Flenoy v. Ohio Adult Parole Authority

• Decision Date: 26 December 1990
• Docket Number: No. 89-2108,89-2108
• Parties: FLENOY, Appellant, v. OHIO ADULT PAROLE AUTHORITY, et al., Appellees.
• Court: Ohio Supreme Court

Page 131

56 Ohio St.3d 131

564 N.E.2d 1060

FLENOY, Appellant, v. OHIO ADULT PAROLE AUTHORITY, et al., Appellees.

No. 89-2108.

Supreme Court of Ohio.

Submitted Aug. 29, 1990.

Decided Dec. 26, 1990.

Appellant, Timothy Flenoy, is in the custody of appellee Superintendent of the Lima Correctional Institution. Flenoy was convicted of rape and abduction in 1975 and sentenced to four to twenty-five years' imprisonment. He was paroled in 1980. In 1981, while on parole, Flenoy was indicted for the murder of Evans Miller, Jr.

Appellee Ohio Adult Parole Authority ("APA") charged Flenoy with violating his parole by shooting Miller, associating with a felon, and possessing a firearm. On June 15, 1981, Flenoy received an on-site hearing at the Cuyahoga County Jail. See Ohio Adm.Code 5120:1-1-18. After hearing the testimony of four witnesses, the hearing officer found probable cause to believe that Flenoy had killed Miller. Based on this finding, the APA declared Flenoy a parole violator, triggering his right to a final parole hearing under Ohio Adm.Code 5120:1-1-19.

In 1982, before receiving his final hearing, Flenoy was convicted of Miller's murder and sentenced to fifteen years to life imprisonment. Under Ohio Adm.Code 5120:1-1-19(A)(1), if a parolee is convicted of a new felony, it is conclusively presumed that he has committed a parole violation. The parolee is still entitled to a final hearing, but the hearing's scope is confined to the determination of mitigating circumstances.

On April 8, 1982, after his murder conviction, Flenoy executed an APA form waiving his "right to present evidence of mitigating circumstances concerning * * * [his] conviction of a new felony." The waiver form contained a clause stating: "I further understand that I have violated my parole by the conviction of a new felony * * *."

On June 15, 1988, the United States District Court for the Northern District of Ohio, Eastern Division, granted Flenoy habeas corpus relief from his murder conviction. Flenoy v. Russell (June 15, 1988), N.D.Ohio No. C87-1292, unreported.

On September 13, 1988, Flenoy's attorney, Paul Mancino, Jr., telephoned Yvette M. McGee, Chief Counsel to the Ohio Department of Rehabilitation and Correction, to discuss Flenoy's parole in light of the federal court's action. Mancino claimed that he requested a revocation hearing for Flenoy. McGee claimed that Mancino asked for Flenoy's outright release from prison. On September 23, and October 14, 1988, Mancino wrote McGee to request anew that Flenoy be set free.

Flenoy filed this action in mandamus and habeas corpus in the Court of Appeals for Franklin County, which assigned it to a referee. While this action was pending in that court, Flenoy was retried for Miller's murder, convicted and again sentenced to fifteen years to life.

All parties filed motions for summary judgment. The court of appeals granted the appellees' motion, denied Flenoy's, and adopted the referee's report. The writs were denied.

The cause is now before us upon an appeal as of right.

Paul Mancino, Jr., Cleveland, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and John J. Gideon, Columbus, for appellees.

PER CURIAM.

In this appeal, Flenoy contends that the APA acted unlawfully in revoking his parole. ¹ Finding the revocation lawful, we affirm the judgment of the court of appeals.

Flenoy claims that when the federal court granted habeas corpus relief from his murder conviction, it fatally undercut the parole revocation stemming from that conviction. He claims that the APA was then required to give him a timely parole hearing or release him. The APA and the prison superintendent ² claim that the federal court's decision did not affect the parole revocation, because Flenoy's signature on a waiver form, admitting that he was convicted of a new crime, is sufficient basis for revocation without a hearing.

The general rule is that "parole may be revoked even though criminal charges based on the same facts are dismissed, the defendant is acquitted, or a conviction is overturned." State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d 639, 640. However, if the dismissal of the criminal charges removes all factual support from the revocation, the revocation will not be upheld. Hickman, supra; Mack v. McCune (C.A.10, 1977), 551 F.2d 251, 254.

In re Petition for Mallory (1985), 17 Ohio St.3d 34, 17 OBR 28, 476 N.E.2d 1045, presented us with similar facts. In 1980, Mallory was convicted of receiving stolen property and placed on probation. In 1982, he was convicted of carrying a concealed weapon. At the subsequent probation revocation hearing, he "was found to have violated his 1980 probation by reason of the 1982 finding of guilt." Although the court of appeals later reversed the 1982 finding of guilt, the trial court did not vacate its judgment revoking probation. The court of appeals granted relief. We affirmed, holding:

" * * * [W]hen the court of appeals reversed the conviction and remanded the case, it placed appellee in the position of one not convicted. * * * The probation revocation was premised on a judgment which later became a nullity. Consequently, the order was rendered ineffective and void." Mallory, supra, at 35, 17 OBR at 29, 476 N.E.2d at 1047.

The same result obtains when a federal court grants habeas corpus relief from a state conviction. The federal court grants such relief when it finds that a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States * * *." Section 2241(c)(3), Title 28, U.S.Code. The state is then forbidden to enforce the judgment of conviction, rendering that judgment "a nullity" as effectively as a reversal by an appellate court. Thus, a federal court's grant of relief from a state conviction is as fatal to a parole revocation based solely on that conviction as a successful appeal would be.

But the APA contends that revocation here was not based solely on the conviction. It points out that Flenoy executed a form waiving a formal revocation hearing and admitting that he " * * * violated one or more of the alleged parole * * * violations * * *." The APA argues that this waiver is enough to independently support the revocation of parole.

The APA analogizes Flenoy's acknowledgement of a parole violation to a guilty plea. By entering such a plea, "the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime." United States v. Broce (1989), 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927, 936. ³ Likewise, the APA reasons, Flenoy did not simply admit the historical fact of his conviction; rather, he stipulated that he was guilty of a parole violation.

But the APA's analogy is flawed. A plea of guilty acknowledges guilt of a particular offense. Flenoy's waiver, in contrast, was not an unambiguous admission of murder. The form specifically states: "I further understand that I have violated my parole by the conviction of a new felony * * *." (Emphasis added.)

When a defendant pleads guilty, in effect he stipulates that the state may punish him as if it had proved at trial that he committed the offense charged. But he does not stipulate that the state may punish him as if it had convicted him of some other offense. Similarly, Flenoy admitted that he had violated his parole "by conviction of a new felony." Thus, he stipulated that the APA could treat him as if it had proven that he had been convicted of a new felony. It does not follow that the APA could treat him as if it had proven that he killed Evans Miller, Jr. Flenoy did not "plead guilty" to that.

Thus, State ex rel. Nedea v. Capots (1988), 40 Ohio St.3d 74, 531 N.E.2d 707, is distinguishable. In Nedea, the APA did not rely on the parolee's criminal conviction to provide a factual basis for revocation; indeed, the parolee in Nedea never was convicted of anything. Here, the criminal conviction was the sole factual basis for revocation. Mack, Mallory, and Hickman, and not Nedea, are the relevant precedents here.

Even if the waiver form could be analogized to a guilty plea, it would be like a guilty plea that was not knowing and voluntary. A plea of guilty waives the defendant's right to a trial on guilt or innocence, and the court taking the plea must so inform him. See State v. Ballard (1981), 66 Ohio St.2d 473, 477-479, 20 O.O.3d 397, 399-400, 423 N.E.2d 115, 117-119. In contrast, when Flenoy signed the waiver form, he could not have intended to waive his right to a hearing on whether he committed a parole violation, for he had no right to such a hearing at that time. Having been convicted of the murder, Flenoy had only a right to a mitigation hearing, and the waiver shows on its face that Flenoy was so informed. The APA would treat Flenoy's waiver of a mitigation hearing as a complete waiver of any hearing. We think the waiver form means what it says.

The APA next argues that Flenoy's 1989 reconviction of murder suffices to support revocation of his parole. We agree that Flenoy's reconviction made a revocation hearing unnecessary. See Ohio Adm.Code 5120:1-1-19(A)(1). But once the original revocation was voided, the APA was obliged to give him a hearing within a reasonable time. Coleman v. Stobbs (1986), 23 Ohio St.3d 137, 23 OBR 292, 491 N.E.2d 1126. If an unreasonably long period went by before a hearing either was granted or became unnecessary, the APA lost its right to revoke Flenoy's parole. See United States ex rel. Sims v. Sielaff (C.A.7, 1977), 563 F.2d 821, 828 (quashing parole violator warrant is only possible remedy where parole hearing has been unreasonably delayed); Hamilton v. Keiter (C.P.1968), 16 Ohio Misc. 260, 264, 45 O.O.2d 285, 288, 241 N.E.2d 296, 299.

In Coleman, we established a two-part test in determining whether the APA's delay in holding a final revocation hearing entitled an alleged parole violator to relief. First, the...