Summary
granting of parole [as opposed to parole revocation] does not constitute a liberty interest upon which petitioner can base a due process claim; applicable regulations were not violated because delay in revocation hearing was for just cause
Summary of this case from Brewer v. DahlbergOpinion
No. 89-768
Submitted July 26, 1989 —
Decided September 27, 1989.
Mandamus — Parole hearing — Denial of parole — Ohio Adm. Code 5120:1-1-10(B) requirement of showing good cause for scheduling second parole hearing five years beyond the minimum eligibility date for release consideration met, when — Due Process Clause not violated, when — R.C. 2967.03 does not create presumption that parole will be granted when designated findings are made.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-1003.
Relator-appellant, Raymond Ferguson, is serving a seven-to-twenty-five-year sentence for rape at the Chillicothe Correctional Institute. On March 17, 1987, he had his first parole hearing before a panel of the Board of Parole, which is part of the Adult Parole Authority, appellee herein. (For convenience, appellee will be referred to as the "board.") The panel voted to deny parole and scheduled Ferguson's second parole hearing for May 1997.
Ferguson filed a complaint in mandamus in the Court of Appeals for Franklin County, asserting that the board denied him due process of law and violated the applicable provisions of the Ohio Administrative Code. The court of appeals appointed a referee to hear Ferguson's claim under Civ. R. 53(A).
The board filed a Civ. R. 12(B)(6) motion for judgment on the pleadings. The referee recommended that this motion be granted as to nearly all the allegations in relator's complaint. However, she found that a material issue of fact existed on Ferguson's claim that the board violated Ohio Adm. Code 5120:1-1-10(B) by scheduling the second parole hearing "later than five years beyond the minimum eligibility date for release consideration * * *" without "good cause."
Subsequently, Ferguson served interrogatories upon the board. One of these requested that the board "[s]et forth all reasons why the next parole hearing of the relator was continued to May, 1997." The board replied in part that it was "of the opinion that his offense (rape by oral sex) is a very serious offense. The Board is also of the opinion that over a considerable period of time Mr. Ferguson more than likely repeatedly raped and brutally attacked other women and also exposed himself to other women."
Both parties then filed motions for summary judgment on the "good cause" issue. The referee recommended that Ferguson's motion be denied and that of the board be granted. Adopting the referee's report, the court of appeals denied the writ.
Paul Mancino, Jr., for appellant.
Ferguson argues that the board denied him due process by considering misconduct not resulting in criminal convictions; by not giving him notice that such misconduct would be considered, or an opportunity to disprove it; and by explaining its decision to deny parole by means of a preprinted form couched solely in terms of the applicable regulations, without setting forth the factual underpinnings of the board's conclusions.
We need not decide whether any or all of these would constitute denials of due process. We have held that R.C. 2967.03 creates no presumption that parole will be granted when designated findings are made. State, ex rel. Blake, v. Shoemaker (1983), 4 Ohio St.3d 42, 43, 4 OBR 86, 87, 446 N.E.2d 169, 170. Therefore, Ferguson has been deprived of no liberty interest upon which he can base a due-process claim.
The court of appeals was also correct in dismissing Ferguson's claims that the applicable regulations were violated. Ferguson contends that the board failed to show good cause for scheduling his second hearing for 1997. But the board's answer to his ninth interrogatory explains that this decision was based on the seriousness of Ferguson's offense and the likelihood that he has committed other sexual offenses. We agree with the court of appeals that this constitutes "good cause" under Ohio Adm. Code 5120:1-1-10(B).
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.