State ex rel. Anderson v. Chambers-Smith , 2021 Ohio 3653 ( 2021 )

[Cite as State ex rel. Anderson v. Chambers-Smith, 2021-Ohio-3653.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Herbert Anderson, :
Relator, : No. 20AP-429
v. : (REGULAR CALENDAR)
Annette Chambers-Smith, Director et al., :
Respondents. :
DECISION
Rendered on October 12, 2021
On brief: Herbert Anderson, pro se.
On brief: Dave Yost, Attorney General, and George Horvath,
for respondents.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BEATTY BLUNT, J.
{¶ 1} Relator, Herbert Anderson, has filed this original action requesting that this
court issue a writ of mandamus ordering respondents, Annette Chambers-Smith, Director
of the Ohio Adult Parole Authority ("OAPA"), and the Ohio Bureau of Sentence
Computation ("BOSC"), to correct allegedly inaccurate information in his criminal and
institutional records that were considered when determining his eligibility for parole and
to release him from custody pursuant to R.C. 2967.15(B). Anderson also seeks an award of
costs in this action.
{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53 and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued a decision which
No. 20AP-429 2
is appended hereto, including findings of fact and conclusions of law, and recommended
that this court deny relator's requested writ of mandamus. Relator has filed objections to
the magistrate's decision.
{¶ 3} We first note that the magistrate's decision was filed June 23, 2021, and
relator's objections to the magistrate's decision were filed July 23, 2021. Civ.R.
53(D)(3)(b)(i) requires that objections to a magistrate's decision be filed within 14 days of
the filing of the decision. Furthermore, although Civ.R. 53(D)(5) permits the court to
extend the time for a party to file objections to a magistrate's decision for good cause shown,
in this case relator neither sought an extension of time nor presented any argument
showing good cause for the delay in filing his objections. Therefore, relator's objections
were untimely. It is well-settled that this court need not address untimely objections to a
magistrate's decision. State ex rel. Dailey v. Dept. of Rehab. & Corr., 10th Dist. No. 20AP-
410, 2021-Ohio-1079, ¶ 6 (declining to address objections to a magistrate's decision that
were filed 31 days late); State ex rel. Keith v. Adult Parole Auth. Dept. of Rehab. & Corr.,
10th Dist. No. 10AP-663, 2011-Ohio-1195, ¶ 3, citing State ex rel. Rosch v. Ohio Civ. Rights
Comm., 10th Dist. No. 04AP-340, 2004-Ohio-1625, ¶ 3 (declining to address objections to
a magistrate's decision that were filed 5 days late). Accordingly, we decline to address
relator's objections.
{¶ 4} Having declined to consider relator's untimely objections, we need only
determine whether "there is an error of law or other defect evident on the face of" the
magistrate's decision. See Civ.R. 53(D)(4)(c). After an examination of that decision, we
have found no error of law or other defect on its face. Furthermore, we note that, as pointed
out by the magistrate in his decision, respondents submitted with their certified evidence
an affidavit provided by Charlene Gregory, a correctional records sentence computation
auditor with BOSC with accompanying documentation which accurately summarizes
No. 20AP-429 3
relator's record as it pertains to the number of times relator was previously released on
parole, which is eight times rather than the nine as stated by the parole board at the 2012
hearing. Similarly, Gregory's affidavit accurately summarizes relator's record as it pertains
to the total number of inmate numbers relator has had, which is five numbers rather than
the seven as stated by the parole board at the 2012 hearing. Thus, the evidence is clear that
relator's records are themselves accurate and contain no error to correct.
{¶ 5} Accordingly, based on the foregoing, we adopt the magistrate's decision as
our own, including the findings of fact and the conclusions of law therein, and we deny
relator's request for a writ of mandamus.
Writ of mandamus denied.
DORRIAN, P.J., and JAMISON, J., concur.
__________________________
No. 20AP-429 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Herbert Anderson, :
Relator, :
v. : No. 20AP-429
Annette Chambers-Smith, Director, et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on June 23, 2021
Herbert Anderson, pro se.
Dave Yost, Attorney General, and George Horvath, for
respondents.
IN MANDAMUS
{¶ 6} Relator, Herbert Anderson, seeks a writ of mandamus ordering respondents,
Annette Chambers-Smith, Director of the Ohio Adult Parole Authority ("OAPA"), and the
Ohio Bureau of Sentence Computation ("BOSC"), to correct allegedly inaccurate
information in his criminal and institutional records that were considered when
determining his eligibility for parole. Relator further proposes that respondents have a
legal duty to release him from custody pursuant to R.C. 2967.15(B) and seeks an award of
costs in this action.
Findings of Fact:
{¶ 7} 1. Relator is an inmate in the custody of the Ohio Department of
Rehabilitation and Correction ("ODRC"), currently incarcerated at Richland Correctional
Institution ("RCI") pursuant to a revocation of parole.
No. 20AP-429 5
{¶ 8} 2. OAPA is a state agency with the duty and authority to address inmate
parole release and revocation pursuant to R.C. 5149.01 et sec. It maintains its principal
offices in Franklin County, Ohio.
{¶ 9} 3. BOSC is a division of ODRC which, in conjunction or as a part of the
Bureau of Records Management ("BORM"), maintains inmate judicial and institutional
records and, among other functions, computes release dates for inmates. ODRC's principal
offices are located in Franklin County, Ohio.
{¶ 10} 4. Relator's most recent incarceration is the result of his 2009 conviction in
Lake County, Ohio pursuant to a plea of guilty to one count of attempted robbery and one
count of receiving stolen property, whereupon relator was sentenced to 2 concurrent 18-
month terms. The conduct underlying this conviction also resulted in a revocation of
relator's parole granted in previous cases.
{¶ 11} 5. Relator received a parole hearing on April 4, 2012. The parole board
denied parole and continued relator until April 1, 2015, giving the following rationale:
Offender serving his 7th number, 9 total paroles, 2 final
releases, 5 [parole revocations] and 2 [technical parole violator
determinations]. Poor conduct since return continues with
additional [institutional violation] tickets since last hearing.
Offender takes no responsibility for his actions, blames drugs
for everything but has no [substance abuse program] treatment
since his return. Due to his extensive criminal history, poor
supervision history and poor conduct while in prison, he is not
suitable for release.
{¶ 12} 6. By letter dated May 12, 2015, relator conveyed a request to BORM for
copies of his criminal and institutional records in order to correct alleged inaccuracies in
the documentation relied upon by the parole board.
{¶ 13} 7. Relator's complaint alleges that on May 12, 2015, he pursued an
administrative action to correct the allegedly inaccurate information relied upon by the
parole board. The document cited in support of this allegation is his May 12, 2015 request
for documents.
{¶ 14} 8. Relator was again denied parole in 2015 and 2018.
{¶ 15} 9. Relator again sought correction of the allegedly inaccurate information by
letter to the OAPA dated September 16, 2019.
{¶ 16} 10. A previous request for reconsideration by the parole board was denied by
communication dated May 7, 2018 on the basis that the request for reconsideration did not
No. 20AP-429 6
present or refer to relevant and significant new information unavailable at the time of
hearing.
{¶ 17} 11. Relator filed his complaint seeking a writ of mandamus from this court
on September 15, 2020. Attached to the complaint is relator's R.C. 2969.25(A) statement
of prior civil actions and R.C. 2969.25(C) statement of his inmate account for the period
March 2 through September 4, 2020. Respondents have not asserted any lack of statutory
compliance for an inmate action, and the magistrate concludes that relator has complied
with the requirements of R.C. 2969.25.
{¶ 18} 12. Respondents have submitted with their certified evidence the affidavit of
Jennifer Clemans, a quality assurance analyst with OAPA, authenticating relator's "Parole
Packet" as considered by the parole board in 2012.
{¶ 19} 13. Respondents also submitted as their exhibit B in the certified evidence an
affidavit provided by Charlene Gregory, a correctional records sentence computation
auditor with BOSC with accompanying documentation. Gregory's affidavit accurately
summarizes the documentary evidence as follows:
On June 20, 1978 Anderson was sentenced in Cuyahoga
County on case numbers CR24500, CR24411, and CR23869.
On CR24500 he was sentenced to 4 to 25 years for Aggravated
Robbery 2911.01 with 73 days of jail credit granted on a sheriff's
letter. On CR24411 he was sentenced to 4 to 25 years for
Aggravated Robbery 2911.01 with 76 days of jail credit granted
on a sheriff's letter. On CR23869 he was sentenced to 4 to 25
years for Aggravated Robbery 2911.01 with 146 days of jail
credit * * * granted on a sheriff's letter. All cases were ordered
to be run concurrently.
He was admitted to ODRC on June 22, 1978 and given inmate
number A151920. His maximum expiration date was
calculated using 4 to 25 years with 73 days of jail credit for a
max date of April 5, 2003. He was paroled on February 26,
1981. He was declared a technical parole violator on April 16,
1981 and was returned to prison on May 21, 1981.
He went out to court and was sentenced on December 16, 1981
on Cuyahoga County case CR165603 to 4 to 25 years for
Aggravated Robbery 2911.01. He was granted 146 days of jail
No. 20AP-429 7
credit by a sheriff's letter and this case was ordered to be run
consecutively with his current sentence. His maximum
expiration date was then re-calculated using 8 to 50 years with
219 days of jail credit for a max date of November 4, 2027.
He was paroled on May 12, 1986 and declared a technical
parole violator on October 6, 1986. He was restored to parole
on March 3, 1987. He was given 122 days of lost time by the
Adult Parole Authority for this time at large with [sic] was
added to his maximum expiration date. This made his new max
date March 5, 2028.
On May 27, 1987 he was sentenced in Cuyahoga County on case
numbers CR216266 and CR217055. On CR216266 he was
sentenced to 2 to 5 years for Carrying a Concealed Weapon
2923.12 and 2 to 10 years for Having a Weapon Under
Disability 2923.13. On CR217055 he was sentenced to 2 to 5
years for Forgery 2913.31 and 2 to 10 years for Theft 2913.02.
Both cases were ordered to run concurrently with the other, but
were silent as to the parole cases.
He was returned to ODRC on June 4, 1987 and given inmate
number A197140. His parole on A151920 was revoked on
July 27, 1987. Because the new crimes were committed while
he was on parole prior to Senate Bill 2, and not expressly
ordered concurrent, the new cases were run consecutively with
the maximum expiration date from A151920. His new
maximum expiration date was calculated by adding 2 to 10
years with 84 days of jail credit to his old maximum expiration
date, for a new max date of December 10, 2037.
He was paroled on September 17, 1991 and declared a parole
violator at large on February 26, 1992. He was returned to
ODRC on April 28, 1992 and was given 1 month and 15 days of
lost time by the Adult Parole Authority, which was added to his
maximum expiration of sentence date for a new max date of
January 25, 2038.
He was paroled again on October 22, 1996 and declared a
parole violator at large on March 13, 1997. He was taken into
custody on March 21, 1997 and was returned to ODRC on
June 6, 1997 as a parole violator. He was given 8 days of lost
time by the Adult Parole Authority for the time at large and this
was added to his maximum expiration of sentence for a new
max date of February 2, 2038. He was paroled again on July 3,
2000.
On January 2, 2001 he was sentenced in Cuyahoga County on
case CR399158. He was given eight months for Attempted
No. 20AP-429 8
Assault on a Peace Officer 2903.13 F5, and was granted 124
days of jail credit in the journal entry.
On January 8, 2001 he was admitted to ODRC under inmate
number A398408. We added five days of conveyance time to
his jail credit for a total of 129 days, and calculated his sentence
as 8 months with 129 days of credit. His parole was revoked on
the previous Cuyahoga County cases on April 12, 2001 and
continued until the expiration of stated term on his new
felonies. Because the new crime was committed under Senate
Bill 2 sentencing laws and CR399158 was not ordered to run
consecutively with his parole cases, it was run concurrently
with his max date. Cuyahoga County CR399158 expired on
05/02/2001 after which he was eligible for parole on his parole
cases. He was paroled again on January 12, 2004.
On June 30, 2004 he was sentenced in Cuyahoga County on
cases CR04451724 and CR04452455. On CR04451724 was
given 9 months for Drug Possession 2925.11 F5 and 2 years for
Intimidation 2921.03 F3. On CR04452455 he was given 2 years
for Robbery 2911.02 F3. He was granted credit for time served
on both cases.
On July 13, 2004 he was admitted to ODRC under inmate
number A470899. Because he was given credit for time served
on both cases, we used the dates on the included sheriff's letter
to determine that he was to be given 70 days of jail credit on
each case. He waived his Kellogg hearing on August 3, 2004.
His parole was revoked on the previous Cuyahoga County cases
on October 6, 2004 and continued until the expiration of stated
term on his new felonies. Since the new crimes were committed
under Senate Bill 2 and the new cases were not ordered
consecutively with his parole cases, CR04451724 and
CR04452455 were run concurrently with each other and with
his maximum expiration date. CR04451724 and CR04452455
expired on April 20, 2006 after which he was again eligible for
parole on his parole cases. He was paroled again on May 8,
2006.
He was declared a parole violator at large on March 30, 2007
and was restored while at large on May 17, 2007. He was given
48 days of lost time by the Adult Parole Authority for the time
spent at large, and this was added to his maximum expiration
of sentence for a new max date of March 22, 2038. He was not
returned to prison at that time. He was again declared a
violator at large on October 12, 2007, but was restored while at
large on the same day, with no additional lost time assessed.
No. 20AP-429 9
On August 4, 2009 he was sentenced in Lake County on case
09CR000410. He was sentenced to 18 months on one count of
Attempted Robbery 2911.02 F4 and 18 months on one count of
Receiving Stolen Property 2913.51 F4 with 62 days of jail credit
given in the journal entry. The two counts were ordered to be
run concurrently with each other.
On August 25, 2009 he was admitted to ODRC under inmate
number A572384. His new sentence was calculated as 18
months with credit for the 62 days of jail credit given in the
entry plus 20 days of conveyance time for a total of 82 days of
jail credit. His parole was revoked on September 22, 2009 and
continued to the expiration of stated term on his new felonies.
Because his new crimes were committed under Senate Bill 2,
and were not ordered to be served consecutively with his parole
cases, Lake County case 09CR000410 was calculated as
running concurrently with his maximum expiration date. Lake
County 09CR000410 expired on 12/02/2010.
He is currently incarcerated on his parole cases only with his
next hearing scheduled for October of 2023.
Discussion and Conclusions of Law:
{¶ 20} For this court to issue a writ of mandamus as a remedy addressing the actions
of respondent, relator must establish by clear and convincing evidence that he has a clear
legal right to the relief sought, that respondent has a clear legal duty to provide such relief,
and that relator lacks an adequate remedy in the ordinary course of the law. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 21} Relator asserts that the OAPA has denied him his clear legal right to a
meaningful parole consideration that is based upon correct information. Generally,
prisoners have no constitutional or statutory right to parole. State ex rel. Henderson v.
Ohio Dept. of Rehab. and Corr., 81 Ohio St.3d 267-68 (1998). Because there is no such
right, a prisoner who is denied parole is not deprived of a protected liberty interest in
instances in which state law makes the parole decision discretionary. Id. at 125. Because
R.C. 2967.03 makes the parole decision discretionary, the potential parolee may not invoke
due process to challenge allegedly inaccurate documentation underlying an unfavorable
decision. State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 123, 126 (1994). However, in
State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, the
Supreme Court of Ohio did describe a minimal standard in parole proceedings: "inherent
No. 20AP-429 10
in the [statutory] language is 'the expectation that a criminal offender will receive
meaningful consideration for parole.' " Keith at ¶ 21, quoting Layne v. Ohio Adult Parole
Auth., 97 Ohio St.3d 456, 2002-Ohio-6719, ¶ 25. Examining the parole-related provisions
of Ohio Adm.Code 5120:1-1-07(B), the Keith court stated as follows:
The existence of this formal process for considering parole
rightly gives parolees some expectation that they are to be
judged on their own substantively correct reports. Requiring
the board to consider specific factors to determine the parolee's
fitness for release would not mean anything if the board is
permitted to rely on incorrect, and therefore irrelevant,
information about a particular candidate.
(Emphasis sic.) Keith at ¶ 23.
Keith further stated:
However, having set up the system and defined at least some of
the factors to be considered in the parole decision, the state has
created a minimal due-process expectation that the factors
considered at a parole hearing are to be as described in the
statute or rule and are to actually and accurately pertain to the
prisoner whose parole is being considered.
{¶ 22} Relator relies on Keith for the proposition that the parole board in his 2012
and subsequent parole hearings relied on inaccurate information when it concluded that
relator had received seven inmate numbers, nine paroles, and two final releases. A review
of the detailed information submitted by respondent through Gregory's affidavit and
accompanying documentation discloses that relator was paroled in 1981, 1986, 1987, 1991,
1996, 2000, 2004, and 2006. Relator, then, was released on parole eight times, rather than
nine as stated by the parole board at the 2012 hearing. Relator was classed as a parole
violator at large in 1992, 1997, and twice in 2007. Parole was revoked in 1987, 2001, and
2004. Over the course of his various incarcerations, relator received at least five inmate
numbers: 1978, A151-920; 1987, A197-140; 2001, A398-408; 2004, A470-899; 2009,
A572-384. In sum, the evidence submitted by respondents here, without ruling out the
existence of additional pertinent occurrences, amounts to eight paroles rather than nine,
and five inmate numbers rather than seven.
{¶ 23} The first conclusion that must be drawn from the evidence is that it is not
relator's inmate record and judicial history that is inaccurate in his OAPA and institutional
file, but the totals derived by the parole board therefrom. Relator seeks correction to his
No. 20AP-429 11
records, yet points to no error in the records themselves, only error in the parole board's no
doubt laborious review of his extensive criminal and institutional history that led to an
incidental error in totaling up the various unfavorable occurrences in relator's history.
Relator, therefore, can show no Keith right to obtain a substantively corrected record, when
the record considered by the parole board was in fact accurate, or at least relator has
pointed to no specific error therein.
{¶ 24} The information cited by the parole board in its decision is globally correct,
even if the sums drawn from it may—may—not be. The question remains whether the
parole board, under the totality of the circumstances, denied relator a meaningful
consideration for parole in its interpretation and evaluation of those records. Respondents
have a clear legal duty to correct errors in the inmate's records pursuant to Keith, but for
the parole board's decision itself, relator must show an abuse of discretion in the parole
board's final determination.
{¶ 25} The parole board's discretion in parole matters is wide-ranging. Keith at 26,
citing Layne at ¶ 28. The OAPA's decision to grant or deny parole is an executive function
involving a high degree of official judgment or discretion and the discretionary authority to
grant or deny parole release pursuant to R.C. 2967.01 has been delegated by the legislature.
R.C. 2967.03; Ohio Adm.Code 5120:1-1-17(A) and (B); Henderson at 268; Weatherspoon
v. Mack, 10th Dist. No. 07AP-1083, 2008-Ohio-2288, ¶ 13. While that discretion may
"yield when it runs afoul of statutorily based parole eligibility standards," relator can point
to no legal requirement that would compel his release were the parole board to have
accepted the figures for parole releases and inmate numbers suggested by relator. Layne
at ¶ 28. Relator has received meaningful consideration for parole, and the state of his
judicial record and inmate history do not support any abuse of discretion on the part of the
parole board in denying parole in the 2012 hearing or subsequent hearings. Relator has no
clear legal right to correct non-existent errors in his record, nor a clear legal right to be
released based on the parole board's alleged misinterpretation of those records by the
parole board at the 2012 hearing. It is therefore the decision and recommendation of the
magistrate that the requested writ of mandamus be denied. Relator's motion for costs is
denied.
/S/ MAGISTRATE
MARTIN L. DAVIS
No. 20AP-429 12
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).