William Horton v. Jerry Collins, 92-LW-5228

• Decision Date: 21 October 1992
• Docket Number: 92-LW-5228,91CA005276
• Parties: WILLIAM HORTON, Plaintiff-Appellant v. JERRY COLLINS, et al., Defendants-Appellees C.A.
• Court: Ohio Court of Appeals

WILLIAM HORTON, Plaintiff-Appellant v. JERRY COLLINS, et al., Defendants-Appellees

No. 91CA005276

92-LW-5228 (9th)

Court of Appeals of Ohio, Ninth District Lorain

October 21, 1992

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF LORAIN, OHIO CASE NO. 91 CV 107300

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

CACIOPPO J.

This appeal arises from the trial court's dismissal of appellant's pro se petition for a writ of habeas corpus.

In 1989, a Cuyahoga County Common Pleas Court sentenced petitioner-appellant William Horton (Horton), to serve 1« - 5 years imprisonment for a drug abuse conviction. Thereafter the court released Horton on parole. On New Year's Eve December 31, 1990, Horton assaulted a woman. The Adult probation Authority (hereinafter APA) became aware of this incident, and filed a detainer against Horton with the Cuyahoga County Sheriff's Office on January 14, 1991. On the same day, Horton visited his parole officer, at which time Cleveland police arrested him.

The following day, the APA notified Horton of an on-site hearing at the Cuyahoga County Jail. The hearing, to take place on January 28, 1991, would determine if there was probable cause to believe that Horton had violated the terms of his parole. Horton signed a form waiving his right to this preliminary hearing, and at the same time requested an informal parole revocation hearing.

Horton remained in the Cuyahoga County Jail under a felonious assault charge. He did not post his $10,000 (10%) bond Horton plead guilty to this charge on May 20, 1991, at which time the APA scheduled Horton's informal parole revocation hearing for June 17, 1991. Horton then requested a formal hearing which the APA scheduled for October 11, 1991. At the formal hearing, the APA revoked Horton's parole.

Horton petitioned the Lorain County Court of Appeals for a writ of habeas corpus. He claimed that the court should restore his parole because of the APA's unreasonable delay in granting him a parole revocation hearing. The trial court dismissed the petition in a summary judgment on December 11 1991. Horton appeals that decision, raising three assignments of error.

Assignments of Error

"I. Court erred in failing to recognize that availability had been admitted to and established in respondents (sic) return (Parole Violation Report; Included), (sic) and so per prevailing opinion that since petitioner was available to OAPA before any charges were filed in any other arena, and since petitioner was in a custodial setting and not free to leave at his own discretion, and since Unit (sic) supervisor was aware of revocable (sic) conduct by petitioner though (sic) knowledge gained by parole officers (sic) investigation, and after making a decision to release petitioner per guidelines established by OAPA Administrative Regulations, upon subsequent rearrest by parole officer OAPA had a clear duty to hold immediate hearing to establish the facts and failure to do so and declare petitioner a parole violator even after the information (sic) gathered in the investigation would have substantiated (sic) a violation is a clear cut violation of petitioner (sic) rights to due process and also waives OAPA (sic) claim to petitioner because the 'timely (sic) hearing requirement' was abridged.

"II. Court erred in failing to recognize procedural due process violations; in that, 'On January 7, 1991, Horton came into the office and gave the the following statement' Parole Violation and Report and Summary (sic) so since Horton (petitioner) was available to OAPA on January 7 and 14, 1991 by surrendering himself at the offices of the OAPA, and since central office and unit supervisor was (sic) aware of violatable conduct beforehand and prior to any formal charges being filed against Horton, Horton was due an immediate (sic) hearing and by ignoring his requests for one, the OAPA violated Hortons (sic) basic rights afforded by the constitution of the United States and the state (sic) of Ohio.

"III. Ohio Adult Parole Authority and its officials was (sic) arbitrary and abused its (sic) discretion and power by requiring Horton to surrender twice and (a) after determining a violation had occurred (sic) by tellable evidence and after determining that Horton was or was not available to the Authority per Administrative Regulations and the laws of the State of Ohio, (b) and since Horton obviously was available on January 7, 1991 when no charges had been filed against him per OAPA AR 5120 1-1-17 E(1), (c) and since unit supervisor per administrative regulation decided to continue Horton on parole January 7, 1991, that any subsequent action taken against Horton concerning these violations that the OAPA had already established availability on January 7, 1991 when the decision was made to continue Horton, thus causing the OAPA to waive any action against Horton by waiting four months to declare him a parole violator when in fact the decision to release him had established availability, declared him a violator and continued him for all practical purposes. Also the decision to turn Horton over to the Cleveland police Department at the offices of the OAPA after availability had been established was flagrant and an attempt to cover up the January 7, 1991 visit and release and prejudiced Horton in his attempts to defend himself because of pretrial incarceration which was unnecessary (sic) showing a (sic) enormous amount of abuse of power and discretion. This rights violation the court refused to acknowledge in error."

As these assignments of error all suggest that the APA wrongly revoked Horton's parole, we discuss them together.

R.C. Chapter 2725 allows one claiming to be unlawfully restrained the opportunity to seek release from confinement by petitioning for a writ of habeas corpus. R.C. 2725.01 defines habeas corpus as a "special remedy," and an application for the writ is a civil proceeding. Henderson v. James (1895), 52 Ohio St. 242, 244. An appellate court should review a habeas corpus decision as it would review a decision in any other case. R.C. 2725.26.

As the trial court granted the appellee~respondent a summary judgment, we review this decision as we would any other civil, summary judgment. A court properly grants summary judgment when it determines that:

"(1)[n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party."

Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

Throughout his assignments of error and in his brief, Horton claims that he met with his parole officer on January 7, 1991. He further claims that at this meeting an APA unit supervisor decided to continue him on parole. After investigating Horton's allegations, the APA supervision section determined that Horton failed to report to his parole officer on January 7, 1991 and January 10, 1991. On January 14, 1991, Horton arrived at the parole office, and at that time, Cleveland police...