[Cite as State ex rel. Thomas v. Ohio Adult Parole Auth., 2018-Ohio-3685.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Quarnail A. Thomas,                  :

                 Relator,                              :

v.                                                     :                        No. 17AP-720

The Ohio Adult Parole Authority et al.,                :                     (REGULAR CALENDAR)

                 Respondents.                          :


                                            D E C I S I O N

                                   Rendered on September 13, 2018


                 Quarnail A. Thomas, pro se.

                 Michael DeWine, Attorney General, and George Horvath, for
                 respondent.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.
        {¶ 1} Quarnail A. Thomas has filed this action in mandamus seeking a writ to
compel the Ohio Adult Parole Authority ("OAPA") to vacate its decision denying him parole
and to compel the OAPA to grant him parole.
        {¶ 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. The magistrate collected
evidence and received the briefs filed by the parties. The magistrate then issued a
magistrate's decision, appended hereto, which includes detailed findings of fact and
conclusions of law. The magistrate's decision includes a recommendation that we deny the
request for a writ.
No. 17AP-720                                                                               2


       {¶ 3} Thomas has filed objections to the magistrate's decision. Counsel for the
OAPA has filed a memorandum in response. The case is now before the court for a full
independent review.
       {¶ 4} Thomas has failed to demonstrate that he has a clear legal right to have the
parole decision overturned. He has not provided clear and convincing evidence that he was
denied parole based on some sort of impermissible discrimination. His argument seems to
be that people less deserving of parole have received parole while he has been denied parole.
       {¶ 5} We, as a court of appeals, are not in a position to evaluate the comparative
granting and denying of parole. We especially will not do such an evaluation based on one
or more newspaper articles.
       {¶ 6} Our magistrate properly addressed the pertinent issues. The objections to
the magistrate's decision are overruled. We adopt the findings of fact and conclusions of
law in the magistrate's decision. The request for a writ of mandamus is denied.
                                         Objections overruled; writ of mandamus denied.

                              KLATT and SADLER, JJ., concur.
No. 17AP-720                                                                              3


                                   APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. Quarnail A. Thomas,        :

              Relator,                       :

v.                                           :                     No. 17AP-720

The Ohio Adult Parole Authority, et al.,     :               (REGULAR CALENDAR)

              Respondents.                   :


                         MAGISTRATE'S DECISION

                               Rendered on April 27, 2018


              Quarnail A. Thomas, pro se.

              Michael DeWine, Attorney General, and George Horvath, for
              respondent.


                                     IN MANDAMUS

       {¶ 7} In this original action, relator, Quarnail A. Thomas, an inmate of the
Chillicothe Correctional Institution ("CCI"), requests a writ of mandamus ordering
respondent the Ohio Adult Parole Authority ("OAPA"), to vacate its March 16, 2016
decision denying him parole, and to enter a decision granting him parole.
Findings of Fact:
       {¶ 8} 1. On October 10, 2017, relator, a CCI inmate, filed a complaint (petition) for
a writ of mandamus against respondent.
       {¶ 9} 2. Appended to the complaint is a completed OAPA form captioned "Ohio
Parole Board Decision and Minutes" that relates to a March 16, 2016 parole board hearing
on the matter of parole for inmate Quarnail A. Thomas.
No. 17AP-720                                                                                  4


       {¶ 10} 3. The OAPA form is divided into seven sections. The first section requests
a listing of offenses of conviction. For relator, the offenses of conviction are "2903.01
Aggravated murder 1 counts; 2907.02 Rape 2 counts."
       {¶ 11} 4. Section 3(A) asks the parole board to indicate by marking a box whether
"[t]he mandatory factors indicated in AR 5120:1-1-07 were considered." The box is marked
to indicate that the factors were considered.
       {¶ 12} 5. Section 3(B) asks the parole board to provide a "Rationale" for the
decision. It also requests "specific factors relevant to the offense and offender." In the space
provided, the parole board states:
              Inmate has served over 327 month[s] for these heinous
              offenses of extreme violence. Inmate has had deplorable
              institutional conduct since his incarceration. Inmate has
              engaged in some risk relevant programming and self-help
              guides. Inmate could use additional risk relevant
              programming to address his risk factors associated with both
              his crimes of conviction and his conduct. Inmate's time served
              does not outweigh the inmates, heinous offense, poor
              conduct. Inmate release at this time would not be in the best
              interest of society and would place undue risk on the
              community.

       {¶ 13} 6. Section 4 of the OAPA form asks the parole board to mark a box, as
appropriate, aside pre-printed reasons supporting the decision to deny parole. On the
form, the parole board marked the boxes aside the following pre-printed statements:
              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.

              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.

       {¶ 14} 7. Section 5oftheOAPA form asks the parole board to list the "Time Served to
Date." In the space provided, 328 months are listed.
No. 17AP-720                                                                              5


        {¶ 15} Section 5 of the OAPA form also asks the parole board to state the number
of months to the next hearing date. In the space provided, 119 months are listed. The
"Central Office Board Review" recommends that further review be continued to February 1,
2026.
        {¶ 16} 8. Respondent stipulates to the above-described "Ohio Parole Board
Decision and Minutes" that is appended to relator's complaint.
        {¶ 17} 9. According to the complaint:
               Relator raises both Due Process and Equal Protection
               argument[s] herein, because the Decision mentioned above
               show[s] clear ambiguity in the decision making process by the
               Ohio Adult Parole Board and those decision[s] reek of
               discrimination couched in terms of Black and White.

               It appears that White Inmates with more egregious crimes are
               paroled before the expiration of their time and a long way
               from the minimum eligibility requirements, where inmates
               like relator, are denied parole based upon factors when
               reviewed will show that the claimed deplorable institutional
               conduct is falsely represented.

        {¶ 18} 10. In his complaint, relator endeavors to compare his situation with respect
to parole with two alleged former inmates of the Ohio prison system. Those two former
inmates are identified by relator as Richard Brand and Gregory Scott Winship.
        {¶ 19} 11. With respect to Richard Brand, relator alleges in his complaint:
               Mr. Brand was seen by the Adult Parole Board in February
               of 2010, was considered at that time for Parole after being
               denied 3 times prior.

               Mr. Brand was found guilty and sentenced in 1994 to 15
               years-to-Life Consecutively for five counts of Murder.

               Mr. Brand was Parole[d] in March of 2010, after having
               served 16 years.

               Statements made by The Adult Parole Board:

               "Mr. Brand made positive Institutional adjustment and has
               extensive community support for his release on parole at this
               time."
No. 17AP-720                                                                             6


(Emphasis sic.)

       {¶ 20} 12. In support of his allegations regarding Richard Brand, relator appends to
his complaint a copy of a news article from "Cleveland.com" dated February 10, 2010.
       {¶ 21} 13. According to the copy of the appended news article consisting of 11
paragraphs, the news article states in part:
              The one-time disciple who testified against his leader Jeffrey
              Lundgren about the Kirtland cult killings is expected to be
              released from prison as early as March 29.

              Richard Brand, 46, has only to file a plan detailing where he
              will live once released. When that plan is approved, he will be
              released from prison on or after March 29, a spokeswoman for
              the Ohio Parole Board said.

              He will have served 16 years in prison. He was sentenced in
              1994 to 15-years-to-life after he was convicted of five counts
              of murder.

              ***

              Brand assisted Lundgren in killing the Averys. He later
              testified against Lundgren, providing details of the murders
              that helped convict the cult leader and others, in exchange for
              a chance at parole one day.

              ***

              Brand was sentenced in 1994[,] had been denied parole three
              times in the past. There was a full board hearing on Jan. 27
              during which three members of the victims' family spoke in
              opposition to the release.

              In granting the parole, the Ohio Parole Board stated that
              Brand had "made a positive institutional adjustment and has
              extensive community support for his release on parole at this
              time."

       {¶ 22} 14. With respect to former inmate Gregory Scott Winship, relator alleges in
his complaint:
              Mr. Winship, was convicted to 15-years-to-Life, for Counts 6,
              7, 8, 9, and 10, of his Indictment, and those Conviction[s]
              were to [be] served Consecutively to each other.
No. 17AP-720                                                                                 7



               Mr. Winship also has been paroled by the Ohio Adult Parole
               Board.

(Emphasis sic.)

       {¶ 23} 15. In support of his allegations regarding Mr. Winship, relator appends a
copy of "Docket Information" from the Lake County Clerk of Courts relating to case
No. 90CR-18.
       {¶ 24} 16. Under the heading "Conclusion," the complaint presents four
paragraphs. The second paragraph under "Conclusion," states:
               In support of his equal protection contentions, relator's
               complaint alleges that defendants systematically treated
               persons of similar situations dissimilarly, to the extent that he
               believes that these questions assert that he was not given a
               meaning[ful] hearing, but if the Respondents can show which
               [criteria] they used in the aforementioned cases, then relator,
               would yield to those explanations, but relator believes that
               there are no viable explanation[s] that can be stated.

       {¶ 25} 17. On November 9, 2017, respondent filed its answer to the complaint.
       {¶ 26} 18. On November 16, 2017, the magistrate issued an order setting forth a
schedule for the filing of evidence and briefs. The order provided that the stipulated or
certified evidence shall be filed on or before December 4, 2017, and that relator's brief shall
be filed on or before December 9, 2017.
       {¶ 27} 19. On December 4, 2017, respondent moved for an extension of time to file
the stipulation of evidence on or before January 3, 2018. The magistrate granted the
motion and also adjusted the briefing schedule such that relator's brief shall be filed on or
before January 18, 2018.
       {¶ 28} 20. On December 11, 2017, relator filed a one-page document captioned
"Judicial Notice." In the document, relator requests that this court take judicial notice that
relator "is submitting the Evidence in this matter late due to circumstances beyond his
control."
       {¶ 29} 21. Also on December 11, 2017, relator filed a document which is captioned
in part as "Presentation of Evidence."
No. 17AP-720                                                                                 8


       {¶ 30} The document is, in actuality, a motion that this court accept an exhibit
appended to the motion. The motion states:
              Relator prays that this Honorable Court accepts the
              documentation from accounts given in Newspaper Articles
              referring to recent Parole Decision, decisions that relator a
              State prisoner would not be privy to, that are maintained in
              other inmate[']s records.

              Relator prays that this submitted evidence will suffice at this
              time, as preliminarily acceptable evidence.

       {¶ 31} The exhibit appended to relator's December 11, 2017 motion consists of two
news articles. The first news article is a two-page article published by the Akron Beacon
Journal on April 30, 2014. The news article is captioned "Troy Busta recounts death of
Portage County woman; attorneys for Randy Resh, Bob Gondor attempt to impeach
testimony." That news article consists of ten paragraphs. The news article states in part:
              Troy Busta, who was sent to prison 25 years ago in the
              strangulation death of a Randolph Township woman, gave a
              detailed description Wednesday about how the slaying
              occurred during a violent struggle in which two other
              accomplices were involved.

              Busta's testimony came on the eighth day of a Portage County
              civil trial that could determine the innocence of alleged
              accomplices Randy Resh and Bob Gondor.

              They were exonerated for the murder following a 2007 retrial,
              but if they do not win in this phase, they can't take the final
              step in their civil suit: arguments for possible monetary
              damages in the Ohio Court of Claims for wrongful conviction.

       {¶ 32} The second news article appended as an exhibit to relator's December 11,
2017 motion is a one-page news article published by the "Record-Courier" on November 22,
2017. That news article states:
              Troy J. Busta was 21 when he entered the Ohio prison system
              in March 1989 ─ sentenced to 15 years to life in prison for the
              1988 murder of a Randolph woman.

              The Hiram Township man will be 50 years old in April 2018
              when he is finally released, the Ohio Parole Board recently
              announced.
No. 17AP-720                                                                            9



              In one of the most controversial murder cases in Portage
              County history, Busta has spent the last 28 years in prison for
              a crime that two other Portage County men were convicted of,
              based in part on his testimony.

              Busta claimed he and Robert Gondor helped hold Connie
              Nardi down while Randy Resh choked her to death in August
              1988. Despite that, both Resh and Gondor are now free men,
              having been declared "actually innocent" by a judge in 2014.

              Attorney Oliver Koo, who represented Busta before the parole
              board, confirmed his client will be released next year.
              However, he said he had "no comments other than being
              grateful to the parole board" for approving Busta's release.

              Portage County Prosecutor Victor Vigluicci said his office sent
              a letter to the parole board in support of the Busta's release.

              "We've done that probably the last couple of times" Busta has
              come up for parole, Vigluicci said.

       {¶ 33} 22. On December 15, 2018, the magistrate issued an order that respondent
file a written response to relator's request to submit the news articles as evidence.
       {¶ 34} 23. On January 3, 2018, respondent filed a document captioned
"Respondent's Response to Relator's Submission of Evidence and Respondent's
Submission of Statement of Position." Respondent states:
              Thomas asks the Court to rely on newspaper articles that in all
              probability would never meet the threshold evidentiary test
              for evidence under Ohio Rules of Evidence. Respondents
              contend these matters are hearsay ─ if not hearsay within
              hearsay and there is no showing of reliability. Respondents do
              not stipulate to these exhibits.

       {¶ 35} 24. On January 22, 2018, relator filed a document captioned "Relator's
Opposition to Respondents Response to Relator's Submission of Evidence and
Respondents Submission of Statement of Position." In the document, relator states:
              The real issue that the Res[p]ondent is not answering or bring
              to the [Court's] attention, is the abuse of power that they are
              exercising in Parole decisions, at face value, the Adult Parole
              Board's decisions are invariably seeming to only see white
              faces as having value for paroles, where other inmates in
No. 17AP-720                                                                                   10


                 lesser conviction conditions are being systematically being
                 denied opportunities for paroles, this usurpation of power
                 that the Ohio Adult Parole Authority is exercising runs afoul
                 of authority delegated to them by the Legislature of Ohio.

                 Where Courts have sentenced inmates to extremely long
                 sentences and the Parole Board disregards those sentences,
                 and Parole those inmates but deny other similarly or less
                 situated, begs the question of how the decisions are being
                 determined, this is the question that arises in this Complaint
                 for Writ of Mandamus, to have the Respondent answer that
                 question, and determine if all inmates are receiving
                 meaningful hearings.

          {¶ 36} 25. Earlier, on January 19, 2018, relator filed his merit brief which he calls a
"jurisdictional brief."
          {¶ 37} 26. On February 5, 2018, respondent filed its merit brief.
          {¶ 38} 27. On April 11, 2018, this action was submitted to the magistrate for his
magistrate's decision on the evidence and briefs filed in this action.
Conclusions of Law:
          {¶ 39} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
          {¶ 40} In his brief, relator sets forth what he calls the "issue for review." Relator
states:
                 To succeed on a claim challenging a parole release decision
                 and the broad discretion afforded a parole authority for
                 purposes of establishing a violation of equal protection, a
                 complaining party must show "exceptionally clear proof" that
                 the parole board abused its discretion. Specifically, a prisoner
                 must show "purposeful discrimination" and then establish
                 that the discrimination had a discriminatory effect on him.

(Relator's Brief at 3.)

          {¶ 41} Relator's statement of the "issue for review" is apparently taken from this
court's decision in Mayrides v. Ohio State Parole Auth., 10th Dist. No. 97APE08-1035
(Apr. 30, 1998). In Mayrides, ruling on the eighth assignment of error, this court states:
                 To succeed on a claim challenging a parole release decision
                 and the broad discretion afforded the Parole Authority for
No. 17AP-720                                                                             11


              purposes of establishing a violation of equal protection, a
              complaining party must show 'exceptionally clear proof' that
              the board abused its discretion. (Citations omitted.)
              Specifically, the prisoner must show 'purposeful
              discrimination' and then establish that the discrimination had
              a discriminatory affect on him." Nedea v. Voinovich, 994 F.
              Supp. 910, 1998 U.S. Dist. LEXIS 2057 (N.D.Ohio 1998).
              Thus, "an equal protection plaintiff cannot prevail if the
              defendants have legitimate, non-discriminatory reasons for
              their actions." Id., citing Hunter v. Underwood (1985), 471
              U.S. 222, 227-228, 105 S. Ct. 1916, 85 L. Ed. 2d 222.

       {¶ 42} This action should be decided on narrow grounds. In respondent's brief,
respondent argues:
              Thomas asks the Court to rely on newspaper articles that in all
              probability would never meet the threshold evidentiary test
              for evidence under Ohio Rules of Evidence. Respondents
              contend these matters are hearsay ─ if not hearsay within
              hearsay and there is no showing of reliability. Respondents do
              not stipulate to these exhibits.

(Respondent's Brief at 8.)

       {¶ 43} Loc.R. 13(G) of the Tenth Appellate District, captioned "Presentation of
Evidence," provides:
              To facilitate the consideration and disposition of original
              actions, counsel should, whenever possible, file an agreed
              statement of facts.

              Unless the parties enter into a stipulation concerning the
              evidence to be submitted to the Court and attach to the
              stipulation legible copies of such evidentiary materials
              relevant to the determination of the action, each party shall
              file with the Court legible certified copies of evidentiary
              materials the party feels relevant to the issues before the
              Court.

       {¶ 44} The copies of news articles that relator endeavors to submit are not evidence
on which this court can rely.
       {¶ 45} Respondent has not stipulated to the news articles as evidence to be
considered in this action. Nor are the news articles "certified copies of evidentiary
No. 17AP-720                                                                               12


materials." Thus, relator has failed to submit the evidentiary materials he would need to
support any viable theory for relief in mandamus.
       {¶ 46} In mandamus, the relator has the burden to establish a clear legal right to the
requested relief, a corresponding clear legal duty on the part of the respondent, 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, ¶ 16.
       {¶ 47} The standard of proof in mandamus cases is proof by clear and convincing
evidence. State ex rel. Stevens v. Indus. Comm., 10th Dist. No. 10AP-1147, 2012-Ohio-
4408, ¶ 7, citing State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 55.
       {¶ 48} Accordingly, 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).
