State ex rel. Cartwright v. Ohio Adult Parole Bd. , 2023 Ohio 1717 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Cartwright v. Ohio Adult Parole Bd., Slip Opinion No. 2023-Ohio-1717.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2023-OHIO-1717THE STATE EX REL. CARTWRIGHT, APPELLANT , v. OHIO ADULT PAROLE
BOARD, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Cartwright v. Ohio Adult Parole Bd., Slip Opinion
No. 2023-Ohio-1717.]
Mandamus—Notice of alleged parole violations provided to inmate served as
effective written notice that meets requirements of due process—Evidence
presented at parole-revocation hearing is sufficient to support Ohio Parole
Board’s finding that Ohio Adult Parole Authority had proved by
preponderance of the evidence that inmate committed alleged violation—
Court of appeals’ denial of writ affirmed.
(No. 2022-1217—Submitted March 21, 2023—Decided May 24, 2023.)
APPEAL from the Court of Appeals for Franklin County, No. 20AP-62,
2022-Ohio-2934.
__________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellee, the Ohio Parole Board, revoked appellant Dana
Cartwright’s parole after finding that he had engaged in sexual contact with a
woman without her consent. Cartwright filed an original action in the Tenth
District Court of Appeals, seeking a writ of mandamus ordering the parole board to
reinstate his parole and hold a new revocation hearing. The Tenth District denied
the writ. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} In April 2019, Cartwright was released on parole after serving time in
prison for murder and other crimes. As a condition of Cartwright’s parole, he
agreed to “obey federal, state and local laws and ordinances.”
{¶ 3} On June 6, 2019, Cartwright visited a hospital where his mother was
a patient. A lab technician, T.G., reported to police that an individual—later
identified as Cartwright—made inappropriate sexual remarks to her and “groped
her repeatedly,” including on her leg and “her side below her bra line.” A nurse,
S.O., reported that Cartwright made inappropriate remarks to her as well, including
telling her she could “get [him] washed up” after S.O. asked Cartwright’s mother
whether she could “get [her] washed up.” A parole officer arrested Cartwright the
next day.
{¶ 4} The Ohio Adult Parole Authority (“APA”) provided Cartwright with
a written “Notification of Release Violation Hearing.” The notice specified two
charged violations, both alleging violations of “Rule 1.” The notice quoted Rule 1
as stating, “I will obey federal, state and local laws and ordinances, including those
related to illegal drug use and registration with authorities.” The first count stated:
“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.” The second count
stated: “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.” The notice
2
January Term, 2023
included three boxes—one labeled “Admit,” one labeled “Admit with Mitigation,”
and one labeled “Deny”—of which Cartwright was to initial the applicable box for
each count; the notice offered no explanation of what those labels meant. For the
count regarding T.G., Cartwright initialed “Admit with Mitigation.” For the count
regarding S.O., Cartwright initialed “Deny.”
{¶ 5} On July 8, 2019, the parole board held a hearing on Cartwright’s
alleged violations. Cartwright was represented by counsel at the hearing. At the
hearing, Cartwright denied both counts—including count one, the box for which he
had initialed “Admitted with Mitigation” on the notice form. The hearing officer
did not refer to the fact that Cartwright had admitted with mitigation count one on
the notice form.
{¶ 6} T.G., S.O., Cartwright, and three police officers testified at the
hearing. T.G. testified that Cartwright repeatedly caressed her calf and ultimately
grabbed her breast and that she told him multiple times not to touch her. S.O.
testified that she witnessed Cartwright touch T.G.’s breast but that he never touched
S.O.
{¶ 7} The parole board found that the APA had presented sufficient
evidence to prove count one, regarding T.G., but insufficient evidence to prove
count two, regarding S.O. The parole board revoked Cartwright’s parole and
ordered that he serve 48 months in prison before being eligible for another release
hearing.
{¶ 8} Cartwright filed a petition in the Tenth District requesting a writ of
mandamus ordering the parole board to reinstate his parole and hold a new
revocation hearing. Cartwright claimed two grounds for relief: that his due-process
rights were violated because he was not provided adequate notice of the charged
violations and that the revocation of his parole was based on insufficient evidence.
The Tenth District denied the writ.
3
SUPREME COURT OF OHIO
{¶ 9} Cartwright appealed to this court, raising two issues. First, Cartwright
maintains that he was denied due process because he was not provided clear notice
of the alleged parole violations. Second, he maintains that there was insufficient
evidence of the violation for which the parole board revoked his parole.
II. LEGAL ANALYSIS
A. Mandamus requirements and standard of review
{¶ 10} To be entitled to a writ of mandamus, Cartwright must establish by
clear and convincing evidence that (1) he has a clear legal right to the requested
relief, (2) the parole board has a clear legal duty to provide it, and (3) he lacks an
adequate remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell,
150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. This court reviews the
court of appeals’ judgment de novo. State ex rel. Mango v. Ohio Dept. of Rehab.
& Corr., 169 Ohio St.3d 32, 2022-Ohio-1559, 201 N.E.3d 846, ¶ 11.
B. Mandamus is not the proper vehicle by which to order Cartwright’s release
{¶ 11} In his petition, Cartwright requests that the parole board be ordered
to reinstate his parole. To the extent that Cartwright is seeking his immediate
release from prison, habeas corpus—not mandamus—is the proper vehicle, and the
court of appeals could not order his release through a writ of mandamus. State ex
rel. Johnson v. Ohio Parole Bd., 80 Ohio St.3d 140, 141, 684 N.E.2d 1227 (1997).
Mandamus is, however, the proper vehicle for obtaining the remedy of an order
requiring a new parole-revocation hearing. Mango at ¶ 11.
C. Notice of alleged violations
{¶ 12} Cartwright argues that the parole board deprived him of due process
because, in his view, he did not receive clear notice of the alleged violations that
would form the basis of the revocation of his parole. A parolee has certain due-
process protections at parole-revocation proceedings. Mango at ¶ 14; see also
Morrissey v. Brewer, 408 U.S. 471, 481-484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
One of these protections is the right to receive “written notice of the claimed
4
January Term, 2023
violations of parole.” Morrisey at 489; see also State ex rel. Atkins v. Denton, 63
Ohio St.2d 192, 193, 406 N.E.2d 1390 (1980).
{¶ 13} The APA notified Cartwright in writing of two alleged violations of
“Rule 1,” which obligated Cartwright to “obey federal, state and local laws and
ordinances.” Regarding the violation that he was found to have committed, the
notice stated, “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.”
{¶ 14} Despite the specifics in the notice, Cartwright argues that due
process required that the written notice specify the particular law he was alleged to
have violated. In his mandamus petition and at the Tenth District (although not in
the briefs he filed in this court), Cartwright cited a federal case from the Ninth
Circuit Court of Appeals, United States v. Havier, 155 F.3d 1090 (9th Cir.1998), in
support of this proposition. In Havier, which involved the revocation of federal
supervised release, the Ninth Circuit held that “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. Notably, in Havier, the
description in the written notice of the alleged violation created confusion at the
hearing as to what law the defendant was accused of violating, leading him to
pursue a suboptimal defense strategy. See id. at 1094.
{¶ 15} Cartwright has pointed to no Ohio decision that has adopted the
Havier standard. In contrast, in Atkins, 63 Ohio St.2d 192, 406 N.E.2d 1390, this
court implicitly declined to adopt a requirement that a statute be specified in the
written notice of violation. In Atkins, a parolee was provided written notice that he
took “money by force” from a restaurant on a specified date. Id. at 192. At the
revocation hearing, he was found to have committed conspiracy to commit robbery.
He later sought a writ of mandamus, arguing that he did not receive written notice
of a conspiracy-to-commit-robbery charge. The court of appeals reviewed a
5
SUPREME COURT OF OHIO
summary of the parole-revocation hearing and determined that Atkins had not
shown either prejudice or a lack of opportunity to defend relative to a conspiracy
charge and that there was no element of surprise that restricted either the merit
defense or mitigation. This court affirmed the court of appeals’ denial of the writ.
Id. at 194.
{¶ 16} The circumstances of the revocation of Cartwright’s parole are
similar to those in Atkins. The APA provided Cartwright with written notice of
allegations that he violated the law by engaging or attempting to engage in sexual
contact with T.G. without her consent on a specified date. The notice was clear
about what Cartwright was alleged to have done. Although the notice did not cite
a statute, its language closely tracked that of R.C. 2907.06, which proscribes sexual
imposition. The statutory definition of “sexual imposition” does not explicitly use
the words “without consent,” but it does refer to sexual contact when “[t]he
offender knows that the sexual contact is offensive to the other person * * * or is
reckless in that regard,” R.C. 2907.06(A). Moreover, at the revocation hearing,
Cartwright’s counsel had no difficulty raising a defense or understanding what
Cartwright was accused of violating. The parties made arguments about whether
Cartwright’s actions met the legal definition of “sexual contact” and whether he
intended to make T.G. uncomfortable.
{¶ 17} The notice of violations provided to Cartwright served as effective
written notice that meets the requirements of due process.
D. Sufficiency of the evidence
{¶ 18} Cartwright also argues that the parole board’s decision to revoke his
parole was not supported by sufficient evidence. Sufficient evidence to sustain a
revocation of parole exists when there is “substantial evidence” to support the
decision; there is “ ‘substantial evidence’ ” when the evidence presented by the
APA, if believed, is sufficient to satisfy its burden of proving that the parolee
violated the terms of his parole. Mango, 169 Ohio St.3d 32, 2022-Ohio-1559, 201
6
January Term, 2023
N.E.3d 846, at ¶ 18, quoting State v. Delaney, 11 Ohio St.3d 231, 236, 465 N.E.2d
72 (1984). The preponderance-of-the-evidence standard applies to parole-
revocation hearings. Id. at ¶ 19.
{¶ 19} Cartwright argues that although the record shows that he rubbed
T.G.’s calf, rubbing a person’s calf does not constitute sexual contact. R.C.
2907.01(B) defines “sexual contact” as “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.” (Emphasis added.) We need not decide whether a person’s calf can
be considered an erogenous zone, however, because the record also contains
evidence that Cartwright touched T.G.’s breast.
{¶ 20} Cartwright also argues that he did not violate Rule 1, because he was
never charged with any crime related to the incident at the hospital. Parole may be
revoked, however, without a parallel criminal indictment or conviction. Duganitz
v. Ohio Adult Parole Auth., 92 Ohio St.3d 556, 557, 751 N.E.2d 1058 (2001).
{¶ 21} The remainder of Cartwright’s arguments attack the credibility of
the victims and the officers who testified at his parole-revocation hearing. The
evidence presented by the APA—if believed—is sufficient to support the parole
board’s finding that Cartwright violated a state law by engaging in sexual contact
with another person without the person’s consent. T.G. testified that Cartwright
grabbed her breast, and S.O. testified that she witnessed this. T.G. testified that she
told Cartwright multiple times not to touch her. The circumstances surrounding the
touching—such as Cartwright’s asking T.G. out for drinks and his telling S.O.,
“You can get me washed up anytime”—support a finding that Cartwright intended
to sexually arouse or gratify himself or T.G. This evidence is sufficient to support
the parole board’s finding that the APA had proved by a preponderance of the
evidence that Cartwright committed the alleged violation.
7
SUPREME COURT OF OHIO
III. CONCLUSION
{¶ 22} For the reasons stated above, Cartwright has not shown by clear and
convincing evidence that he is entitled to a writ of mandamus ordering the parole
board to reinstate his parole and hold a new revocation hearing. We therefore
affirm the court of appeals’ denial of the requested writ.
Judgment affirmed.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and DETERS,
JJ., concur.
BRUNNER, J., concurs in judgment only.
_________________
Dana Cartwright, pro se.
Dave Yost, Attorney General, and George Horváth, Assistant Attorney
General, for appellee.
_________________
8