[Cite as State ex rel. Grayson v. Ohio Adult Parole Auth., 2017-Ohio-753.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. John Grayson, :
Relator, :
v. : No. 15AP-793
Ohio Adult Parole Authority : (REGULAR CALENDAR)
Department of Rehabilitation &
Correction, :
Respondent. :
D E C I S I O N
Rendered on March 2, 2017
On brief: John L. Grayson, pro se.
On brief: Michael DeWine, Attorney General, and
William D. Maynard, for respondent.
IN MANDAMUS
LUPER SCHUSTER, J.
{¶ 1} Relator John Grayson has filed an original action requesting this court issue
a writ of mandamus ordering respondent Ohio Adult Parole Authority to immediately
conduct a parole hearing in which the decision to grant or deny parole is based on the
Ohio Parole Board Guidelines Manual, effective July 1, 2007 and rescinded as of April 1,
2010.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
No. 15AP-793 2
court deny relator's request for a writ of mandamus. No objections have been filed to that
decision.
{¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
fact and conclusions of law. In accordance with the magistrate's decision, we deny
relator's requested writ of mandamus.
Writ of mandamus denied.
SADLER and DORRIAN, JJ., concur.
No. 15AP-793 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. John Grayson, :
Relator, :
v. : No. 15AP-793
Ohio Adult Parole Authority : (REGULAR CALENDAR)
Department of Rehabilitation &
Correction, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on November 14, 2016
John L. Grayson, pro se.
Michael DeWine, Attorney General, and William D.
Maynard, for respondent.
IN MANDAMUS
{¶ 4} In this original action, relator, an inmate of the Grafton Reintegration
Center ("GRC"), requests a writ of mandamus ordering respondent, Ohio Adult Parole
Authority ("respondent" or "OAPA"), to immediately conduct a parole hearing in which
the decision to grant or deny parole is based upon the Ohio Parole Board Guidelines
Manual, Third Edition, effective July 1, 2007 ("2007 guidelines manual" or "manual"),
that was rescinded by respondent as of April 1, 2010. Relator contends that
respondent's failure to apply the 2007 guidelines manual is a violation of the Ex Post
Facto Clause of the United States Constitution.
No. 15AP-793 4
Findings of Fact:
{¶ 5} 1. Since 1975, relator has been imprisoned approximately five times before
his current incarceration for various criminal convictions.
{¶ 6} 2. Currently, the Bureau of Sentence Computation of the Ohio
Department of Rehabilitation & Correction ("ODRC") has calculated the maximum
expiration of sentence to be July 12, 2026.
{¶ 7} 3. Relator's latest incarceration results from his conviction for drug
trafficking in the Cuyahoga County Court of Common Pleas. On January 21, 2010, the
court imposed a prison sentence of eight months. That prison term expired on
September 19, 2010.
{¶ 8} 4. Since his present incarceration, relator has appeared before the Ohio
Parole Board ("board") four times and has been denied release in each instance. In each
instance, continued incarceration was justified by a finding that there is substantial
reason to believe that relator will engage in further criminal conduct if released.
{¶ 9} 5. The four board hearings during relator's present incarceration were
held respectively on August 9, 2010, June 13, 2011, November 2, 2012, and August 12,
2014.
{¶ 10} 6. As to each hearing, an ODRC form was completed by a board member
to document the board decision. The form is captioned "Ohio Parole Board Decision"
and is divided into seven sections.
{¶ 11} At section 3(A), the board member is asked to mark a box indicating that
"[t]he mandatory factors indicated in AR 5120 1-1-07 were considered."
{¶ 12} At section 3(B), the board is asked to provide the rational for the decision.
At section 4, boxes identified as A through D are provided for marking. The pre-printed
statements beside each box state:
A. * * * There is substantial reason to believe that the inmate
will engage in further criminal conduct, or that the inmate
will not conform to such conditions of release as may be
established under AR 5120 1-1-12.
B. * * * There is substantial reason to believe that due to the
serious nature of the crime, the release of the inmate into
society would create undue risk to public safety, or that due
to the serious nature of the crime, the release of the inmate
No. 15AP-793 5
would not further the interest of justice or be consistent with
the welfare and security of society.
C. * * * There is substantial reason to believe that due to
serious infractions of division level 5120 9-06 of the
Administrative Code, the release of the inmate would not act
as a deterrent to the inmate or to other institutionalized
inmates from violating institutional rules.
D. * * * Not applicable.
{¶ 13} 7. The form completed by the board for the August 9, 2010 hearing
indicates that consideration of parole is "continued" to August 1, 2011. That is, parole is
denied but will be reconsidered on or before August 1, 2011. At section 4, boxes A, B,
and C are marked.
{¶ 14} At section 3(B), in the space provided, the following rational is provided:
The Board has determined that the inmate is not suitable for
release at this time. The inmate was convicted of Drug
Trafficking while under supervision. [Inmate] has 5 prior
commitments, and has shown a disregard for the law while
under supervision. [Inmate] also has ticket violating
institutional rules since his return.
{¶ 15} 8. The form completed by the board for the June 13, 2011 hearing
indicates that consideration of parole is "continued" to December 1, 2012. That is,
parole is denied subject to reconsideration on or before December 1, 2012.
{¶ 16} At section 4, boxes A and B are marked. Boxes C and D are not marked.
{¶ 17} At section 3(B), in the space provided, the following rational is provided:
The Board has determined that the inmate is not suitable for
release at this time. This is [inmate]'s 6th commitment and
he will be held accountable, extensive criminal history
continues to be unsuccessful under supervision, multi-state
offender.
{¶ 18} 9. The form completed by the board for the November 2, 2012 hearing
indicates that consideration of parole is "continued" to October 1, 2014. That is, parole
is denied subject to reconsideration on or before October 1, 2014.
{¶ 19} At section 4, only box A is marked. Boxes B, C, and D are not marked.
{¶ 20} At section 3(B), in the space provided, the following rational is provided:
No. 15AP-793 6
Inmate's risk to reoffend is elevated by his criminal history,
as this is his 6th Ohio prison admission. He has one in
Indiana as well. He has completed relevant programming,
and his conduct has improved. But it is not clear that he has
changed sufficiently to overcome his static risk. This leads
the Board to conclude that the inmate would engage in
further criminal conduct if released. After weighing relevant
factors, the Central Office Board Review does not consider
the inmate suitable for release and assesses a two year
continuance.
{¶ 21} Apparently, the November 2, 2012 hearing involved "Central Office Board
Review," as indicated on the completed form.
{¶ 22} 10. The form completed by the board for the August 12, 2014 hearing
indicates that consideration of parole is "continued" to August 1, 2016. That is, parole is
denied subject to reconsideration on or before August 1, 2014.
{¶ 23} At section 4, boxes A and B are marked. Boxes C and D are not marked.
{¶ 24} At section 3(B), in the space provided, the following rational is provided:
Inmate Grayson is assessed as a moderate risk to reoffend.
Inmate Grayson has a continuous pattern of criminal
behavior since 1974. Six adult incarcerations in Ohio (two in
other States), 6 releases 5 Parole failures [with]
recommitments for new felony behavior. He has an extensive
history of violent offenses, having weapons, and not being
successful on supervision. He lacks the ability to control his
behavior as evidenced by his extensive aggravating criminal
history. His release plans of past paroles have not curbed his
substance abuse and criminal behaviors. The aggravating
factors in this case lead the Board to conclude that release
would demean the seriousness of the offense and not further
the interest of justice. After weighing relevant factors, the
Board does not consider the inmate suitable for release at
this time and assesses a two year continuance.
{¶ 25} 11. The record contains a copy of the 2007 guidelines manual.
{¶ 26} The manual is 60 pages in length. The manual's preface is written by
Chairperson, Cynthia Mausser. The third paragraph of the preface states:
The guideline ranges are a suggestion of time to be served for
the typical or average cases and presume good institutional
behavior. However, the ranges should not be interpreted as
mandating release within the range. The guideline ranges do
not usurp the Parole Board's discretion and authority to
No. 15AP-793 7
release an inmate at any time after service of the minimum
sentence prior to the expiration of the maximum sentence.
The applicable guideline range is meant solely to suggest an
initial threshold (a suggested starting point of analysis)
toward making a full and fair assessment of all relevant
factors, indicators and other considerations in determining
the inmate's suitability for release.
{¶ 27} The manual is divided into parts A and B. Part A provides the "Parole
Guidelines Chart." The Parole Guidelines Chart is explained:
The Parole Guidelines Chart sets forth the applicable
guideline range for the typical or "heartland" case based on
the seriousness of the inmate's current offense of conviction
and the offender's Criminal History/Risk Score. The
guideline ranges acknowledge statutory eligibility for release
upon service of the minimum sentence as indicated by the
term "min" at the bottom of each range. The guideline ranges
are a suggestion of time to be served in months for the
typical or average case. However, the ranges should not be
interpreted as mandating release within the range. The
guideline ranges are meant to serve as one of the tools in the
release decision making process, and do not usurp the Parole
Board's discretion and authority to release an inmate at any
time after service of the minimum sentence prior to the
expiration of the maximum sentence. The applicable
guideline range is meant solely to suggest an initial threshold
(a suggested starting point of analysis) toward making a full
and fair assessment of all relevant factors, indicators and
other considerations in determining the inmate's suitability
for release.
The applicable guideline range presumes good institutional
conduct, fulfillment of any special conditions imposed by the
Parole Board, and the development of a suitable release plan.
{¶ 28} Part B of the manual is divided into ten chapters. Each of the ten chapters
contains sub chapters.
{¶ 29} Chapter 10, subchapter C(4)(b)(ii) provides:
Definite sentences: Any offense or offenses for which an
offender was convicted while on parole and for which an
offender received a definite sentence shall not have an
offense category assigned. If the conviction is an SB2 definite
sentence, the SB2 sentencing range for the felony level of the
offense of conviction will be noted in the Decision Sheet. The
No. 15AP-793 8
guideline range will reflect the SB2 equivalent penalty for a
post-release violation of 0-9 months.
(Emphasis sic.)
{¶ 30} 12. The record contains the affidavit of Cynthia Mausser executed
February 29, 2016. The Mausser affidavit states:
[Two] I currently serve as a Managing Director for the Ohio
Department of Rehabilitation and Correction ("ODRC"). The
Division of Parole and Community Services in [sic] under my
supervision. I previously served as Chairperson of the Ohio
Parole Board ("Parole Board"), from April 2006 until May of
2015. Prior to that time period, I was appointed as a member
of the Board in December of 2001.
[Three] As the Chairperson of the Parole Board, I authorized
the implementation of the 2007 version of the Ohio Parole
Guidelines. My statement appears in the preface of the
Guidelines. I am familiar with how the 2007 Guidelines
applied to determine whether a parolee was suitable for
release. As Chairperson of the Parole Board, I presided over
parole hearings while the 2007 Guidelines were in place.
[Four] Inmates that are eligible for parole have been
previously convicted of crimes with indeterminate terms of
imprisonment, prior to the enactment of Ohio Senate Bill 2
("SB2") on July 1, 1996. These inmates, known as "old law
inmates," have been subject to the discretionary releasing
authority of the Parole Board, including the time when the
2007 Guidelines were in place and after they were rescinded
in 2010. The 2007 Guidelines would provide a suggested
suitable range of time for release of old law inmates with
indefinite sentences using a two-dimensional matrix chart,
based on an offense category and the parolee's criminal
history. This suggested release time, however, would only
function as a non-mandatory structured starting point in the
decision-making process. The Guidelines would not usurp
the Parole Board's traditional discretion and authority to
release an inmate at any time after service of the minimum
sentence prior to the expiration of the maximum sentence.
The Parole Board would rely on the factors set out in O.A.C.
5120:1-1-07 to guide its discretion.
[Five] Not all parolees would receive a suggested suitable
release time range using the matrix chart. An inmate was
considered to be a parole violator recommissioned ("PVR")
No. 15AP-793 9
if, while released on parole, he was sentenced for a new
felony. Under Chapter Ten, Subchapter C(4)(b)(ii) of the
2007 Guidelines, a PVR offender that was convicted for a
definite sentence while on parole would not be assigned an
offense category. Under this provision, an inmate convicted
under a definite sentence under SB2 would receive a
guideline range that would reflect the SB2 equivalent penalty
for a post-release violation of zero-to-nine months. This was
put in place because Senate Bill 2 established post-release
control in which a penalty for an inmate violating post-
release control could result in imprisonment for zero-to-nine
months. However, this range would only serve as a starting
point in evaluating whether an old law inmate was suitable
for release. This suggested starting point would not take into
account the inmate's criminal history and history of previous
incarcerations. The Parole Board would still have the full
discretion to consider these issues to keep an inmate
incarcerated beyond the initial range.
[Six] I cannot speculate as to how the Parole Board would
have applied the 2007 Guidelines had inmate John Grayson
appeared before it during a hearing when the 2007
Guidelines would have been in effect. However, it is unlikely
that the Parole Board would not have taken Grayson's
extensive criminal history and prior incidences of
incarceration into account.
[Seven] The 2007 Guidelines were rescinded by the Parole
Board as of April 1, 2010. The Ohio Parole Board Handbook
that was later produced and published to explain the Parole
Board hearing process clarified the removal of guideline
ranges from the Parole Board's evaluation in determining the
suitability of an inmate's release. Instead, the Parole Board
would rely on the factors set out in O.A.C. 5120:1-1-07 to
determine suitability. The factors of O.A.C. 5120:1-1-07
guided the Board's discretion both before and after the
guideline ranges were rescinded in 2010.
[Eight] While I was Chairperson of the Parole Board,
Grayson received four parole hearings since he was
incarcerated in 2010 for drug trafficking. These occurred on
August 9, 2010; June 13, 2011; November 2, 2012; and
August 12, 2014. The factors of O.A.C. 5120:1-1-07 were
evaluated by the Parole Board to determine that Grayson was
not suitable for release. The Parole Board's rationale for
denying parole to Grayson are reflected in the documents
entitled "Ohio Parole Board Decision and Minutes"
No. 15AP-793 10
("Decision Sheets"). A common rationale identified in the
Decision Sheets for denying parole to Grayson following each
hearing was his extensive criminal history, which included
five previous incarcerations. Thus, the Board denied parole
each time partly due to the potential of Grayson to engage in
further criminal conduct.
{¶ 31} 13. The record also contains a copy of the Ohio Parole Board Handbook
("handbook"), dated July 2015.
{¶ 32} The introduction to the handbook provides the historical context of the
2007 guidelines manual:
Previously, the Board developed and used a number of tools
to promote consistency with its release decisions because of
the large diversity of crimes committed by inmates in the
DRC. The tools were part of The Ohio Parole Board
Guidelines Manual, initially developed in 1998, and
amended in 2000 and 2007. Since Senate Bill 2 ("SB2"), the
"truth in sentencing" legislation enacted in 1996, the once
diverse population subject to the releasing authority of the
Board has significantly narrowed. Most of this population is
serving sentences for crimes that have unique factors that
thwart any effort to generalize a suggested range of time or
specify common risk factors. In April 2010, use of the Ohio
Parole Board Guidelines Manual was determined to be no
longer practical or effective, and the Board discontinued its
application at subsequent release consideration hearings.
Accordingly, after April 1, 2010, the Board continued to
exercise its discretionary release authority solely by reference
to Ohio statute and administrative code provisions. In
addition, all parole suitability determinations are now
decided by a majority vote of the Board. These votes are
based upon consideration of the unique factors and variables
of the individual case.
{¶ 33} 14. On August 21, 2015, relator filed this mandamus action against
respondent.
{¶ 34} 15. On September 22, 2015, respondent moved for dismissal of this action
on grounds that the complaint allegedly fails to state a claim upon which relief can be
granted. (Civ.R. 12(B)(6)). On October 9, 2015, relator opposed respondent's motion to
dismiss.
No. 15AP-793 11
{¶ 35} 16. On February 2, 2016, the magistrate issued an order denying
respondent's motion to dismiss. The magistrate also issued a schedule for the filing of
evidence and briefs.
{¶ 36} 17. On February 23, 2016, pursuant to the magistrate's schedule, relator
filed a document captioned "Relator's Presentation of Evidence, Pursuant to Local Rule
13(G)."
{¶ 37} 18. On February 29, 2016, respondent filed a document captioned
"Respondent's Submission of Certified Evidence." Therein, respondent submitted the
affidavit of Cynthia Mausser aforementioned. Also, respondent submitted a letter dated
February 23, 2016 from Barb Pond who is employed by ODRC as a "Correctional Record
Sentence Computation Auditor/Records Supervisor." Pond is employed in the ODRC's
Bureau of Sentence Computation within the Division of Legal Services. The
February 23, 2016 Pond letter is addressed to a paralegal employed at the office of the
Ohio Attorney General.
{¶ 38} 19. On February 29, 2016, relator filed his merit brief pursuant to the
magistrate's briefing schedule.
{¶ 39} 20. On April 1, 2016, respondent filed its merit brief.
{¶ 40} 21. On April 18, 2016, relator filed his reply brief.
{¶ 41} 22. This action is now before the magistrate for the rendering of his
magistrate's decision in this action.
Conclusions of Law:
{¶ 42} It is the magistrate's decision that this court deny relator's request for a
writ of mandamus, as more fully explained below.
{¶ 43} This action was prompted by the decision of the United States Supreme
Court in Garner v. Jones, 529 U.S. 244 (2000), and the decision of the Sixth Circuit
Court of Appeals in Michael v. Ghee, 498 F.3d 372 (2007), which applied the holding of
Garner to a case involving an Ohio inmate.
{¶ 44} However, in Michael, it was the 1998 Ohio Parole Board Guidelines
Manual ("1998 Guidelines Manual") that was at issue under the Ex Post Facto clause of
the United States Constitution.
No. 15AP-793 12
{¶ 45} In Michael, the Sixth Circuit provides a summary and analysis of Garner:
In 1998, the OAPA adopted guidelines designed to guide the
discretion of parole officers making release determinations
for Ohio inmates sentenced prior to July 1, 1996. The
guidelines are similar to the guidelines used by the United
States Parole Commission, using two factors to determine
how long a prisoner should be incarcerated before parole: (1)
the seriousness of the inmate's crime, and (2) the "risk of
reoffense," based on the inmate's prior criminal conduct and
performance on probation and parole. The presumptive
amount of time an inmate serves is determined by finding
the intersection on a grid between the inmate's offense
category and his or her risk of reoffense. Parole officials,
however, retain discretion to depart from the guidelines, but
may not retain an inmate beyond the maximum sentence.
See OHIO REV. CODE § 2967.03 (describing the OAPA's
broad discretionary powers).
***
In Garner, the Court considered an ex post facto challenge to
the retroactive application of a Georgia regulation permitting
the extension of intervals between parole violations. Id. at
247. Under Georgia law, the state's parole board was
required to consider inmates serving life sentences for parole
after seven years. Id. (citing GA. CODE ANN. § 42-9-45(b)
(1982)). At the time the Garner respondent committed his
second offense, the parole board's regulations required
parole reconsiderations to take place every three years. Id. In
1985, after the respondent had begun serving his second life
sentence, the parole board amended its rules and regulations
to provide that "reconsideration of those inmates serving life
sentences who have been denied parole shall take place at
least every eight years." Id. (quoting GA. COMP. R. & REGS.,
Rule 475-3-.05(2) (1985)). The Parole Board considered the
respondent for parole in 1989, seven years after his 1982
conviction. Id. After denying release, reconsideration was set
for 1997, eight years later and consistent with Rule 475-3-
.05(2). Id.
The Court concluded that, on its face, the new parole board
regulation did not pose a significant risk of lengthening the
respondent's time of imprisonment. Id. at 256. The Court
noted two important aspects of the new regulation. First, the
amendment "vests the Parole Board with discretion as to
how often to set an inmate's date for reconsideration, with
No. 15AP-793 13
eight years for the maximum." Id. at 254 (quoting GA.
COMP. R. & REGS., Rule 475-3-.05(2) (1985))
("Reconsideration . . . shall take place at least every eight
years."). Second, the parole board's policies permit
"expedited parole reviews in the event of a change in their
circumstances or where the Board receives new information
that would warrant a sooner review." Id. These
characteristics were significant because they "permit a more
careful and accurate exercise of the discretion the Board has
had from the outset." Id. "The policy enables the Board to
put its resources to better use, to ensure that those prisoners
who should receive parole come to its attention." Id.
***
After Garner, the relevant inquiry, therefore, is not whether
the challenged parole regulation is a "law" or whether the
guidelines present a significant risk of increasing the
plaintiff's maximum penalty, but rather whether the new
guidelines present a significant risk of increasing the
plaintiff's amount of time actually served. See Garner, 529
U.S. at 255 ("When the rule does not by its own terms show a
significant risk, the respondent must demonstrate, by
evidence drawn from the rule's practical implementation by
the agency charged with exercising discretion, that its
retroactive application will result in a longer period of
incarceration than under the current rule."); Id. ("In the case
before us, respondent must show that as applied to his own
sentence the law created a significant risk of increasing his
punishment."). See also Fletcher v. Reilly, 369 U.S. App.
D.C. 100, 433 F.3d 867, 869-70 (D.C. Cir. 2006) (observing
that it is clear after Garner that "the critical question in ex
post facto challenges to retroactively applied parole/reparole
regulations is whether, as a practical matter, the retroactive
application creates a significant risk of prolonging an
inmate's incarceration").
***
The relevant inquiry in this case, then, is whether retroactive
application of the 1998 Ohio guidelines creates a "sufficient
risk of increasing the measure of punishment attached to the
covered crimes." Garner, 529 U.S. at 250; Dyer, 465 F.3d at
285. Plaintiffs can satisfy this burden in one of two ways.
First, plaintiffs can establish an ex post facto violation if they
can show that the guidelines, on their face, show a significant
risk of increased incarceration. Garner, 529 U.S. at 255.
No. 15AP-793 14
Second, when the guidelines do not by their own terms show
a significant risk, plaintiffs "must demonstrate, by evidence
drawn from the [guideline's] practical implementation by the
agency charged with exercising discretion, that its
application will result in a longer period of incarceration
than under the earlier [guidelines]." Id.; see also Dyer, 465
F.3d at 291 (observing that "even when considering
substantive changes to parole provisions, the Supreme Court
has relied on evidence of actual disadvantage" to the
plaintiff). Plaintiffs need not show an actual increase in
punishment, but rather a "sufficient risk" of increased
punishment. Dyer, 465 F.3d at 288.
Id. at 374, 381-84.
{¶ 46} In his brief, relator posits:
Michael v. Ghee 498 F.3d (6th Circuit 2007),
addresses the 1998 changes to Ohio parole guidelines, and is
directly on point, and establishes the fact that an Ex-Post
Facto violation has occurred in the case of the Relator herein.
The Michael Court establishes the relevant inquiry for
finding violations of the Ex-Post Facto Clause, "Whether
retroactive application of the 1998 Ohio Guidelines creates a
sufficient risk of increasing the measure of punishment
attached to the covered crimes," Id. At 384 quoting
Garner v. Jones, 529 U.S. 244, 250.
(Emphasis sic.) (Relator's brief at 3-4.)
{¶ 47} In his reply brief, relator succinctly explains his position:
In 2010, Relator Grayson was sentenced to serve a definite
term of eight (8) months, which made him technically
eligible for parole immediately after the eight months were
served. Realtor [sic] claims that his parole hearing should
have been heard under the 2007 Parole Guidelines of 0 to 9
months, which was applicable to the Relator when he
committed his crimes. After the Relator was sentenced, the
applicable parole rules were amended. The amended parole
rules eliminated the 0 to 9 months and replaced it with
discretionary hearings that resulted in the realtor [sic]
receiving continuances of (1) one year (18) eighteen months
(2) two years and (2) two years.
(Relator's reply brief at 5.)
No. 15AP-793 15
{¶ 48} In its brief, respondent argues:
Relator cannot argue that the rescission of the * * *
Guidelines resulted in a sufficient risk in the increase of his
imprisonment following the rescission of the 2007
Guidelines, when he was incarcerated in 2010. The Parole
Board in each of the four parole hearings that occurred for
Relator subsequent to 2010 justified denying his release due
to the risk that Relator would engage in further criminal
conduct, which is a factor of O.A.C. 5120:1-1-07.
***
Relator points out that under the 2007 Guidelines, the S.B. 2
equivalent penalty for Relator's conviction, for which he
received a definite sentence, was incarceration for 0-9
months, citing to Chapter 10, subchapter C(4)(b)(ii). * * *
Relator is misinterpreting the 2007 Guidelines. These
Guidelines did not mandate the release of a parole violator,
who received a definite sentence for a new conviction, after
nine months.
***
The entire premise of Relator's argument is therefore
incorrect. Relator argues that the Parole Board lacked
discretion under the 2007 Guidelines to deny parole, while
under the current system, the Board has wide-ranging
discretion to do so. That premise is wrong because the Parole
Board always had the discretion to deny Relator parole. The
Guidelines were advisory, and Relator, as explained by
Mausser, was never entitled to mandatory release after
serving 9 months for his present incarceration. The
maximum expiration date of Relator's sentence, due to his
previous convictions, still ended on 2026. The Parole Board,
before and after the existence of the 2007 Guidelines, still
had the power to exercise their discretion, relying on the
factors of O.A.C. 5120:1-1-07, to deny release from
imprisonment.
(Respondent's brief at 16-18).
{¶ 49} The magistrate agrees with respondent. Relator has failed to show that the
rescission of the 2007 guidelines manual creates a sufficient risk of increasing the
measure of punishment attached to the covered crimes.
No. 15AP-793 16
{¶ 50} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).