[Cite as State ex rel. Grayson v. Ohio Adult Parole Auth., 2017-Ohio-753.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


The State ex rel. John Grayson,                         :

                 Relator,                               :

v.                                                      :                       No. 15AP-793

Ohio Adult Parole Authority                             :                    (REGULAR CALENDAR)
Department of Rehabilitation &
Correction,                                             :

                 Respondent.                            :



                                            D E C I S I O N

                                      Rendered on March 2, 2017


                 On brief: John L. Grayson, pro se.

                 On brief: Michael DeWine, Attorney General, and
                 William D. Maynard, for respondent.

                                             IN MANDAMUS

LUPER SCHUSTER, J.
        {¶ 1} Relator John Grayson has filed an original action requesting this court issue
a writ of mandamus ordering respondent Ohio Adult Parole Authority to immediately
conduct a parole hearing in which the decision to grant or deny parole is based on the
Ohio Parole Board Guidelines Manual, effective July 1, 2007 and rescinded as of April 1,
2010.
        {¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
No. 15AP-793                                                                             2

court deny relator's request for a writ of mandamus. No objections have been filed to that
decision.
       {¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
                                                              Writ of mandamus denied.

                          SADLER and DORRIAN, JJ., concur.
No. 15AP-793                                                                        3

                                          APPENDIX

                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. John Grayson,              :

               Relator,                       :

v.                                           :                No. 15AP-793

Ohio Adult Parole Authority                   :          (REGULAR CALENDAR)
Department of Rehabilitation &
Correction,                                  :

               Respondent.                   :


                          MAGISTRATE'S DECISION

                             Rendered on November 14, 2016


               John L. Grayson, pro se.

               Michael DeWine, Attorney General, and William D.
               Maynard, for respondent.


                                    IN MANDAMUS


      {¶ 4} In this original action, relator, an inmate of the Grafton Reintegration
Center ("GRC"), requests a writ of mandamus ordering respondent, Ohio Adult Parole
Authority ("respondent" or "OAPA"), to immediately conduct a parole hearing in which
the decision to grant or deny parole is based upon the Ohio Parole Board Guidelines
Manual, Third Edition, effective July 1, 2007 ("2007 guidelines manual" or "manual"),
that was rescinded by respondent as of April 1, 2010.          Relator contends that
respondent's failure to apply the 2007 guidelines manual is a violation of the Ex Post
Facto Clause of the United States Constitution.
No. 15AP-793                                                                              4

Findings of Fact:
        {¶ 5} 1. Since 1975, relator has been imprisoned approximately five times before
his current incarceration for various criminal convictions.
        {¶ 6} 2. Currently, the Bureau of Sentence Computation of the Ohio
Department of Rehabilitation & Correction ("ODRC") has calculated the maximum
expiration of sentence to be July 12, 2026.
        {¶ 7} 3. Relator's latest incarceration results from his conviction for drug
trafficking in the Cuyahoga County Court of Common Pleas. On January 21, 2010, the
court imposed a prison sentence of eight months.           That prison term expired on
September 19, 2010.
        {¶ 8} 4. Since his present incarceration, relator has appeared before the Ohio
Parole Board ("board") four times and has been denied release in each instance. In each
instance, continued incarceration was justified by a finding that there is substantial
reason to believe that relator will engage in further criminal conduct if released.
        {¶ 9} 5. The four board hearings during relator's present incarceration were
held respectively on August 9, 2010, June 13, 2011, November 2, 2012, and August 12,
2014.
        {¶ 10} 6. As to each hearing, an ODRC form was completed by a board member
to document the board decision. The form is captioned "Ohio Parole Board Decision"
and is divided into seven sections.
        {¶ 11} At section 3(A), the board member is asked to mark a box indicating that
"[t]he mandatory factors indicated in AR 5120 1-1-07 were considered."
        {¶ 12} At section 3(B), the board is asked to provide the rational for the decision.
At section 4, boxes identified as A through D are provided for marking. The pre-printed
statements beside each box state:
               A. * * * 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.

               B. * * * 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
No. 15AP-793                                                                               5

               would not further the interest of justice or be consistent with
               the welfare and security of society.

               C. * * * There is substantial reason to believe that due to
               serious infractions of division level 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.

               D. * * * Not applicable.

      {¶ 13} 7. The form completed by the board for the August 9, 2010 hearing
indicates that consideration of parole is "continued" to August 1, 2011. That is, parole is
denied but will be reconsidered on or before August 1, 2011. At section 4, boxes A, B,
and C are marked.
      {¶ 14} At section 3(B), in the space provided, the following rational is provided:
               The Board has determined that the inmate is not suitable for
               release at this time. The inmate was convicted of Drug
               Trafficking while under supervision. [Inmate] has 5 prior
               commitments, and has shown a disregard for the law while
               under supervision. [Inmate] also has ticket violating
               institutional rules since his return.

      {¶ 15} 8. The form completed by the board for the June 13, 2011 hearing
indicates that consideration of parole is "continued" to December 1, 2012. That is,
parole is denied subject to reconsideration on or before December 1, 2012.
      {¶ 16} At section 4, boxes A and B are marked. Boxes C and D are not marked.
      {¶ 17} At section 3(B), in the space provided, the following rational is provided:
               The Board has determined that the inmate is not suitable for
               release at this time. This is [inmate]'s 6th commitment and
               he will be held accountable, extensive criminal history
               continues to be unsuccessful under supervision, multi-state
               offender.

      {¶ 18} 9. The form completed by the board for the November 2, 2012 hearing
indicates that consideration of parole is "continued" to October 1, 2014. That is, parole
is denied subject to reconsideration on or before October 1, 2014.
      {¶ 19} At section 4, only box A is marked. Boxes B, C, and D are not marked.
      {¶ 20} At section 3(B), in the space provided, the following rational is provided:
No. 15AP-793                                                                               6

               Inmate's risk to reoffend is elevated by his criminal history,
               as this is his 6th Ohio prison admission. He has one in
               Indiana as well. He has completed relevant programming,
               and his conduct has improved. But it is not clear that he has
               changed sufficiently to overcome his static risk. This leads
               the Board to conclude that the inmate would engage in
               further criminal conduct if released. After weighing relevant
               factors, the Central Office Board Review does not consider
               the inmate suitable for release and assesses a two year
               continuance.

      {¶ 21} Apparently, the November 2, 2012 hearing involved "Central Office Board
Review," as indicated on the completed form.
      {¶ 22} 10. The form completed by the board for the August 12, 2014 hearing
indicates that consideration of parole is "continued" to August 1, 2016. That is, parole is
denied subject to reconsideration on or before August 1, 2014.
      {¶ 23} At section 4, boxes A and B are marked. Boxes C and D are not marked.
      {¶ 24} At section 3(B), in the space provided, the following rational is provided:
               Inmate Grayson is assessed as a moderate risk to reoffend.
               Inmate Grayson has a continuous pattern of criminal
               behavior since 1974. Six adult incarcerations in Ohio (two in
               other States), 6 releases 5 Parole failures [with]
               recommitments for new felony behavior. He has an extensive
               history of violent offenses, having weapons, and not being
               successful on supervision. He lacks the ability to control his
               behavior as evidenced by his extensive aggravating criminal
               history. His release plans of past paroles have not curbed his
               substance abuse and criminal behaviors. The aggravating
               factors in this case lead the Board to conclude that release
               would demean the seriousness of the offense and not further
               the interest of justice. After weighing relevant factors, the
               Board does not consider the inmate suitable for release at
               this time and assesses a two year continuance.

      {¶ 25} 11. The record contains a copy of the 2007 guidelines manual.
      {¶ 26} The manual is 60 pages in length. The manual's preface is written by
Chairperson, Cynthia Mausser. The third paragraph of the preface states:
               The guideline ranges are a suggestion of time to be served for
               the typical or average cases and presume good institutional
               behavior. However, the ranges should not be interpreted as
               mandating release within the range. The guideline ranges do
               not usurp the Parole Board's discretion and authority to
No. 15AP-793                                                                          7

               release an inmate at any time after service of the minimum
               sentence prior to the expiration of the maximum sentence.
               The applicable guideline range is meant solely to suggest an
               initial threshold (a suggested starting point of analysis)
               toward making a full and fair assessment of all relevant
               factors, indicators and other considerations in determining
               the inmate's suitability for release.

      {¶ 27} The manual is divided into parts A and B. Part A provides the "Parole
Guidelines Chart." The Parole Guidelines Chart is explained:
               The Parole Guidelines Chart sets forth the applicable
               guideline range for the typical or "heartland" case based on
               the seriousness of the inmate's current offense of conviction
               and the offender's Criminal History/Risk Score. The
               guideline ranges acknowledge statutory eligibility for release
               upon service of the minimum sentence as indicated by the
               term "min" at the bottom of each range. The guideline ranges
               are a suggestion of time to be served in months for the
               typical or average case. However, the ranges should not be
               interpreted as mandating release within the range. The
               guideline ranges are meant to serve as one of the tools in the
               release decision making process, and do not usurp the Parole
               Board's discretion and authority to release an inmate at any
               time after service of the minimum sentence prior to the
               expiration of the maximum sentence. The applicable
               guideline range is meant solely to suggest an initial threshold
               (a suggested starting point of analysis) toward making a full
               and fair assessment of all relevant factors, indicators and
               other considerations in determining the inmate's suitability
               for release.

               The applicable guideline range presumes good institutional
               conduct, fulfillment of any special conditions imposed by the
               Parole Board, and the development of a suitable release plan.

      {¶ 28} Part B of the manual is divided into ten chapters. Each of the ten chapters
contains sub chapters.
      {¶ 29} Chapter 10, subchapter C(4)(b)(ii) provides:
               Definite sentences: Any offense or offenses for which an
               offender was convicted while on parole and for which an
               offender received a definite sentence shall not have an
               offense category assigned. If the conviction is an SB2 definite
               sentence, the SB2 sentencing range for the felony level of the
               offense of conviction will be noted in the Decision Sheet. The
No. 15AP-793                                                                   8

               guideline range will reflect the SB2 equivalent penalty for a
               post-release violation of 0-9 months.

(Emphasis sic.)

      {¶ 30} 12. The record contains the affidavit of Cynthia Mausser executed
February 29, 2016. The Mausser affidavit states:
               [Two] I currently serve as a Managing Director for the Ohio
               Department of Rehabilitation and Correction ("ODRC"). The
               Division of Parole and Community Services in [sic] under my
               supervision. I previously served as Chairperson of the Ohio
               Parole Board ("Parole Board"), from April 2006 until May of
               2015. Prior to that time period, I was appointed as a member
               of the Board in December of 2001.

               [Three] As the Chairperson of the Parole Board, I authorized
               the implementation of the 2007 version of the Ohio Parole
               Guidelines. My statement appears in the preface of the
               Guidelines. I am familiar with how the 2007 Guidelines
               applied to determine whether a parolee was suitable for
               release. As Chairperson of the Parole Board, I presided over
               parole hearings while the 2007 Guidelines were in place.

               [Four] Inmates that are eligible for parole have been
               previously convicted of crimes with indeterminate terms of
               imprisonment, prior to the enactment of Ohio Senate Bill 2
               ("SB2") on July 1, 1996. These inmates, known as "old law
               inmates," have been subject to the discretionary releasing
               authority of the Parole Board, including the time when the
               2007 Guidelines were in place and after they were rescinded
               in 2010. The 2007 Guidelines would provide a suggested
               suitable range of time for release of old law inmates with
               indefinite sentences using a two-dimensional matrix chart,
               based on an offense category and the parolee's criminal
               history. This suggested release time, however, would only
               function as a non-mandatory structured starting point in the
               decision-making process. The Guidelines would not usurp
               the Parole Board's traditional discretion and authority to
               release an inmate at any time after service of the minimum
               sentence prior to the expiration of the maximum sentence.
               The Parole Board would rely on the factors set out in O.A.C.
               5120:1-1-07 to guide its discretion.

               [Five] Not all parolees would receive a suggested suitable
               release time range using the matrix chart. An inmate was
               considered to be a parole violator recommissioned ("PVR")
No. 15AP-793                                                                    9

               if, while released on parole, he was sentenced for a new
               felony. Under Chapter Ten, Subchapter C(4)(b)(ii) of the
               2007 Guidelines, a PVR offender that was convicted for a
               definite sentence while on parole would not be assigned an
               offense category. Under this provision, an inmate convicted
               under a definite sentence under SB2 would receive a
               guideline range that would reflect the SB2 equivalent penalty
               for a post-release violation of zero-to-nine months. This was
               put in place because Senate Bill 2 established post-release
               control in which a penalty for an inmate violating post-
               release control could result in imprisonment for zero-to-nine
               months. However, this range would only serve as a starting
               point in evaluating whether an old law inmate was suitable
               for release. This suggested starting point would not take into
               account the inmate's criminal history and history of previous
               incarcerations. The Parole Board would still have the full
               discretion to consider these issues to keep an inmate
               incarcerated beyond the initial range.

               [Six] I cannot speculate as to how the Parole Board would
               have applied the 2007 Guidelines had inmate John Grayson
               appeared before it during a hearing when the 2007
               Guidelines would have been in effect. However, it is unlikely
               that the Parole Board would not have taken Grayson's
               extensive criminal history and prior incidences of
               incarceration into account.

               [Seven] The 2007 Guidelines were rescinded by the Parole
               Board as of April 1, 2010. The Ohio Parole Board Handbook
               that was later produced and published to explain the Parole
               Board hearing process clarified the removal of guideline
               ranges from the Parole Board's evaluation in determining the
               suitability of an inmate's release. Instead, the Parole Board
               would rely on the factors set out in O.A.C. 5120:1-1-07 to
               determine suitability. The factors of O.A.C. 5120:1-1-07
               guided the Board's discretion both before and after the
               guideline ranges were rescinded in 2010.

               [Eight] While I was Chairperson of the Parole Board,
               Grayson received four parole hearings since he was
               incarcerated in 2010 for drug trafficking. These occurred on
               August 9, 2010; June 13, 2011; November 2, 2012; and
               August 12, 2014. The factors of O.A.C. 5120:1-1-07 were
               evaluated by the Parole Board to determine that Grayson was
               not suitable for release. The Parole Board's rationale for
               denying parole to Grayson are reflected in the documents
               entitled "Ohio Parole Board Decision and Minutes"
No. 15AP-793                                                                        10

               ("Decision Sheets"). A common rationale identified in the
               Decision Sheets for denying parole to Grayson following each
               hearing was his extensive criminal history, which included
               five previous incarcerations. Thus, the Board denied parole
               each time partly due to the potential of Grayson to engage in
               further criminal conduct.

      {¶ 31} 13. The record also contains a copy of the Ohio Parole Board Handbook
("handbook"), dated July 2015.
      {¶ 32} The introduction to the handbook provides the historical context of the
2007 guidelines manual:
               Previously, the Board developed and used a number of tools
               to promote consistency with its release decisions because of
               the large diversity of crimes committed by inmates in the
               DRC. The tools were part of The Ohio Parole Board
               Guidelines Manual, initially developed in 1998, and
               amended in 2000 and 2007. Since Senate Bill 2 ("SB2"), the
               "truth in sentencing" legislation enacted in 1996, the once
               diverse population subject to the releasing authority of the
               Board has significantly narrowed. Most of this population is
               serving sentences for crimes that have unique factors that
               thwart any effort to generalize a suggested range of time or
               specify common risk factors. In April 2010, use of the Ohio
               Parole Board Guidelines Manual was determined to be no
               longer practical or effective, and the Board discontinued its
               application at subsequent release consideration hearings.
               Accordingly, after April 1, 2010, the Board continued to
               exercise its discretionary release authority solely by reference
               to Ohio statute and administrative code provisions. In
               addition, all parole suitability determinations are now
               decided by a majority vote of the Board. These votes are
               based upon consideration of the unique factors and variables
               of the individual case.

      {¶ 33} 14. On August 21, 2015, relator filed this mandamus action against
respondent.
      {¶ 34} 15. On September 22, 2015, respondent moved for dismissal of this action
on grounds that the complaint allegedly fails to state a claim upon which relief can be
granted. (Civ.R. 12(B)(6)). On October 9, 2015, relator opposed respondent's motion to
dismiss.
No. 15AP-793                                                                            11

       {¶ 35} 16. On February 2, 2016, the magistrate issued an order denying
respondent's motion to dismiss. The magistrate also issued a schedule for the filing of
evidence and briefs.
       {¶ 36} 17. On February 23, 2016, pursuant to the magistrate's schedule, relator
filed a document captioned "Relator's Presentation of Evidence, Pursuant to Local Rule
13(G)."
       {¶ 37} 18. On February 29, 2016, respondent filed a document captioned
"Respondent's Submission of Certified Evidence." Therein, respondent submitted the
affidavit of Cynthia Mausser aforementioned. Also, respondent submitted a letter dated
February 23, 2016 from Barb Pond who is employed by ODRC as a "Correctional Record
Sentence Computation Auditor/Records Supervisor." Pond is employed in the ODRC's
Bureau of Sentence Computation within the Division of Legal Services.                 The
February 23, 2016 Pond letter is addressed to a paralegal employed at the office of the
Ohio Attorney General.
       {¶ 38} 19. On February 29, 2016, relator filed his merit brief pursuant to the
magistrate's briefing schedule.
       {¶ 39} 20. On April 1, 2016, respondent filed its merit brief.
       {¶ 40} 21. On April 18, 2016, relator filed his reply brief.
       {¶ 41} 22. This action is now before the magistrate for the rendering of his
magistrate's decision in this action.
Conclusions of Law:
       {¶ 42} It is the magistrate's decision that this court deny relator's request for a
writ of mandamus, as more fully explained below.
       {¶ 43} This action was prompted by the decision of the United States Supreme
Court in Garner v. Jones, 529 U.S. 244 (2000), and the decision of the Sixth Circuit
Court of Appeals in Michael v. Ghee, 498 F.3d 372 (2007), which applied the holding of
Garner to a case involving an Ohio inmate.
       {¶ 44} However, in Michael, it was the 1998 Ohio Parole Board Guidelines
Manual ("1998 Guidelines Manual") that was at issue under the Ex Post Facto clause of
the United States Constitution.
No. 15AP-793                                                                        12

      {¶ 45} In Michael, the Sixth Circuit provides a summary and analysis of Garner:
               In 1998, the OAPA adopted guidelines designed to guide the
               discretion of parole officers making release determinations
               for Ohio inmates sentenced prior to July 1, 1996. The
               guidelines are similar to the guidelines used by the United
               States Parole Commission, using two factors to determine
               how long a prisoner should be incarcerated before parole: (1)
               the seriousness of the inmate's crime, and (2) the "risk of
               reoffense," based on the inmate's prior criminal conduct and
               performance on probation and parole. The presumptive
               amount of time an inmate serves is determined by finding
               the intersection on a grid between the inmate's offense
               category and his or her risk of reoffense. Parole officials,
               however, retain discretion to depart from the guidelines, but
               may not retain an inmate beyond the maximum sentence.
               See OHIO REV. CODE § 2967.03 (describing the OAPA's
               broad discretionary powers).

               ***

               In Garner, the Court considered an ex post facto challenge to
               the retroactive application of a Georgia regulation permitting
               the extension of intervals between parole violations. Id. at
               247. Under Georgia law, the state's parole board was
               required to consider inmates serving life sentences for parole
               after seven years. Id. (citing GA. CODE ANN. § 42-9-45(b)
               (1982)). At the time the Garner respondent committed his
               second offense, the parole board's regulations required
               parole reconsiderations to take place every three years. Id. In
               1985, after the respondent had begun serving his second life
               sentence, the parole board amended its rules and regulations
               to provide that "reconsideration of those inmates serving life
               sentences who have been denied parole shall take place at
               least every eight years." Id. (quoting GA. COMP. R. & REGS.,
               Rule 475-3-.05(2) (1985)). The Parole Board considered the
               respondent for parole in 1989, seven years after his 1982
               conviction. Id. After denying release, reconsideration was set
               for 1997, eight years later and consistent with Rule 475-3-
               .05(2). Id.

               The Court concluded that, on its face, the new parole board
               regulation did not pose a significant risk of lengthening the
               respondent's time of imprisonment. Id. at 256. The Court
               noted two important aspects of the new regulation. First, the
               amendment "vests the Parole Board with discretion as to
               how often to set an inmate's date for reconsideration, with
No. 15AP-793                                                                        13

               eight years for the maximum." Id. at 254 (quoting GA.
               COMP. R. & REGS., Rule 475-3-.05(2) (1985))
               ("Reconsideration . . . shall take place at least every eight
               years."). Second, the parole board's policies permit
               "expedited parole reviews in the event of a change in their
               circumstances or where the Board receives new information
               that would warrant a sooner review." Id. These
               characteristics were significant because they "permit a more
               careful and accurate exercise of the discretion the Board has
               had from the outset." Id. "The policy enables the Board to
               put its resources to better use, to ensure that those prisoners
               who should receive parole come to its attention." Id.

               ***

               After Garner, the relevant inquiry, therefore, is not whether
               the challenged parole regulation is a "law" or whether the
               guidelines present a significant risk of increasing the
               plaintiff's maximum penalty, but rather whether the new
               guidelines present a significant risk of increasing the
               plaintiff's amount of time actually served. See Garner, 529
               U.S. at 255 ("When the rule does not by its own terms show a
               significant risk, the respondent must demonstrate, by
               evidence drawn from the rule's practical implementation by
               the agency charged with exercising discretion, that its
               retroactive application will result in a longer period of
               incarceration than under the current rule."); Id. ("In the case
               before us, respondent must show that as applied to his own
               sentence the law created a significant risk of increasing his
               punishment."). See also Fletcher v. Reilly, 369 U.S. App.
               D.C. 100, 433 F.3d 867, 869-70 (D.C. Cir. 2006) (observing
               that it is clear after Garner that "the critical question in ex
               post facto challenges to retroactively applied parole/reparole
               regulations is whether, as a practical matter, the retroactive
               application creates a significant risk of prolonging an
               inmate's incarceration").

               ***

               The relevant inquiry in this case, then, is whether retroactive
               application of the 1998 Ohio guidelines creates a "sufficient
               risk of increasing the measure of punishment attached to the
               covered crimes." Garner, 529 U.S. at 250; Dyer, 465 F.3d at
               285. Plaintiffs can satisfy this burden in one of two ways.
               First, plaintiffs can establish an ex post facto violation if they
               can show that the guidelines, on their face, show a significant
               risk of increased incarceration. Garner, 529 U.S. at 255.
No. 15AP-793                                                                     14

               Second, when the guidelines do not by their own terms show
               a significant risk, plaintiffs "must demonstrate, by evidence
               drawn from the [guideline's] practical implementation by the
               agency charged with exercising discretion, that its
               application will result in a longer period of incarceration
               than under the earlier [guidelines]." Id.; see also Dyer, 465
               F.3d at 291 (observing that "even when considering
               substantive changes to parole provisions, the Supreme Court
               has relied on evidence of actual disadvantage" to the
               plaintiff). Plaintiffs need not show an actual increase in
               punishment, but rather a "sufficient risk" of increased
               punishment. Dyer, 465 F.3d at 288.

Id. at 374, 381-84.

       {¶ 46} In his brief, relator posits:
               Michael v. Ghee 498 F.3d (6th Circuit 2007),
               addresses the 1998 changes to Ohio parole guidelines, and is
               directly on point, and establishes the fact that an Ex-Post
               Facto violation has occurred in the case of the Relator herein.

               The Michael Court establishes the relevant inquiry for
               finding violations of the Ex-Post Facto Clause, "Whether
               retroactive application of the 1998 Ohio Guidelines creates a
               sufficient risk of increasing the measure of punishment
               attached to the covered crimes," Id. At 384 quoting
               Garner v. Jones, 529 U.S. 244, 250.

(Emphasis sic.) (Relator's brief at 3-4.)

       {¶ 47} In his reply brief, relator succinctly explains his position:
               In 2010, Relator Grayson was sentenced to serve a definite
               term of eight (8) months, which made him technically
               eligible for parole immediately after the eight months were
               served. Realtor [sic] claims that his parole hearing should
               have been heard under the 2007 Parole Guidelines of 0 to 9
               months, which was applicable to the Relator when he
               committed his crimes. After the Relator was sentenced, the
               applicable parole rules were amended. The amended parole
               rules eliminated the 0 to 9 months and replaced it with
               discretionary hearings that resulted in the realtor [sic]
               receiving continuances of (1) one year (18) eighteen months
               (2) two years and (2) two years.

(Relator's reply brief at 5.)
No. 15AP-793                                                                        15

      {¶ 48} In its brief, respondent argues:
               Relator cannot argue that the rescission of the * * *
               Guidelines resulted in a sufficient risk in the increase of his
               imprisonment following the rescission of the 2007
               Guidelines, when he was incarcerated in 2010. The Parole
               Board in each of the four parole hearings that occurred for
               Relator subsequent to 2010 justified denying his release due
               to the risk that Relator would engage in further criminal
               conduct, which is a factor of O.A.C. 5120:1-1-07.

               ***

               Relator points out that under the 2007 Guidelines, the S.B. 2
               equivalent penalty for Relator's conviction, for which he
               received a definite sentence, was incarceration for 0-9
               months, citing to Chapter 10, subchapter C(4)(b)(ii). * * *
               Relator is misinterpreting the 2007 Guidelines. These
               Guidelines did not mandate the release of a parole violator,
               who received a definite sentence for a new conviction, after
               nine months.

               ***

               The entire premise of Relator's argument is therefore
               incorrect. Relator argues that the Parole Board lacked
               discretion under the 2007 Guidelines to deny parole, while
               under the current system, the Board has wide-ranging
               discretion to do so. That premise is wrong because the Parole
               Board always had the discretion to deny Relator parole. The
               Guidelines were advisory, and Relator, as explained by
               Mausser, was never entitled to mandatory release after
               serving 9 months for his present incarceration. The
               maximum expiration date of Relator's sentence, due to his
               previous convictions, still ended on 2026. The Parole Board,
               before and after the existence of the 2007 Guidelines, still
               had the power to exercise their discretion, relying on the
               factors of O.A.C. 5120:1-1-07, to deny release from
               imprisonment.

(Respondent's brief at 16-18).

      {¶ 49} The magistrate agrees with respondent. Relator has failed to show that the
rescission of the 2007 guidelines manual creates a sufficient risk of increasing the
measure of punishment attached to the covered crimes.
No. 15AP-793                                                                          16

      {¶ 50} 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




                               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).
