State ex rel. Lindsay v. Dept. of Rehab. & Corr.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Lindsay v. Dept. of Rehab. & Corr., Slip Opinion No. 2023-Ohio-689.]
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SLIP OPINION NO. 2023-OHIO-689THE STATE EX REL. LINDSAY, APPELLANT, v. DEPARTMENT OF
REHABILITATION & CORRECTION ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Lindsay v. Dept. of Rehab. & Corr., Slip Opinion
No. 2023-Ohio-689.]
Habeas corpus—Habeas corpus will lie only when a petitioner is entitled to
immediate release—Court of appeals’ judgment affirmed.
(No. 2022-0402—Submitted January 10, 2023—Decided March 8, 2023.)
APPEAL from the Court of Appeals for Marion County, No. 9-21-43.
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Per Curiam.
{¶ 1} Appellant, Wendell R. Lindsay II, an inmate at the North Central
Correctional Complex (“NCCC”), appeals the judgment of the Third District Court
of Appeals dismissing his petition for a writ of habeas corpus. We affirm.
SUPREME COURT OF OHIO
Background
{¶ 2} In October 2010, a Richland County jury convicted Lindsay of one
count of rape of a minor, one count of sexual battery, and one count of gross sexual
imposition. State v. Lindsay, 5th Dist. Richland No. 2010-CA-0134, 2011-Ohio-
4747, ¶ 5. The trial court sentenced him to an aggregate prison term of ten years to
life. The sex-offender sentencing entry stated that Lindsay was a “Tier I Sex
Offender/Child Victim Offender.” The court of appeals affirmed his convictions and
sentence.
{¶ 3} According to Lindsay, his first parole hearing was scheduled for June
17, 2021. He says that in January 2021, his case manager informed him that he had
been granted parole in advance of the hearing and would be released from prison on
his original parole-hearing date. He received paperwork setting forth the conditions
of his parole and providing information about his reentry into society, and he met
with a parole-authority liaison, who confirmed his June 17 release date. But on June
17, as Lindsay was preparing to leave, a unit manager informed him that his grant of
parole had been a mistake. Lindsay claims that ten days later, prison officials
explained that he was not being released because they had inadvertently overlooked
what they believed to be his conviction of a sexually-violent-predator specification.
{¶ 4} Subsequently, Lindsay received a letter dated June 15, 2021, from a
parole-board hearing officer, who wrote:
This notice is to inform you that the Parole Board conducted
a Sexually Violent Predator review on JUNE 15, 2021 due to the fact
that you have been sentenced under the terms of the Sexually Violent
Predator Sentencing Law.
It was determined by a majority vote not to recommend that
the Parole Board conduct a hearing to consider terminating control
over the service of your prison term. As such, the Parole Board will
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January Term, 2023
maintain control over the service of your prison term and has
scheduled your next Sexually Violent Predator review for JUNE
2023.
(Capitalization sic.) And on August 24, he received a letter from a representative of
the parole board, stating:
You were convicted under a statute, SB 260 [Am.Sub.S.B. No. 260,
151 Ohio Laws, Part I, 1915 (“S.B. 260”)], which, based upon the age
of the victim at the time of the offense, sentences you to the terms of
the Sexually Violent Predator Sentencing Law. As such, you will be
subject to biennial review by the parole board to determine your
suitability to have a hearing conducted whether to relinquish control
of your case back to the sentencing court.
The representative apologized for the “confusion at the institution regarding
[Lindsay’s] release” but reiterated that “the parole board did not issue [him] a parole.”
{¶ 5} On December 3, 2021, Lindsay filed a petition for a writ of habeas
corpus in the Third District, naming as respondents each of the appellees here, the
Ohio Department of Rehabilitation and Correction (“DRC”); the Adult Parole
Authority; Tom Watson, the warden of NCCC; and the Richland County Common
Pleas Court. Lindsay alleged that after serving his mandatory minimum sentence, he
satisfied the conditions for parole and had been granted release. He claimed that
prison officials used the pretext of a sexually-violent-predator specification to keep
him incarcerated, even though he was not convicted of any such specification. Based
on these allegations, Lindsay claimed a right to immediate release.
{¶ 6} The common pleas court and the warden each filed motions to dismiss.
The Third District granted the motions and dismissed Lindsay’s petition. The court
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of appeals explained that Lindsay was convicted under R.C. 2971.03, the sexually-
violent-predator sentencing law. See S.B. 260 (effective January 2, 2007).
According to the court of appeals, Lindsay “appear[ed] to conflate the Sexually
Violent Predator Specification, which enhances the sentence for the underlying
felony and must have an attendant indictment and conviction, with the Sexually
Violent Predator Sentencing Law, which sets forth the sentencing scheme for certain
sex offenses.” (Emphasis and capitalization sic.) 3d Dist. Marion No. 9-21-43, at 5
(Mar. 10, 2022). The court of appeals also noted that “an inmate has no constitutional
or statutory right to parole.” Id.{¶ 7} Lindsay appealed to this court as of right.
Legal analysis
{¶ 8} A writ of habeas corpus “is warranted in certain extraordinary
circumstances ‘where there is an unlawful restraint of a person’s liberty and there
is no adequate remedy in the ordinary course of law.’ ” Johnson v. Timmerman-
Cooper, 93 Ohio St.3d 614, 616, 757 N.E.2d 1153 (2001), quoting Pegan v.
Crawmer, 76 Ohio St.3d 97, 99, 666 N.E.2d 1091 (1996). With few exceptions,
habeas corpus will lie only to challenge the jurisdiction of the sentencing court.
State ex rel. Quillen v. Wainwright, 152 Ohio St.3d 566, 2018-Ohio-922, 99 N.E.3d
360, ¶ 6. This court reviews dismissals under Civ.R. 12(B)(6) de novo. State ex
rel. McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871,
¶ 8.
{¶ 9} Pursuant to R.C. 2967.271, it is presumed that a person who is
sentenced to a nonlife, indefinite prison term will be released from prison after the
expiration of his minimum sentence. R.C. 2967.271(B). Relying on this law,
Lindsay argues that DRC established his “presumptive release date” as June 17,
2021, and by giving him that date, DRC created a liberty interest that is protected
by the state and federal due-process clauses.
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January Term, 2023
{¶ 10} R.C. 2967.271 was adopted as part of the Reagan Tokes Law, 2018
Am.Sub.S.B. No. 201, effective March 22, 2019. And the Reagan Tokes Law
applies only to felonies committed on or after its effective date. See R.C. 2901.011;
R.C. 2929.14(A)(1)(a) and (A)(2)(a); R.C. 2929.144(A) and (B); see also State v.
Meeks, 6th Dist. Ottawa No. OT-22-015, 2022-Ohio-2436, ¶ 7. Lindsay was not
sentenced pursuant to the Reagan Tokes Law, so its provisions do not apply to him.
{¶ 11} Lindsay also asserts that when he signed that paperwork in
connection with his prospective release, it “established a mutually explicit
understanding between [DRC] and [Lindsay], that he would indeed be released
6/17/2021.” Lindsay therefore asserts in his first proposition of law that when DRC
canceled his release, it violated his due-process and equal-protection rights. But an
inmate has no constitutional right to be released on parole before the expiration of
his sentence. State ex rel. Bailey v. Ohio Parole Bd., 152 Ohio St.3d 426, 2017-
Ohio-9202, 97 N.E.3d 433, ¶ 9. And Lindsay cites no authority for his novel
suggestions that a mistake by an agent of DRC conferred a vested right to
immediate release or that DRC’s mistake created a binding contract.
{¶ 12} Nevertheless, even assuming that Lindsay could establish a vested
liberty interest, his remedy for an alleged procedural-due-process violation would
not be immediate release from prison. Instead, his claim that DRC’s review
procedures violated his procedural-due-process rights would at most entitle him to
a writ of mandamus compelling a second review. See State ex rel. Ellison v. Black,
165 Ohio St.3d 310, 2021-Ohio-3154, 178 N.E.3d 508, ¶ 12; Scarberry v. Turner,
139 Ohio St.3d 111, 2014-Ohio-1587, 9 N.E.3d 1022, ¶ 14. We overrule Lindsay’s
first proposition of law.
{¶ 13} Lindsay’s remaining propositions of law are merely extensions of
the argument in support of his first proposition of law. In his second proposition
of law, Lindsay asserts that DRC violated the Ex Post Facto Clause of the United
States Constitution when it imposed a sexually-violent-predator specification on
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him that was not in his sentencing entry. And in his third proposition of law, he
contends that DRC violated the separation-of-powers doctrine by imposing a
sentence that was different from the one imposed by the trial court. The Third District
correctly addressed these claims, noting that Lindsay was not convicted of a sexually-
violent-predator specification but was instead sentenced pursuant to the sexually-
violent-predator sentencing law. In other words, while DRC allegedly changed its
mind about Lindsay’s parole, it did not base that decision on an uncharged
specification. We therefore overrule Lindsay’s second and third propositions of
law.
Conclusion
{¶ 14} Lindsay has alleged that DRC misinformed him about his parole
status. That error does not create a constitutional right to parole. We affirm the
judgment of the Third District Court of Appeals dismissing his petition for a writ
of habeas corpus.
Judgment affirmed.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
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Wendell R. Lindsay II, pro se.
Dave Yost, Attorney General, and Lisa K. Browning, Assistant Attorney
General, for appellee Tom Watson, warden of NCCC.
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