[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 84.]
REYES, APPELLANT, v. TATE, WARDEN, APPELLEE.
[Cite as Reyes v. Tate, 2001-Ohio-289.]
Habeas corpus to compel relator’s release from prison—Dismissal of petition
affirmed.
(No. 00-1876—Submitted January 31, 2001—Decided February 28, 2001.)
APPEAL from the Court of Appeals for Belmont County, No. 00-BA-14.
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Per Curiam.
{¶ 1} In March 1993, the Cuyahoga County Court of Common Pleas
convicted appellant, Armando Reyes, of attempted robbery and sentenced him to
prison. Reyes’s sentence was suspended, and he was placed on two years’
probation. Thereafter, Reyes violated the terms of his probation and was
incarcerated. Reyes was subsequently paroled, and his parole officer ordered him
not to visit the residence of his ex-girlfriend without the officer’s written
permission.
{¶ 2} On July 26, 1997, the record indicates that Reyes went to his ex-girlfriend’s home, damaged her screen-door window by throwing a hammer
through it, and then beat up her new boyfriend by hitting him repeatedly with a
piece of wood. Although the state entered a nolle prosequi on new charges of
felonious assault and aggravated burglary arising from Reyes’s conduct, the Ohio
Parole Board revoked his parole based on this conduct in July 1997. In October
1999, the board relied on Reyes’s July 1997 conduct in deciding not to parole him
and to have him continue his incarceration until the expiration of his maximum
sentence.
{¶ 3} In March 2000, Reyes filed a petition in the Court of Appeals for
Belmont County for a writ of habeas corpus to compel appellee, Reyes’s prison
SUPREME COURT OF OHIO
warden, to release him from prison. Reyes claimed that the state’s dismissal of the
1997 criminal charges removed all factual support for them and that the Parole
Board’s continued reliance on this alleged conduct violated his constitutional due
process rights. Appellee filed a motion to dismiss. In September 2000, the court
of appeals granted appellee’s motion and dismissed the petition.
{¶ 4} In his appeal as of right, Reyes essentially asserts that the court of
appeals erred in dismissing his habeas corpus petition. Reyes’s assertion lacks
merit.
{¶ 5} “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.” Moore v. Leonard (1999),
85 Ohio St.3d 189, 190,
707 N.E.2d 867, 868. The state’s dismissal of the felonious
assault and aggravated burglary charges against Reyes did not remove all factual
support for the revocation. The attachments to Reyes’s petition establish that the
Parole Board had substantial evidence before it, including the testimony of police
officers, to support its findings that Reyes committed the charged parole violations,
i.e., that he criminally damaged property, assaulted his ex-girlfriend’s new
boyfriend, and failed to obey an order of his parole officer. See State ex rel. Parker
v. Tate (1999),
86 Ohio St.3d 625, 626,
716 N.E.2d 210, 211.
{¶ 6} In addition, as long as an unreasonable delay has not occurred, the
remedy for noncompliance with parole-revocation due process requirements is
generally a new hearing, not outright release from prison. State ex rel. Johnson v.
Ohio Adult Parole Auth. (2000), 90 Ohio St.3d 208, 209,
736 N.E.2d 469, 471.
{¶ 7} Finally, Reyes has no constitutional or inherent right to be
conditionally released from prison before the expiration of his sentence. State ex
rel. Recker v. Leonard (2000), 88 Ohio St.3d 223, 224,
724 N.E.2d 805, 806.
{¶ 8} Therefore, the court of appeals properly dismissed the petition.
Accordingly, we affirm the judgment of the court of appeals.
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January Term, 2001
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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Armando Reyes, pro se.
Betty D. Montgomery, Attorney General, and Diane Mallory, Assistant
Attorney General, for appellee.
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