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State ex rel. Phillips v. Ohio Adult Parole Auth.

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Jun 27, 2017
2017 Ohio 5532 (Ohio Ct. App. 2017)

Opinion

No. 17AP-7

06-27-2017

State ex rel. Richard Eugene Phillips, [Relator]-Appellant, v. The Ohio Adult Parole Authority, Respondent-Appellee.

On brief: Richard Eugene Phillips, pro se. On brief: Michael DeWine, Attorney General, and Thomas E. Madden, for respondent.


(C.P.C. No. 15CV-11362) (ACCELERATED CALENDAR) DECISION On brief: Richard Eugene Phillips, pro se. On brief: Michael DeWine, Attorney General, and Thomas E. Madden, for respondent. APPEAL from the Franklin County Court of Common Pleas DORRIAN, J.

{¶ 1} Relator-appellant, Richard Eugene Phillips ("appellant"), appeals the December 9, 2016 decision and entry of the Franklin County Court of Common Pleas granting summary judgment in favor of respondent-appellee, Ohio Adult Parole Authority ("APA"). For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} Appellant is an inmate at a state correctional facility. He was convicted in the Summit County Court of Common Pleas of two counts of murder, one count of assault, and one count of unlawful restraint. On July 27, 1987, the following sentences, to run concurrently, were imposed on appellant: an indeterminate period of not less than 15 years to life for each of the two counts of murder, 6 months for the count of assault, and 60 days for the count of unlawful restraint.

{¶ 3} In 1997, appellant had his first hearing before the Ohio Parole Board, a division of the Ohio Department of Rehabilitation and Correction. Appellant was denied parole and granted a projected review date of 2037. On April 10, 2001, the Ohio Parole Board notified appellant that "[i]n accordance with our new Extended Continuance procedure (Policy 501.67) which became effective December 22, 2000, you have been scheduled for a Release Consideration Review hearing April, 2007." (Emphasis omitted.) (Defendant's Mot. for Sum. Jgmt., Ex. 2 at 18.) The review process began in April 2007. Appellant's release consideration review hearing was rescheduled from April until June 2007. It was again rescheduled from June until August 2007 in order for a clinical risk assessment to be completed. In August 2007, the matter was referred for Central Office Board Review ("COBR") to commence in October 2007. Following the COBR meeting, a decision was made to continue appellant's review until October 2017.

{¶ 4} On December 16, 2015, appellant filed a complaint for a writ of mandamus alleging that the procedure used during his parole hearing was improper in that the information used was erroneous and that APA should have known it was incorrect. On February 10, 2016, APA filed an answer.

{¶ 5} On October 26, 2016, APA filed a motion for summary judgment. Among other documents, APA attached to its motion for summary judgment: the affidavit of Shannon Castlin, a correctional records service computation auditor with the Bureau of Sentence Computation; the affidavit of Jamie O'Toole-Billingsley, the executive assistant to the Ohio Parole Board; a copy of appellant's sentencing entry; a copy of the Ohio Parole Board Guidelines Manual, Second Edition ("Second Edition Guidelines"); and a copy of the Ohio Parole Board Guidelines Manual, Third Edition ("Third Edition Guidelines").

{¶ 6} On November 4, 2016, appellant filed a motion for judgment on the pleadings. On November 18, 2016, appellant filed a response in opposition to APA's motion for summary judgment. In his response, appellant asserted he did not receive any of the exhibits referenced in APA's motion for summary judgment. On November 22, 2016, APA filed a reply which stated that it had mailed a second copy of its motion for summary judgment and accompanying exhibits to appellant to cure any defect in the record that may have been caused by inadvertent clerical error. As a result of this possible clerical error, APA sought an extension of time for appellant to file a supplemental response to APA's motion for summary judgment. On December 1, 2016, appellant filed a second response to APA's motion for summary judgment.

{¶ 7} On December 9, 2016, the trial court filed a decision and entry granting summary judgment in favor of APA.

II. Assignment of Error

{¶ 8} Appellant appeals and assigns the following single assignment of error for our review:

When inmates makes credible allegations that the record contains errors, parole board has a legal duty to correct errors before considering inmate for parole.

III. Discussion

{¶ 9} In his assignment of error, appellant argues the trial court erred in granting summary judgment in favor of APA because "the APA did not assign the correct inmate the [sic] offense category score that corresponds to the offense or offenses of conviction on his Decision Sheet." (Emphasis omitted.) (Appellant's Brief at 6-7.)

{¶ 10} Summary judgment procedure applies to an action in mandamus. State ex rel. Cobb v. Ohio Adult Parole Auth., 10th Dist. No. 16AP-199, 2017-Ohio-1170, ¶ 12, citing State ex rel. Wilson v. Preston, 173 Ohio St. 203 (1962), paragraph three of the syllabus. An appellate court reviews summary judgment under a de novo standard. Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567, ¶ 19, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995).

{¶ 11} Summary judgment is appropriate only when the moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).

{¶ 12} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the court must deny the motion for summary judgment; however, if the moving party satisfies its initial burden, summary judgment is appropriate unless the non-moving party responds, by affidavit or otherwise as provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991).

{¶ 13} To be entitled to a writ of mandamus, relator must show by clear and convincing evidence that: (1) relator has a clear legal right to the relief requested, (2) the parole board has a clear legal duty to perform the act sought, and (3) that relator has no plain and adequate remedy in the ordinary course of law. Cobb at ¶ 13, citing State ex rel. Townsend v. Mohr, 10th Dist. No. 15AP-681, 2016-Ohio-5942, ¶ 5. See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, paragraph three of the syllabus.

{¶ 14} "There is no constitutional or inherent right to be released before the expiration of a valid sentence." State ex rel. Miller v. Leonard, 88 Ohio St.3d 46, 47 (2000), certiorari denied, 530 U.S. 1223, citing Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979); State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 123, 125 (1994), overruled on other grounds, State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, ¶ 31; State ex rel. Bailey v. Ohio Parole Bd., 10th Dist. No. 15AP-887, 2016-Ohio-8264, ¶ 7.

{¶ 15} "Although the [APA] has 'wide-ranging discretion' in parole matters, its 'discretion must yield when it runs afoul of statutorily based parole eligibility standards and judicially sanctioned plea agreements.' " Collins v. Ohio Adult Parole Auth., 10th Dist. No. 02AP-1161, 2003-Ohio-2952, ¶ 12, quoting Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 2002-Ohio-6719, ¶ 28. Furthermore, "having set up the system [of parole] and defined at least some of the factors to be considered in the parole decision, the state has created a minimal due-process expectation that the factors considered at a parole hearing are to be as described in the statute or rule and are to actually and accurately pertain to the prisoner whose parole is being considered." Keith at ¶ 25. Thus, "in any parole determination involving indeterminate sentencing, the [APA] may not rely on information that it knows or has reason to know is inaccurate." Id. at ¶ 26. See also Layne at syllabus ("In any parole determination involving indeterminate sentencing, the [APA] must assign an inmate the offense category score that corresponds to the offense or offenses of conviction."). Nonetheless, "the APA, when considering an inmate for parole, still retains its discretion to consider any circumstances relating to the offense or offenses of conviction, including crimes that did not result in conviction, as well as any other factors the APA deems relevant." Id. at ¶ 28, citing Hemphill v. Ohio Adult Parole Auth., 61 Ohio St.3d 385, 386 (1991).

{¶ 16} Appellant contends that APA misclassified his offense under the guidelines from an Offense Category 12 into an Offense Category 13. Appellant was convicted of two counts of murder. Under the Second Edition Guidelines, which became effective on April 1, 2000, murder was "designated as a Category 11 or 12, with a corresponding guideline range reflecting a number of months at the high end of the range, instead of Life," whereas aggravated murder was designated as an Offense Category 13. (Mot. for Sum. Jgmt., Ex. 6 at 8.) Under the Third Edition Guidelines, which became effective on July 1, 2007, "[d]ue to the fact that both [murder and aggravated murder] require a maximum sentence of Life under criminal sentencing law, the offense of [m]urder was reassigned an Offense Category 13, which reflects Life at the high end of the ranges." (Mot. for Sum. Jgmt., Ex. 6 at 8.) The manual explains the reasoning behind this change: "By making this change, any previous impression or presumption that an offender convicted of [m]urder will be released after serving a definite amount of time and will not have to serve Life is removed. The distinctions between the seriousness of the offenses will be addressed by the different minimum sentences required to be served before parole release eligibility, and when determining release suitability." (Mot. for Sum. Jgmt., Ex. 6 at 8.)

{¶ 17} The record reflects that appellant's offense was an offense Category 12 prior to the implementation of the Third Edition Guidelines, and was an offense Category 13 as of the date of his October 2007 release consideration review decision. "It is firmly established that a prisoner has no right to rely on the parole guidelines in effect prior to his parole hearing date, and thus application of amended parole guidelines does not violate ex post facto prohibitions." Robertson v. Ohio Adult Parole Auth., 10th Dist. No. 01AP-1111, 2002-Ohio-4303, ¶ 34, citing State ex rel. Bealler v. Ohio Adult Parole Auth., 91 Ohio St.3d 36 (2001). See Budd v. Kinkela, 10th Dist. No. 01AP-1478, 2002-Ohio-4311, ¶ 5; State ex rel. Wolfe v. Ohio Adult Parole Auth., 10th Dist. No. 08AP-346, 2008-Ohio-5619, ¶ 4. Therefore, as appellant was properly classified according to the guidelines in place at the time of his October 2007 release consideration review decision, we find no merit to his contentions. Spencer v. Ohio Adult Parole Auth., 10th Dist. No. 09AP-143, 2009-Ohio-4656, ¶ 23.

{¶ 18} Accordingly, we overrule appellant's single assignment of error.

IV. Conclusion

{¶ 19} Having overruled appellant's single assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN and LUPER SCHUSTER, JJ., concur.


Summaries of

State ex rel. Phillips v. Ohio Adult Parole Auth.

COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Jun 27, 2017
2017 Ohio 5532 (Ohio Ct. App. 2017)
Case details for

State ex rel. Phillips v. Ohio Adult Parole Auth.

Case Details

Full title:State ex rel. Richard Eugene Phillips, [Relator]-Appellant, v. The Ohio…

Court:COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

Date published: Jun 27, 2017

Citations

2017 Ohio 5532 (Ohio Ct. App. 2017)