Opinion
No. 80-279
Decided July 16, 1980.
Mandamus — To compel rescission of parole revocation — Writ denied, when.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal as of right from the denial of a complaint for a writ of mandamus by the Court of Appeals.
Appellant's mandamus action, filed below on June 26, 1979, sought to compel rescission of an order of the Adult Parole Authority which revoked his parole.
A Stipulation of Facts and Exhibits was entered into by the parties and submitted to the Court of Appeals. In summary, the stipulation and exhibits reveal that appellant, while on parole relative to a manslaughter conviction, was arrested January 21, 1978, for aggravated robbery. The Adult Parole Authority placed a detainer against him for violation of parole conditions and an on-site or probable cause hearing was held. As a result of the on-site hearing, the following charges were issued: (1) changing residence without permission of parole officer on or about January 8, 1978; (2) taking money by force, belonging to Johnny's Rib House, 157 East Second Street, Mansfield, Ohio, on or about January 21, 1978; and (3) having possession of a firearm on or about January 21, 1978. Prior to the formal revocation hearing, requested by appellant, he was charged in the criminal proceeding with aggravated robbery and conspiracy. The aggravated robbery charge was dismissed by the state and appellant was tried on the conspiracy charge and acquitted at jury trial on April 14, 1978. The formal revocation hearing was held June 5, 1978, and appellant was found to be in violation of parole as to (1) changing residence without permission; and (2) conspiracy to commit robbery, but not actual robbery. Count three of the revocation charges, pertaining to possession of a firearm, was dismissed on motion of the state. Appellant was advised of revocation by document dated June 30, 1978.
The essence of the mandamus complaint was the failure to give appellant notice of the conspiracy to commit robbery charge and the failure to provide appellant with written findings of fact as to the evidence relied on and reasons for revoking parole.
Subsequent to the filing of the mandamus action below, by letter dated August 16, 1979, signed by a member of the Ohio Parole Board (submitted to the Court of Appeals as part of the aforementioned Stipulation of Facts and Exhibits), appellant was provided with a statement of the evidence relied on and reasons for parole revocation.
Mr. J. Tullis Rogers, for appellant.
Mr. William J. Brown, attorney general, and Mr. Dennis L. Sipe, for appellees.
Appellant urges that the want of notice as to the conspiracy to commit robbery charge prior to the revocation hearing does not meet the "written notice of the claimed violations of parole" standard of Morrissey v. Brewer (1972), 408 U.S. 471, 489. Appellant's argument is limited to the want of notice of the conspiracy charge and is not directed to the Morrissey requirement of "disclosure to the parolee of evidence against him."
Appellant's reliance on the want of written notice as to the conspiracy to commit robbery charge does not consider his having, with counsel, successfully defended against the criminal charge of conspiracy to rob the same Johnny's Rib House on the same date as set forth in the robbery charged in the revocation notice rendered to him. Moreover, appellees' Exhibit "A" submitted below, the letter dated August 16, 1979, summarizing the evidence relied on and reasons for parole revocation, reflects that appellant was represented by counsel at least two weeks in advance of the revocation hearing and that as a part of his defense at the revocation hearing he "***submitted a form of the jury foreman that Atkins was acquitted of the charge of Conspiracy to commit robbery in that Brown was not held to be a credible witness." Additionally a member of the criminal jury that sat on the conspiracy case was called on appellant's behalf relative to appellant's acquittal of conspiracy at criminal trial. Appellant has not shown either prejudice or lack of opportunity to defend relative to the conspiracy to commit robbery charge under the circumstances herein, which include written notice of the identical robbery which the Parole Board found he conspired in. Appellant's reliance on United States, ex rel. Carson, v. Taylor (C.A. 2, 1976), 540 F.2d 1156, is misplaced in that, there, the impermissible trips, known by the parole board in advance of revocation hearing, were not charged or related to other charged offenses but were developed at the revocation hearing. Here, contrasted with Carson, there is no similar element of surprise so as to restrict either merit defense or mitigation.
The written statement of the evidence relied on and reasons for revocation unquestionably was unreasonably late. However, the only reflection appellant casts upon the written summarization is that it is suspect because it was rendered some 14 months after the hearing. Absent a showing of substantive inaccuracies or deficiencies, it is difficult to see how appellant has been prejudiced by late compliance with this Morrissey requirement in light of our finding of adequate notice as to the conspiracy charge. Moreover, appellant's Exhibit "7" of the stipulated exhibits, being an unofficial transcript of the Parole Board's findings, though not an evidentiary summarization, was presented to appellant at the conclusion of the revocation hearing. Subsequent thereto, by written notification of June 30, 1978, appellant was advised of his parole revocation.
For reason of the foregoing, the judgment of the Court of Appeals, denying the writ, is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.