2019 Ohio 4774
Ohio Ct. App.2019Background
- Relator Raymond Mango was on parole when police responded on March 28, 2018 to a dispute at Gwendolyn Jarrett’s residence; Jarrett had a facial abrasion and Mango admitted he pushed her. He was arrested.
- A parole-revocation hearing was held May 2, 2018; Jarrett did not testify. Respondent introduced testimony from at least one officer and body‑cam video.
- Mango was represented by counsel at the hearing; the board found violations for causing/attempting to cause physical harm and for changing residence without prior approval, revoked parole, and imposed 36 more months.
- Mango filed an administrative appeal and then this mandamus action seeking reinstatement or a new revocation hearing with his witness and counsel present, claiming denial of confrontation, reliance on hearsay, and ineffective counsel for not securing Jarrett’s attendance.
- The magistrate recommended dismissal on motion to dismiss; the appellate court reviewed objections and concluded the magistrate impermissibly weighed conflicting evidence at the Civ.R. 12(B)(6) stage and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mango was denied opportunity to confront/cross‑examine Jarrett because she did not testify | Mango: Jarrett never received the subpoena and thus could not be cross‑examined | Respondent: Jarrett was hand‑delivered a subpoena and simply did not appear | Court: Sustained objection — conflicting documentary statements exist; weighing credibility is improper on a motion to dismiss; remand for further proceedings |
| Whether revocation rested solely on inadmissible hearsay (including the residence‑change finding) | Mango: Board relied on hearsay and police narratives; hearsay alone cannot support revocation | Respondent: Officer testified to observations and bodycam was available; not just hearsay | Court: Sustained objection re: address/hearsay claim — factual disputes preclude dismissal at 12(B)(6); remand |
| Whether counsel was ineffective for failing to subpoena/interview Jarrett | Mango: Counsel failed to secure Jarrett, denying effective representation | Respondent: Jarrett was subpoenaed (hand‑delivered); no ineffective assistance claim established | Court: Magistrate had found subpoena served, but appellate court sustained objection because documentary contradiction precludes resolving that factual dispute on a motion to dismiss; remand |
| Whether mandamus dismissal was appropriate or a new evidentiary hearing is required | Mango: Requested writ or new hearing with witness/counsel present | Respondent: Moved to dismiss for failure to state a claim | Court: Remanded for further proceedings — dismissal reversed because the court cannot resolve competing documentary evidence at the motion‑to‑dismiss stage |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (Due process minimums for parole revocation hearings)
- State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (12(B)(6) standard in mandamus suits)
- State ex rel. Alford v. Willoughby, 58 Ohio St.2d 221 (mandamus pleading/inference standards)
- State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94 (limits on using materials outside the complaint to support 12(B)(6) motion)
- State ex rel. Washington v. D'Apolito, 156 Ohio St.3d 77 (court need not accept allegations contradicted by attachments; caution against fact‑weighing at motion to dismiss)
- Columbus v. Lacy, 46 Ohio App.3d 161 (hearsay generally insufficient alone to support revocation)
- O'Brien v. University Community Tenants Union, 42 Ohio St.2d 242 (standard that pleadings should not be dismissed unless no set of facts could support relief)