State ex rel. Askew v. Goldhart

• Decision Date: 19 June 1996
• Docket Number: No. 96-6,96-6
• Citation: 665 N.E.2d 200,75 Ohio St.3d 608
• Parties: The STATE ex rel. ASKEW, Appellant, v. GOLDHART, Chief, Appellee.
• Court: Ohio Supreme Court

Page 608

75 Ohio St.3d 608

665 N.E.2d 200

The STATE ex rel. ASKEW, Appellant, v. GOLDHART, Chief, Appellee.

No. 96-6.

Supreme Court of Ohio.

Submitted May 7, 1996.

Decided June 19, 1996.

Dwayne Askew, pro se.

Betty D. Montgomery, Attorney General, and C. Matthew Cooper, Assistant Attorney General, for appellee.

PER CURIAM.

In order to obtain a writ of mandamus, Askew had to establish a clear legal right to have erroneous information expunged from his parole records, a clear legal duty on the part of the APA to delete such misinformation, and the lack of an adequate remedy in the ordinary course of the law to vindicate the claimed right. State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189, 1192.

In his first proposition of law, Askew asserts that statutory, administrative, and constitutional provisions require the APA to maintain accurate information in prisoners' files. The court of appeals did not decide whether the provisions specified by Askew created a duty on the part of the APA to expunge errors from parole records. Cf. State ex rel. Fain v. Summit Cty. Adult Probation Dept. (1995), 71 Ohio St.3d 658, 659, 646 N.E.2d 1113, 1115, citing State ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d 123, 630 N.E.2d 696, for the proposition that there is no due process right to have errors expunged from records used by the APA in parole determinations. Instead, the court of appeals concluded that Askew failed to establish that the felonious sexual-penetration allegations contained in his APA records were false.

Askew contends that because the preliminary-hearing transcript did not include testimony by the victim concerning any felonious sexual penetration perpetrated by Askew with a table or chair leg, the APA's postsentence investigation report erroneously included allegations of this offense. However, the mere absence of such testimony at the preliminary hearing does not establish that these allegations are false. Following the preliminary hearing, Askew was indicted by the grand jury on several charges, including felonious sexual penetration. The APA's postsentence summary of the incident is consistent with the indictment.

While an indictment is a mere accusation, it indicates that the grand jury found probable cause to believe that Askew had committed the felonious sexual-penetration offense. State ex rel. Lipschutz v. Shoemaker (1990), 49 Ohio St.3d 88, 90, 551 N.E.2d 160, 162. In addition, even though the felonious sexual-penetration charge was ultimately dismissed, it remains relevant to APA decisions concerning whether or not to parole Askew. Id. at 89-90, 551 N.E.2d at 162; see, also, State ex rel. Jackson v. McFaul (1995), 73 Ohio St.3d 185, 188, 652 N.E.2d 746, 749 (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.). The court of appeals did not err in determining that Askew failed to satisfy his burden of establishing that the felonious sexual-penetration allegations were inaccurate. Askew's first proposition of law is overruled.

In his second proposition of law, Askew asserts that the court of appeals erred in denying his motion for leave to amend his complaint. Following the parties' submission of evidence and briefs, Askew filed a motion for leave to amend his complaint to add Shaver, the author of the APA's postsentence investigation report. Askew urged that Shaver was an indispensable par...