State ex rel. Taylor v. Ohio Adult Parole Authority

609 N.E.2d 546, 66 Ohio St. 3d 121, 1993 Ohio LEXIS 719
CourtOhio Supreme Court
DecidedApril 14, 1993
DocketNo. 92-1205
StatusPublished
Cited by38 cases

This text of 609 N.E.2d 546 (State ex rel. Taylor v. Ohio Adult Parole Authority) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Taylor v. Ohio Adult Parole Authority, 609 N.E.2d 546, 66 Ohio St. 3d 121, 1993 Ohio LEXIS 719 (Ohio 1993).

Opinion

Per Curiam.

For the following reasons, we overrule Taylor’s motion for default judgment (see Civ.R. 55[D]) and summary judgment, and grant respondent’s motion for summary judgment. Accordingly, petitioner’s request for writs of mandamus or habeas corpus is denied.

I

Taylor first argues that he was entitled to a final parole revocation hearing within sixty days at the latest after his November 7, 1991 conviction for the new offense. In Morrissey v. Brewer (1972), 408 U.S. 471, at 488, 92 S.Ct. 2593, at 2603-2604, 33 L.Ed.2d 484, at 498, the Supreme Court, applying due process analysis, held that a parole “revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of [124]*124two months, as respondents suggest occurs in some cases, would not appear to be unreasonable.”

Clearly, Morrissey did not establish an absolute, sixty-day rule. In Inmates’ Councilmatic Voice v. Rogers (C.A.6, 1976), 541 F.2d 633, at 636, which specifically concerned parolees such as petitioner who are charged with new crimes, the Sixth Circuit Court of Appeals stated:

“APA has no authority under Ohio law to interfere with the custody of the State Court over a parolee held to answer for a new crime in violation of state law.”

The court then specifically declined to fix a time limit for conducting a final parole revocation hearing.

Moreover, in State ex rel. Jackson v. Denton (1983), 5 Ohio St.3d 179, at 180, 5 OBR 397, at 398, 449 N.E.2d 1288, at 1289, citing Inmates’ Councilmatic Voice, we stated that there is no sixty-day rule in cases where a new crime is committed:

“On appeal, Inmates declined to establish a specific time limitation for conducting a final parole revocation hearing when the parolee is arrested for committing a new crime.”

Petitioner also invokes the sixty-day rule mentioned in a January 2Í' 1992 contempt order in the Inmates’ Councilmatic Voice case. Inmates’ Councilmatic Voice v. Wilkinson (Jan. 21,1992), N.D.Ohio No. C72-1052, unreported. The order does require certain parole revocation hearings to be held within sixty days after the date on which the parolee is arrested or held by means of a” detainer. However, it plainly states that “[t]he sixty-day rule is applicable to all Ohio parolees charged by Defendants with a technical violation of a term or condition of their parole.” (Emphasis added.) Id. at 2. In Inmates’ Councilmatic Voice, supra, 541 F.2d at 635, fn. 2, the Sixth Circuit Court of Appeals defined “technical violations” as “those violations of the terms and conditions of the parole agreement which are not criminal in nature[,] such as failure to report to the parole officer, association with known criminals, leaving employment, leaving the State, etc.” In addition to technical violations, Taylor was charged with parole violations stemming from the theft offense of which he was convicted on November 7, 1991. These are not “technical violations” as defined by Inmates’ Councilmatic Voice. Moreover, to the extent that Taylor was also charged with technical parole violations, the final parole revocation hearing was held within sixty days after he was taken into custody pursuant to the detainer, as explained in Part II.

[125]*125II

Due process, R.C. 2967.15 and Ohio Adm.Code 5120:1-1-19(A).

In Moody v. Daggett (1976), 429 U.S. 78, at 87, 97 S.Ct. 274, at 278-279, 50 L.Ed.2d 236, at 244, the Supreme Court held that due process under Morrissey, supra, did not entitle a federal parolee imprisoned for committing new federal crimes while on parole to an immediate parole revocation hearing after the detainer was filed but not executed:

“Indeed, in holding that ‘[t]he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody,’ Morrissey, 408 U.S., at 488 [92 S.Ct., at 2603-2604, 33 L.Ed.2d, at 498] we established execution of the warrant and custody under that warrant as the operative event triggering any loss of liberty attendant upon parole revocation. This is a functional designation, for the loss of liberty as a parole violator does not occur until the parolee is taken into custody under the warrant.” (Emphasis added.)

Therefore, under federal due process principles, no liberty interest attaches until a parolee is taken into custody pursuant to the detainer. If a loss of liberty is attributable to detention for new crimes, the parole authority has no constitutional duty to hold an immediate parole revocation hearing, regardless of his request therefor. Moreover, when the parole authority does not act on a detainer and takes the parolee into custody, it must hold the parole revocation hearing within a reasonable time, not a fixed limit of sixty days.

In the instant case, Taylor was taken into custody initially as a parole violator, but was immediately transferred to Hamilton County to stand trial on the outstanding theft charge. Thus, from October 29, 1991 until February 24, 1992, Taylor was in custody because of the intervening theft crime. Under Moody, he was not entitled to a final parole revocation hearing during that time. After February 24, 1992, his incarceration is attributable to the parole detainer. However, he was afforded a final parole revocation hearing within sixty days, on April 21, 1992, which Morrissey holds is not a violation of due process.

R.C. 2967.15, as in effect at the relevant times, like Morrissey also requires a final revocation hearing to take place within a reasonable time, stating in part:

“Whenever any parole officer has reasonable cause to believe that any parolee under the supervision of the authority has violated the terms and conditions of his pardon or parole, such parole officer may arrest such parolee, or may order any sheriff, deputy, constable, or police officer to make such arrest. A person so arrested shall be confined in the jail or detention home of the county in which he is arrested until released on parole or removed to the [126]*126proper institution. Upon making such arrest the parole officer shall, as soon as practicable thereafter, notify the superintendent of parole supervision, in writing, that such parolee has been arrested and is in custody and submit in detail an appropriate report of the reason for such arrest. The superintendent shall thereupon make an appropriate recommendation to the adult parole authority and shall submit a copy of the report of the parole officer to the authority which shall, within a reasonable time after receipt thereof, determine whether or not such parolee should be declared a violator of the terms and conditions of his pardon or parole.

(( * * *

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Cite This Page — Counsel Stack

Bluebook (online)
609 N.E.2d 546, 66 Ohio St. 3d 121, 1993 Ohio LEXIS 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-taylor-v-ohio-adult-parole-authority-ohio-1993.