before a unit supervisor (must be staffed with supervisor/designee)
f. Substance abuse testing
g. Residential curfew
h. Formal written reprimand
i. Modified reporting instructions
j. HWH (must be staffed with supervisor/designee) or non-residential program placement
k. Electronic Monitoring (must be staffed with supervisor/designee)
l. Community Service (must be staffed with supervisor/designee)
m. Summons to Parole Board hearing officer (must be staffed with supervisor/designee)
n. CBCF referral (must be approved by regional administrator/designee)Id. at Section (I)(2), available at https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies/ 100-APA-14%20(Feb%202021).pdf?ver=RC20o4CIF7l2McRoOGoQoQ%3D%3D (accessed Nov. 18, 2021).
{¶ 13} We also are not convinced that this matter is, in fact, capable of repetition yet evading review. A habeas corpus matter can be handled within the six months discussed in the relevant statutes. Other avenues may be available to challenge the constitutionality of these statutes, administrative code sections, policies, or the specific facts of any particular post-release control sanction. And, there is no evidence before us to suggest that there "is a reasonable expectation that the same complaining party will be subject to the same action again." Calvary at 231. We therefore decline to further consider this matter.
We make no determination at this time whether Bettis could have succeeded on the merits if he was not released. Nor is this an indication that this court is unconcerned with the due process issues presented in this case.
{¶ 14} Accordingly, we DISMISS the habeas corpus petition before us as MOOT. This matter is now closed. The costs of this action are WAIVED.
SO ORDERED.
MICHAEL L. TUCKER, Presiding Judge, MARY E. DONOVAN, Judge, MICHAEL T. HALL, Judge
To The Clerk: Within three (3) days of entering this judgment on the journal, you are directed to serve on all parties not in default for failure to appear notice of the judgment and the date of its entry upon the journal, pursuant to Civ.R. 58(B).