State ex rel. Askew v. Goldhart

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 608

.]




  THE STATE EX REL. ASKEW, APPELLANT, v. GOLDHART, CHIEF, APPELLEE.
              [Cite as State ex rel. Askew v. Goldhart, 

1996-Ohio-448

.]
Mandamus to compel Adult Parole Authority to correct relator’s parole records—
        Writ denied when relator fails to establish a clear legal right to correction
        of the records and a corresponding clear legal duty on respondent’s part
        to correct such records.
           (No. 96-6—Submitted May 7, 1996—Decided June 19, 1996.)
   APPEAL from the Court of Appeals for Franklin County, No. 95APD04-440.
                                  __________________
        {¶ 1} In January 1980, appellant, Dwayne Askew, and another male
abducted a woman at gunpoint, forced her into a nearby apartment, and raped and
robbed her.     After a preliminary hearing at which the victim testified, it appears
the Cleveland Municipal Court bound over Askew and his accomplice to the
common pleas court.
        {¶ 2} The Cuyahoga County Grand Jury subsequently indicted Askew on
several charges, including rape, felonious sexual penetration, kidnapping, and
aggravated robbery. As to the felonious sexual penetration count, the grand jury
charged Askew with unlawfully and purposely inserting a piece of metal into the
victim’s vagina. The felonious sexual penetration charge, among others, was later
dismissed when Askew pled guilty to two counts of aggravated robbery and one
count of rape. The common pleas court sentenced Askew to consecutive sentences
of seven to twenty-five years.
        {¶ 3} In a postsentence investigation report by the Adult Parole Authority
(“APA”), Deputy Superintendent B. Joseph Shaver detailed the history of the
offenses committed by Askew as taken from the files of the Cuyahoga County
Prosecutor’s Office and the Cleveland Police Department. Shaver indicated that
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during the January 1980 abduction, rape, and robbery, Askew had broken a leg off
a chair and forced it into the victim’s vagina.
        {¶ 4} In April 1995, Askew filed a complaint in the Court of Appeals for
Franklin County for a writ of mandamus to compel appellee, the acting Chief of the
APA, as well as the Cuyahoga County Adult Probation Department and Cleveland
City Law Director to correct their records to delete all references to the felonious
sexual-penetration charge. Askew alleged that the APA had relied on inaccurate
evidence that he had used a table leg in attacking the victim, in order to repeatedly
deny Askew parole. Askew subsequently voluntarily dismissed the probation
department and the law director from the action. After the parties filed evidence
and briefs, the court of appeals denied the writ.
        {¶ 5} This cause is now before the court upon an appeal as of right.
                              ____________________
        Dwayne Askew, pro se.
        Betty D. Montgomery, Attorney General, and C. Matthew Cooper, Assistant
Attorney General, for appellee.
                              ____________________
        Per Curiam.
        {¶ 6} In order to obtain a writ of mandamus, Askew had to establish a clear
legal right to have erroneous information expunged from his parole records, a clear
legal duty on the part of the APA to delete such misinformation, and the lack of an
adequate remedy in the ordinary course of the law to vindicate the claimed right.
State ex rel. Howard v. Ferreri (1994), 

70 Ohio St.3d 587, 589

, 

639 N.E.2d 1189, 1192

.
        {¶ 7} In his first proposition of law, Askew asserts that statutory,
administrative, and constitutional provisions require the APA to maintain accurate
information in prisoners’ files. The court of appeals did not decide whether the
provisions specified by Askew created a duty on the part of the APA to expunge



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                                January Term, 1996




errors from parole records. Cf. State ex rel. Fain v. Summit Cty. Adult Probation
Dept. (1995), 

71 Ohio St.3d 658, 659

, 

646 N.E.2d 1113, 1115

, citing State ex rel.
Hattie v. Goldhardt (1994), 

69 Ohio St.3d 123

, 

630 N.E.2d 696

, for the proposition
that there is no due process right to have errors expunged from records used by the
APA in parole determinations. Instead, the court of appeals concluded that Askew
failed to establish that the felonious sexual-penetration allegations contained in his
APA records were false.
       {¶ 8} Askew contends that because the preliminary-hearing transcript did
not include testimony by the victim concerning any felonious sexual penetration
perpetrated by Askew with a table or chair leg, the APA’s postsentence
investigation report erroneously included allegations of this offense. However, the
mere absence of such testimony at the preliminary hearing does not establish that
these allegations are false. Following the preliminary hearing, Askew was indicted
by the grand jury on several charges, including felonious sexual penetration. The
APA’s postsentence summary of the incident is consistent with the indictment.
       {¶ 9} While an indictment is a mere accusation, it indicates that the grand
jury found probable cause to believe that Askew had committed the felonious
sexual penetration offense. State ex rel. Lipschutz v. Shoemaker (1990), 

49 Ohio St.3d 88, 90

, 

551 N.E.2d 161

, 162. In addition, even though the felonious sexual
penetration charge was ultimately dismissed, it remains relevant to APA decisions
concerning whether or not to parole Askew. Id. at 89-90, 

551 N.E.2d at 162

; see,
also, State ex rel. Jackson v. McFaul (1995), 

73 Ohio St.3d 185, 188

, 

652 N.E.2d 746, 749

 (Parole may be revoked even though criminal charges based on the same
facts are dismissed, the defendant is acquitted, or the conviction is overturned,
unless all factual support for the revocation is removed.). The court of appeals did
not err in determining that Askew failed to satisfy his burden of establishing that
the felonious sexual penetration allegations were inaccurate.          Askew’s first
proposition of law is overruled.




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        {¶ 10} In his second proposition of law, Askew asserts that the court of
appeals erred in denying his motion for leave to amend his complaint. Following
the parties’ submission of evidence and briefs, Askew filed a motion for leave to
amend his complaint to add Shaver, the author of the APA’s postsentence
investigation report. Askew urged that Shaver was an indispensable party pursuant
to Civ.R. 19.1(A). The court of appeals denied Askew’s motion.
        {¶ 11} The grant or denial of leave to amend a pleading is discretionary and
will not be reversed absent an abuse of discretion. Patterson v. V & M Auto Body
(1992), 

63 Ohio St.3d 573, 576

, 

589 N.E.2d 1306, 1309

; Civ.R. 15(A). An abuse
of discretion connotes a decision that is unreasonable, arbitrary or unconscionable.
State ex rel. Master v. Cleveland (1996), 

75 Ohio St.3d 23, 27

, 

661 N.E.2d 180, 184

.
        {¶ 12} In his motion, Askew contended in a conclusory fashion that
“[c]omplete relief cannot be accorded among those already parties in the absence”
of Shaver as a respondent, but did not state specific facts as to why such complete
relief would be unattainable without Shaver’s joinder. Therefore, the court of
appeals did not err in concluding that Askew had failed to demonstrate why Shaver
was indispensable. Further, the motion was filed after the submission of evidence
and briefs by the parties. The court of appeals did not abuse its discretion in
denying Askew’s motion for leave to amend. Askew’s second proposition of law
is meritless.
        {¶ 13} In his final proposition of law, Askew asserts that the court of
appeals erred by failing to compel appellee to provide discovery of police reports,
witness statements, and other investigative reports relating to the alleged felonious
sexual penetration. However, there is no evidence in the record that appellee had
possession of these requested records. In addition, documents pertaining to parole
proceedings do not constitute public records. R.C. 149.43(A)(1); 

Lipschutz, supra,

49 Ohio St.3d at 90

, 

551 N.E.2d at 162

; State ex rel. Gaines v. Ohio Adult Parole



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                               January Term, 1996




Auth. (1983), 

5 Ohio St.3d 104

, 5 OBR 241, 

449 N.E.2d 762

. Consequently,
Askew’s third proposition of law also lacks merit.
       {¶ 14} Based on the foregoing, the court of appeals did not err in denying
the writ. Askew failed to establish a clear legal right to correction of his parole
records and a corresponding clear legal duty on the part of appellee to correct such
records. Accordingly, the judgment of the court of appeals is affirmed.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
                              __________________




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