^LERn Uf COURT 'RERE COURT O F OHIO 6.^^^^ ^ STATE OF OHIO, EX REL. ROBERT E. CARPENTER, Case No

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1 STATE OF OHIO, EX REL. ROBERT E. CARPETER, I THE SUPREME COURT OF OHIO Relator, Case o V. Original Action in Procedendo MAGISTRATE KEITH W. MACKE, Respondent. MOTIO TO DISMISS OF RESPODET MAGISTRATE KEETH W. MACKE ROBERT E. CARPETER #53724 Chillicothe Correctional Institution P.O. Box 55 Chillicothe, OH 4561 Pro se Relator MICHAEL DEWIE Ohio Attorney General REATA Y. STAFF (86922) *Counsel of Record SARAH E. PIERCE (87799) Assistant Attorneys General Constitutional Offices Section 3 East Broad Street, 16th Floor Columbus, Ohio T: (614) ; F: (614) renata.staff@ohioattomeygeneral.gov gov Counselfor Respondent Magistrate Kenneth W. Macke Tenth District Court of Appeals 6.^^^^ ^ ^LERn Uf COURT 'RERE COURT O F OHIO

2 I THE SUPREME COURT OF OHIO STATE OF OHIO, EX REL. ROBERT E. CARPETER, Relator, Case o V. Original Action in Procedendo MAGISTRATE KEITH W. MACKE, Respondent. MOTIO TO DISMISS OF RESPODET MAGISTRATE KEETH W. MACKE Pursuant to Sup. Ct. Prac. R. 12.1, 12.4(A), and Ohio Civ. Rule 12(B)(6), Respondent Tenth District Court of Appeals Magistrate Kenneth W. Macke' hereby moves this Court to dismiss Relator's petition for a writ of procedendo. A memorandum in support is attached. Respectfully submitted, MICHAEL DEWIE Ohio Attorney General REATA Y. S FF ( 22) *Counsel of Record SARAH E. PIERCE (87799) Assistant Attorneys General Constitutional Offices Section 3 East Broad Street, 16th Floor Columbus, Ohio T: (614) ; F: (614) renata.staff@ohioattomeygeneral.gov sarah.pierce@ohioattomeygeneral.gov Counselfor Respondent Magistrate Kenneth W. Macke Tenth District Court of Appeals 1 Throughout his complaint, Relator incorrectly refers to Magistrate Kenneth W. Macke as Magistrate Keith W. Macke.

3 MEMORADUM I SUPPORT OF RESPODET'S MOTIO TO DISMISS 1. ITRODUCTIO Relator Robert Carpenter (the "Relator") commenced this action seeking a writ of procedendo to compel Respondent Tenth District Court of Appeals Magistrate Kenneth Macke (the "Respondent")2 to rule on Relator's mandamus action filed on May 16, 212. However, the Respondent issued a decision including findings of fact and conclusions of law on Relator's action on January 18, 213. Because Respondent Magistrate Macke has issued a decision that includes findings of fact and conclusions of law, Relator's present action is moot and should be dismissed. Additionally, Relator's complaint is defective because Relator failed to attach "an affidavit specifying the details of the claim" as required by S.Ct.Pract.R II. STATEMET OF FACTS On May 16, 212, Relator filed a mandamus action against the Ohio Adult Parole Authority/Board requesting an order that the Ohio Parole Board grant him a new parole hearing and delete all references to a vacated 26 Wood County conviction from his record. Relator's Compl. p. 1; State ex rel. Carpenter v: Mausser, et al., 1th Dist. o. 12AP-426. On January 14, 213, Relator filed this procedendo action alleging that Respondent Magistrate Macke "has unnecessarily delayed rendering a decision... and findings of fact and conclusions of law" on his Tenth District mandamus action "so that if necessary, [R]elator may file his objections." Id. at p. 4, 12, 13. Subsequently, on January 18, 213, Respondent issued a decision recommending dismissal of Relator's mandamus action. State ex rel. Carpenter v. Mausser, et al., 1th Dist. o. 12AP-426 (January 18, 213) (attached as Respondent's Exhibit A). This decision also 2 Relator incorrectly refers to Magistrate Kenneth W. Macke as Magistrate Keith W. Macke. 2

4 contains seventeen findings of fact as well as conclusions of law. Id. Respondent's decision issued on January 18, 213 renders Relator's action moot.3 III. ARGUMET A. Standard of Review A motion to dismiss for failure to state a claim upon which a court can grant relief challenges the sufficiency of the complaint itself, not evidence outside of the complaint. Volbers-Klarich v. Middletown Mgmt, Inc., 125 Ohio St.3d 494, 21-Ohio-257, 929.E.2d 434, 11. When considering the factual allegations of the complaint, a court must accept incorporated items as true and "the plaintiff must be afforded all reasonable inferences possibly derived therefrom." Mitchell v. Lawson Milk Co., 4 Ohio St.3d 19, 192, 532.E.2d 753 (1988). Finally, a court must find that the plaintiffs complaint does not provide relief on any possible theory. Civ. R. 12(B)(6); State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 18 Ohio St.3d 54, 26-Ohio-1713, 844.E.2d 1199, 8. B. Relator's Request for a Writ of Procedendo Must Fail. Relator's action for a writ of procedendo must fail because it requests performance of a duty that the Respondent has already performed. For a writ of procedendo to issue, the Relator must meet three requirements: ( 1) the relator must have a clear legal right to the requested relief; (2) the respondent must have a clear legal duty to perform the requested relief; and (3) the relator must have no adequate remedy at law. State ex rel. Sawicki v. Court of Common Pleas of Lucas 3 A court may take judicial notice of judicial entries in deciding whether a case is moot without converting a 12(B)(6) motion to a motion for summary judgment. State ex rel. Womack v. Marsh, 128 Ohio St.3d 33, 211-Ohio-229, 943.E.2d 11, at 8; see also Pewitt v. Lorain Correctional Inst., 64 Ohio St.3d 47, 472, 597.E.2d 92 (1992) ("[A]n event that causes a case to be moot may be proved by extrinsic evidence outside the record."). This court can take judicial notice of the mootness of a writ action without converting the present motion to a motion for summary judgment. See State ex rel. elson v. Russo, 89 Ohio St.3d 227, 729.E.2d 1181 (2). 3

5 County, 126 Ohio St.3d 198, 21-Ohio-3299, 931.E.2d 182, 11. Under this standard, a writ of procedendo is appropriate "when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." State ex rel. Bd of State Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 41, 27-Ohio-225, 865.E.2d 1289, Relator requests a writ of procedendo compelling Respondent to fulfill a duty that has already been performed. However, a writ of procedendo, will not issue to compel the performance of a duty that has already been performed. State ex rel. Bortoli v. Dinkelacker, 15 Ohio St.3d 133, 25-Ohio-779, 823.E.2d 448, 3, citing State ex rel. Howard v. Skow, 12 Ohio St.3d 423, 24-Ohio-3652, 811.E.2d 1128, 9. For example a relator is not entitled to an order requiring a common pleas court to act on a motion that the court had acted on by denying it. State ex rel. elson v. Russo, 89 Ohio St.3d 227, 228, 729.E.2d 1181 (2). Further, while considering actions for extraordinary writs, "a court is not limited to considering the facts and circumstances at the time that the writ was requested but can consider the facts and conditions at the time that entitlement to the writ is considered." State ex rel. Howard v. Skow, 12 Ohio St.3d 423, 24-Ohio-3652, 811.E.2d 1128, 9. These principles apply with equal force here. Relator seeks to compel Magistrate Macke to issue a decision on Relator's mandamus action. However, Respondent has done exactly that by issuing a decision that includes findings of fact and conclusions of law on Relator's pending mandamus action on January 18, 213. Exhibit A. o further issues remain unresolved before Respondent Magistrate Macke in Relator's case. Simply put, there is no duty that the 4 Under Ohio Civ.R. 53(D)(4)(a), "[a] magistrate's decision is not effective unless adopted by the court." Thus, to the extent that Relator seeks a writ of procedendo to compel Respondent Magistrate Macke to render a judgment, the Magistrate has no legal duty to do so. Similarly, Relator has no corresponding legal right to compel the Magistrate to issue a judgment. 4

6 Respondent has left unperformed and no corresponding relief that this Court may issue. Accordingly, Relator's complaint should be dismissed. Relator's complaint should also be dismissed because Relator fails to supplement his complaint in procedendo with a supporting affidavit. This Court requires that all original actions filed in the Supreme Court of Ohio "shall be supported by an affidavit specifying the details of the claim." S.Ct.Prac.R. 12.2(B)(1). Thus, Relator's complaint must be dismissed because it fails to comply with the Ohio Supreme Court's Rules of Practice. IV. COCLUSIO For the foregoing reasons, Respondent respectfully asks this Court to dismiss Relator's complaint. Respectfully submitted, MICHAEL DEWIE Ohio Attorney General 4AWL, U), - 4A71-- REATA Y. ST F(8 2) *Counsel of Record SARAH PIERCE (87799) Assistant Attorneys General Constitutional Offices Section 3 East Broad Street, 16th Floor Columbus, Ohio T: (614) ; F: (614) renata. staff@ohioattorneygeneral. gov sarah.pierce@ohioattomeygeneral.gov Counselfor Respondent Magistrate Kenneth W. Macke Tenth District Court of Appeals 5

7 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Motion to Dismiss was served by regular U.S. mail, postage prepaid, on January 31, 213 upon the following: ROBERT E. CARPETER #53724 Chillicothe Correctional Institution P.O. Box 55 Chillicothe, OH 4561 Pro se Relator REATA Y. ST F(86 2) Assistant Attorney General 6

8 A17 - R83 State of Ohio ex rel. Robert E. Carpenter, I THE COURT OF APPEALS OF OHIO TETH APPELI.ATE DISTRICT w 4* o a _ a Go ^ V. Relator, Cynthia Mausser and Ohio Adult Parole Authority/Board, Respondents. o. 12AP-426 (REGULAR CALEDAR) M T MAGISTRATE'S DECISIO Rendered on January 18, 213 ia CL CL U t Robert E. Carpenter, pro se. Michael DeWine, Attorney General, and Stephen C. Gray, for respondents. I MADAMUS O RESPODETS' MOTIO TO DISMISS In this original action, relator, an inmate of the Chillicothe Correctional LL Institution ("CCI"), requests a writ of mandamus ordering respondents the Ohio Adult Parole Authority, the Ohio Parole Board ("parole board"), and Cynthia Mausser, the chair of the Ohio Parole Board, to grant him a new parole hearing at which all references to a subsequently vacated 2o6 Wood County conviction are deleted from his record. Findings of Fact: 1. On May i6, 212, relator, a CCI inmate, filed this mandamus action. Exhibit A

9 A17 - R84 o. 12AP cc ^ a- T a O co ^Cl) T Y CD v Q. Q Z, U 2. According to the complaint, in October 2oo6, in the Wood County Court of Common Pleas ("Wood County Court"), relator pleaded guilty to one count to failure to register as a sexual predator. 3. According to the complaint, at the time of his Wood County conviction, relator was on parole. Consequently, his parole was revoked. 4. According to the complaint, in December 29, the Lucas County Court of Common Pleas ("Lucas County Court"), modified its prior adjudication such that relator was held to not be subject to the registration requirements for sexual predators. 5. According to the complaint, in ovember 21, the Wood County Court vacated relator's October 2oo6 conviction for failure to register as a sexual predator. 6. According to the complaint, subsequent to the vacating of his October 2oo6 conviction, relator has had two parole board hearings and decisions. Following a February 7, 211 parole board hearing, parole was denied and the hearing continued to February : According to the complaint, following a December 6, 211 parole board hearing, parole was denied and the hearing was continued to December 1, On June 7, 212, relator moved to amend his complaint pursuant to Civ.R. 15. On June 11, 212, the magistrate granted relator's motion to amend the complaint. 9. By amending his complaint, relator includes an additional issue supported by additional alleged facts. 1o. According to the amended complaint, on ovember 16, 1998, the Rules Infraction Board ("RIB") found relator guilty of violating two institutional rules. The first rule prohibits consensual physical contact for purposes of sexually arousing or gratifying either person. The second rule prohibits an act that is a felony or misdemeanor as defined by Ohio or Federal law. ii. According to the amended complaint, relator appealed the RIB decision to the warden and then to the director of the Ohio Department of Rehabilitation and Correction ("ODRC"). 12. According to the amended complaint, the ODRC director reversed the guilty findings and remanded without bar to further proceedings. The ODRC director Exhibit A

10 A17 - R85, o. 12AP further held that, if relator is not recharged, the record regarding the matter shall be expunged. 13. According to the amended complaint: At relator's December 6, 211. parole hearing the Adult parole board outright accused relator of sexually assaulting the inmate who made these false accusations, and continued relator for 24 more months based upon the 1998 incident, and recommended that relator take the "comprehensive sex offender program" because he (relator), "refuse to take responsibility for his sex offending behavior." Relator prays that this Honorable Court will command the APA to grant relator a new hearing, minus the erroneous information used at relator's December 6, 211 parole hearing. 14. On June 25, 212, respondents moved to dismiss this action. 15. On July 16, 212, relator filed his brief in opposition to respondents' motion to dismiss. 16. On July 2, 212, respondents filed a reply memorandum in support of their motion to dismiss. 17. On August 3, 212, relator filed a memorandum in opposition. Conclusions of Law: 212 motion to dismiss. It is the magistrate's decision that this court grant respondents' June 25, In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242 (1975), syllabus. In Festi v. Ohio Adult Parole Auth., ioth Dist. o. 4AP-1372, 25-Ohio- 3622, this court had occasion to succinctly summarize the law applicable to this action: Appellant has no inherent or constitutional right to release on parole before the expiration of his valid sentence. State ex rel. Miller v. Leonard (2), 88 Ohio St.3d 46, 47, 723.E.2d 114, certiorari denied, 53 U.S. 1223, 12 S.Ct. 2236, Exhibit A

11 OA17 - R86 o. 12AP Id. at L.Ed.2d 264, citing Greenholtz v. Inmates of ebraska Penal & Correctional Complex (1979), 442 U.S. 1, 7, 99 S.Ct. 2loo, 6o L.Ed.2d 668. OAPA has wide-ranging discretion in parole matters. [Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 78o.E.2d 548, 22-Ohio-6719.] Layne at 28. Because the decision to grant or deny parole is discretionary with OAPA, OAPA's denial of parole does not deprive an inmate of any protected liberty interest upon which he can base a due process claim. State ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d 123, 125-i26, 63o.E.2d 696; State ex rel. Ferguson v. Ohio Adult Parole Auth.(i989), 45 Ohio St.3d 355, 544.E.2d 674. Just as OAPA's denial of parole deprives an inmate of no protected liberty interest, OAPA's continuance of appellant's next parole hearing deprived appellant of no protected liberty interest. Because an Ohio inmate has no constitutional or statutory right to parole, he similarly has no right to earlier consideration for parole. State ex rel. Vaughn v. Ohio Adult Parole Auth. (1999), 85 Ohio St.3d 378, 379, 78.E.2d 72o. R.C does not require OAPA to provide an inmate a parole hearing. Instead, the decision whether to hold a parole hearing is within OAPA's discretion. Dozier v. Ohio Adult Parole Auth. (Mar. 3, 2ooo), Franklin App. o. 99AP-893, citing State ex rel. Thompson v. Clark (1982), 7 Ohio App.3d 191, 455.E.2d 6. With appellant having no right to earlier consideration for parole, and the decision whether to grant a parole hearing within OAPA's discretion, appellant can claim no due process rights with respect to the continuance of his next parole hearing. Here, relator contends that he has a clear legal right to have all references to the Wood County conviction removed from his ODRC record and a clear legal right to another parole hearing at which the ODRC record is expunged of all references to the Wood County conviction. Here, as indicated in his amended complaint, relator contends that he has a clear legal right to have all references to the alleged 1998 RIB finding and subsequent ODRC director's finding expunged from his ODRC record and that he has a clear legal right to another parole hearing. Exhibit A

12 A17 - R87 o. 12AP to ^ a Relator has no due process right to have alleged errors expunged from records used by the OAPA in its parole determination. State ex rel. Bray v. Brigano, 93 Ohio St.3d 458, 459 (21), citing Fain v. Summit Cty. Adult Probation Dept., 71 Ohio St.3d 658 (1995). Based upon the above authorities, it is clear that relator has no right to litigate in this action the claims that he has endeavored to present. Accordingly, it is the magistrate's decision that this court grant respondents' June 25, 212 motion to dismiss. ^ ^ a CV O Oo T ca 4 Cl) T ISI MAGISTRATE KEETH W. MACKE O U y O Y CU CL CL c s OTICE TO THE PARTIES Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b). U. Exhibit A

13 A17 - R88 Tenth Circuit Court of Appeals Date: Case Title: Case umber: STATE OF OHIO, EX REL ROBERT E CARPETER -VS- CYTHIA MAUSSER 12AP426 Type: MAGISTRATES DECISIO So Ordered <>:: :: /s/ Magistrate Kenneth W. Macke Electronically signed on 213-Jan-18 page 6 of 6 Exhibit A