This is an appeal from a judgment rendered by the Common Pleas Court on February 29,1972, denying petitioner’s writ of babeas corpus.
The record indicates that the petitioner was indicted in tbe January 1961 term of tbe Court of Common Pleas of Montgomery County on tbe charge of robbery in violation of R. C. 2901.12. Upon trial be was found guilty by a jury and sentenced on June 19, 1961, to tbe Ohio Penitentiary for a term of 1 tо 25 years. Tbe record indicates further that petitioner was paroled on September 21, 1964; was declared a parole violator on December 4, 1964; and was returned to the Ohio Pеnitentiary on December 15, 1964. He was again paroled on February 11, 1970. Tbe special minutes of tbe Adult Parole Authority disclose further that:
“* * * on tbe 24th day of May, 1971 tbe Superintendent of Parole Supervision has brought information to tbe attention of tbe Adult Parole Authority that tbe Parolee has violated the terms and conditions of his Parole; and has recommended that be be declared to be a Parole Violator;
“and, Whereas, the Superintendent has submitted a copy of the report of tbe Parole Officer, as of May 10, 1971:
“and, Whereas, the Adult Parole Authority has carefully considered all of tbe factors brought to its attention concerning this case;
“now, Therefore, by virtue of tbe authority vested in tbe Adult Parole Authority by Section 2967.15 of tbe Revised Code, he is hеreby declared to be a Parole Violator, effective May 24, 1971.”
On September 16, 1971, petitioner filed a petition for a writ of habeas corpus in tbe Common Pleas Court, alleging that be was being illegally restrained in the Ohio Penitentiary. Tbe gist of petitioner’s contention is that be was declared to be a parole violator and returned to the Ohio Penitentiary without a hearing to determine whether be had violated tbe terms and conditions of his parole. On January 20, 1972, respondent filed a motion to dismiss the petition on tbe ground that parole revocation is not reviewable in a habeas corpus proceeding in Ohio. Follow
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ing consideration of the motion, the Common Pleas Court denied petitioner’s writ of habeas corpus, based upon the two Ohio Supreme Court rulings of
In re Varner
(1957),
“The action of the Pardon and Parole Commission, in declaring a paroled convict to be a parole violator before the expiration of the maximum period of his sentence and before his final release by that commission or pursuant to executive clemency, is not reviewable in a habeas corpus prоceeding, even though such convict has been returned to the penitentiary or to the reformatory because of such action. ’ ’
In Rose v. Haskins, the Supreme Court reaffirmed its position in In re Varner, and held:
“It is well established in Ohio law that parole is a matter of grace. While parole is a release from confinement, the parolee is still in the legal custody of the Department of Mental Hygiene and Correction. * * * As such, a parоlee has only privileges and not the claimed constitutional rights afforded him prior to conviction.. Petitioner has urged these same issues in the federal courts and has been denied relief. * * *
C i # # *
“ * * A state prisoner does not have a constitutional right to a hearing on a state parole revocation * * * 5 11
Therefore, until recently the law of Ohio has been well established thаt parole is a matter of grace and that the action of the Adult Parole Authority in declaring a paroled convict to be a parole violator before the expiration of the maximum period of his sentence is not reviewable in a habeas corpus proceeding. However, on June 29, 1972, the United States Supreme Court, in
Morrissey
v.
Brewer,
The court states that implicit in the administrative system’s concern with parole violatiоns is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the condition of his parole, with the caution, however, that revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in a criminal proceeding does not apply to parole revocations. The court then develops specific guidelines concerning the nature of the process that is due in the two stages of a typical process of parole revocation.
The first stаge (33 L. Ed 2d, at 496) occurs when the parolee is arrested and detained while the second occurs when the parole is formally revoked. In the first instance, the court observes that due рrocess would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation and that such inquiry should be seen аs in the nature of a “preliminary hearing” to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts which would constitute a violation of parole conditions. The court notes that, in its view, due process requires that reasonable grounds exist for revocation of parole and that this determination should be made by someone not directly involved in the case. Further, the parolee should be given notice of the hearing and the reason for such hearing togеther with a statement of the violations which have been alleged. Moreover, the process would permit the parolee to appear and speak in his own behalf and to bring letters, documents or individuals who can give relevant information to the hearing officer. Additionally, at the request of the parolee, persons who have given adverse information оn which parole revocation is to be based are to be made available for questioning, unless the hearing officer determines that the informant would be subjected to risk of harm if his identity wеre disclosed. Further, the hearing officer has the duty of making a summary or digest of what transpires at the hearing.. And *198 finally, based on the information before him, the hearing officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation.
The second stage (
“* * * (a) written notice of the claimed violations of parole; (b) disclosure to the рarolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine аdverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parol board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.”
It is essential that the above procedure be followed in the future in all cases involving revocation of parole. Petitioner argues that the application of these rules must be аpplied in the instant case. He cites in support the decision of the United States Supreme Court in
Goldberg
v.
Kelly
(1970),
Inasmuch as that case involved the termination of welfare benefits and had no connection with parole revocаtion, the cases are distinguishable and have no bearing on one another. Furthermore, it is quite clear in the court’s decision in
Morrissey, supra,
that the Supreme Court is aware that its decision changes the law that previously existed on this question. The court explicitly states that the basic requirements as set forth in the decision “are applicable to future revocations of parоle,” Therefore, by
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implication they would not be applicable to parole revocations made prior to the rendering of the
Morrissey
decision, wherein (
“We have no thought to create an inflеxible structure for parole revocation procedures. The few basic requirements set out above, which are applicable to future revocations of parole, should not impose a great burden on any State’s parole system. * * (Emphasis added.)
The logic of this reasoning is inescapable when one contemplates the avalanche of habeas corpus petitions which would unquestionably be filed in the courts of every state due to the flood gates being opened had the court ruled that the new requirements would have retroactive application. The judgment of the Common Pleas Court is affirmed..
Judgment affirmed.