Opinion
No. 82-1482
Decided June 22, 1983.
Criminal law — Parole — Mandamus to compel release on original parole conditions — Parole revocation hearing — Time during which final hearing must be held following parolee's arrest for committing new crime — "Reasonable time" required — Factors to be considered.
APPEAL from the Court of Appeals for Franklin County.
This is an appeal as of right from the dismissal of a complaint for a writ of mandamus by the court of appeals.
Appellant, Leon Jackson, was on parole when arrested on October 30, 1981, and charged with the offense of abduction. The Adult Parole Authority thereafter filed a detainer against relator who was at the time confined in the Cuyahoga County Jail. On April 21, 1982, appellant entered a plea of guilty to the abduction charge and the one to ten year sentence was suspended on condition that two years probation be served and court costs be paid. The journal entry of the court of common pleas was not filed until May 21, 1982. Appellant was returned to the actual physical custody of appellees on June 10, 1982.
The final parole revocation hearing was held on June 24, 1982, having been requested by appellant on June 15, 1982. Appellant objected to the hearing arguing that more than sixty days had passed since his availability date, April 21, 1982, and thus the hearing was not held within a "reasonable time." The Adult Parole Board rejected this argument. Appellant's parole was revoked.
Appellant thereafter filed this mandamus action to compel appellees to release him according to the terms and conditions of his original parole.
Mr. Randall M. Dana, public defender, and Ms. Elizabeth Manton, for appellant.
Mr. William J. Brown, attorney general, and Mr. Dennis L. Sipe, for appellees.
Appellant urges that a sixty-day rule applied from the date of availability to the date of the final parole revocation hearing is the proper interpretation of the reasonable time requirement of Morrissey v. Brewer (1972), 408 U.S. 471, within which to provide an alleged parole violator with a final hearing.
In support of such sixty-day rule, appellant relies on the federal district court case of Inmates' Councilmatic Voice v. Rogers (Dec. 12, 1974), N.D. Ohio E.D. No. C72-1052, unreported. Appellant concedes that the sixty-day rule was rejected on appeal in Inmates ([C.A. 6, 1976], 541 F.2d 633), but argues that the modification by the Sixth Circuit Court of Appeals should not apply in a situation where the sentence for the new intervening crime was suspended and probation granted. We find such argument to be without merit.
On appeal, Inmates declined to establish a specific time limitation for conducting a final parole revocation hearing when the parolee is arrested for committing a new crime. Inmates would entitle appellant to a hearing within a reasonable time after his request therefor ( id. at 636), which in the present case was not made until June 15, 1982. Further, the nature and duration of the penalty imposed for the new crime which forms the basis for a parole revocation certainly are considerations respecting the reasonableness of time within which such hearing should be afforded. Cf. Moody v. Daggett (1976), 429 U.S. 78. In consideration of the above, the time set for the final parole revocation hearing herein was not unreasonable or prejudicial to appellant.
Accordingly, the judgment of the court of appeals, denying the writ, is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.