State ex rel. Wright v. Ohio Adult Parole Auth.

• Decision Date: 04 March 1996
• Docket Number: No. 94-1222,94-1222
• Citation: 661 N.E.2d 728,75 Ohio St.3d 82
• Parties: , 64 USLW 2612 The STATE ex rel. WRIGHT, Appellee, v. OHIO ADULT PAROLE AUTHORITY, Appellant.
• Court: Ohio Supreme Court

Page 82

75 Ohio St.3d 82

661 N.E.2d 728, 64 USLW 2612

The STATE ex rel. WRIGHT, Appellee, v. OHIO ADULT PAROLE AUTHORITY, Appellant.

No. 94-1222.

Supreme Court of Ohio.

Submitted Jan. 10, 1996.

Decided March 4, 1996.

SYLLABUS BY THE COURT

1. Civ.R. 54(B) applies in determining the appealability to the Supreme Court of orders in original actions, such as mandamus, entered by a court of appeals.

2. Evidence obtained through an unreasonable or unlawful search and seizure is generally admissible in probation and/or parole revocation proceedings. (State v. Burkholder [1984], 12 Ohio St.3d 205, 12 OBR 269, 466 N.E.2d 176, overruled.)

On October 21, 1991, relator-appellee, Ronnie E. Wright, Jr., was released on parole by respondent-appellant, Ohio Adult Parole Authority ("APA"). Wright agreed to accept several conditions incident to parole, one of which was the standard condition that his parole officer could perform a warrantless search of his person, motor vehicle, or residence at any time.

On November 19, 1991, police officers in Findlay, Ohio, received a report that a residence had been burglarized, along with information that a car with distinctive features (pink trim and pink hubcaps), believed to belong to appellee and his wife, was observed parked at the scene on the date of the burglary. A police detective informed Beverly Fisher, appellee's parole officer, that appellee was a suspect in the burglary, and Fisher received a description of items stolen in the burglary.

On November 22, 1991, Fisher saw appellee and his wife stopped in a store parking lot near their home and told appellee to go to his residence and wait for her. Pursuant to APA policy, due to the possibility of Fisher's arresting appellee for violating his parole conditions, Fisher called for police to assist her. Fisher subsequently entered appellee's residence accompanied by three uniformed police officers, searched the premises, and seized "numerous video recorder tapes, Nintendo cartridges and other items," many of which were later identified as coming from the burglarized residence. Appellee was cited for violating his parole release conditions and was incarcerated.

Based upon Fisher's search, the Findlay Police Department obtained and executed a search warrant for appellee's residence. On November 23, 1991, police seized, inter alia, three tires and four rims, possibly stolen during a recent burglary of Capitol Tire Company, and appellee was subsequently indicted for receiving stolen property.

On December 9, 1991, the APA conducted an on-site, preliminary parole revocation hearing and found probable cause to believe that appellee had violated his parole. On June 17, 1992, the Hancock County Court of Common Pleas suppressed evidence in appellee's receiving stolen property criminal case, finding that the police search of appellee's residence violated his Fourth Amendment rights. The receiving stolen property indictment was subsequently dismissed, terminating the prosecution of appellee for that offense.

After being returned to prison, appellee requested a final parole revocation hearing. On September 2, 1992, appellee received his final parole revocation hearing, at which Fisher and a Findlay police detective testified about the searches of appellee's residence. The APA found appellee to be a parole violator in that appellee had violated state law by possessing stolen property on November 22, 1991, and revoked his parole.

On May 3, 1993, appellee filed a complaint in the Court of Appeals for Franklin County, seeking a writ of mandamus compelling the APA to release him from prison and reinstate his parole. The court of appeals granted appellee a writ of mandamus ordering the APA to hold a new parole revocation hearing in which evidence obtained in violation of appellee's constitutional right against unreasonable searches and seizures would neither be admitted nor considered. In so ruling, the court of appeals relied upon State v. Burkholder (1984), 12 Ohio St.3d 205, 12 OBR 269, 466 N.E.2d 176, syllabus, which held that evidence obtained through an unreasonable or unlawful search is not admissible at a probation revocation hearing. In ordering a new parole revocation hearing for appellee, the court determined that the rule of Burkholder should apply to parole revocation hearings as well as to probation revocation hearings.

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

Robert J. Churilla, Bedford, for appellee.

Betty D. Montgomery, Attorney General, and Todd R. Marti, Assistant Attorney General, for appellant.

ALICE ROBIE RESNICK, Justice.

The sole substantive issue presented by this appeal is whether the exclusionary rule applies to parole revocation proceedings.

I

However, before reaching the exclusionary rule issue, we will consider a matter which has not been raised by the parties--whether the order appealed from was a final appealable order.

Under Section 2(B)(2)(a), Article IV of the Ohio Constitution, appeals may be taken to the Supreme Court as a matter of right in cases originating in the courts of appeals, including actions on extraordinary writs. R.C. 2505.03 restricts the appellate jurisdiction of any court, including the Supreme Court, to the review of final orders, judgments or decrees. R.C. 2505.02 defines a "final order" as inter alia, "[a]n order that affects a substantial right * * * which in effect determines the action * * *." The order appealed from here appears to fit this definition because it affects a substantial right and determined at least one of appellee's claims. Furthermore, since the order obligated the APA to hold a new parole revocation hearing, the order determined the action as to appellee's argument concerning the exclusionary rule.

However, an order of a court is a final appealable order only if the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met. Chef Italiano v. Kent State Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus.

Civ.R. 54(B) provides:

"When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions * * *, the court may enter final judgment as to one or more but fewer than all of the claims * * * only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims * * *, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

Issues of fact raised by the pleadings in mandamus actions "must be tried, and further proceedings thereon had, in the same manner as in civil actions." R.C. 2731.09. Civ.R. 54(B) applies to pertinent civil actions and is not clearly inapplicable to mandamus proceedings. See Civ.R. 1(C)(7). The applicability of Civ.R. 54(B) is bolstered when one considers that Section 1 of Loc.App.R. 11 of the Court of Appeals for Franklin County expressly provides that mandamus actions filed there "shall proceed as any civil action under the Ohio Rules of Civil Procedure." Consequently, the mere fact that a proceeding involves the extraordinary writ of mandamus does not make Civ.R. 54(B) inapplicable. The same policies underlying Civ.R. 54(B) (in particular the policy of preventing piecemeal litigation) in ordinary civil actions also apply to mandamus actions filed in the court of appeals. Therefore, we hold that Civ.R. 54(B) applies in determining the appealability to the Supreme Court of orders in original actions, such as mandamus, entered by a court of appeals.

Once applicable, Civ.R. 54(B) must be followed, by its terms, when a case involves multiple claims and/or multiple parties. An order adjudicating one or more but fewer than all the claims or the rights and liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02 and Civ.R. 54(B) in order to be final and appealable. Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381, syllabus. This case does not involve multiple parties; however, because it may involve multiple claims, we must consider the application of Civ.R. 54(B), given our conclusion above that Civ.R. 54(B) applies.

Appellee, in his complaint at the court of appeals seeking reinstatement of his parole and release from prison, styled his two arguments as two "claims for relief": (1) the APA failed to give him a final parole hearing within a reasonable time, in violation of R.C. 2967.15(A), and (2) the APA erroneously relied on the evidence obtained by Fisher and the police in their illegal searches of his residence in the parole revocation determination. The court of appeals granted a limited writ of mandamus without discussing the first argument. For our Civ.R. 54(B) analysis, we must determine if appellee's arguments were two distinct "claims for relief" in Civ.R. 54(B) parlance. If appellee did present two distinct claims for relief, we must examine the way the court of appeals handled them to determine if it was necessary for the court to include Civ.R. 54(B) language, indicating that "there is no just reason for delay" in order to make the order appealable.

Civ.R. 54(B) is based on Fed.R.Civ.P. 54(b), see Staff Notes to Civ.R. 54(B)--therefore, we look for guidance to authorities interpreting the federal rule. If claims are factually separate and independent, multiple claims are clearly present. 10 Wright, Miller & Kane, Federal Practice and Procedure (2 Ed.1983) 63, Section 2657. Two legal theories that require proof of substantially different facts are considered separate claims for purposes of Civ.R. 54(B). See N.A.A.C.P. v. Am. Family Mut. Ins. Co. ...