[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Keith v. Ohio Adult Parole Auth., Slip Opinion No. 2014-Ohio-4270.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.




                         SLIP OPINION NO. 2014-OHIO-4270
        THE STATE EX REL. KEITH, APPELLANT, v. OHIO ADULT PAROLE
                           AUTHORITY ET AL., APPELLEES.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
        it may be cited as State ex rel. Keith v. Ohio Adult Parole Auth.,
                         Slip Opinion No. 2014-Ohio-4270.]
Mandamus—Parole—Errors in inmate’s records—When inmate makes credible
        allegation that record contains errors, parole board has legal duty to
        correct errors before considering inmate for parole—Writ granted.
     (No. 2013-1064—Submitted May 13, 2014—Decided October 7, 2014.)
     APPEAL from the Court of Appeals for Franklin County, No. 12AP-408,
                                   2013-Ohio-2514.
                               ____________________
        LANZINGER, J.
        {¶ 1} We reverse the judgment in this appeal of a mandamus case filed
in the Tenth District Court of Appeals by an inmate, Bernard R. Keith. Keith
requested a writ ordering respondents, the Ohio Adult Parole Authority and
                             SUPREME COURT OF OHIO




Cynthia Mausser, chair of the Ohio Parole Board (collectively, “OAPA”), to
correct erroneous information in his records regarding the number of times Keith
had been paroled. This erroneous number had appeared in a decision of the
parole board following a February 17, 2012 hearing. Keith later identified other
errors in his records. Keith also requested an order for a new parole hearing to
consider the corrected information.
       {¶ 2} Because the information regarding the number of times he had
been paroled has been corrected, and because the parole board declined to modify
its decision based on that corrected information, the court of appeals granted the
OAPA’s motion for summary judgment. However, the court below failed to
consider Keith’s additional assertions of error in his record. Having decided to
offer a prisoner a parole hearing, the OAPA has the minimal obligation to conduct
the hearing based on accurate information.
       {¶ 3} We therefore reverse.
                                       Facts
       {¶ 4} Keith is an inmate at Richland Correctional Institution serving an
indeterminate sentence. He asserts that under various rules and policies, the
OAPA and the parole board have a legal duty to maintain the records of a
prisoner’s criminal history and related matters and to use those records in the
determination of parole.
       {¶ 5} 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.
       {¶ 6} That hearing was held by video conference on February 17, 2012.
The parole board denied Keith’s 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.



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       {¶ 7} Keith sent a letter to Mausser requesting 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. 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.
       {¶ 8} On May 8, 2012, Keith filed this action in mandamus in the Tenth
District Court of Appeals, requesting that the OAPA be compelled to correct the
record and to provide Keith with a rehearing.
       {¶ 9} 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.
       {¶ 10} The OAPA responded with an affidavit by Mausser, in which she
asserted that Keith’s record had been corrected to reflect the correct number of
times he had been 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.
       {¶ 11} A magistrate was appointed by the Tenth District, and on July 12,
2012, he granted Keith’s motion to supplement the pleadings. The magistrate’s
order 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.
       {¶ 12} On the merits, the magistrate recommended that the court grant
OAPA’s motion for summary judgment and deny Keith’s motion for summary
judgment. The magistrate found that Keith had no constitutional, statutory, or
inherent right to parole and no due-process right to the correction of errors that



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appear in records used by the OAPA in parole determinations. The magistrate
further 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
has been paroled six times.
       {¶ 13} Keith filed objections to the magistrate’s decision, citing eight
errors. The Tenth District adopted the magistrate’s recommendations. The court
of appeals overruled Keith’s objections, finding that Mausser’s affidavit
established that the parole information had been corrected, that the parole board
had seen the corrected information, and that the board had voted not to modify its
previous decision or grant Keith a rehearing. The court of appeals concluded that
the board had performed the acts sought in Keith’s request for relief and that the
magistrate was correct in declaring the case moot.
       {¶ 14} Keith appealed the decision.
                                      Analysis
       {¶ 15} To prevail in this mandamus case, Keith must establish a clear
legal right to the requested relief, a clear legal duty on the part of the OAPA to
provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452,
¶ 6. Keith must prove that he is entitled to the writ by clear and convincing
evidence. Id. at ¶ 13.
       {¶ 16} Keith asserts five propositions of law. He asserts that the court of
appeals (1) failed to address all his claims, (2) incorrectly determined the issues
for review, (3) engaged in a flawed analysis of the issues, (4) abused its discretion
in granting the OAPA’s motion for summary judgment, and (5) abused its
discretion in assessing costs to Keith.
       {¶ 17} In his first proposition of law, Keith asserts that the court of
appeals failed to consider all his claims as presented. Keith is correct; the court of
appeals granted his motion to supplement the pleadings, including the complaint.



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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.
       {¶ 18} Keith also asserts that the procedure used during his parole hearing
was improper in that the information used was erroneous, and the OAPA should
have known it was incorrect.
       {¶ 19} 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, 690
N.E.2d 887 (1998). Because there is no such right, a prisoner who is denied
parole 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, 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.
       {¶ 20} 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.      In that case, the OAPA used a formula for projecting an
inmate’s earliest possible release on parole. The formula relied on two numbers,
one of which reflected the inmate’s “offense category score.” The inmates in
Layne had been assigned incorrect offense category scores, resulting in potential
release dates that were substantially later than the dates that would have resulted
from the correct scores.       We held that by assigning each inmate a score
corresponding to an offense more serious than the offense for which he was
actually convicted, the OAPA breached the state’s plea agreement with the
inmate. Id. at ¶ 25.



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       {¶ 21} While none of the errors alleged here breached a plea agreement as
they did in Layne, 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.
       {¶ 22} Here, the language at issue involves the procedures relating to
parole of a prisoner. The regulation setting forth the procedure for parole requires
that in deciding on release of an inmate, the parole board is to consider numerous
factors, including:


               (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;



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                                January Term, 2014




               (7) Written or oral statements by the inmate, other than
       grievances filed under rule 5120-9-31 of the Administrative Code.


Ohio Adm.Code 5120:1-1-07(B). As in Layne, this language “ought to mean
something.”
       {¶ 23} 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.
       {¶ 24} Our decision today does not overrule the holding in Henderson, 81
Ohio St.3d 267, 690 N.E.2d 887, and similar cases. Keith and other prisoners still
have “no constitutional or statutory right to parole.” Id. at 268. See also State ex
rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d 1128 (1994). A
state may set up a parole system, but it has no duty to do so. Greenholtz v.
Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60
L.Ed.2d 668 (1979). Having established a parole system, the state may design
that system to be entirely discretionary, and the state “may be specific or general
in defining the conditions for release and the factors that should be considered by
the parole authority.” Id. at 8. Moreover, there need be no “prescribed or defined
combination of facts which, if shown, would mandate release on parole.” Id. As
mentioned above, Ohio’s system is entirely discretionary and creates no
expectation of parole and no due-process right to parole itself.
       {¶ 25} However, having 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



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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.
       {¶ 26} 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.
       {¶ 27} 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.
       {¶ 28} 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.
       {¶ 29} 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.



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                                January Term, 2014




       {¶ 30} 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.
       {¶ 31} To the extent this decision conflicts with our decision in State ex
rel. Hattie v. Goldhardt, 69 Ohio St.3d 123, 630 N.E.2d 696, that case is hereby
overruled. However, we emphasize as we did in Layne, that the OAPA, when
considering an inmate for parole, still retains its full discretion to consider
anything relating to the prisoner’s record and circumstances, as well as any other
factors the OAPA deems relevant.
                                    Conclusion
       {¶ 32} 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 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.
                                                               Judgment reversed,
                                                                 and writ granted.




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          O’CONNOR, C.J., and PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
          O’DONNELL, J., dissents without opinion.
                               ____________________
          Bernard R. Keith, pro se.
          Michael DeWine, Attorney General, and Gene D. Park, Assistant Attorney
General, for appellees.
                            _________________________




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