State ex rel. Keith v. Ohio Dept. of Rehab & Corr.

[Cite as State ex rel. Keith v. Ohio Dept. of Rehab & Corr., 2017-Ohio-4406.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Bernard R. Keith, :
Relator, :
v. : No. 15AP-1080
Ohio Department of Rehabilitation : (REGULAR CALENDAR)
and Correction et al.,
:
Respondents.
:
D E C I S I O N
Rendered on June 20, 2017
On Brief: Bernard R. Keith, pro se.
On Brief: Michael DeWine, Attorney General, and George
Horvath, for respondents.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, P.J.
{¶ 1} Bernard R. Keith filed this action in mandamus seeking a writ to compel
various state entities to review a March 12, 2015 denial of parole for him and to force them
to immediately conduct another parole hearing.
{¶ 2} In accord with Loc.R. 13 of the Tenth District Court of Appeals, the case was
referred to a magistrate to conduct appropriate proceedings. The magistrate reviewed the
matter, including a decision of the Supreme Court of Ohio in State ex rel. Keith v. Adult
Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270. The magistrate also had the benefit of
briefs filed by the parties.
No. 15AP-1080 2
{¶ 3} On February 17, 2017, the magistrate issued a magistrate's decision which is
appended hereto.
{¶ 4} The magistrate has recommended that we find that the various respondents
have complied with a writ of mandamus issued previously in the course of this litigation
(first issue).
{¶ 5} Addressing the second issue, the magistrate indicated that we should find
that Keith's completion of a program entitled "Criminal and Addictive Thinking" had been
appropriately considered.
{¶ 6} As to the third issue, the magistrate indicates that Ohio Adm.Code 5120:1-
07(C) supports the way in which the parole board's form was completed in Keith's case.
{¶ 7} As to the fourth issue, the magistrate indicates that the records regarding
Keith getting his G.E.D. certificate were not harmful.
{¶ 8} In summary, the magistrate's decision did not recommend that we grant
Keith another writ of mandamus.
{¶ 9} Keith has filed objections to the magistrate's decision. The office of the
Attorney General has filed a memorandum in response. The case is now before the court
for a full, independent review.
{¶ 10} Keith's objections run some 30 pages. It includes an argument that
additional evidence has surfaced since the magistrate issued his magistrate's decision and
that the additional evidence demonstrates noncompliance with the original writ of
mandamus. We have reviewed the additional evidence and do not find a failure of the
state entities to abide by the earlier writ.
{¶ 11} Turning to the objections, there is simply no proof that parole for Keith was
not given meaningful consideration. Keith has failed to complete parole on numerous
occasions which presents a challenge for him. The fact that parole has been denied
recently does not mean it was not considered meaningfully.
{¶ 12} Further, Keith faces the challenge of trying to address the mental state of
the members of the state entities involved in parole considerations. He cannot do
anything but speculate as to the mental state and we cannot grant a writ of mandamus
based on his speculation.
No. 15AP-1080 3
{¶ 13} Keith also seems to be asserting that the state entities have to list in writing
all the evidence they considered and all the issues considered or a court should infer that
the evidence and issues were not considered. Such listing of all issues considered is not
required by the Ohio Administrative Code. If there are assumptions to be made, the
assumptions are that the governmental entities knew what was expected of them and did
what was required.
{¶ 14} We have considered all the documents submitted by Keith, with or without
notary seals. We find in them no basis for issuing a writ to compel the state entities to
conduct a new parole hearing, although we note that Keith was apparently scheduled for a
parole hearing on April 2, 2017. We have no evidence regarding that hearing or the result
of that hearing.
{¶ 15} We overrule the objections to the magistrate's decision and adopt the
findings of fact and conclusions of law contained therein. As a result, we deny the request
for a writ of mandamus.
Objections overruled; writ of mandamus denied.
SADLER and BRUNNER, JJ., concur.
No. 15AP-1080 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Bernard R. Keith, :
Relator, :
v. : No. 15AP-1080
Ohio Department of Rehabilitation : (REGULAR CALENDAR)
and Correction, et al.,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on February 17, 2017
Bernard R. Keith, pro se.
Michael DeWine, Attorney General, and William D.
Maynard, for respondents.
IN MANDAMUS
{¶ 16} In this original action, relator, Bernard R. Keith, an inmate of the Pickaway
Correctional Institution ("PCI"), requests a writ of mandamus ordering respondents, the
Director of the Ohio Department of Rehabilitation and Correction ("ODRC"), the Ohio
Adult Parole Authority ("OAPA"), and the Chair of the Ohio Parole Board, to vacate the
March 12, 2015 decision of the Ohio Parole Board (Central Office Board Review) that
denies relator parole and continues his next parole board hearing to April 1, 2017, and to
immediately conduct another parole board hearing.
No. 15AP-1080 5
Findings of Fact:
{¶ 17} 1. A review of the decision of the Supreme Court of Ohio in State ex rel.
Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270 ("Keith II"), will
assist the determination of the instant action. In Keith II, the Supreme Court reversed the
judgment of this court rendered in State ex rel. Keith v. Ohio Adult Parole Auth., 10th
Dist. No. 12AP-408, 2013-Ohio-2514 ("Keith I").
{¶ 18} In November 2011, Keith entered Lorain Correctional Institution to serve a
six-month sentence. In December 2011, a hearing officer determined that Keith's
previous parole should be revoked, and a parole release hearing was scheduled for
February 2012. Keith II at ¶ 5.
{¶ 19} That hearing was held by video conference on February 17, 2012. The
parole board denied parole and set the next parole hearing for 62 months later. In
explaining its rationale, the board cited several factors and stated that Keith had been
paroled eight times. Keith II at ¶ 6.
{¶ 20} Keith sent a letter to Cynthia Mausser, then the Chair of the Ohio Parole
Board. In his letter, Keith requested that the decision be corrected to reflect the correct
number of times he had been paroled and that the parole board grant him a new hearing.
Keith II at ¶ 7. The board responded that Keith's request did not meet the standard for
reconsideration of a board decision and that it would make no modification of the
decision. Id.{¶ 21} In May 2012, Keith filed an action in mandamus in this court requesting
that the OAPA be compelled to correct the record and to provide Keith with a rehearing.
Keith II at ¶ 8.
{¶ 22} The OAPA filed a motion to dismiss Keith's case, and Keith responded with
a memorandum and a motion for summary judgment to which two affidavits and several
exhibits were appended. Keith then moved to supplement the pleadings with another
affidavit and more exhibits, raising additional claims of further errors in his records.
Keith II at ¶ 9.
{¶ 23} The OAPA responded with an affidavit from Mausser in which she asserted
that Keith's record had been corrected to reflect the correct number of times he had been
No. 15AP-1080 6
paroled. She further asserted that after the correction was made, she had submitted the
matter to the parole board to consider the correction. The board voted not to modify its
previous decision and not to grant Keith a new hearing. Keith II at ¶ 10.
{¶ 24} The magistrate appointed by this court granted Keith's motion to
supplement the pleadings. The magistrate also converted OAPA's motion to dismiss into
a motion for summary judgment and gave notice that both motions for summary
judgment were set for a non-oral hearing on August 2, 2012. Keith II at ¶ 11.
{¶ 25} On the merits, the magistrate recommended that this court grant OAPA's
motion for summary judgment and deny Keith's motion for summary judgment. The
magistrate found that, even if Keith had the right to the correction of an error, his request
was moot, as the OAPA records had been corrected to reflect that Keith had been paroled
six times. Keith II at ¶ 12.
{¶ 26} Keith filed objections to the decision of the magistrate. This court overruled
the objections finding that, based on Mausser's affidavit, the board had performed the
acts sought in Keith's request for relief, and that the magistrate was correct in declaring
the case moot. Keith II at ¶ 13.
{¶ 27} Keith appealed as of right the decision of this court to the Supreme Court of
Ohio. Keith II at ¶ 14.
{¶ 28} On appeal to the Supreme Court, Keith asserted five propositions of law. In
his first proposition of law, Keith asserted that this court failed to consider all his claims.
The Supreme Court found that Keith is correct. "Because Keith was allowed to
supplement the complaint, Keith's assertions of additional errors in his parole records are
at issue and should have been considered by the court of appeals." Keith II at ¶ 17.
{¶ 29} In granting the writ and reversing the judgment of this court, the Supreme
Court in Keith II explains:
We recognize that the OAPA's discretion in parole matters is
wide-ranging. [Layne v. Ohio Adult Parole Auth., 97 Ohio
St.3d 456, 2002-Ohio-6719] ¶ 28, citing State ex rel.
Lipschutz v. Shoemaker, 49 Ohio St.3d 88, 90, 551 N.E.2d
160 (1990). R.C. 2967.03 vests discretion in OAPA to "grant
a parole to any prisoner for whom parole is authorized, if in
its judgment there is reasonable ground to believe that * * *
paroling the prisoner would further the interests of justice
No. 15AP-1080 7
and be consistent with the welfare and security of society."
However, as in Layne, that discretion must yield to statutory
or regulatory requirements. Therefore, we hold that in any
parole determination involving indeterminate sentencing,
the OAPA may not rely on information that it knows or has
reason to know is inaccurate.
This is not to say that the OAPA must conduct an extensive
investigation on the information it reviews for every prisoner
to ensure accuracy, nor does it mean that the OAPA must
credit every unsupported allegation by a prisoner that the
information is inaccurate.
But where there are credible allegations, supported by
evidence, that the materials relied on at a parole hearing
were substantively inaccurate, the OAPA has an obligation to
investigate and correct any significant errors in the record of
the prisoner.
Here, Keith's assertions go beyond mere allegation. For
example, he points out that a memorandum of
August 12, 2010 from Ohio Department of Rehabilitation
and Correction employee Lora Turjanica indicates that Keith
had been continuously incarcerated from May 1991 until
May 2000. This makes it impossible for him to have been
permitted to "remain on supervision" in July 1992 despite a
parole violation, as asserted in OAPA member Trayce
Thalheimer's letter of June 5, 2012.
Thus, Keith has made a showing that there may be
substantive errors in his record that may influence the
OAPA's consideration of his parole. There is no evidence on
the record that any error beyond the number of times Keith
was paroled has been corrected. OAPA must therefore
conduct an investigation into Keith's allegations and correct
any substantive errors discovered in the record it uses to
consider him for parole.
***
Conclusion
The OAPA has and retains wide-ranging discretion in parole
matters. A prisoner lacks any constitutional or statutory
right to parole. However, having established a parole system,
and having put in place statutory and regulatory language
No. 15AP-1080 8
requiring the OAPA to consider relevant information
regarding a prisoner it is considering for parole, the state has
created a minimal due-process expectation that the
information will actually and accurately pertain to the
prisoner whose parole is being considered. Therefore, where
a credible allegation of substantive inaccuracies in a
prisoner's record is made, the OAPA is obligated to correct
those errors before considering the inmate for parole. We
therefore reverse and grant a writ ordering appellees to
investigate Keith's allegations and correct any substantive
errors in the record used to consider him for parole.
Keith II at ¶ 26-30, 32.
{¶ 30} 2. On October 7, 2014, the Supreme Court filed its judgment entry in Keith
II. The entry states:
This cause, here on appeal from the Court of Appeals for
Franklin County, was considered in the manner prescribed
by law. On consideration thereof, the judgment of the court
of appeals is reversed, and a writ of mandamus is granted
ordering appellees to investigate Bernard Keith's allegations
and correct any substantive errors in the record used to
consider him for parole, consistent with the opinion
rendered herein.
It is further ordered that a mandate be sent to and filed with
the clerk of the Court of Appeals for Franklin County.
{¶ 31} 3. On October 24, 2014, this court issued its judgment entry in case
No. 12AP-408 in Keith I. This court's judgment entry states:
Pursuant to the mandate of the Supreme Court of Ohio in
case No. 2013-1064, decided October 7, 2014, reversing the
judgment of this court, the journal entry of judgment
journalized on June 26, 2013, is vacated and a writ of
mandamus is granted ordering respondents to investigate
Bernard Keith's allegations and correct any substantive
errors in the record used to consider him for parole,
consistent with the opinion of the Supreme Court.
{¶ 32} 4. On October 27, 2014, the Franklin County Clerk of Court issued a writ of
mandamus.
No. 15AP-1080 9
{¶ 33} 5. Appended to Keith's complaint filed in this mandamus action is a copy of
a two-page letter dated October 16, 2014 from Assistant Attorney General Gene D. Park to
relator. Addressed to relator at PCI, Park's letter states:
As you may have been aware, the Ohio Supreme Court issued
a judgment in this case in your favor, reversing the decision
of the Tenth District Court of Appeals. In their order, the
Ohio Supreme Court stated the following:
[W]here a credible allegation of substantive inaccuracies in a
prisoner's record is made, the OAPA is obligated to correct
those errors before considering the inmate for parole. We
therefore reverse and grant a writ ordering appellees to
investigate Keith's allegations and correct any substantive
errors in the record used to consider him for parole.
Pursuant to the Court's order, the Ohio Parole Board has
examined your claims of error in the lower court record.
Attached to this letter is the original decision sheet from your
February 17, 2012 parole hearing, which stated that you were
paroled eight times in the past. The Board has stamped that
sheet as "void." The Board has elected to rehear your case,
and plans to convene a new parole hearing as soon as
practicable.
I have examined your pleadings before the Tenth District. In
a motion to supplement your complaint, which you filed in
the Tenth District on July 5, 2012, you alleged several errors
related to a letter Parole Board member Trayce Thalheimer
wrote to you on June 5, 2012. The alleged errors were:
1) Relator is not housed at the London Correctional
Institution.
2) Relator's parole consideration hearing was not held at the
London Correctional Institution.
3) Relator has no recollection of ever had any discussion or
conversation with Ms. Thalheimer. [sic]
4) Relator was incarcerated as a Technical Parole Violator
from 6/24/91 until 5/1/2000 and did not appear at any
hearing with a hearing officer.
5) Relator was not released at no hearing on 7/17/92.
No. 15AP-1080 10
(Motion, p. 3.)
The Parole Board reviewed these allegations. Attached to this
letter is a letter from Parole Board Chair Cynthia Mausser. In
this letter, in response to your first and second allegations,
the Board acknowledges that you were not housed in the
London Correctional Institution at the time of your hearing,
and that you were actually incarcerated at the Richland
Correctional Institution.
The Mausser letter also acknowledges in response to your
fifth allegation that you were not paroled on "7/17/92," and
this reference in the June 5, 2012 Thalheimer letter was
made in error. The actual date of the violation hearing was
on July 17, 2002.
In your third allegation, you state that you do not recall any
discussion with Board Member Trayce Thalheimer. After
looking into this claim, the Board found that Ms. Thalheimer
was the primary board member for your hearing on
February 17, 2012. That means that she would have prepared
and led the conversation with you. Therefore, despite your
lack of recollection, you had a conversation with Ms.
Thalheimer during your February 17, 2012 hearing.
Regarding your fourth allegation, the Parole Board's records
show that you were incarcerated from 1991 until 2000.
However, you had the following release consideration
hearings during that time: July 2, 1992; March 23, 1993;
March 23, 1995; May 23, 1995; March 11, 1997; March 11,
1999; December 10, 1999.
The letter from Cynthia Mausser correcting the errors in the
June 5, 2012 Thalheimer letter will also be a part of your
parole record. The Ohio Parole Board has thus complied with
the order of the Ohio Supreme Court in this matter. Contact
me if you have any further questions.
{¶ 34} 6. Appended to Keith's complaint filed in this mandamus action is a copy
of a one-page letter dated October 10, 2014 from Mausser to Keith. Addressed to relator
at PCI, the letter states:
I have reviewed the above-referenced correspondence from
Parole Board Member Thalheimer to you regarding your
No. 15AP-1080 11
February 17, 2012 parole release consideration hearing. In
the correspondence, the issue regarding the number of times
you were paroled was addressed. In a subsequent reply, you
indicated that there were two additional errors in the letter.
The alleged errors involved the institution at which you were
incarcerated when your parole hearing was conducted, and
the date of a previous violation hearing.
First, I have verified that you were incarcerated at the
Richland Correctional Institution in 2012, and it was from
that institution that your parole release consideration
hearing was conducted on February 17, 2012, and not the
London Correctional Institution as indicated in the letter
from Parole Board Member Thalheimer. Second, I also
verified that the reference to a violation hearing of "7/17/92"
was also incorrect, and that the actual date of the violation
hearing was July 17, 2002.
This letter will be placed in your file and will serve as a
correction to the June 5, 2012 correspondence from Parole
Board Member Thalheimer.
{¶ 35} 7. Appended to Keith's complaint filed in this mandamus action is a copy of
a one-page memorandum dated November 6, 2014 from parole board Quality Assurance
Officer Lindsay Dudas, stating:
On 2/17/2012, you had a Parole Board hearing. As a result of
the hearing, the following action was taken:
"Continued 4/1/2017 and Central Office Notify." This letter
is to advise you that the action from that hearing has been
rescinded. You will have a rehearing during the month of
February 2015. The actual day of the hearing will be
determined at a later date.
Any materials that you want to submit for the hearing should
be submitted to your institution's Parole Board Parole
Officer, who is Brenda Bonn.
{¶ 36} 8. On February 17, 2015, relator appeared before the parole board. The
parole board did not render a decision regarding parole on that date. Rather, the parole
board recommended Central Office Board Review ("COBR").
{¶ 37} 9. Following a March 12, 2015 hearing, COBR completed a parole board
form captioned "Ohio Parole Board Decision and Minutes."
No. 15AP-1080 12
{¶ 38} Section 3(B) of the form requests that the board state its rationale for its
decision. The form asks for "specific factors relevant to the offense and offender." In the
space provided, the parole board explained:
Offender Keith has served over 3 years on his current
incarceration. He has been given multiple opportunities on
parole supervision and has returned to prison multiple times
for the commission of new crimes. The Central Office Board
review has determined that release at this time would not
further the interest of justice, that there is substantial reason
to believe that Keith will engage in further criminal conduct,
and that Keith will not conform with conditions of parole
supervision.
{¶ 39} Section 4 of the form asks the parole board to indicate by its mark aside one
or more of four pre-printed statements. The parole board marked boxes A and B
indicating the following:
There is substantial reason to believe that the inmate will
engage in further criminal conduct, or that the inmate will
not conform to such conditions of release as may be
established under AR 5120 1-1-12.
There is substantial reason to believe that due to the serious
nature of the crime, the release of the inmate into society
would create undue risk to public safety, or that due to the
serious nature of the crime, the release of the inmate would
not further the interest of justice or be consistent with the
welfare and security of society.
{¶ 40} At section 6(A) of the form, the parole board states that, pursuant to
"Central Office Board Review," the matter is "continued" to April 1, 2017.
{¶ 41} 10. Earlier, by letter dated February 19, 2015, relator wrote to respondent:
During my hearing on the above referenced date, an issue
was raised regarding the absence of a claimed program
participation/completion for Criminal and Addictive
Thinking. I subsequently raised that issue with my case
manager, who had previously stated that this program
participation and completion would be added to my ORAS
(see: attached kite of 4/9/14 to case manager, Mr. Wachauf).
I have been informed that participation/completion of the
referenced program of Criminal and Addictive Thinking, is
No. 15AP-1080 13
noted and listed as an "Unit Lead activity group," with a
completion date of 12/13. (see: attached certificate of
participation.)
Perhaps this program had been overlooked as a result of my
failure to mention that I have been housed in the Re-
integration Unit for the past 16 months at my hearing of
2/17/15.
Please make this letter and attached certificate a part of my
file and available for review by COBR.
{¶ 42} Appended to the February 19, 2015 letter is a single-page document
captioned "Certificate of Participation." The document certifies that relator participated
in a program at PCI identified as "Criminal and Addictive Thinking."
{¶ 43} 11. By three-page letter dated March 20, 2015, relator requested
reconsideration. The letter explains:
This correspondence is being submitted as a formal request
for reconsideration.
This request is based on an additional program completion
that was questioned during my re-hearing of 2/17/15, (see:
attached certificate and letter to you of 2/19/15, that may
have not been received) and the absence of what appears to
be a meaningful consideration of:
1). The absence of any negative institution behavior/conduct.
2). Program completions - (i.e. Thinking for a Change and
Criminal Addictive thinking).
3). Participation and residency in the Re-integration Unit
since October 8, 2013.
4). The achieving and maintaining of level 1, security status
since 2012.
It is my hope and position that should the above listed
rehabilitative actions on my part, been given meaningful
consideration per the Ohio Parole Handbook of
December 2013, pg. 3, line 3, which states:
No. 15AP-1080 14
"In keeping with it's [sic] statutory mission and the guidance
of the courts, the parole board provides meaningful
consideration (bolded for emphasis) for all inmates who
are eligible for parole and on page 6, which states:
"An analysis of individual cases should include consideration
of…..the offender's behavior in prison."
Then there should have been some deviation (however
minimal) from the initial determination and continuance of
my 2/17/12 hearing (see: attached VOID Parole Decision
Sheet of 2/17/12), which pursuant to The Ohio Supreme
Courts' Decision in State ex rel. Keith v. OAPA et al. 2014-
Ohio-4270, was determined to have been continued to 4/17
via the application and consideration of information that was
known or should have been known as being erroneous.
My subsequent hearing of 2/17/15 (see: attached Parole
Decision Sheet of 2/17/15) was a rehearing of the above
referenced 2/17/12 hearing.
It is of much concern to myself, family and supporters that
the continuance date is the exact same date as that of the
"VOIDED" 2/17/12 hearing.
Sir, please be assured that I AM NOT challenging the
discretionary authority of the Ohio Parole Board, nor am I
asserting a right to a parole release prior to the expiration
date of my sentence. But rather am presenting to you the
question in rational, analytical minds of the likelihood of the
exact same date determination of continuance being
determined at both hearings, (when the 2/17/12 hearing
utilized information that was not accurate or factual - and
the 2/17/15 hearing utilized corrected and additional
information - in terms of the length of time served to date,
program completions and positive institutional conduct?).
It is also of much concern, that a determination was made in
section 3b rationale…."that there is substantial reason to
believe that Keith will engage in further criminal conduct." I
respectfully request the information or factors that lead the
OPB to come to that belief, so that I can address that concern
through further rehabilitative programming and alleviate the
possibility of this reasoning re-surfacing at any subsequent
hearings. I assure you that it is not my design or direction to
ever engage in any type of criminal activity.
No. 15AP-1080 15
It should also be noted, the lack of intent and culpability of
my instant offense as reflected in the Police Report of my
arrest on April 16, 2011 by the Parma Police Dept. (see:
Parma Police Dept. Investigative Report - a copy of which
was/is attached to documentation submitted at my Kellogg
mitigation Hearing.
In addition, the aforementioned reasoning by the OPB as
reflected in the rationale of section 3b is absent of any
programming directives to enhance my future parole
eligibility. Is this to reflect that the OPB's attitude regarding
me is one of punitive incarceration, with no consideration of
the possible benefits of positive programming or any positive
adjustment history.
For the reasons as contained herein, I respectfully request
re-consideration and/or an admendment [sic] to the decision
of my 2/17/15 hearing that is reflective of that hearing having
been more than just a cursory compliance to the directive of
the Courts.
(Emphasis sic.)
{¶ 44} 12. Relator's March 20, 2015 letter prompted a written response dated April
9, 2015 from Ohio Parole Board acting Chair Andre Imbrogno:
Your request for reconsideration of a previous Parole Board
decision was received and processed. DRC Policy No. 105-
PBD-04 Requests for Reconsideration and Amendments to
Parole Board Actions outlines circumstances under which
rescission and reconsideration of the outcome of a parole
hearing is permitted. Requests for reconsideration must be
based on, and specifically refer to, relevant and significant
new information that was either not available or not
considered at the time of the hearing. In addition, any new
information that forms the basis of a reconsideration request
must be submitted without reasonable delay.
Your request and all other relevant information was
reviewed. It has been determined that your request does not
meet the standard for reconsideration as set forth in policy.
The Board considered the information that you identify in
your request, including the certificate of program completion
that you attached to your request, which the Board
considered during its Central Office Board Review.
No. 15AP-1080 16
Therefore, no modification will be made to the last action of
the Parole Board. The decision sheet you received clearly
outlines the Board's rationale.
(Emphasis sic.)
{¶ 45} 13. On November 30, 2015, relator filed the instant mandamus action.
{¶ 46} 14. On February 25, 2016, respondents filed their answer to the complaint.
{¶ 47} 15. Pursuant to the magistrate's scheduling orders, on May 13, 2016, relator
filed a document captioned "Relator's Evidentiary Materials In Support of
Claim/Complaint," hereafter referred to as relator's evidence.
{¶ 48} 16. On May 26, 2016, respondents filed a document captioned
"Respondents' Presentation of Evidence," hereafter referred to as respondents' evidence.
{¶ 49} 17. With respondents' evidence, respondents submitted the affidavit of
Andre Imbrogno, executed May 26, 2016.
{¶ 50} In his affidavit, Imbrogno avers:
2. I am currently employed by the Ohio Department of
Rehabilitation and Correction ("ODRC") as Chair of the Ohio
Parole Board ("Parole Board"). The Parole Board is a section
within the ODRC's Adult Parole Authority ("APA"). I have
worked for the Parole Board since July 1, 2012, and have
served as its Chair since November 15, 2015.
3. As Chair, my duties include overseeing the operation of
the Parole Board. I review, interpret, and sign off on Parole
Board release decision sheets when an inmate is considered
for release on parole. This is done to ensure, in part, that the
applicable policies and statutory provisions that govern
parole release consideration hearings are followed. I
reviewed documentation germane to the parole release
consideration hearings held for the plaintiff in this case,
inmate Bernard Keith, #A620-809, February 17, 2015,
and/or March 12, 2015, at the request of Assistant Attorney
General William D. Maynard. The documents, including
those accompanying this affidavit and marked as
Respondent's Exhibit E, are true and accurate copies of
documents kept within the normal course of business by
ODRC's Central Records Division.
4. As a consequence of the decision issued by the Ohio
Supreme Court in State ex rel. Keith v. Ohio Adult Parole
No. 15AP-1080 17
Authority, et al., No. 2014-Ohio-4270, the Parole Board
made corrections to inmate Keith's (#A620-809) record,
which included voiding the original decision sheet from
inmate Keith's February 17, 2012 parole release
consideration hearing. The Parole Board rescinded the
action taken by the Board at the February 2012 hearing and
scheduled inmate Keith for a rehearing of his case for parole
release consideration in February of 2015 * * *.
5. At inmate Keith's (#A620-809) parole release
consideration hearing held on February 17, 2015, a
recommendation was made to refer the case for Central
Office Board Review ("COBR") * * *.
6. On March 12, 2015, after considering the mandatory
factors indicated in Administrative Rule ("AR") 5120:1-1-07,
it was the determination of COBR that inmate Keith (A620-
809) was not suitable for release to parole and instead
should be continued for another parole release consideration
hearing to be held April 1, 2017 * * *. As Chair of the Parole
Board, I signed off on the COBR decision, validating the
parole release consideration hearing process as conducted
* * *.
7. I did receive a correspondence from inmate Keith (#A620-
809) dated March 20, 2015, requesting reconsideration of
the COBR decision of March 12, 2015, pursuant to ODRC
Policy 105-PBD-04 * * *. I subsequently responded to inmate
Keith's request for reconsideration pursuant to ODRC Policy
105-PBD-04 via correspondence dated April 9, 2015 * * *. In
this correspondence, I informed inmate Keith that it had
been determined that his request for reconsideration of the
outcome of his parole release consideration hearing of
March 12, 2015, did not meet the standard for
reconsideration as set forth in policy. In particular, I
informed inmate Keith that the "Board" had considered the
information that he had identified in his request, including
the certificate of program completion that he had attached to
his request "… [d]uring its Central Office Board Review"
* * *. I further informed him that the [Parole Board] decision
sheet that he had received clearly outlined the Board's
rationale for continuing his next parole release consideration
hearing until April 1, 2017. * * *.
No. 15AP-1080 18
8. Inmate Keith's (#A620-809) next parole release
consideration hearing is currently scheduled to take place in
April 2017 (February 2017 actual).
{¶ 51} 18. Pursuant to the magistrate's scheduling orders, relator filed his merit
brief on May 13, 2016.
{¶ 52} 19. On June 30, 2016, respondents filed their merit brief.
{¶ 53} 20. On August 1, 2016, relator filed a reply brief.
{¶ 54} 21. This mandamus action is now submitted to the magistrate for his
magistrate's decision.
Conclusions of Law:
{¶ 55} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
First Issue
{¶ 56} Analysis begins with the observation that relator does not challenge
respondents' compliance with the writ of mandamus issued by the Supreme Court of Ohio
in Keith II.
{¶ 57} As earlier noted, in Keith II, the court issued a writ of mandamus ordering
respondents to investigate Keith's allegations and correct any substantive errors in the
record used to consider him for parole, consistent with the opinion of the court.
{¶ 58} Appended to relator's complaint is the October 16, 2014 letter of Assistant
Attorney General Gene D. Park and the October 10, 2014 letter of Ohio Parole Board
Chair Cynthia Mausser.
{¶ 59} In his October 16, 2014 letter, Park identifies and lists the alleged errors and
then addresses each alleged error. In so doing, Park references the October 10, 2014
Mausser letter that addresses the errors. Mausser indicates that her letter will be placed
in Keith's file. Park's letter concludes that "[t]he Ohio Parole Board has thus complied
with the order of the Ohio Supreme Court in this matter."
{¶ 60} In this action, relator expresses no disagreement with the October 16, 2014
Park letter or the October 10, 2014 Mausser letter. Accordingly, the magistrate concludes
that respondents have complied with the writ of mandamus issued by the Keith II court.
Second Issue
No. 15AP-1080 19
{¶ 61} Here, relator suggests that the March 12, 2015 COBR failed to consider
relator's successful completion of a program titled "Criminal and Addictive Thinking."
The suggestion is incorrect.
{¶ 62} As earlier noted, on February 19, 2015, two days after the February 17, 2015
parole board hearing that resulted in referral to COBR, relator sent a letter to Parole
Board Chair Andre Imbrogno indicating concern that the parole board may not have been
aware of his successful completion of the program. The February 19, 2015 letter indicates
that relator appended a copy of a "Certificate of Participation" in the program titled
"Criminal and Addictive Thinking."
{¶ 63} As earlier noted, by letter dated April 9, 2015, Imbrogno informed relator
that "[t]he Board considered the information that you identify in your request, including
the certificate of program completion that you attached to your request, which the Board
considered during its Central Office Board Review."
{¶ 64} Moreover, in his May 26, 2016 affidavit, Imbrogno avers at paragraph seven
that he corresponded with relator by letter dated April 9, 2015 in which he informed
relator that the board had considered the information regarding "the certificate of
program completion."
{¶ 65} Based on the foregoing evidence in the record, the magistrate concludes that
the "Certificate of Participation" in the program titled "Criminal and Addictive Thinking,"
was considered at the March 12, 2015 hearing. Accordingly, relator's suggestion to the
contrary is not well-taken.
Third Issue
{¶ 66} As earlier noted, in denying parole following the March 12, 2015 COBR
hearing, respondents completed a parole board form captioned "Ohio Parole Board
Decision and Minutes." In his merit brief, relator seems to argue that respondents abused
their discretion in completing the form by failing to identify the positive factors in
relator's parole board records and by failing to explain why those factors were found not
to compel the conclusion that relator should be released on parole. In that regard, relator
states in his brief:
The above referenced rationale in section 3B of Relator's
Parole Decision Sheet of 3/12/2015 makes no mention or
No. 15AP-1080 20
reference to Relator's positive rehabilitative actions, conduct,
programming, family support or any factors other than
Relator had served "over 3 years on his current
incarceration."
It is the contention of Relator that the absence of any
reference to Relator's positive programming, security status,
conduct, family support and other indicators reflecting his
fitness to be at liberty in the community without being a
threat, from Relator's Parole Decision Sheet of 3/12/15
section 3B is not supportive of the application of "meaningful
consideration" and suggest[s] that the hearing of 2/17/15
may have been a hearing just to cursory [sic] comply with the
issuance of the Writ of Mandamus.
(Relator's Brief at 27.)
{¶ 67} Relevant here is Ohio Adm.Code 5120:1-1-07 effective April 15, 2010, an
administrative rule cited and quoted by the court in Keith II. Ohio Adm.Code 5120:1-1-07
currently states:
(A) An inmate may be released on or about the date of his
eligibility for release, unless the parole board, acting
pursuant to rule 5120:1-1-10 of the Administrative Code,
determines that he should not be released on such date for
one or more of the following reasons:
(1) There is substantial reason to believe that the inmate will
engage in further criminal conduct, or that the inmate will
not conform to such conditions of release as may be
established under rule 5120:1-1-12 of the Administrative
Code;
(2) There is substantial reason to believe that due to the
serious nature of the crime, the release of the inmate into
society would create undue risk to public safety, or that due
to the serious nature of the crime, the release of the inmate
would not further the interest of justice nor be consistent
with the welfare and security of society;
(3) There is substantial reason to believe that due to serious
infractions of rule 5120-9-06 of the Administrative Code, the
release of the inmate would not act as a deterrent to the
inmate or to other institutionalized inmates from violating
institutional rules and regulations;
No. 15AP-1080 21
***
(B) In considering the release of the inmate, the parole board
shall consider the following:
(1) Any reports prepared by any institutional staff member
relating to the inmate's personality, social history, and
adjustment to institutional programs and assignments;
(2) Any official report of the inmate's prior criminal record,
including a report or record of earlier probation or parole;
(3) Any presentence or postsentence report;
(4) Any recommendations regarding the inmate's release
made at the time of sentencing or at any time thereafter by
the sentencing judge, presiding judge, prosecuting attorney,
or defense counsel and any information received from a
victim or a victim's representative;
(5) Any reports of physical, mental or psychiatric
examination of the inmate;
(6) Such other relevant written information concerning the
inmate as may be reasonably available, except that no
document related to the filing of a grievance under
rule 5120-9-31 of the Administrative Code shall be
considered;
(7) Written or oral statements by the inmate, other than
grievances filed under rule 5120-9-31 of the Administrative
Code.
***
(9) The inmate's ability and readiness to assume obligations
and undertake responsibilities, as well as the inmate's own
goals and needs;
(10) The inmate's family status, including whether his
relatives display an interest in him or whether he has other
close and constructive association in the community;
***
No. 15AP-1080 22
(12) The inmate's employment history and his occupational
skills;
(13) The inmate's vocational, educational, and other training;
***
(18) Any other factors which the board determines to be
relevant, except for documents related to the filing of a
grievance under rule 5120-9-31 of the Administrative Code.
(C) The consideration of any single factor, or any group of
factors, shall not create a presumption of release on parole,
or the presumption of continued incarceration. The parole
decision need not expressly address any of the foregoing
factors.
{¶ 68} Ohio Adm.Code 5120:1-07(C) answers relator's argument. That is, the rule
provides that "[t]he parole decision need not expressly address any of the foregoing
factors."
{¶ 69} Given Ohio Adm.Code 5120:1-07(C), the parole board was not required to
complete the parole board form such that the positive factors are identified along with an
explanation as to why the factors were found not to compel the conclusion that relator
should be released on parole.
Fourth Issue
{¶ 70} In his reply brief, relator endeavors to make an issue regarding an item that
is listed in an ODRC document captioned "Full Institutional Summary Report" ("FISR").
{¶ 71} A section of the FISR captioned "Job History" contains a total of 46 entries
presented over 3 pages. The 46 entries are listed under 6 headings. The 20th entry is
listed under the 6 headings as follows:
Institution Job Name Department Location Start Date End Date
GCI STUDENT EDUCATION GED FAST 2010-01-14 2010-01-28
TRACK
The 22nd and 24th entries listed under the 6 headings are as follows:
Institution Job Name Department Location Start Date End Date
No. 15AP-1080 23
GCI STUDENT EDUCATION VOC 2009-04-21 2009-07-09
WELDING
GCI STUDENT EDUCATION VOC 2008-06-26 2009-04-09
WELDING
According to relator's reply brief:
This institutional assignment is inaccurate. Relator has
attended numerous colleges (Shawnee State Comm. College,
Ohio University, Akron, several vocational programs, and
actually obtained his G.E.D. in 1976. (see: affidavit of verity
of Relator referencing education history.)
This institutional assignment error could be argued as
possibly causing deciding Parole Board members to "think"
that Relator was (at that time, 1/14/2010) a 56 year old
prisoner that had not completed his GED, thus eliminating
the likelihood of gainful employment because of the lack of
education, being that a G.E.D. or High School Diploma is
generally the minimum prerequisite for legitimate
employment. Thus the information that was provided to "the
Parole Board in connection with Relator's prc hearings held
February 17, 2015 and/or March 12, 2015" (Brief of
Respondents, page 10, line 3), could be interpretated [sic] as
further evidence of use/consideration of inaccurate,
irrelevant information in violation of the holding of the OSC
in Keith v. OAPA, 2014-Ohio-4270, at ¶ 25, ¶ 26, & ¶ 32.
Validation of Relator's claim of the inaccuracy of the Fast
Track G.E.D. assignment, * * * by the correct assignment of
Relator as a student in a Voc. Welding class during 2008-06-
26 until 2009-07-09 * * *. It is a requirement of
participation in vocation training program, that participants
possess either a high school diploma or a G.E.D. Therefore,
before Relator was admitted into the Voc. Welding program,
it had already been determined that he was qualified
educationally.
***
* * * [A] prisoners [sic] educational accomplishments are to
be considered in/at a Release Hearing. In the case of Relator,
the mis-assignment for G.E.D. Fast Track could have
possibly lead to a inaccurate assessment of Relator.
No. 15AP-1080 24
While the argument of the inaccurate assignment [sic] is not
the basis of this instant claim of the absence of meaningful
consideration at Relator's Parole Release Consideration
hearing of 2/17/15 and the subsequent COBR hearing
of 3/12/15.
(Reply Brief at 10-12.)
{¶ 72} It should be noted that relator's argument was presented for the first time in
his reply brief. Consequently, respondents have not had the opportunity to respond.
{¶ 73} It should also be noted that relator's argument was not referenced in the
correspondence from relator to the parole board following the February 17 or
March 12, 2015 hearings. That is, relator's reply brief argument or issue was not raised in
relator's March 20, 2015 letter to Parole Board Chair Andre Imbrogno. Consequently,
Imbrogno did not respond to the argument in his April 9, 2015 letter to relator.
{¶ 74} Relator further endeavors to support his reply brief argument with his
affidavit executed July 22, 2016 appended to his reply brief. Relator's affidavit avers:
I, BERNARD R. KEITH, RELATOR IN CASE NO. 15AP-
1080, EX REL. KEITH V. ODRC et al. DO HEREBY STATE
UNDER THE PENALTY OF PERJURY THE BELOW
LISTED STATEMENTS REGARDING MY EDUCATIONAL
HISTORY ARE TRUE AND FACTUAL:
1). I completed and passed the G.E.D. exam while at the
Marion Correctional Institution in 1975.
2). I enrolled and took correspondence courses from Ohio
University in Business Mgt. in 1975 - 1976.
3). I enrolled and received an Assoc. Degree from Shawnee
State Community College in 1977 - 1979.
4). I enrolled but did not complete a vocational program in
meat-cutting in London Ohio in 1980.
5). I completed a vocational program in Building Maint. in
1989 while at the Chillicothe Corr. Inst.
No. 15AP-1080 25
6). I complete[ed] a course in Machine Shop operations at
the Grafton Corr. Inst. in 1999.
7). I completed a welding course at the Grafton Corr. Inst., in
2009.
All vocational programs require the possession of a G.E.D. or
High School Diploma.
I have never been enrolled in a G.E.D. Program in 2010.
All information regarding my educational history is
contained in the records of the Ohio Central School System,
of which Respondents have access to the records/files of.
{¶ 75} Contrary to relator's suggestions here, the "GED Fast Track" entry in the
FISR does not state that relator failed to complete his GED during the year 2010. If
anything, the entry suggests something positive in relator's educational history, although
the entry itself provides only scant information.
{¶ 76} Accepting as true for argument's sake that relator completed and passed the
GED exam in 1975, as his affidavit avers, it does not necessarily follow that the "GED Fast
Track" entry is inaccurate.
{¶ 77} In mandamus, the relator must prove his or her entitlement to the writ by
clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-
Ohio-6117.
{¶ 78} Here, relator has failed to prove by clear and convincing evidence that
"materials relied on at a parole hearing were substantively inaccurate" and that any errors
in the record were "significant." Keith II at ¶ 28.
{¶ 79} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 15AP-1080 26
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).