State ex rel. Mango v. Ohio Dept. of Rehab. & Corr. , 2022 Ohio 1559 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Mango v. Ohio Dept. of Rehab. & Corr., Slip Opinion No. 2022-Ohio-1559.]
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. 2022-OHIO-1559THE STATE EX REL . MANGO, APPELLANT , v. OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Mango v. Ohio Dept. of Rehab. & Corr., Slip
Opinion No. 2022-Ohio-1559.]
Mandamus—Parole—Inmate failed to establish violation of due-process rights
during parole-revocation hearing—Inmate received effective assistance of
counsel at parole-revocation hearing—Hearing officer’s finding that
inmate violated terms of parole supported by sufficient evidence—Court of
appeals’ judgment denying request for writ affirmed.
(No. 2021-0646—Submitted January 25, 2022—Decided May 11, 2022.)
APPEAL from the Court of Appeals for Franklin County, No. 18AP-945,
2021-Ohio-1314.
__________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellant, Raymond Mango, was ordered back to prison for violating
the conditions of his parole. He sought a writ of mandamus in the Tenth District
Court of Appeals to order appellee, Ohio Department of Rehabilitation and
Correction (“ODRC”), to either reinstate his parole or grant him a new parole-
revocation hearing. The Tenth District denied the writ; we affirm.
I. Factual and Procedural Background
{¶ 2} Mango was convicted of aggravated murder and aggravated robbery
in 1981 and sentenced to 20 years to life in prison. He was released on parole in
2016. Mango’s conditions of parole included (1) obeying federal, state, and local
laws and ordinances, (2) following all orders given by his supervising parole
officer, and (3) obtaining approval from the parole board before changing his
residence. In December 2016, Mango’s parole officer told him to have no contact
with a girlfriend, Gwendolyn Jarrett, after Mango and Jarrett reported having had
either physical or verbal altercations with each other.
{¶ 3} On March 28, 2018, police in Cleveland responded to a call from
Mango, who sought assistance in retrieving property from Jarrett’s residence. At
the scene, Mango informed the responding officers that he and Jarrett had been in
an altercation earlier in the day and that he wanted to get his clothes from the
residence and leave. Jarrett told officers that Mango had hit her. Jarrett had a minor
injury on her lip and indicated to an officer that Mango also hit her on the side of
her face.
{¶ 4} Mango initially denied touching Jarrett but ultimately admitted to the
officers that he had pushed her during an argument. When officers handcuffed
Mango to take him into custody, Jarrett recanted and told them that she did not want
Mango to go back to jail and that she had injured herself falling down the stairs.
Officers asked Jarrett again whether Mango had hit her and she responded, “[N]ot
2
January Term, 2022
as hard as he could have.” Mango was arrested for domestic violence against
Jarrett, but no criminal charges were filed against him for the incident.
{¶ 5} The Ohio Adult Parole Authority (“APA”) charged Mango with
violating the terms of his parole by (1) causing or attempting to cause physical harm
to Jarrett, (2) failing to comply with his supervising officer’s order not to contact
Jarrett, and (3) failing to obtain parole-board approval before changing his address.
In the written hearing notification, Mango was advised of his right to request
counsel from the Office of the Ohio Public Defender and to request the presence of
witnesses to testify on his behalf. Mango requested counsel to represent him but
did not request to call witnesses.
{¶ 6} An APA hearing officer held a revocation hearing on May 2, 2018, at
which Mango was represented by counsel. Despite the APA’s issuance of a
subpoena to her, Jarrett did not appear at the hearing to testify. One of the officers
who arrested Mango testified, and police body-camera video from the incident was
introduced into evidence. The hearing officer found Mango guilty of causing or
attempting to cause physical harm to Jarrett and failing to comply with the condition
that he obtain parole-board approval before changing his address but not guilty of
failing to comply with a supervising officer’s order. Mango’s parole was revoked,
and the hearing officer recommended that he be ordered to serve an additional 36
months in prison before again becoming eligible for parole. The parole board
approved the hearing officer’s recommendation.
{¶ 7} On December 10, 2018, Mango filed an action for a writ of mandamus
in the Tenth District Court of Appeals. Mango alleged that he was deprived of the
effective assistance of counsel at his revocation hearing, that he was not permitted
to cross-examine witnesses against him, and that he was found guilty based solely
on hearsay evidence. Mango asked for an order reinstating his parole or granting
him a new revocation hearing. ODRC filed a motion to dismiss the action for
failure to state a claim for relief. The court of appeals referred the action to a
3
SUPREME COURT OF OHIO
magistrate, who recommended granting ODRC’s motion to dismiss, State ex rel.
Mango v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 18AP-945, 2019-
Ohio-4774, ¶ 37.
{¶ 8} Mango filed objections to the magistrate’s recommendation. The
court of appeals sustained Mango’s objections, finding that the magistrate
impermissibly weighed the evidence in considering ODRC’s motion to dismiss
under Civ.R. 12(B)(6). Id. at ¶ 8-11.
{¶ 9} On remand, the court of appeals referred the matter to a different
magistrate, to whom the parties submitted evidence and briefs on the merits. The
magistrate issued a decision that included findings of fact and conclusions of law.
To the extent that Mango sought release from prison through reinstatement of his
parole, the magistrate determined that “[h]abeas corpus, not mandamus, is the only
remedy for a claim of entitlement to immediate release.” 2021-Ohio-1314, ¶ 35.
And as for the mandamus claim seeking a new parole-revocation hearing, the
magistrate rejected all of Mango’s arguments and recommended that the court of
appeals deny the writ of mandamus. Id. at ¶ 38-44.
{¶ 10} Mango again objected to the magistrate’s recommendation. This
time, the court of appeals overruled Mango’s objections, adopted the magistrate’s
decision as its own, and denied the writ. Id. at ¶ 12. Mango appealed to this court
as of right.
II. Analysis
{¶ 11} To obtain a writ of mandamus, Mango “must establish (1) a clear
legal right to the requested relief, (2) a clear legal duty on the part of [ODRC] to
provide it, and (3) the lack of an adequate remedy in the ordinary course of the
law.” State ex rel. Marsh v. Tibbals, 149 Ohio St.3d 656, 2017-Ohio-829, 77
N.E.3d 909, ¶ 24. In this appeal, Mango argues that his due-process rights were
violated at his parole-revocation hearing. If Mango can prove that a due-process
violation occurred, mandamus is the appropriate remedy for compelling the parole
4
January Term, 2022
authority to conduct a second hearing.1 See State ex rel. Ellison v. Black, 165 Ohio
St.3d 310, 2021-Ohio-3154, 178 N.E.3d 508, ¶ 12. This court reviews the court of
appeals’ judgment de novo. See State ex rel. Haynie v. Rudduck, 160 Ohio St.3d
99, 2020-Ohio-2912, 153 N.E.3d 91, ¶ 10 (court of appeals’ judgment in a
mandamus action is reviewed as if originally filed in this court).
A. Right of Confrontation and Right to Call Witnesses
{¶ 12} In his first proposition of law, Mango argues that the ODRC violated
his “minimum constitutional due process rights” at the parole-revocation hearing.
The revocation of parole implicates a liberty interest that cannot be denied without
certain procedural protections. Morrissey v. Brewer, 408 U.S. 471, 481-484, 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972). Minimum due-process protections at a parole-
revocation hearing include the “opportunity to be heard in person,” the right to
“present witnesses and documentary evidence,” and “the right to confront and
cross-examine adverse witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation).” See id. at 489.
{¶ 13} Mango first complains that his due-process rights were violated by
the admission of what he alleges was impermissible hearsay evidence, namely “the
responding officer’s assumptions based on his observations of * * * Jarrett” and the
officer’s conversations with her. This evidence is especially problematic, Mango
argues, given that Jarrett, the alleged hearsay declarant, recanted her statement to
the officer at the scene and expressed her desire not to have Mango arrested. Mango
argues that the use of these statements violated his right to confront witnesses
against him.
1. Mango’s complaint also sought a writ of mandamus to compel the reinstatement of his parole.
As noted above, the court of appeals denied the writ as to this relief because habeas corpus, not
mandamus, is the proper remedy for obtaining release from confinement. 2021-Ohio-1314 at ¶ 6,
35. Mango does not appeal this aspect of the court of appeals’ ruling, noting that he is seeking only
a new parole-revocation hearing in this action.
5
SUPREME COURT OF OHIO
{¶ 14} Mango’s argument is without merit. Though a parolee has certain
due-process rights at a revocation hearing, he is not entitled to all the procedural
rights accorded the defendant in a criminal trial. See Morrissey at 480 (“the
revocation of parole is not part of a criminal prosecution and thus the full panoply
of rights due a defendant in such a proceeding does not apply to parole
revocations”); see also State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio
St.3d 12, 16, 577 N.E.2d 352 (1991). As relevant here, the parole board may admit
hearsay evidence because “a parolee contesting revocation does not have the same
confrontation rights as does a trial defendant.” Coulverson at 16. Accordingly, the
arresting officer’s testimony at the revocation hearing, even if it contained hearsay
statements of Jarrett, did not violate Mango’s due-process rights. Moreover, the
record shows that the hearing officer relied on more than the so-called hearsay
evidence of which Mango complains. Most notably, the evidence against Mango
included body-camera footage from the arresting officer, which contained the
officer’s observations from the scene and admissions by Mango that he had pushed
Jarrett during an argument.
{¶ 15} Mango also contends that he was deprived of his right to have his
sister, Vernell Reid, testify on his behalf. In the proceedings below, Mango
submitted an affidavit from Reid stating that Mango resided in her home from the
time he was released from prison in 2016 until he was arrested in 2018. Mango
argues that he should have been able to call Reid as a witness to refute the charge
that he was living with Jarrett without APA permission. But Mango does not show
a due-process violation here either. The record shows that Mango did not request
to call Reid to testify at his revocation hearing. The only witness Mango’s counsel
called on his behalf was Mango’s parole officer.
{¶ 16} For these reasons, Mango’s first proposition of law is without merit.
6
January Term, 2022
B. Sufficiency of Evidence and Effective Assistance of Counsel
{¶ 17} In his second proposition of law, Mango argues that there was
insufficient evidence to support a finding that he violated his parole. Also under
this proposition, he argues that he was denied the effective assistance of counsel at
his hearing.
{¶ 18} While the United States Supreme Court has not held specifically that
due process requires sufficient evidence to support the revocation of parole,
probation, or other types of postrelease supervision, it has suggested as much. See
Black v. Romano, 471 U.S. 606, 615-616, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)
(finding that the state trial court’s decision to revoke an offender’s probation
satisfied due process, agreeing that “there was sufficient evidence to support the
state court’s finding that Romano had violated the conditions of his probation”).
There is sufficient evidence to sustain a revocation of parole when there is
“substantial evidence” to support the decision. State v. Delaney, 11 Ohio St.3d 231,
236, 465 N.E.2d 72 (1984). There is “substantial evidence” to support a finding of
a parole violation when the evidence presented by the APA, if believed, is sufficient
to satisfy the burden of proof. See Consol. Edison Co. of New York v. Natl. Labor
Relations Bd., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed.2d 126 (1938) (“Substantial
evidence * * * means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”); see also Our Place, Inc. v. Ohio Liquor Control
Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992) (“ ‘Substantial’ evidence
is evidence with some weight; it must have importance and value”).
{¶ 19} The purpose of a parole-revocation hearing “is to determine whether
there is a preponderance of the evidence, taking the record as a whole, that the
releasee violated a condition of release or post-release control sanction.” Ohio
Adm.Code 5120:1-1-18(A)(3). Here, there is substantial evidence in the record to
support the hearing officer’s conclusion that the APA met its burden of proving that
Mango violated the terms of his parole. As noted above, the hearing officer relied
7
SUPREME COURT OF OHIO
on body-camera footage from one of the arresting officers, who also testified at the
revocation hearing. In the footage, Jarrett told the officer that she did not want
Mango in her house because of “the way he beat on me.” Jarrett had visible wounds
to her face and stated that Mango had struck her face multiple times. The officer
repeatedly asked Jarrett whether Mango hit her, and she repeatedly said yes. Jarrett
also told the officer that Mango had been living with her since August 2017.
Finally, the footage also shows admissions by Mango that he had pushed Jarrett
during a verbal altercation.
{¶ 20} Mango does not dispute the contents of the body-camera video
evidence. Rather, he argues that this evidence does not prove that he hit Jarrett or
that he was living with her. He emphasizes that Jarrett has recanted her claim that
he hit her and that there was no corroborating evidence to show that he was living
with Jarrett. But these arguments are focused on the hearing officer’s weighing of
the evidence and do not undermine the substantial evidence in the record that
supports the hearing officer’s determination. In any event, the hearing officer had
a reasonable basis to believe that Mango did, in fact, strike Jarrett. In context,
Jarrett’s recantation to the officer was not a denial that the incident happened, but
rather, an attempt to prevent Mango from going to jail. When the officer informed
Jarrett that he was going to arrest Mango “unless you’re telling me you’re lying,”
Jarrett responded, “I’m lying, I’m lying, I fell down the stairs. Just let him go.”
The hearing officer reasonably rejected this recantation when juxtaposed with
Jarrett’s visible wounds and her acknowledgment that Mango hit her with a closed
fist.
{¶ 21} Mango also argues that his counsel at the revocation hearing was
ineffective. Counsel is not automatically required for a parole-revocation hearing.
See Marsh, 149 Ohio St.3d 656, 2017-Ohio-829, 77 N.E.3d 909, at ¶ 27; see also
Ohio Adm.Code 5120:1-1-18(A)(5)(e) (specifying a right to counsel “if the parole
board member or hearing officer finds that the charges and/or the evidence to be
8
January Term, 2022
presented are complex or otherwise difficult for the releasee to present”). Because
there is no automatic Sixth Amendment right to counsel at parole-revocation
hearings, it is not clear whether a parolee has a right to the effective assistance of
counsel at a revocation hearing. See United States v. Lofton, 810 Fed.Appx. 436,
442 (6th Cir.2020). But even if Mango had a right to the effective assistance of
counsel at his revocation hearing, he has not established that his counsel was
deficient.
{¶ 22} To establish ineffective assistance of counsel, Mango must show (1)
that his counsel was deficient and (2) that his counsel’s deficient performance
prejudiced him. State v. Phillips, 74 Ohio St.3d 72, 84, 656 N.E.2d 643 (1995),
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Counsel’s performance is deficient when it falls below an objective
standard of reasonable representation. State v. Jackson, 107 Ohio St.3d 53, 2005-
Ohio-5981, 836 N.E.2d 1173, ¶ 133.
{¶ 23} Mango contends that his counsel’s performance was deficient for
failing to seek a continuance to assure that Jarrett and Reid could testify on his
behalf. (Jarrett was subpoenaed but did not appear for the hearing.) Mango also
notes that Jarrett submitted a written statement after his revocation hearing, again
proclaiming Mango’s innocence and contending that she was never contacted about
testifying. And a post-hearing affidavit from Reid asserts that Mango lived with
her from the time of his release from prison in 2016 until his March 28, 2018 arrest.
{¶ 24} Though Mango’s counsel did not request a continuance when Jarrett
did not appear, he argued that the hearing officer should consider her failure to
appear when assessing the credibility of her allegations against Mango. Thus,
counsel’s strategy was to attack the credibility of Jarrett’s statements to the police
rather than request a continuance to obtain her testimony. Counsel’s strategic
decision in this regard does not form the basis for an ineffective-assistance claim.
See Phillips at 85 (“Debatable trial tactics generally do not constitute a deprivation
9
SUPREME COURT OF OHIO
of effective counsel”). For the same reasons, it cannot be said that Mango’s counsel
was deficient for failing to call Reid as a witness. “Generally, counsel’s decision
whether to call a witness falls within the rubric of trial strategy and will not be
second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490,
739 N.E.2d 749 (2001). At best, Mango has shown only that his trial counsel made
debatable strategic choices.
{¶ 25} For these reasons, Mango’s second proposition of law is without
merit.
III. Conclusion
{¶ 26} Mango has not shown that the parole-revocation proceedings
violated his constitutional right to due process. Accordingly, the court of appeals
correctly denied the writ of mandamus.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
BRUNNER, J., not participating.
_________________
G. Michael Goins, for appellant.
Dave Yost, Attorney General, and Mark W. Altier, Assistant Attorney
General, for appellee.
_________________
10