State ex rel. Johnson v. Ohio Adult Parole Authority

[This opinion has been published in Ohio Official Reports at 

90 Ohio St.3d 208

.]




       THE STATE EX REL. JOHNSON, APPELLANT, v. OHIO ADULT PAROLE
                                AUTHORITY, APPELLEE.
   [Cite as State ex rel. Johnson v. Ohio Adult Parole Auth., 

2000-Ohio-61

.]
Habeas corpus to compel petitioner’s release from prison—Denial of petition
        affirmed, when.
   (No. 00-778—Submitted September 27, 2000—Decided October 25, 2000.)
      APPEAL from the Court of Appeals for Scioto County, No. 99CA2678.
                                  __________________
        {¶ 1} In 1989, appellant, Gregory Johnson, was convicted of felonious
assault and sentenced to a prison term of four to fifteen years. After being paroled
on December 22, 1995, Johnson was arrested and charged with domestic violence
for assaulting his pregnant fiancée, Teena Smith, in December 1996.
        {¶ 2} On December 19, 1996, appellee, the Ohio Adult Parole Authority
(“APA”), through Johnson’s parole officer, sent Johnson written notification that a
hearing would be held on January 8, 1997, to determine whether he had violated
his parole and, if so, whether his parole should be revoked. The APA alleged that
Johnson had violated his parole by assaulting Smith.
        {¶ 3} On January 8, 1997, an APA hearing officer conducted a parole
revocation hearing in which Johnson was represented by appointed counsel.
Toledo Police Officer Richard Trevino testified that on December 15, 1996, he
responded to a domestic violence call and that Smith, who was “excited” and “in a
state of disarray,” told him that she had been beaten by Johnson after they had
argued about infidelity. Officer Dorothy Hayes testified that she observed welts on
Smith’s body, that Smith was in obvious pain, and that Smith advised her that
Johnson had beaten her with an extension cord. According to Smith’s testimony,
Johnson had not assaulted her and she had reported otherwise to the police because
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she was mad at him for cheating on her. Johnson claimed that he had been at
another residence working on cars on the date of the alleged assault.
       {¶ 4} Following the hearing, the APA concluded that Johnson had
committed the charged parole violation by assaulting Smith and revoked his parole.
In March 1997, the Ohio Parole Board decided that due to the serious nature of his
parole violation, Johnson should remain in prison until the expiration of his
sentence.
       {¶ 5} In November 1999, nearly three years after the APA revoked his
parole, Johnson filed a petition in the Court of Appeals for Scioto County for a writ
of habeas corpus to compel his immediate release from prison on the terms of his
previous parole. Johnson claimed that his parole revocation was void because the
APA failed to comply with the due process requirements set forth in Morrissey v.
Brewer (1972), 

408 U.S. 471

, 

92 S.Ct. 2593

, 

33 L.Ed.2d 484

. In his petition,
Johnson specifically named the warden of his prison as one of the officers confining
him. The APA filed an answer and a motion for summary judgment, and Johnson
filed a motion to compel discovery.
       {¶ 6} In March 2000, the court of appeals granted the APA’s motion and
denied the writ. The court of appeals held that Johnson failed to comply with R.C.
2725.04(B) because he had not named his prison warden as a respondent and that
Johnson had been given a parole revocation hearing that complied with the
Morrissey due process requirements.
       {¶ 7} This cause is now before the court upon an appeal as of right.
                              __________________
       Gregory D. Johnson, pro se.
                              __________________
       Per Curiam.
       {¶ 8} Johnson asserts that the court of appeals erred in denying the writ. We
first agree with Johnson that the court of appeals erred in concluding that he failed




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                                January Term, 2000




to comply with R.C. 2725.04(B) because he did not specify “[t]he officer, or name
of the person by whom [he] is * * * confined or restrained.” Johnson’s petition did
identify his prison warden.
       {¶ 9} Nevertheless, the court of appeals correctly denied the writ. See State
ex rel. Gilmore v. Mitchell (1999), 

86 Ohio St.3d 302, 303

, 

714 N.E.2d 925, 926

(“we will not reverse a correct judgment merely because of an erroneous
rationale”). Johnson’s habeas corpus claims, which challenge the constitutionality
of his parole revocation, are devoid of merit.
       {¶ 10} “ ‘As long as an unreasonable delay has not occurred, the remedy for
noncompliance with the Morrissey parole-revocation due process requirements is a
new hearing, not outright release from prison.’ ” State ex rel. Spann v. Mitchell
(1998), 

82 Ohio St.3d 416, 417

, 

696 N.E.2d 589, 590

, quoting State ex rel. Jackson
v. McFaul (1995), 

73 Ohio St.3d 185, 188

, 

652 N.E.2d 746, 749

. “[U]nder the
applicable test for unreasonable delay, prejudice receives substantial emphasis, and
* * * the most serious component of prejudice is the possibility that delay will
impair the accused parole violator’s defense at his final parole revocation hearing.”
State ex rel. Crigger v. Ohio Adult Parole Auth. (1998), 

82 Ohio St.3d 270, 272

,

695 N.E.2d 254, 256

.
       {¶ 11} Although Johnson contends that several witnesses are no longer
available to testify at a revocation hearing, some of these witnesses either already
testified at the revocation hearing (Smith) or, in the case of Johnson’s relatives, he
never requested that they be made witnesses or stated in his petition what they
would testify about.
       {¶ 12} Furthermore, regarding two additional witnesses, including a
claimed alibi witness, who were allegedly requested as witnesses at the revocation
hearing by Johnson, Johnson never signed the request for these witnesses, he did
not include the address for one of the prospective witnesses on the request form,
and he advised his attorney and the hearing officer at his revocation hearing that




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these persons would be harder to contact because they were “street people.”
Therefore, it appears unlikely that these witnesses would have attended the
revocation hearing.
       {¶ 13} Moreover, Jackson does not allege why he could not have obtained
affidavits in lieu of testimony from these witnesses. Crigger, 82 Ohio St.3d at 272-
273, 

695 N.E.2d at 256

; see Gagnon v. Scarpelli (1973), 

411 U.S. 778, 782

, 

93 S.Ct. 1756, 1760

, 

36 L.Ed.2d 656, 662, fn. 5

 (substitutes for live testimony, where
appropriate, are not prohibited by Morrissey); see, generally, 2 Cohen, The Law of
Probation and Parole (2 Ed.1999) 21-40, Section 21:26 (“Irrespective of the nature
of a witness’s testimony, it is often held that the Constitution does not entitle an
indigent probationer or parolee to receive public funds to transport the witness to
the site of the final revocation hearing”). In fact, two documents purporting to be
statements of these witnesses were attached to Johnson’s petition, although they
contain neither the witnesses’ signatures nor notary stamps. There is no allegation
why actual affidavits could not have been produced for the hearing.
       {¶ 14} Johnson consequently failed to allege prejudice with the required
factual specificity to warrant extraordinary relief in habeas corpus. Crigger, Spann,
and Jackson.
       {¶ 15} In addition, the record establishes that the APA complied with the
constitutional due process requirements for parole revocation proceedings in
revoking Johnson’s parole. We note that many of Johnson’s Morrissey claims rely
on the erroneous assumption that the APA was required to conduct two revocation
hearings, a preliminary one and a final one. Under Ohio Adm.Code 5120:1-1-18,
only one parole revocation hearing is required. Consolidating the preliminary and
final revocation hearings mentioned in Morrissey into a single proceeding is
constitutionally permissible.   Ellis v. Dist. of Columbia (C.A.D.C.1996), 

318 U.S.App.D.C. 39, 50

, 

84 F.3d 1413, 1424

; see, also, 2 Cohen at 25-24-16, Section
25:12. Furthermore, Smith’s statements to the officers were admissible hearsay




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                                     January Term, 2000




under Evid.R. 803(2), and even if they were not, hearsay is admissible in revocation
proceedings. State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 

62 Ohio St.3d 12, 16

, 

577 N.E.2d 352, 355

.
         {¶ 16} Finally, the court of appeals did not err in refusing discovery to
Johnson for his habeas corpus proceeding. Discovery is not always required in
habeas corpus proceedings; R.C. Chapter 2725 prescribes a basic, summary
procedure for bringing habeas corpus actions. Gaskins v. Shiplevy (1996), 

76 Ohio St.3d 380, 382-383

, 

667 N.E.2d 1194, 1197

. Discovery was not required for
Johnson’s meritless action.
         {¶ 17} Based on the foregoing, Johnson is not entitled to the requested writ
of habeas corpus, and the court of appeals properly denied the writ. We affirm the
judgment of the court of appeals.1
                                                                            Judgment affirmed.
         MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                               __________________




1. Our holding renders the APA’s motion to strike Johnson’s amended brief moot. We also deny
Johnson’s motions for discovery, default judgment, and the appointment of counsel. Civ.R. 34 and
55 do not apply to appeals, and Johnson does not have a constitutional right to appointed counsel in
these proceedings. Civ.R. 1(C)(1); see, also, Gaskins, 

76 Ohio St.3d at 382

, 

667 N.E.2d at 1196

;
Wright v. Eckle (Madison App.1957), 

76 Ohio Law Abs. 323

, 

146 N.E.2d 890

; State ex rel. Jackson
v. McManamon (1999), 

86 Ohio St.3d 1434

, 

713 N.E.2d 1047

. In addition, although the APA failed
to file a timely merit brief, we need not reverse the judgment of the court of appeals pursuant to
S.Ct.Prac.R. VI(7) because Johnson’s brief does not reasonably appear to sustain reversal.




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