[Cite as State ex rel. Newell v. Adult Parole Auth., 2019-Ohio-1138.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State ex rel. Timothy Newell,                            :

                 Relator,                                :

v.                                                       :                 No. 18AP-527

Ohio Adult Parole Authority,                             :              (REGULAR CALENDAR)
Andre Imbrogno, Chairman,
                                                         :
                 Respondent.
                                                         :



                                             D E C I S I O N

                                      Rendered on March 28, 2019


                 Timothy Newell, pro se.

                 [Dave Yost], Attorney General, and Kelly N. Brogan, for
                 respondent.


                                    IN MANDAMUS
                        ON OBJECTIONS TO MAGISTRATE'S DECISION

KLATT, P.J.

        {¶ 1} Relator, Timothy Newell, commenced this original action in mandamus in
the Ninth District Court of Appeals, Lorain County, Ohio, seeking an order compelling
respondent, the Ohio Adult Parole Authority ("OAPA"), to correct allegedly inaccurate
information in his parole records and to order the OAPA to grant him a new parole hearing.
        {¶ 2} Relator's complaint sets forth three separate claims. By journal entry dated
May 23, 2017, the Ninth District Court of Appeals dismissed relator's first two claims
pursuant to Civ.R. 12(B)(6) for failure to state a claim. The parties then filed cross-motions
for summary judgment that addressed relator's remaining third claim for relief. Relator
No. 18AP-527                                                                                  2

also filed a motion requesting reconsideration of the dismissal of his first and second claims
for relief.
        {¶ 3} Without ruling on the pending cross-motions for summary judgment or
relator's motion for reconsideration, the Ninth District concluded that proper venue for the
action was in Franklin County. Therefore, the Ninth District entered an order transferring
the case to this court.
        {¶ 4} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate addressed the three claims
set forth in relator's complaint, even though the Ninth District had previously dismissed
the first two claims. The magistrate found that (1) the allegedly inaccurate information
referenced in Count 1 (kidnapping convictions) was not inaccurate; (2) the allegedly
inaccurate information referenced in Count 2 (his aggregate sentence) was not inaccurate;
and (3) the allegedly inaccurate information referenced in Count 3 (relator's past
participation in risk relevant programming) was corrected in the OAPA's May 7, 2018
Decision and Minutes. Therefore, the magistrate has recommended that we grant OAPA's
motion for summary judgment and deny relator's request for a writ of mandamus.
        {¶ 5} Relator has filed objections to the magistrate's decision. In his first objection,
relator argues that the magistrate failed to recognize that the Ninth District previously
dismissed his first two claims and that the pending cross-motions for summary judgment
addressed only his third claim. Relator also argues that the magistrate should have
addressed his pending motion for reconsideration of the decision dismissing his first and
second claims for relief. Therefore, relator contends that the magistrate erred.
        {¶ 6} We agree with relator that the magistrate does not expressly mention the
Ninth District's prior dismissal of relator's first and second causes of action nor relator's
motion for reconsideration of that decision. Nevertheless, we find no merit to relator's first
objection.
        {¶ 7} As relator recognizes, the Ninth District's dismissal of his first and second
claims for relief was interlocutory in nature. Therefore, the magistrate could, and did,
revisit the issues raised in OAPA's motion to dismiss the first and second claims, relator's
No. 18AP-527                                                                                         3

response thereto, and his motion for reconsideration of the dismissals, all of which are part
of the record.
       {¶ 8} As noted by the magistrate, a jury found relator guilty of multiple counts of
rape and kidnapping as well as other serious offenses in multiple criminal cases. On appeal,
an appellate court found that the kidnapping and rape convictions were allied offenses.
Therefore, relator was sentenced on the multiple rape counts but not on the multiple
kidnapping counts. The kidnapping convictions were subsequently vacated because they
were allied offenses.
       {¶ 9} In his first claim for relief, relator challenged the OAPA's characterization of
the kidnapping counts. However, relator has filed a copy of the most recent parole board
Decision and Minutes from his May 7, 2018 hearing. This decision listed relator's multiple
convictions but expressly noted that the kidnapping counts were "inactive." Therefore, the
OAPA recognized that the kidnapping counts were treated differently from the list of
convictions. We agree with the magistrate that relator has not clearly shown that OAPA's
listing of the kidnapping counts as "inactive" was inaccurate, and we dismiss relator's first
claim for relief for failure to state a claim.
       {¶ 10} In relator's second claim for relief, he alleged that the OAPA misstated his
aggregate sentence in its April 15, 2013 Decision and Minutes denying him parole when it
showed his aggregate sentence as 107-375 years. However, relator also filed the OAPA
Decision and Minutes from its May 7, 2018 parole hearing that indicated relator's aggregate
sentence was 15-375 years. After reviewing the June 26, 1996 judgment and sentencing
entry in Cuyahoga C.P. Nos. 040130/040174 as well as the sentencing entry in Cuyahoga
C.P. No. CR44231, both of which are attached to relator's complaint, we find that the OAPA
has corrected the misstatement in its April 15, 2013 Decision and Minutes and accurately
stated relator's aggregate sentence in its Decision and Minutes from his May 7, 2018 parole
hearing (15-375 years).1 Therefore, we dismiss relator's second claim for relief for failure to
state a claim.




1 As noted by the magistrate, former R.C. 2929.41 provided that consecutive terms of imprisonment shall

not exceed the aggregate minimum term of 15 years when the consecutive terms imposed are felonies other
than aggravated murder or murder.
No. 18AP-527                                                                                4

       {¶ 11} Because we find that relator's first and second claims for relief are properly
dismissed, we overrule relator's first objection.
       {¶ 12} In his second objection, relator argues that the magistrate erred by finding
that the OAPA correctly listed his aggregate sentence as 15-375 years because
"[r]espondents have no authority to execute a sentence of '15-375 years' * * * that has not
been ordered to be served in a prison institution, by the trial court's sentencing journal
entry." It appears relator is attacking the validity of his underlying prison sentence—not
whether the OAPA has accurately stated his aggregate sentence in its records. This claim is
not alleged in relator's complaint. In addition, relator raised this argument in a previous
appeal and the Eighth District Court of Appeals rejected it. State ex rel. Newell v. Gaul, 8th
Dist. No. 98326, 2012-Ohio-4068.         For these reasons, we overrule relator's second
objection.
       {¶ 13} Following an independent review of this matter, we adopt those portions of
the magistrate's findings of fact and conclusions of law that are not inconsistent with this
decision. We (1) dismiss relator's first and second claims for relief for failure to state a
claim; and (2) grant summary judgment in favor of OAPA on relator's third claim for relief.
Relator's request for a writ of mandamus is denied.
                                                Writ of mandamus denied; case dismissed.

                          BRUNNER and McGRATH, JJ., concur.

              McGrath, J., retired, of the Tenth Appellate District, assigned
              to active duty under authority of Ohio Constitution, Article IV,
              Section 6(C).
No. 18AP-527                                                                              5

                                       APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel. Timothy Newell,            :

             Relator,                        :

v.                                           :                    No. 18AP-527

Ohio Adult Parole Authority,                 :               (REGULAR CALENDAR)
Andre Imbrogno, Chairman,
                                             :
             Respondent.
                                             :




                         MAGISTRATE'S DECISION

                            Rendered on September 13, 2018



             Timothy Newell, pro se.

             Michael DeWine, Attorney General, and Kelly N. Brogan, for
             respondent.


                               IN MANDAMUS
                     ON MOTIONS FOR SUMMARY JUDGMENT

      {¶ 14} Relator, Timothy Newell, filed this original action requesting this court issue
a writ of mandamus ordering respondent, the Ohio Adult Parole Authority ("OAPA"), to
correct allegedly incorrect information in his parole records, and to order respondent to
provide him with a new parole hearing.
Findings of Fact:
      {¶ 15} 1. Relator is an inmate currently incarcerated at the Grafton Correctional
Institution in Lorain County following convictions for rape, aggravated robbery, gross
No. 18AP-527                                                                                6

sexual imposition, felonious sexual penetration, felonious assault, escape, and possession
of criminal tools.
       {¶ 16} 2. On September 6, 2016, relator filed this mandamus action in the Lorain
County Court of Appeals.
       {¶ 17} 3. Ultimately finding that it did not have jurisdiction in mandamus to hear
relator's mandamus case, the matter was transferred to this court and refiled June 29, 2018.
       {¶ 18} 4. Relator asserts the OAPA abused its discretion as follows: (1) by indicating
that he had been convicted of kidnapping when that portion of the conviction had been
vacated; (2) relying on inaccurate information regarding his sentence; and (3) failing to
note that he had engaged in risk relevant programming.
       {¶ 19} 5. Respondent had filed a motion to dismiss in Lorain County and both
parties filed motions for summary judgment.
       {¶ 20} 6. Relator attached relevant records to his petition for a writ of mandamus,
both parties attached relevant documents to their motions for summary judgment, and
relator recently filed the May 7, 2018 decision of respondent again denying him parole.
       {¶ 21} 7. The matter is before the magistrate on the parties' motions for summary
judgment.
Conclusions of Law:
       {¶ 22} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's motion for summary judgment and grant the motion of respondent
for summary judgment.
       {¶ 23} 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).
       {¶ 24} 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
No. 18AP-527                                                                                7

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).
       {¶ 25} Relator relies on 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, to assert that he has a clear
legal right to a meaningful parole consideration hearing based on correct information, that
respondent has a corresponding clear legal duty to correct errors and falsehoods from the
record, and conduct a new hearing without consideration of false information. In that case,
Bernard R. Keith, an inmate, requested a writ of mandamus ordering OAPA and Cynthia
Mausser, former Chair of the Ohio Parole Board, to correct erroneous information in his
records. In determining that a writ of mandamus should issue, the Keith court explained:
              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
              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. 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
No. 18AP-527                                                                 8

           convicted, the OAPA breached the state's plea agreement with
           the inmate. Id. at ¶ 25.

           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.

           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;

           (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."
No. 18AP-527                                                                    9

           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.

           Our decision today does not overrule the holding in
           Henderson, 81 Ohio St.3d 267, 1998 Ohio 631, 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,
           1994 Ohio 39, 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.

           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 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.

           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,
No. 18AP-527                                                                                10

                 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.

Id. at 378-80.

       {¶ 26} Pursuant to the decision in Keith, the magistrate must consider whether
relator has made a showing that there may be substantive errors in the record that may
influence OAPA's consideration of parole. The magistrate finds that relator has not made
that showing.
       {¶ 27} Relator first asserts the OAPA abused its discretion by considering that he
had been guilty of kidnapping. Relator was originally charged with several counts of
kidnapping as well as several counts of rape. The jury found relator guilty of both
kidnapping and rape, and the trial court sentenced him accordingly. On appeal, the
appellate court found that the counts of kidnapping and rape were allied offenses and, as
such, relator could only be sentenced for one of them and not both. The matter was
remanded to the trial court for resentencing. Relator argues that, in light of the above,
respondent cannot consider the fact that he kidnapped his victims. The magistrate
disagrees.
       {¶ 28} It is undisputed that relator restrained his victims of their liberty in order to
rape them. The fact that kidnapping them was incidental to raping them does not mean
that he did not restrain them of their liberty; it only means he cannot be sentenced for both
kidnapping and rape. Relator's assertions do not reflect the court's rationale in Keith as the
information is not inaccurate.
No. 18AP-527                                                                               11

       {¶ 29} Relator next asserts the OAPA did not properly consider his sentence.
Specifically, relator points out that the parole board decision and minutes from the April 15,
2013 hearing, show his aggregate sentence as follows: "107-375 years."
       {¶ 30} Former R.C. 2929.41provided that consecutive terms of imprisonment shall
not exceed the aggregate minimum term of 15 years when the consecutive terms imposed
are for felonies other than aggravated murder or murder. The Ohio Department of
Rehabilitation and Correction records properly show that relator's sentence is 15 to 375
years. The parole records accurately reflect the minimum number of years to which the
trial court actually sentenced relator. As such, the information is not inaccurate.
       {¶ 31} Last, relator argues that, under respondent's rationale for denying him parole
in 2013, respondent stated: "Offender Newell has not engaged in risk relevant programing
to reduce his risk of re offending." Relator asserts he did engage in some relevant
programming in 1992, 1993, and 2002. Respondent asserts it had considered the relevant
programming in which relator had participated when his parole was considered and denied
earlier. Respondent indicates that its records at the 2013 parole hearing reflect that, in the
time since he had last been denied parole, relator had not participated in any relevant
programming. Relator does not assert that he has participated in any programming since
2002. As such, between 2002 and 2013 (nine years), relator did not participate in any
relevant programming which may have positively impacted the chance that the parole
board would grant him parole. The magistrate finds that relator's arguments do not rise to
the level considered in Keith and do not warrant the granting of a writ of mandamus.
       {¶ 32} After this case was transferred to this court, relator filed a copy of the most
recent parole board decision and minutes from the May 7, 2018 hearing. Those records
now indicate that relator's aggregate sentence is 15 to 375 years which reflects the impact
of R.C. 2929.41and also indicate that relator "has engaged in some risk relevant
programing." As such, the minutes do now reflect that relator had engaged in some relevant
programming during the term of his incarceration; however, that does not change the fact
that he had not engaged in any recently.
       {¶ 33} The magistrate finds that this court should deny relator's request for a writ of
mandamus for two reasons: (1) the statements in the parole board minutes do not rise to
the level of inaccuracies contemplated by Keith and do not warrant the issuance of a writ of
No. 18AP-527                                                                               12

mandamus, and (2) to the extent that relator would have continued to perceive that there
were inaccuracies in the parole board minutes, the parole board has modified those findings
in a manner that should allay any concerns relator has that the information is inaccurate.
       {¶ 34} Based on the foregoing, it is this magistrate's decision that relator's motion
for summary judgment should be denied while respondent's motion for summary judgment
should be granted. Finding that relator has failed to demonstrate that he has a clear legal
right and that respondent has a clear legal duty, he is not entitled to the relief he requests
and this court should deny his 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).
