State ex rel. McDermott v. Ohio Adult Parole Auth.

[Cite as State ex rel. McDermott v. Ohio Adult Parole Auth., 2017-Ohio-754.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. John P. McDermott, :

Relator, :

v. : No. 16AP-208

Ohio Adult Parole Authority, : (REGULAR CALENDAR)

Respondent. :

D E C I S I O N

Rendered on March 2, 2017

On brief: John P. McDermott, pro se.

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

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
{¶ 1} Relator John P. McDermott, who is currently incarcerated for the murder of
Karen Barnes in 1980, initiated this original action requesting that this court find that
respondent Ohio Adult Parole Authority ("OAPA" or "parole board") considered incorrect
information at his last parole hearing, and order OAPA to provide him a new parole
hearing where he will receive meaningful review of his eligibility for parole without OAPA
considering inaccurate information.
{¶ 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. The magistrate
determined that McDermott failed to establish by clear and convincing evidence that
No. 16AP-208 2

OAPA had considered inaccurate evidence and denied him parole based on that
inaccurate evidence. Thus, the magistrate recommends this court deny McDermott's
request for a writ of mandamus.
{¶ 3} McDermott has filed objections to the magistrate's decision. Therefore, we
must independently review the decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).
McDermott presents six objections, which we will address in turn.
{¶ 4} McDermott's first and second objections concern the magistrate's factual
findings. First, McDermott argues the magistrate failed to acknowledge that the
documents he attached to his complaint were verified. This argument is unpersuasive.
The magistrate did not reject McDermott's documents as not being what he purported
them to be. Before the parties submitted their merit briefs, the magistrate indicated that
she accepted as evidence McDermott's certified exhibits attached to his complaint.
Additionally, in her decision recommending this court deny McDermott's requested writ,
the magistrate stated that "[a]side from the documents relator attached as exhibits to his
complaint, relator did not present any additional evidence." (Mag. Decision at ¶ 31.)
Thus, the magistrate reviewed the substance of McDermott's submitted documents to
determine whether they provide clear and convincing evidence that OAPA considered
inaccurate evidence at McDermott's parole hearing and denied him parole based on that
inaccurate evidence. Consequently, we reject McDermott's assertion that the magistrate
did not duly consider the documents he attached to his complaint. McDermott's first
objection is overruled.
{¶ 5} Second, McDermott asserts that the magistrate's eleventh finding of fact
erroneously states that he filed a motion on July 20, 2016, and that he asserted that OAPA
"took * * * action on [a protection order] in 2009." (Relator's Objs. at 3.) The
magistrate's eleventh finding of fact states: "On June 6 and July 20, 2016, relator filed a
motion for production of documents asserting that respondent has proof there was no
restraining order filed against relator, and further asserted that, in 2009, respondent used
this document, and reconsidered his 2000 parole hearing." (Mag. Decision at ¶ 32.)
McDermott contends that he filed a single motion for document production, and that he
filed that motion on June 6, 2016. We find that the record supports McDermott's
No. 16AP-208 3

assertion that he filed his motion for document production only on June 6, 2016. Thus,
we agree that the magistrate's decision mistakenly indicates that McDermott filed his
motion for document production on both June 6 and July 20, 2016.
{¶ 6} McDermott's other challenge to the magistrate's eleventh finding of fact
relates to OAPA's alleged receipt of a court document establishing there was no protection
order filed against him. McDermott's June 6, 2016 motion for document production
stated that since approximately May 2000, OAPA has been in possession of a court
document establishing there was no protection order filed against him. He further stated
that "upon [OAPA's] initial receipt of the document," OAPA reconsidered its March 2000
parole hearing decision. (June 6, 2016 Relator's Mot. to Order Production of Document
at 1.) Thus, we agree with McDermott's contention that his motion asserted that OAPA
reconsidered the March 2000 parole hearing decision in 2000 and not 2009 as indicated
in the magistrate's decision. While we acknowledge these clerical mistakes in the
magistrate's eleventh finding of fact, they were inconsequential to the magistrate's
analysis.1 Accordingly, we overrule McDermott's second objection.
{¶ 7} McDermott's third and fourth objections are related. McDermott argues in
his third objection that there was no factual or legal basis for the magistrate to deny his
request for document production. McDermott's fourth objection challenges the
magistrate's conclusion that he has not shown that OAPA considered inaccurate evidence
and denied him parole based on that inaccurate evidence. In support of his fourth
objection, McDermott reasons that his inability to meet that burden was due to the
magistrate erroneously denying his request for document production. Thus, McDermott's
fourth objection is essentially premised on the merits of his third objection.
{¶ 8} We find that the magistrate did not err in denying McDermott's June 6,
2016 motion for document production. On May 5, 2016, the magistrate ordered the
parties, in the absence of either party filing a motion for conference within ten days of the
filing of the order, to submit their stipulated or certified evidence on or before May 24,
2016. On May 13, 2016, McDermott requested a conference. Five days later, the

1 Although not raised as an error by McDermott, we note that page ten of the magistrate's decision

mistakenly refers to a "practice order issue" instead of "protection order issue." This additional clerical
error is so corrected.
No. 16AP-208 4

magistrate denied McDermott's request for a conference. McDermott did not move this
court to set aside the magistrate's order denying his request for a conference. See Civ.R.
53(D)(2)(b) ("Any party may file a motion with the court to set aside a magistrate's order.
The motion shall state the moving party's reasons with particularity and shall be filed not
later than ten days after the magistrate's order is filed."). On May 23, 2016, OAPA
requested an extension of time until June 2, 2016 to submit evidence. The magistrate
granted OAPA's request for an extension. McDermott did not, however, file any request
for an extension regarding the evidentiary submission deadline. Despite the expiration of
the evidentiary submission deadline, McDermott filed his request for document
production together with his merit brief on June 6, 2016.
{¶ 9} Furthermore, even assuming McDermott could submit a court document in
this case indicating there was no protection order in place at the time of the murder, he
would not be entitled to his requested writ. Under State ex rel. Keith v. Ohio Adult Parole
Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, OAPA may not deny parole based on its
reliance on information that it knows or has reason to know is inaccurate. Id. Here,
OAPA's decision for denying McDermott parole at his most recent parole hearing in 2015
does not reference a protection order or stalking, and McDermott has not presented any
other evidence indicating that OAPA denied him parole in 2015 on that basis.
{¶ 10} For these reasons, we find the magistrate did not err in denying
McDermott's motion for document production. Consequently, we further reject
McDermott's assertion that he was unable to meet his evidentiary burden in this case
because the magistrate erroneously denied his motion for document production.
{¶ 11} Accordingly, we overrule McDermott's third and fourth objections.
{¶ 12} In his fifth objection, McDermott contends that the magistrate failed to
discuss his assertion that OAPA presented false information to the General Assembly
regarding his case. He argues the magistrate erred in not acknowledging that OAPA
falsely reported to the General Assembly that he violated a protection order when he went
to the victim's residence and murdered her. We disagree.
{¶ 13} Effective September 30, 2011, uncodified section 10 of 2011 Am.Sub.H.B.
No. 86 required the Ohio Department of Rehabilitation and Correction ("ODRC") to
review the cases of all parole-eligible inmates who were age 65 years or older and who
No. 16AP-208 5

already had a statutory first parole consideration hearing. Upon completion of the review,
ODRC was required to provide a report to the leadership of the General Assembly
summarizing the findings of its review and explaining why each inmate had not been
paroled.
{¶ 14} McDermott attached to his complaint what appear to be pages from ODRC's
December 2011 report to the General Assembly submitted pursuant to uncodified section
10 of 2011 Am.Sub.H.B. No. 86. In the report, ODRC explained why OAPA deemed
McDermott unsuitable for release in 2009, noting in part that his "conviction involved
him violating a protection order by going to his ex-wife's home and stabbing her to death
while her two young children were in the home. The victim suffered approximately 30
stab wounds." (Dec. 30, 2011 ODRC Report at 41.) According to McDermott, the
magistrate should have acknowledged that the report contained incorrect information
regarding the existence of a protection order against him when he murdered the victim.
However, in McDermott's petition for a writ of mandamus, he requests an order directing
OAPA to provide him with a new parole hearing. His petition does not seek a writ
requiring ODRC to deliver a new or amended report to the General Assembly concerning
his 2009 parole denial. Furthermore, in objecting to the magistrate's decision,
McDermott does not explain why the existence of allegedly inaccurate information in
ODRC's 2011 report to the General Assembly regarding his 2009 parole denial entitles
him to a writ requiring OAPA to provide him a new parole hearing. Instead, he simply
argues that the magistrate should have referenced the allegedly inaccurate information in
the report to ensure a complete record for the purpose of appeal.
{¶ 15} For these reasons, McDermott's fifth objection is overruled.
{¶ 16} Finally, McDermott's sixth objection is a general challenge to the
magistrate's recommendation to deny the requested writ of mandamus. McDermott
states that this objection is entirely based on the arguments he has presented in support
of his other objections. For the reasons stated above regarding McDermott's other
objections, we overrule his sixth objection.
{¶ 17} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate correctly determined that McDermott is not entitled to the requested
writ of mandamus. The magistrate properly determined the facts and applied the
No. 16AP-208 6

pertinent law to the salient facts. Therefore, we adopt the magistrate's decision as our
own, including the findings of fact (with the clerical corrections noted above) and
conclusions of law contained therein. Accordingly, we overrule McDermott's objections to
the magistrate's decision and deny his request for a writ of mandamus.
Objections overruled;
writ of mandamus denied.

BROWN and SADLER, JJ., concur.
No. 16AP-208 7

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. John P. McDermott, :

Relator, :

v. : No. 16AP-208

Ohio Adult Parole Authority, : (REGULAR CALENDAR)

Respondent. :

MAGISTRATE'S DECISION

Rendered on September 14, 2016

John P. McDermott, pro se.

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

IN MANDAMUS

{¶ 18} Relator, John P. McDermott, filed this original action asking this court to
find that respondent, Ohio Adult Parole Authority ("OAPA" or "parole board")
considered incorrect information at his last parole hearing, and order respondent to
provide him a new parole hearing where he will receive meaningful review of his
eligibility for parole without OAPA considering the inaccurate information.
Findings of Fact:
{¶ 19} 1. Relator is an inmate currently incarcerated at Grafton Correctional
Institution where he is serving a sentence of 15 years to life for the murder of Karen
Barnes.
No. 16AP-208 8

{¶ 20} 2. Relator has been considered for parole on several occasions; however,
on each occasion, parole has been denied.
{¶ 21} 3. According to his complaint, the parole board began considering
incorrect information as early as 1995. Relator asserts that the parole board has
considered the following incorrect information: (1) "In March, 1995, following the 60-
month continuance imposed in 1990, the 'seizure defense' was again raised;" (2) "In
March, 2000, following the completion of the second 60-month continuance, Parole
Board Member Larry Matthews created a non-existant [sic] 'violation of a protective
order while committing the offense' falsehood;" (3) "On April 9, 2009, following the
completion of the most recent 36-month continuance and referral to COBR, Petitioner
was continued for an additional 36 months based on the written reason of 'nature of the
offense' and the spoken reason of the 'seizure defense' and an assertion that the
Petitioner did not 'accept responsibility;' " (4) "On May 15, 2012, Petitioner's parole was
rescinded based upon a clear error of fact, the asserted claim 'The Board finds
aggravating the well documented history of stalking, violence and threats toward the
victim…;' (5) "During the May 15, 2012, hearing, the panel again raised the 'seizure
defense' claiming that Petitioner 'lacks remorse' and again raised the false specter of
non-existent protective orders, as well as considering a manila envelope consisting of
unidentified documents which were not disclosed to counsel or to Petitioner;" and (6)
"On August 3, 2015, * * * he was again referred to COBR which, on August 14, 2015,
imposed yet another continuance of 36 months based upon the written statement that
Petitioner, now over seventy years of age, had forgotten some of the details of the
programming he had taken a decade ago, and thus 'lacks insight from said
programming.' "
{¶ 22} 4. Aside from his own statements as to what he remembers parole board
members saying, relator has presented very little evidence in support of his allegations
that the parole board is considering inaccurate information when it denies him parole.
With regard to the March 2000 hearing, relator has attached what appears to be records
from OAPA dated March 15, 2000. Pursuant to this document, one board member
recommended:
No. 16AP-208 9

[One] range departure to 240 [to] 300 months based on
inmate violating a protection order, and murdering the
victim while her [two] children were in the residence. Inmate
indicated that he had a seizure attack and don't [sic]
remember stabbing the victim. This was a heinous crime in
which the victim was stabbed 30 times.

{¶ 23} 5. Concerning the April 2009 hearing, relator has again attached what
appears to be copies of parole board forms. Relator asserts that the parole board
specifically considered the seizure defense and the assertion that he did not accept
responsibility. However, upon review of the documents relator has attached from his
2009 hearing, the magistrate finds no reference to a seizure disorder.
{¶ 24} 6. Regarding the May 2012 hearing, relator has submitted two documents.
The first is the Wednesday, April 4, 2012 letter from the Ohio Department of
Rehabilitation and Correction notifying him that a majority of the parole board
members had voted to propose parole in his case, but that decision was deferred until
the Office of Victims Services determined whether the victim or victim's representative
wished to petition for a full board hearing which was scheduled for May 15, 2012.
Relator also submitted copies of what appeared to be from the parole board dated
May 15, 2012. That document specifically states:
Board finds aggravating the well-documented history of
stalking, violence and threats toward the victim that suggests
an inability to control his behavior, and a lack of
acknowledgement of this history through his failure to
sufficiently address it.

{¶ 25} 7. On March 21, 2016, relator filed this petition for a writ of mandamus.
As noted in the opening paragraph, relator alleges that he has not been granted
meaningful review because the parole board is considering and basing its denials of
parole, in part, on inaccurate information. Relator asks this court to order the parole
board to refrain from considering the information he asserts is inaccurate and ordering
the board to provide him with a new parole hearing.
{¶ 26} 8. Having met the filing requirements, the magistrate put on a briefing
order.
No. 16AP-208 10

{¶ 27} 9. Respondent filed documents which have been verified. This evidence
includes the decision and minutes from the August 14, 2015 parole board hearing which
corroborate relator's assertion that it was specifically noted that "[h]e has completed
programming, but lacks insight from said programming."
{¶ 28} Respondent's evidence also includes a letter dated June 17, 2015 from
relator directed to the parole board. In that letter, relator set out his assertion that the
parole board was considering erroneous or inaccurate information. He also asserts that
at various times, certain parole board members have told him that they would vote in
favor of him being released on parole at the next hearing.
{¶ 29} Respondent has also submitted numerous documents which appear to
have been prepared in light of his August 2015 hearing and include letters from family
and relator's plans in the event that he is granted parole.
{¶ 30} Respondent's evidence also includes several letters from both relator and
an assistant public defender addressed to certain public officials, as well as their replies.
In those letters, relator continued to assert that inaccurate information was being used
to deny him parole and asking the parole board to reconsider its decision to deny him
parole.
{¶ 31} 10. Aside from the documents relator attached as exhibits to his
complaint, relator did not present any additional evidence.
{¶ 32} 11. On June 6 and July 20, 2016, relator filed a motion for production of
documents asserting that respondent has proof there was no restraining order filed
against relator, and further asserted that, in 2009, respondent used this document, and
reconsidered his 2000 parole hearing.
{¶ 33} 12. On September 12, 2016, the magistrate denied relator's motions.
{¶ 34} 13. The matter has been fully briefed and is submitted on the magistrate's
docket for consideration.
Conclusions of Law:
{¶ 35} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
No. 16AP-208 11

{¶ 36} 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).
{¶ 37} The appropriate standard of proof in mandamus cases is proof by clear
and convincing evidence. See State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141
(1967).
{¶ 38} 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 upon correct
information, that respondent has a corresponding clear legal duty to correct errors and
falsehoods from his 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
No. 16AP-208 12

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.

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
No. 16AP-208 13

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."

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.
No. 16AP-208 14

We recognize that the OAPA's discretion in parole matters is
wide-ranging. Layne, 97 Ohio St.3d 456, 2002-Ohio-6719,
780 N.E.2d 548, ¶ 28, citing State ex rel. Lipschutz v.
Shoemaker, 49 Ohio St.3d 88, 90, 551 N.E.2d 160 (1990).
R.C. 2967.03 vests discretion in OAPA to "grant a parole to
any prisoner for whom parole is authorized, if in its
judgment there is reasonable ground to believe that * * *
paroling the prisoner would further the interests of justice
and be consistent with the welfare and security of society."
However, as in Layne, that discretion must yield to statutory
or regulatory requirements. Therefore, we hold that in any
parole determination involving indeterminate sentencing,
the OAPA may not rely on information that it knows or has
reason to know is inaccurate.

This is not to say that the OAPA must conduct an extensive
investigation on the information it reviews for every prisoner
to ensure accuracy, nor does it mean that the OAPA must
credit every unsupported allegation by a prisoner that the
information is inaccurate.

But where there are credible allegations, supported by
evidence, that the materials relied on at a parole hearing
were substantively inaccurate, the OAPA has an obligation to
investigate and correct any significant errors in the record of
the prisoner.

Id. at 378-80.

{¶ 39} Pursuant to the decision in Keith, the magistrate must consider whether
relator has made a showing that there may be substantive errors in his record that may
influence OAPA's consideration of his parole. The magistrate finds that relator has not
made that showing.
{¶ 40} First, relator argues that the parole board erroneously considered a seizure
defense which corresponds to relator's unwillingness to accept responsibility for his
actions. As noted in the findings of fact, relator did not present evidence that this
seizure defense was ever considered in denying him parole. However, the United States
Court of Appeals, Sixth Circuit, released a decision on December 4, 1986 in
McDermott v. E.P. Perini, 811 F.2d 606 (6th Cir.1986), denying relator's request for a
writ of habeas corpus. The court's decision includes the following relevant information:
No. 16AP-208 15

The evidence showed that petitioner regularly visited the
victim, Karen Barnes, at her apartment. On the afternoon of
November 4, 1980, when petitioner arrived at the apartment,
Ms. Barnes was not yet home from work, although her two
children, Greg, age eleven, and Steven, age eight, were
already home from school. Ms. Barnes arrived around 5:00
p.m.

At 11:00 p.m., Greg was awakened in his upstairs bedroom
by the telephone, which rang six times; no one answered it.
Greg heard petitioner and Ms. Barnes arguing downstairs.
Ms. Barnes was yelling about petitioner's going through her
personal things. Greg then heard his mother call for him.
Greg went to the landing and observed petitioner stabbing
Ms. Barnes. Petitioner ran upstairs and ordered Greg to get
in bed. Petitioner then went into the bathroom and washed
his hands. He then went back downstairs, but returned
upstairs shortly to Ms. Barnes' bedroom, where he
disconnected the telephone. Petitioner went downstairs
again, turned the television on with the volume on high, and
exited the apartment. After about fifteen minutes, Greg and
Steven went downstairs and found their mother dead in the
kitchen. Greg then went to a neighbor's house, and the police
were notified.

When the police arrived, they discovered on the wall next to
the victim's body a knife rack with two knives, although there
were spaces for three. The murder weapon was not in the
apartment. The third knife, which was the murder weapon,
was later found in a nearby river. An autopsy revealed at
least thirty stab wounds.

Petitioner's pleas of not guilty and not guilty by reason of
insanity were based upon the same medical defense, viz.,
that the murder was the result of petitioner's suffering a
psychomotor seizure as a result of a brain disease known as
psychomotor epilepsy. Petitioner presented a great deal of
medical evidence in support of his theory. It is sufficient to
note for the present purposes that evidence was adduced that
petitioner had suffered from psychomotor epilepsy for a
period of years prior to the murder, that he was suffering
from a seizure at the time of the murder, and that,
consequently, petitioner was unable to make a distinction
between right and wrong or to control his behavior; i.e.,
petitioner's actions were involuntary.
No. 16AP-208 16

The jury rejected petitioner's insanity defense and returned a
verdict of guilty.

Id. at 2-4.

{¶ 41} To the extent that relator argues that the parole board is incorrectly
considering a seizure disorder defense and relator's failure to acknowledge his wrong
doing, the above language from the court's decision indicates that, at trial, relator
alleged that he was experiencing a seizure at the time he stabbed Karen Barnes 30 times,
and that he was unable to control his actions. The magistrate specifically finds that this
is not erroneous information and the parole board may consider it in determining
whether or not relator should be released on parole.
{¶ 42} Concerning relator's allegation that the parole board incorrectly noted that
there was a protective order in place at the time he murdered Barnes, relator asserts that
he presented evidence that no such protective order exists. However, the magistrate
finds that the documents relator attached to his complaint do not prove that there was
not a protective order in place at the time he murdered Barnes.
{¶ 43} Specifically, the magistrate points to Appendix M of the attachment to
relator's complaint. This is a letter from the Chardon Municipal Court which provides:
In response to your letter inquiring about information on a
protection order on case number 80 C 1168, our court has
found nothing. However, that case number given indicates
that it would be found in Court of Common Pleas. You
would need to contact their office to request that
information.

{¶ 44} The magistrate finds that this document does not prove that there was not
a protective order in place at the time he murdered Barnes. Relator had been instructed
to address his request to the common pleas court. Relator has failed to present any
evidence that he did so and the magistrate finds that he has not established by clear and
convincing evidence that there was no protective order in place. To the extent that
relator filed a motion and asserted that respondent has documentation that there was
no protective order, relator also stated that respondent already reconsidered the 2000
decision to deny him parole and, if relator is correct in asserting this, then, to the extent
No. 16AP-208 17

he is correct, the practice order issue was not considered in 2012 when he was last
denied parole.
{¶ 45} Lastly, relator asserts that the parole board relied on information that he
had been stalking Barnes before he murdered her. Relator did attach information from
the parole board which would indicate that, in 2015, the board discussed relator's well-
documented history of stalking. In support of his assertion, relator submitted as part of
Appendix M to his complaint the November 10, 2015 letter from Victoria Godfrey, pre-
trial release officer for the Chardon Municipal Court which provides as follows:
Per your request on October 30, 2015 I went ahead and
researched any and all cases regarding you in the Chardon
Municipal Court. I was unable to find any charges involving
Stalking in our court docket or records during the years of
1979 and 1980.

{¶ 46} Chardon Municipal Court provides a website to assist victims in obtaining
various protection orders. A temporary protection order is available in the Chardon
Municipal Court when a criminal complaint alleging violence has been filed. A civil
protective order ("CPO") is available through the common pleas court and no criminal
charges need to be filed in order to obtain a CPO. A civil stalking or sexually oriented
offense protection order is available in the common pleas court in the county in which
the victim resides and does not require the filing of criminal charges. The fact that
relator submitted evidence that no stalking charges had been filed against him in the
Chardon Municipal Court does not constitute clear and convincing evidence that no
stalking charges had been filed against him. As above indicated, a civil stalking
protection order is available in the common pleas court. Relator has presented no
evidence from the Geauga County Court of Common Pleas which would indicate that
stalking had not been involved.
{¶ 47} Contrary to relator's arguments, he is not able to establish by clear and
convincing evidence that OAPA is considering inaccurate evidence and denying him
parole based on that inaccurate evidence. Relator did allege at trial that he suffered
from a seizure disorder and was therefore not responsible for killing Barnes and relator
did not present evidence from Geauga County Court of Common Pleas to support his
assertion that there were no protective orders issued and that there had been no
No. 16AP-208 18

allegations of stalking. Based on the foregoing, it is this magistrate's decision that
relator has not demonstrated that OAPA has abused its discretion, 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).