2021 Ohio 923
Ohio Ct. App.2021Background
- Dana Cartwright was paroled April 25, 2019 and, after incidents on or about June 6, 2019 at a Dayton hospital, was served with a violation notice alleging violation of Parole Rule 1 ("obey laws") for "engaged or attempted to engage in sexual contact" with two nurses.
- A revocation hearing was held July 8, 2019; the parole authority found Count 1 (one nurse) proven by a preponderance of the evidence, revoked parole, and recommended service of 24 months before re‑eligibility.
- Cartwright filed an original action for writ of mandamus seeking a new revocation hearing or reinstatement, arguing inadequate notice (no specific statute cited) and insufficient evidence to support revocation.
- The magistrate granted respondent's Civ.R. 12(B)(6) motion and dismissed; the magistrate also found Cartwright complied with the inmate-account filing requirement but had ability to pay filing fees.
- The Tenth District court sustained Cartwright's objection in part: it concluded the court need not decide notice sufficiency because Cartwright had admitted Count 1 ("admit with mitigation" appears in the record), but reversed dismissal as to the insufficient‑evidence claim and remanded for further proceedings (i.e., the complaint survives 12(B)(6) on that claim).
Issues
| Issue | Plaintiff's Argument (Cartwright) | Defendant's Argument (Parole Board) | Held |
|---|---|---|---|
| Adequacy of notice under Morrissey/OH Adm. Code 5120:1-1-18(A)(5) | Notice was inadequate because it did not cite a specific criminal statute, depriving him of meaningful notice and right to counsel | The notice described date, location, victim, and "sexual contact" conduct; that description satisfied parole revocation notice requirements | Court: no need to resolve generally here—Cartwright admitted Count 1 on the record, so he was not deprived of notice; magistrate's dismissal on notice grounds rejected insofar as premature determination was made |
| Must the notice identify the specific statute (per United States v. Havier)? | Havier requires identification of the specific statute when the charged offense is not evident from the condition violated | Parole rule violation plus factual description (date, place, victim, "sexual contact") gave adequate specificity for revocation proceedings | Court: Havier persuasive but not controlling; whether a notice must cite a statute is case‑specific; here court avoided deciding because of Cartwright's admission |
| Sufficiency of evidence for revocation (preponderance standard) | Evidence was insufficient: touching a nurse’s leg alone does not establish criminal sexual contact or sexual conduct | Parole may be revoked on a preponderance standard; parole board may consider sexual conduct and relied on corroboration and witness testimony | Court: At 12(B)(6) stage, taking complaint allegations as true, it is not beyond doubt Cartwright can prove no set of facts entitling him to relief—dismissal improper as to insufficiency claim; remand for development of record |
| Compliance with inmate filing requirements and ability to pay fees (R.C. 2969.25) | Filed inmate account statement; argued indigency | Board argued statement omitted the final month and that outside deposits show ability to pay | Magistrate (and not objected to on appeal): the six‑month statement was compliant; magistrate found Cartwright had ability to pay and court would require fees if action continued |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (1972) (minimum due‑process rights in parole‑revocation proceedings: written notice, disclosure, hearing, confrontation, written statement of reasons)
- United States v. Havier, 155 F.3d 1090 (9th Cir. 1998) (notice charging "violation of a standard condition" requires identification of the specific statute when the offense is not evident from the condition)
- Barnett v. Ohio Adult Parole Auth., 81 Ohio St.3d 385 (1998) (parole/probation may be revoked even if criminal charges are not filed, dismissed, or result in acquittal, unless all factual support is removed)
- State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992) (standards for motion to dismiss for failure to state a claim in mandamus actions)
- State ex rel. Alford v. Willoughby, 58 Ohio St.2d 221 (1979) (mandamus‑complaint sufficiency: material allegations taken as admitted; relief only if no set of facts can support relator)
- State ex rel. Washington v. D'Apolito, 156 Ohio St.3d 77 (2018) (documents attached to a complaint may contradict allegations; courts need not accept allegations contradicted by attached records)