State ex rel. Dana Cartwright v. Ohio Adult Parole Bd.
No. 20AP-62
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 23, 2021
2021-Ohio-923
Rendered on March 23, 2021
On brief: Dana Cartwright, pro se.
On brief: Dave Yost, Attorney General, and George Horvath, for respondent.
IN MANDAMUS ON OBJECTION TO THE MAGISTRATE‘S DECISION
DORRIAN, P.J.
{1} In this original action, relator, Dana Cartwright, requests a writ of mandamus ordering respondent, Ohio Adult Parole Revocation Hearing Committee, a subdivision of Ohio Department of Rehabilitation and Correction (“respondent“), to vacate the results of a previous parole revocation hearing that resulted in revocation of parole for relator and to grant him a new revocation. In the alternative, relator requests a writ ordering respondent to place relator back on parole under the conditions governing his status prior to revocation. Respondent filed a motion to dismiss for: (1) failure to state a claim, and (2) failure to comply with inmate procedural filing requirements under
{2} Relator made two claims for relief in his complaint in mandamus. First, relator claims respondent‘s decision to revoke parole is void and an abuse of discretion
{3} Pursuant to
I. Relator‘s Objection
{4} Relator timely filed an objection to the magistrate‘s recommendation to dismiss. Relator objects to the magistrate‘s conclusion that the complaint for mandamus fails to state a claim upon which relief may be granted. In support, relator argues: (1) the standard for reviewing motions to dismiss for failure to state a claim is governed by
{5} Finally, relator argues respondent‘s judgment is void and he must be restored to his former parole status.
{6} We begin by noting the document attached to relator‘s complaint titled “Notice of Findings of Release Violation Hearing,” in section II titled “[s]ummary of evidence used in arriving at findings,” states that with regard to Count 2, the allegation involving S.O., a nurse, “the APA failed to provide sufficient corroboration in the Violation Report, Documentary Evidence submitted into the Record, and Verbal Testimony presented during the Hearing for violation of Ohio Parole Rule #1 (count 2).” According to the documentation submitted by relator with his complaint, he was only found to have violated Ohio Parole Rule #1 as alleged in Count 1. Therefore, it is not necessary for us to consider relator‘s objections with regard to Count 2 and the allegation that he attempted to engage in sexual contact with S.O. without her consent. We need only focus our analysis of appellant‘s objections on Count 1, the allegation that he attempted to engage in sexual contact with a nurse, T.G., without her consent.
{7} First, relator argues the magistrate erred in applying the wrong standard for
A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. Assn. for the Defense of the Washington Local School Dist. v. Kiger (1989), 42 Ohio St.3d 116, 117, 537 N.E.2d 1292, 1293. Thus, the movant may not rely on allegations or evidence outside the complaint; otherwise, the motion must be treated, with reasonable notice, as a
Civ.R. 56 motion for summary judgment.Civ.R. 12(B) ; State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm. (1990), 55 Ohio St.3d 98, 99, 562 N.E.2d 1383, 1384. Even then, only certain forms of evidence may be submitted to support the motion.Civ.R. 56(C) .
The standard for reviewing the sufficiency of a mandamus complaint was stated in State ex rel. Alford v. Willoughby (1979), 58 Ohio St.2d 221, 223-224, 12 O.O.3d 229, 230, 390 N.E.2d 782, 785:
“In construing a complaint upon a motion to dismiss for failure to state a claim, the material allegations of the complaint are taken as admitted. Jenkins v. McKeithen (1969), 395 U.S. 411, 421 [89 S.Ct. 1843, 1849, 23 L.Ed.2d 404, 416]. [All reasonable inferences must also be drawn in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756; Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, 589.] Then, before the court may dismiss the complaint, ‘* * * it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. * * *’ O‘Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242 [71 O.O.2d 223, 327 N.E.2d 753].
“In order to establish a claim in mandamus, it must be proved that there exists a clear legal duty to act on the part of a public officer or agency, and that the relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141 [40 O.O.2d 141, 228 N.E.2d 631], paragraph one of the syllabus. A complaint in mandamus states a claim if it alleges the existence of the legal duty and the want of an adequate remedy at law with sufficient particularity so that the respondent is given reasonable notice of the claim asserted.”
Accord State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80-81, 537 N.E.2d 641, 644-645, and State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 96-97, 563 N.E.2d 713, 715-716.
{8} Generally, under
{9} In this case, the magistrate cited to the correct
{10} Before analyzing the second and fourth arguments, we observe that in granting the motion pursuant to
{11} One of the documents attached to relator‘s complaint states:
You are alleged to have committed the following violation(s):
09/2017 Conditions RULE 1RULE 1. I will obey federal, state and local laws and ordinances, including those related to illegal drug use and registration with authorities. I will have no contact with the victim of my current offense(s).
TO WIT: On or about 6/6/2019, in the vicinity of Dayton, OH you engaged or attempted to engage in sexual contact with [T.G.] without her consent.
Admit: ________
Admit with Mitigation: DC [the initials DC are handwritten in this space]
Deny: ________
You are alleged to have committed the following violation(s):
09/2017 Conditions RULE 1RULE 1. I will obey federal, state and local laws and ordinances, including those related to illegal drug use and registration with authorities. I will have no contact with the victim of my current offense(s).
TO WIT: On or about 6/6/2019, in the vicinity of Dayton, OH you engaged or attempted to engage in sexual contact with [S.O.] without her consent.
Admit: ________
Admit with Mitigation: ________
Deny: DC [the initials DC are handwritten in this space]
Officer‘s [sic] Signature: [the signature of Dana Cartwright is signed in this space] Date: 6-14-19
Offender‘s [sic] Signature: [an illegible signature is signed in this space] Number: A-299981 Date: 6-14-19
I certify that this notice was hand-delivered to the above on:
Date: 6-14-19 [handwritten in this space]
Time 1:54 pm [handwritten in this space]Supervisor‘s Signature:
Jason Perez [the signature of Jason Perez is signed in this space] Date: 6/14/2019
(Emphasis added.)
{12} In his second and fourth arguments, relator addresses his first claim for relief in his complaint for mandamus. Underlying these arguments is the assertion that he was not able to defend against the alleged violation in Count 1 because the notice did not cite to the specific Ohio Revised Code section which he allegedly violated.
Granted, the Supreme Court has emphasized that criminals are not due the “full panoply of rights” in a revocation hearing, unlike in a criminal trial. Morrissey, 408 U.S. at 480. But to the extent that the Supreme Court has established written notice of a defendant‘s violation as a minimum requirement of due process, such notice should be effective. Thus, when a revocation petition alleges the commission of a new crime and the offense being charged is not evident from the condition of
probation being violated, a defendant is entitled to receive notice of the specific statute he is charged with violating.
Id. The court also noted in a footnote “[a]s a way to avoid close questions regarding adequate notice in the future, we encourage the Government generally to provide a defendant with notice of the specific statute violated.” Id. at fn. 3.
{14} Respondent did not file a memorandum contra relator‘s objection and did not address Havier in its motion to dismiss. However, in its motion to dismiss respondent points to Barnett v. Ohio Adult Parole Auth., 81 Ohio St.3d 385, 387 (1998). In Barnett, the Supreme Court stated “[p]arole and probation may be revoked even though criminal charges based on the same facts are dismissed, the defendant is acquitted, or the conviction is overturned, unless all factual support for the revocation is removed.” Id., citing Zanders v. Anderson, 74 Ohio St.3d 269, 272 (1996); Flenoy v. Ohio Adult Parole Auth., 56 Ohio St.3d 131, 132 (1990). Respondent informed the court, in its motion to dismiss, that no criminal charges had been filed at the time of the violative conduct, but argues, nevertheless, that factual support for the revocation was not removed just because criminal charges were not filed against relator. Respondent argues the fact that no charges were filed “does not prove that no laws were disobeyed.” (Emphasis sic.) (Resp.‘s Mot. to Dismiss at 6.)
{15} That respondent may find a violation of parole, even where no charges are filed, does not obviate the requirement of adequate notice of the violation.
(5) With respect to the hearing, the releasee has the following rights:
(a)The right to receive prior to the hearing a written notice setting forth the date, time and location of the hearing and the specific violations the releasee is alleged to have committed.
(Emphasis added.)
{16} This court is not aware of any precedent addressing what constitutes “specific” in describing the violations a releasee is alleged to have committed pursuant to
{17} In the case before us, as noted above, the notice provided with regard to Count 1, alleged disobeyance with federal, state, and local laws and ordinances, “TO WIT: On or about 6/6/2019, in the vicinity of Dayton, OH you engaged or attempted to engage in sexual contact with [T.G.] without her consent.” Thus, provided with this notice was information regarding: (1) date, (2) location, and (3) individuals involved. But also provided was a reference to “sexual contact” without consent.
{18} ” ‘Sexual contact’ means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.”
{19} Neither
{20} It is not necessary for us to determine whether the notice was sufficient and met the due process requirements set forth in Morrissey because upon receiving notice of the alleged violation in Count 1, relator admitted the same. Contrary to the magistrate‘s finding of fact eight, as noted above, with regard to Count 1, one of the documents attached to relator‘s complaint indicates that when he acknowledged receipt of the notice, relator “admit[ted] with mitigation” that he “engaged or attempted to engage in sexual contact with [T.G.] without her consent.” However, consistent with the magistrate‘s finding of fact eight, with regard to Count 2, relator denied he “engaged or attempted to engage in sexual contact with [S.O.] without her consent.” Accordingly, on the facts of this case, we reject relator‘s second and fourth arguments.
{21} In his third argument, relator addresses his second claim for relief in his complaint for mandamus. He argues respondent failed to present a preponderance of the evidence that relator violated the terms of his parole.4 In essence, relator argues the magistrate erred in dismissing his complaint in mandamus pursuant to
{22} In addressing relator‘s second and fourth arguments related to inadequate notice, we observed above that in acknowledging receipt of the notice of violation, relator “admit[ted] with mitigation” to Count 1. However, in addressing relator‘s third argument related to insufficient evidence, we must also observe that one of the documents attached to relator‘s complaint, titled “Notice of Findings of Release Violation Hearing,” in section II titled “[s]ummary of evidence used in arriving at findings:” states that “[y]ou denied violating Ohio Parole Rule #1 (count 1).” Because the magistrate recommended dismissing
{23} Accordingly, we sustain relator‘s objection to the magistrate‘s decision.
{24} Upon review of the magistrate‘s decision, an independent review of the record, and due consideration of relator‘s objection and arguments, we sustain relator‘s objection as explained herein. We modify the magistrate‘s decision, including the findings of fact and conclusions of law contained therein, consistent with our decision. Accordingly, we vacate the magistrate‘s dismissal of this action pursuant to
Objection sustained; dismissal vacated; action remanded to magistrate.
LUPER SCHUSTER and HESS, JJ., concur.
HESS, J., of the Fourth Appellate District, sitting by assignment in the Tenth Appellate District.
{25} I agree with the majority‘s decision to deny respondent‘s
{26} As to relator‘s argument regarding adequate notice, the majority discusses potential considerations that may factor into whether notice was adequate pursuant to
{27} Nonetheless, I agree with the majority‘s conclusion that, construing the material allegations in the complaint as admitted, it does not appear beyond doubt that relator can prove no set of facts demonstrating that the revocation of his parole was based on insufficient evidence. Based on the partial documentation relator filed in conjunction with the complaint, it would be premature to conclude that respondent is entitled to dismissal on this claim. Thus, I would sustain relator‘s objection to the magistrate‘s decision both as it relates to adequate notice and as it relates to insufficient evidence of a parole violation, and I would deny respondent‘s
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
State ex rel. Dana Cartwright, Relator, v. Ohio Adult Parole Board, Respondent.
No. 20AP-62 (REGULAR CALENDAR)
MAGISTRATE‘S DECISION
Rendered on July 24, 2020
Dana Cartwright, pro se.
Dave Yost, Attorney General, and George Horvath, for respondent.
IN MANDAMUS ON RESPONDENT‘S MOTION TO DISMISS
{28} Relator, Dana Cartwright, filed this original action seeking a writ of mandamus ordering respondent, Ohio Adult Parole Board, to vacate the results of a previous parole revocation hearing that resulted in revocation of parole for relator and grant him another parole revocation hearing. In the alternative, relator requests a writ ordering respondent to place relator back on parole under the conditions governing his status prior to revocation. The matter is before the magistrate on respondent‘s motion to
Findings of Facts:
{29} 1. Relator filed his complaint in mandamus with this court on January 31, 2020.
{30} 2. Relator is an inmate currently incarcerated at the London Correctional Institution in London, Ohio.
{31} 3. Relator‘s complaint avers that he was convicted in 1994 of murder after a jury trial in Montgomery county. He received a 15-year-to-life sentence with a 3-year firearm enhancement and an 18-month concurrent sentence for having a weapon while under disability.
{32} 4. Relator‘s complaint further avers that he served 25 years before he was granted parole on April 25, 2019, but that on June 7, 2019 his parole officer took him into custody based on reported parole violations.
{33} 5. The violations were based on incidents in which relator was alleged to have engaged in non-consensual sexual contact with two female nurses at a hospital.
{34} 6. Relator‘s complaint further avers that on July 8, 2019 respondent revoked relator‘s parole on the basis that he had failed to abide by one of the standard conditions of parole (“Ohio Parole Rule 1“), in that he had failed to obey all federal, state, and local laws and ordinances. The revocation was based on one of the two incidents involving nurses, and respondent found by a preponderance of the evidence that relator had touched a female nurse‘s leg without her consent in the hospital. The appended documents relating to revocation do not indicate whether criminal charges ensued from relator‘s actions toward the nurses, and relator‘s complaint asserts that no charges resulted.
{35} 7. Based on the nurses’ allegations, relator‘s supervising parole officer furnished to relator a notice of violation. A partial copy is attached to relator‘s complaint, containing the following description:
On or about 6/6/2019, in the vicinity of Dayton, OH you engaged or attempted to engage in sexual contact with [a hospital nurse] without her consent.
(Victim‘s name given in original and omitted here pursuant to Tenth District practice in safeguarding the identity of victims of crime.) The notice form provides signature blocks
{36} 8. The Adult Parole Authority produced a violation report considered by respondent. Relator has attached a portion of this report to his complaint, containing the following information:
V. SUPERVISION ADJUSTMENT:
On 4/25/2019, the offender was released from Pickaway Correctional Institution, having served prison time since 11/19/1994 for a Murder conviction. The offender was released on five (5) years Parole. The offender‘s initial ORAS Risk level was Low and was supervised at Very High level of Supervision. The offender has the following Parole Board Special Conditions: Five years of supervision; very high supervision level, placement to be approved by the Board; no change of residence without prior approval of the Board; substance abuse screening and programming if indicated; and case plan to be developed will be imposed.
Prior to these alleged violations, the offender was compliant with supervision. The offender had been paroled roughly six (6) weeks, before being arrested by this officer on 6/7/19 for the current violations. No criminal charges were filed in this case. The offender was served with VSP paperwork on 6/14/19 and is currently being held at CRC awaiting his hearing scheduled for 7/8/19.
VI. RECOMMENDATION:
Due to the sexual nature of the violations on [the hospital nurses], the APA is respectfully recommending the offender have his Parole Supervision revoked and serve a term of incarceration.
{37} 9. Respondent conducted a hearing on July 8, 2019 under conditions that are not described in the documents currently available. Respondent‘s hearing officer issued
I. This is to advise you that you were charged with the following release violation(s) as written in the Notice of Release Violation Hearing Form.
RULE 1 On or about 6/6/2019, in the vicinity of Dayton, OH you engaged or attempted to engage in sexual contact with [hospital nurse 1] without her consent.
RULE 1On or about 6/6/2019, in the vicinity of Dayton, OH you engaged or attempted to engage in sexual contact with [hospital nurse 2] without her consent.
II. Summary of evidence used in arriving at findings:
Your Hearing was held on Monday, July 8, 2019.
You denied violating Ohio Parole Rule #1 (count 1) and Ohio Parole Rule # 1 (count 2). The Ohio Adult Parole Authority (APA) provided sufficient corroboration in the Violation Report, Documentary Evidence submitted into the Record, and Verbal Testimony presented during the Hearing for violation of Ohio Parole rule # 1 (count 1); the APA failed to provide sufficient corroboration in the Violation Report, Documentary Evidence submitted into the Record, and Verbal Testimony presented during the Hearing for violation of Ohio Parole rule # 1 (count 2). Based on the Violation Report, Documentary Evidence submitted into the Record, and Verbal Testimony presented during the Hearing for violation of Ohio Parole rule # 1 (count 1), and the record as a whole you are found Guilty of violating Ohio Parole rule # 1 (count 1) by the preponderance of the Evidence Standard.
(Emphasis sic.)
{38} 10. Respondent‘s hearing officer issued a parole revocation order on July 8, 2019, a partial copy of which is attached to relator‘s complaint:
Whereas, Dana Cartwright No. A-299981, was serving a sentence of confinement in a state correctional institution operated by the Department of Rehabilitation and Correction and was released on Apr[il] 25, 2019 to the supervision of the Adult Parole Authority. On Jul[y] 8, 2019, a hearing was held pursuant to ORC Section 2967.15, at which it was found that violations of the Conditions of Release had been committed.
The Ohio Parole Board has carefully considered all of the factors and circumstances brought to its attention. NOW, THEREFORE, by virtue of the authority vested in the Adult Parole Authority by law, the release is hereby revoked effective Jul[y] 8, 2019.
The violator is ordered returned as soon as practical to the appropriate state correctional institution.
The Hearing officer recommends to the Parole Board Chair/Designee that the violator serve 24 months of the sentence from the availability date before again becoming eligible for parole release consideration. This recommendation is subject to the approval and/or modification of the Parole Board Chair/Designee. The violator will receive final notification of the time to be served before again becoming eligible for release consideration after return to the state correctional institution. Final notification will be provided to the violator on the DRC form 3313 Sanction Receipt within 45 days of return.
{39} 11. Attached to relator‘s complaint is his affidavit of indigency and his statement of inmate account and other assets as required by
Discussion and Conclusions of Law:
{40} The matter is before the magistrate on respondent‘s motion to dismiss for failure to state a claim, which incorporates respondent‘s argument that the complaint must be dismissed for failure to comply with statutory filing requirements imposed on inmates by
{41} Regarding relator‘s potential non-compliance with
{42} Respondent next argues that relator‘s filings indicate that relator has the ability to pay filing fees because he receives regular deposits to his inmate account from outside donors. Relator‘s affidavit avers to the contrary that he has no funds beyond those needed for purchase of personal hygiene items from the prison commissary. Review of the account statement reveals total outside deposits of $1,179 in the last half of 2019, not including the much smaller sums deposited as state pay for relator‘s inmate employment. The account contains numerous large (by inmate standards) commissary purchases during this period. The magistrate agrees with respondent that relator has the ability to pay filing fees in this matter, and if the action were to go forward the court would instruct the clerk to dismiss if filing fees were not forthcoming.
{43} Turning to the question of whether the complaint states a claim for which relief can be granted, the magistrate finds that it does not and must be dismissed.
{44} Proceedings under
{46} Respondent has broad discretion to impose conditions of release and imposed-release sanctions, which are designed to protect the public and promote successful reintegration into the community.
{47} Relator argues that he was not afforded due process because he did not receive clear notice of the purported violations that formed the basis for the revocation of his parole, and also that there was insufficient evidence upon which respondent could have concluded that relator violated his conditions of parole.
{48} Parole revocation proceedings and trial proceedings are distinct, and a parolee is not entitled to the same level of due process protection as a trial defendant. See, e.g., State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 16 (1991) (“The Parole Board may admit hearsay.“); Barnett v. Ohio Adult Parole Auth., 81 Ohio St.3d 385, 387 (1998) (“Parole and probation may be revoked even though criminal charges based on the same facts are dismissed, the defendant is acquitted, or the conviction is overturned, unless all factual support for the revocation is removed.“); State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d 82 (1996), paragraph two of the syllabus (“Evidence obtained through an unreasonable or unlawful search and seizure is generally admissible in probation and/or parole revocation proceedings.“); Wilson v. State, 101 Ohio App.3d 487, 491 (1995) (no Eighth Amendment right to bail pending a parole revocation hearing); Wilkins v. Wilkinson, 157 Ohio App.3d 209, 2004-Ohio-2530 (10th Dist.)
{50} With respect to the purported lack of notice, relator has attached to his complaint a copy of the formal notice apprising of the identified violations, i.e., that he had failed to obey all federal, state, and local laws and ordinances, and the conduct that constituted that violation. That notice bears his signature acknowledging receipt. While relator asserts that respondent owed him notice of the specific federal, state, and local laws and ordinances with which he failed to comply, the looser due process rules governing revocation hearings differentiate this from the strict rules governing the framing of indictments. The violative conduct is clearly described, as is the parole rule in question. Considering the complaint and attachments, as the court may under
{51} With respect to the weight of the evidence, the rules of the evidence do not apply in parole revocation hearings. Coulverson, supra; State v. McDargh, 2d Dist. No. 2015-CA-27, 2016-Ohio-1132. The complete record of proceedings is not included with relator‘s complaint, but the partial documents furnished are, of themselves, sufficient to indicate that respondent did consider the credibility of witnesses and relied on that evidence to revoke parole under the preponderance of the evidence standard. See e.g., State ex rel. Jackson v. Wilkinson, 10th Dist. Franklin No. 94APD12-1789, 1995 Ohio App. LEXIS 2577 (June 20, 1995). In addition, the parole board may consider sexual conduct when it revokes parole.
/S/ MAGISTRATE
MARTIN L. DAVIS
NOTICE TO THE PARTIES