Roberson v. Mohr

I respectfully dissent because I believe the majority opinion is mixing apples and oranges here.

Roberson was sent to the Ross Correctional Institute on May 7, 1989, but was not given a hearing until October 23, 1989, one hundred fifty-nine days later. Since he was there and readily available this delay seems prima facie unreasonable.

The majority opinion rationalizes this away by saying that, since he was serving his sentence for the offense committed while on parole, he was not entitled to habeas corpus, and thus not entitled to a parole revocation hearing. Since Roberson did not complete his sentence until October 7, 1989, the majority holds that the delay was only sixteen days.

This analysis fails to take into account the mandates of R.C.2929.41 and the policies of the A.P.A. which require that when a parolee is convicted and returned to prison he serves the second sentence first, then starts serving time on the original sentence. This is what happened to Roberson, who finished the second sentence on October 7, 1989, and then reverted to doing time on his original sentence. This is what happens to all prisoners and none of them would be entitled to habeas corpus during that period.

They are, however, entitled to a revocation hearing even if they are not entitled to be released. That hearing must be conducted within a reasonable time. Perhaps the problem with the majority's reasoning can best be seen if, for the sake of example, we change the facts slightly and add a year to figures involved here. Suppose Roberson had been transferred to the Ross County Correctional Institute with a heavier sentence and would not have completed it until October 7, 1990, and was given a revocation hearing on October 23, 1990. The time for providing a revocation hearing would be one year and one hundred fifty-nine days in our example. Under the majority analysis, however, the delay would still only be sixteen days. Implicit in the majority holding is that no prisoner who is returned to prison for an offense committed on parole is entitled to a revocation hearing until he has served the full sentence for that second offense,i.e., until he is eligible for habeas relief.

This problem was foreseen by Justice Wright in his concurring opinion in Coleman v. Stobbs (1986), 23 Ohio St.3d 137, 23 OBR 292, 491 N.E.2d 1126. Coleman is quite distinguishable from the facts in this case because it dealt with pre-trial incarceration. The Supreme Court held that it was not unreasonable to delay the revocation hearing until Coleman had been tried on the current charge. It also held that since Coleman was charged in a court that had jurisdiction, habeas corpus was not the proper remedy. Justice Wright pointed out that if habeas was not the proper remedy, then, "[u]nder these circumstances a writ of mandamus is appellee's only remedy to compel the authority to hold a parole revocation hearing."Id. at 140, 23 OBR at 294, 491 N.E.2d at 1129.

In this case, Roberson was convicted and returned to the custody of the A.P.A. As such, he had the right to a hearing within a reasonable time even though he was not entitled to immediate release on habeas. The majority holding in this case expands the holding in Coleman v. Stobbs to an extent not intended, in my opinion, by the Supreme Court. If Roberson is not entitled to habeas relief here, then he might be entitled to mandamus as suggested by Justice Wright, but this apparently was not accepted by the other members on the court. If he is not entitled to mandamus, then he has a right to a hearing but no way to enforce that right, which is a jurisprudential nullity. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (1913), 23 Yale L.J. 16. The circuity predicted by Justice Wright has come home to roost.

I would resolve this case strictly according to ordinary summary judgment principles. Roberson is entitled to a hearing within a reasonable time. If there is no reason for the delay, he is entitled to discharge. As noted in the majority opinion, "There is no indication that the A.P.A. had any reason for the delay." If the A.P.A. had no reason, then it is by definition an unreasonable delay. I would grant Roberson's motion for summary judgment and order him discharged.

Thus, I dissent.