[Cite as State ex rel. Robinson v. Mohr, 2018-Ohio-4127.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Dale Robinson,                       :

                 Relator,                              :

v.                                                     :               No. 18AP-106

Gary C. Mohr Director ODRC et al.,                     :            (REGULAR CALENDAR)

                 Respondents.                          :


                                            D E C I S I O N

                                     Rendered on October 11, 2018


                 Dale Robinson, pro se.

                 Michael DeWine, Attorney General, and Jared S. Yee, for
                 respondents.


                                   IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.
        {¶ 1} Dale Robinson filed this action in mandamus, seeking a writ to compel the
Ohio Adult Parole Authority ("APA") to remove a conviction he incurred in 2008 from
consideration when it recommends or fails to recommend parole for him in the future.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals the case
was referred to a magistrate to conduct appropriate proceedings. Robinson submitted
evidence and a brief. Counsel for the APA filed a motion for summary judgment. Robinson
felt that the APA could not file for summary judgment after he had filed his brief and
evidence. The magistrate, citing Civ.R. 56, found otherwise and considered the APA's
motion on the merits.
No. 18AP-106                                                                             2


       {¶ 3} Upon reviewing the merits, our magistrate found that no writ should be
granted because the APA is required to consider past convictions when deciding to grant or
deny parole.
       {¶ 4} Robinson has filed objections to the magistrate's decision.
       {¶ 5} Most of Robinson's objections center on legal procedures followed or not
followed by the APA. Those procedures do not affect the merits, namely whether Robinson
has a clear legal right to require the APA to disregard part of his past criminal record.
Robinson has no such right.
       {¶ 6} Robinson also argues that the APA cannot consider his conduct in prison in
deciding whether or not to grant parole. Robinson is incorrect on that assertion also.
       {¶ 7} Robinson's objections to the magistrate's decision are overruled. We adopt
the findings of fact and conclusions of law contained in the magistrate's decision and deny
the request for a writ of mandamus.
                                                        Objections overruled; writ denied.

                           KLATT and BRUNNER, JJ., concur.
No. 18AP-106                                                                               3


                                   APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT

The State ex rel. Dale Robinson,              :

               Relator,                       :

v.                                            :                    No. 18AP-106

Gary C. Mohr Director ODRC et al.,            :               (REGULAR CALENDAR)

               Respondents.                   :


                          MAGISTRATE'S DECISION

                                Rendered on June 27, 2018


               Dale Robinson, pro se.

               Michael DeWine, Attorney General, and Jared S. Yee, for
               respondents.


                               IN MANDAMUS
               ON RESPONDENTS' MOTION FOR SUMMARY JUDGMENT

       {¶ 8} Relator, Dale Robinson, has filed this original action requesting this court
order respondents to remove a 2008 conviction from the records considered by the Ohio
Adult Parole Authority ("APA") when the APA considers whether he is eligible for parole on
grounds that he has served his sentence in that case and his conviction is no longer relevant
and cannot be considered.
Findings of Fact:
       {¶ 9} 1. Relator is an inmate currently incarcerated at Marion Correctional
Institution.
No. 18AP-106                                                                             4


       {¶ 10} 2. In 1993, relator was convicted of two counts of aggravated trafficking of
LSD and two counts of aggravated trafficking of marijuana in Scioto County under case No.
92CR-390.
       {¶ 11} 3. Relator was sentenced to serve 3 to 15 years on each of the two counts of
aggravated trafficking of LSD, to be served consecutively; 1 year and 6 months on each of
the two counts of aggravated trafficking marijuana, to be served concurrently but
consecutive to the LSD sentence. That sentence also carried a mandatory 5-year period of
post-relief control.
       {¶ 12} 4. Relator was released on parole on several occasions; however, due to
violations, he was returned to prison.
       {¶ 13} 5. In October 2008, relator plead guilty to felonious assault in the second
degree in Scioto County under case No. 08CR-788. The trial court sentenced relator to a 5-
year term, to run consecutive to relator's existing sentence of 6 to 30 years. The sentence
also carried a mandatory period of post-relief control of 5 years.
       {¶ 14} 6. Relator's minimum sentence expired September 14, 2013 and his
maximum sentence expires on March 10, 2034.
       {¶ 15} 7. On June 15, 2015, the parole board held a hearing and considered relator's
fitness for parole. After considering the mandatory factors in Ohio Adm.Code 5120:1-1-07,
the board provided the following rationale when it denied relator parole:
              The inmate does not demonstrate positive institutional
              conduct and he does not have strong community or family
              support. The inmate does not demonstrate any positive
              offender change or motivation. For those reasons, the Board
              does not find him suitable for release at this time.

              ***

              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.

       {¶ 16} 8. Relator's next parole hearing is scheduled for June 1, 2020.
       {¶ 17} 9. In his mandamus complaint, relator asserts that on August 6, 2015 he
wrote a letter to respondent informing respondent that the parole board had considered
No. 18AP-106                                                                                   5


him for parole eligibility based on false or inaccurate information, specifically, his expired
sentence of September 14, 2013.
       {¶ 18} 10. Relator further alleged that, on August 31, 2015, respondent declined to
correct the error.
       {¶ 19} 11. Thereafter, relator filed this mandamus action asserting that respondent
has a legal duty to correct and remove all erroneous information in his legal file, specifically,
information concerning his sentence which expired September 14, 2013, as such cannot be
used to deny him parole.
       {¶ 20} 12. Pursuant to the magistrate's order filed April 4, 2018, the stipulation of
evidence was to be filed by April 23, 2018, relator's brief by May 8, 2018, respondent's brief
by May 29, 2018, and any reply brief by June 6, 2018.
       {¶ 21} 13. On April 17, 2018 (six days early, relator filed an evidentiary package and,
also on April 17, 2018 (21 days early), relator filed his brief.
       {¶ 22} 14. Also on April 17, 2018, respondent filed a motion for summary judgment.
       {¶ 23} 15. On April 26, 2018, relator filed a memorandum contra asserting
respondent could not file a motion for summary judgment because relator had already filed
evidence and his brief.
       {¶ 24} 16. The matter is currently before the magistrate.
Conclusions of Law:
       {¶ 25} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion and grant judgment in its favor.
       {¶ 26} As an initial matter, relator asserts that respondent could not file a motion
for summary judgment because there was a briefing schedule in place which mandated the
filing of evidence and briefs before the filing of any motion for summary judgment. Because
respondent had not filed any evidence or brief, relator asserts respondent was precluded
from filing a motion for summary judgment.
       {¶ 27} Civ.R. 56 provides in relevant part:
               (B) For defending party. A party against whom a claim, * * *
               is sought may, at any time, move with or without supporting
               affidavits for a summary judgment in the party's favor as to all
               or any part of the claim, * * *. If the action has been set for
No. 18AP-106                                                                                6


               pretrial or trial, a motion for summary judgment may be made
               only with leave of court.

       {¶ 28} The only limitation for an adverse party filing a motion for summary
judgment is if the matter has been set for pre-trial or trial. Neither had occurred here.
Respondent's motion for summary judgment was timely filed and this argument of relator
is rejected.
       {¶ 29} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 30} A motion for summary judgment requires the moving party to set forth the
legal and factual basis supporting the motion. To do so, the moving party must identify
portions of the record which demonstrate the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280 (1996). Accordingly, any party moving for summary
judgment must satisfy a three-prong inquiry showing: (1) that there is no genuine issue as
to any material facts; (2) that the parties are entitled to judgment as a matter of law; and
(3) that reasonable minds can come to but one conclusion, which conclusion is adverse to
the party against whom the motion for summary judgment is made. Harless v. Willis Day
Warehousing Co., 54 Ohio St.2d 64 (1978).
       {¶ 31} In State ex rel. Brust v. Mohr, 10th Dist. No. 17AP-275, 2018-Ohio-1067,
¶ 23, this court stated:
               [R]elator cites the Supreme Court of Ohio's decision in [State
               ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375,
               2014-Ohio-4270] in support of his argument. Bernard Keith
               had filed a mandamus action asserting that the parole board
               was required to correct erroneous information contained in
               his records regarding the number of times he had been
               paroled, as well as other alleged inaccuracies. In finding that
               a writ of mandamus was appropriate, the Keith court stated:

               A prisoner has no constitutional or statutory right to parole.
               State ex rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81
               Ohio St.3d 267, 268, 1998-Ohio-631, 690 N.E.2d 887 (1998).
               Because there is no such right, a prisoner who is denied parole
No. 18AP-106                                                                   7


           is not deprived of liberty as long as state law makes the parole
           decision discretionary. Id. at 125. Under R.C. 2967.03, the
           parole decision in Ohio is discretionary. Id. And we have held
           that because a potential parolee was not deprived of life,
           liberty, or property by being denied parole, he could not
           invoke due process to challenge his allegedly inaccurate
           scoresheet. State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d
           123, 126, 1994-Ohio-81, 630 N.E.2d 696 (1994). Therefore,
           relying upon that authority, the court of appeals was not
           unreasonable in concluding that the parole board had no clear
           legal duty to correct Keith's records. Id.

           Keith cites Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d
           456, 2002-Ohio-6719, 780 N.E.2d 548, to support his
           argument that he has a right to a corrected record. * * *

           * * * Layne establishes a minimal standard for the OAPA, that
           is, that statutory language "ought to mean something." Id. at
           ¶ 27. At issue in Layne were the words "eligible for parole" in
           former R.C. 2967.13(A). We held there that inherent in the
           language is "the expectation that a criminal offender will
           receive meaningful consideration for parole." Id.

           ***

           Inherent in the language of Ohio Adm.Code 5120:1-1-07(B) is
           that the board must consider various reports and "other
           relevant written information" pertaining to the inmate whose
           parole is being considered. 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.

           ***

           * * * [H]aving 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.
No. 18AP-106                                                                               8


                We recognize that the OAPA's discretion in parole matters is
                wide-ranging. Layne, 97 Ohio St.3d 456, 2002-Ohio-6719,
                780 N.E.2d 548, ¶ 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 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.

(Emphasis sic.) Keith at ¶ 19-28.

          {¶ 32} Relator argues that ODRC is required to collect and update his institutional
file by removing the expired sentence from his legal file under ODRC policy 07-ORD-12 and
then reconsider its decision concerning his eligibility for parole. ODRC policy 07-ORD-12
states:
                It is the policy of the Ohio Department of Rehabilitation and
                Correction (DRC) to compile, manage, maintain and update
                each BOSC Legal File accurately and in a standardized
                manner.

                ***

                B. All information pertaining to an offender's calculation of
                his/her sentence documenting that the time is accurately
                computed and recorded in conformance with applicable
No. 18AP-106                                                                              9


              statutes and regulations shall be maintained in the BOSC
              Legal File.

              ***

              D. The Bureau of Sentence Computation (BOSC) shall be
              responsible for maintaining, updating, and reviewing the
              Legal File to ensure it is current and accurate.

              ***

              F. The content of the Legal File shall be as follows:

              [One] A copy of all official documents pertaining to the
              offender's incarceration, e.g. Commitment Papers,
              Indictment or Bill of Information, Journal Entries and
              Certified Copies of Sentence.

       {¶ 33} Contrary to relator's argument, nothing in ODRC policy 07-ORD-12
necessitates the removal of his 2008 criminal case from his administrative record. While
relator does not contest the validity or accuracy of the 2008 criminal case, he wrote to the
parole board asking them to remove this allegedly improper information from his
administrative record.   The board investigated relator's allegation of inaccuracy and
determined relator's request did not meet the standard for reconsideration. Furthermore,
Ohio Adm.Code 5120:1-1-07 provides the following factors to be considered in a release
hearing. Those factors include the following:
              (B) In considering the release of the inmate, the parole board
              shall consider the following:

              ***

              (2) Any official report of the inmate's prior criminal record,
              including a report or record of earlier probation or parole;

              ***

              (18) Any other factors which the board determines to be
              relevant.

       {¶ 34} As above indicated, respondents are obligated to consider relator's criminal
convictions. As such, not only is the information relator wants to have removed accurate
No. 18AP-106                                                                              10


and does not fall under the pronouncement in State ex rel. Keith v. Ohio Adult Parole Auth.,
141 Ohio St.3d 375, 2014-Ohio-4270, that information is specifically required to be
considered.
       {¶ 35} Based on the foregoing, it is this magistrate's decision that this court should
grant respondents' motion for summary judgment and deny relator's request for a writ of
mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA
                              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).
