2000 OHIO 249 - State ex rel. McCuller v. Ghee

[This opinion has been published in Ohio Official Reports at

87 Ohio St.3d 580

.]




     THE STATE EX REL. MCCULLER, APPELLANT, v. GHEE, CHAIRPERSON,
                                        APPELLEE.
             [Cite as State ex rel. McCuller v. Ghee,

2000-Ohio-249

.]
Parole—Revocation—Mandamus to compel Ohio Adult Parole Authority
        Chairperson to provide relator with an earlier parole hearing than one
        continued until year 2001—Denial of writ affirmed.
   (No. 99-1359—Submitted November 16, 1999—Decided January 26, 2000.)
   APPEAL from the Court of Appeals for Madison County, No. CA99-02-005.
                                  __________________
        {¶ 1} In 1980, the Cuyahoga County Court of Common Pleas convicted
appellant, Charles D. McCuller, of two counts of rape, one count of attempted rape,
and one count of felonious assault, and sentenced him to prison. McCuller was
paroled on four separate occasions, the latest being May 1995. In July 1995,
McCuller was arrested, and he was subsequently found to have violated his parole
conditions. In October 1998, following a parole hearing, the parole board continued
McCuller’s next parole hearing until the year 2001. The parole board found that
release was inappropriate, in part due to McCuller’s four separate violations of his
prison’s disciplinary conduct rules since his 1995 arrest.
        {¶ 2} In February 1999, McCuller filed a complaint in the Court of Appeals
for Madison County for a writ of mandamus to compel appellee, Ohio Adult Parole
Authority (“APA”) Chairperson Margarette T. Ghee, to provide an earlier parole
hearing. McCuller claimed that the Parole Board’s decision to continue his next
parole hearing until 2001 violated the APA’s internal guidelines and constituted
vindictive retaliation for his filing of a separate mandamus action in 1997
challenging the constitutionality of his last parole revocation hearing. The court of
appeals granted Ghee’s motion for summary judgment and denied the writ.
                             SUPREME COURT OF OHIO




       {¶ 3} This cause is now before the court upon an appeal as of right.
                               __________________
       Charles D. McCuller, pro se.
       Betty D. Montgomery, Attorney General, and Jihad M. Smaili, Assistant
Attorney General, for appellee.
                               __________________
       Per Curiam.
       {¶ 4} McCuller asserts that the court of appeals erred in denying the writ.
For the following reasons, McCuller’s contentions lack merit.
       {¶ 5} McCuller has no constitutional or statutory right to the earlier
consideration of parole. State ex rel. Henderson v. Ohio Dept. of Rehab. & Corr.
(1998),

81 Ohio St.3d 267, 268

690 N.E.2d 887, 888

. The APA’s internal
guidelines do not alter the discretionary nature of its parole determination. State ex
rel. Vaughn v. Ohio Adult Parole Auth. (1999),

85 Ohio St.3d 378, 379

708 N.E.2d 720, 721

.
       {¶ 6} Moreover, as the court of appeals observed, the fact that McCuller had
been paroled on four previous occasions within a seven-year period did not support
McCuller’s claim that he was being treated differently from other inmates. The
evidence establishes that the Parole Board did not act vindictively. Instead, the
Parole Board was justifiably concerned that McCuller was a risk to society because
of his history of four previous parole revocations and four violations of prison
disciplinary conduct rules since his last revocation. See Hattie v. Anderson (1994),

68 Ohio St.3d 232, 235

626 N.E.2d 67, 70-71

.
       {¶ 7} Based on the foregoing, we affirm the judgment of the court of
appeals.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.




                                          2
SUPREME COURT OF OHIO




 __________________




          3