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Default New court filings for old law inamtes in Ohio

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Dennis Michael, et al. Case # 3:01CV7436
Plaintiffs Judge James G. Carr
vs.
Supplemental Pleading
Pursuant to Rule 15(d)
Margarette Ghee, et al.
Defendants
Plaintiffs approach the Court and respectfully request leave to file this
Supplemental Pleading pursuant to Fed. R. Civ. P. 15(d) as follows.
1. Fed. R. Civ. P. 15(d) permits a party to serve a Supplemental
Pleading setting forth transactions or occurrences or events which have
happened since the date of the pleading sought to be supplemented.
2. Our existing Amended Complaint and our Supplemental Pleading for
monetary damages remain in full force and affect. Matters in this pleading are
2
new and supplement these existing pleadings.
Allegations Common to All Representative Clients
3. In April of 2003 when our Amended Complaint was filed, Plaintiffs
were limited to pursuing procedural challenges. No legal basis existed for a
claim seeking immediate release through Habeas Corpus. Accordingly, there is
no claim seeking immediate release in our Amended Complaint.
4. Since this Amended Complaint was filed, new developments have
evolved from the identical matrix of facts discussed in our Amended
Complaint. In the intervening two years, two recent U.S. Supreme Court
decisions, U.S. v. Booker 1and Blakely v. Washington,2 have provided a legal
basis for asserting a habeas corpus claim for relief, where previously none
existed. These two decisions have created a New Constitutional Rule.3
5. The New Constitutional Rule evolving from Booker and Blakely
states that any fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.
1 543 U.S. ___(2005), 125 S. Ct. 738, 73 U.S.L.W. 4056 (2005) [hereafter Booker].
2 124 S. Ct. 2531 (2004) [hereafter Blakely].
3 For an explanation of a New Constitutional Rule, see Schriro v. Summerlin, 124 S. Ct.
2519, 2523 (2004).
3
6. In 1998, the Parole Board revised and greatly expanded its parole
guidelines, utilizing a matrix grid for setting out guideline ranges predicated
upon and bonded to specific crimes reflecting Revised Code statutes. Each
guideline range sets forth a minimum and a maximum number of months to be
served for a specific crime referenced. Since their adoption, the Parole Board
has rigidly enforced the minimum guideline, even though this guideline
begins, on average, 5.3 years after the initial parole board hearing set by the
trial court.4 Serious consideration for parole does not begin until a parole
candidate enters their matching guideline range. The maximum timeline for a
guideline range is not accorded the same respect. The Parole Board has
conferred upon itself the authority to do upward departures and demonstrated
its willingness to exercise this discretion freely. Any parole panel consisting of
one Parole Board Member and hearing officer has authority to depart upward.
7. The process used by the Parole Board to find a parole candidate
guilty of new criminal behavior does not incorporate any of the safeguards and
checks mandated by the U.S. Constitution. If a parole board panel determines,
based upon the preponderance of the evidence, that a new crime has been
committed, the Parole Guidelines simply require a letter to the inmate advising
him of this finding. For a show of good cause, this letter typically provides a
4 See Document No. 196, Plaintiffs Exhibits, Charts and Graphs, Roman Numeral I.
4
highly subjective reason and conclusory language in lieu of evidence.5 Once
this self serving letter has issued, the inmate has received all the due process to
which he is entitled under these guidelines. Even if evidence is available to
support an additional charge, these guidelines are fatally flawed in a second
respect. The inmate has not been prosecuted for this conduct the right way.
8. On December 18, 2002, the Ohio Supreme Court issued its Layne
decision.6 Layne recognized and legitimized these guidelines as a package, and
declared both the minimum and maximum timelines are to be respected,
thereby restraining the Parole Board's exercise of discretion.
9. Since the Ohio Supreme Court’s Layne decision validated the Parole
Board's current guidelines, the maximum sentence authorized by the facts has
changed. The maximum sentence is no longer the timeline representing the
outer boundary of the general statutory scheme. Instead, this maximum
sentence now consists of the timeline marking the upper boundary of the
guideline range matching the trial court judgment. When an inmate has served
more time than required by this guideline range, or has been ordered to serve
5 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibits 7 and 8, letters from Hearing Officer E.M. Colan to James George and to
Robert Gutierrez, both dated April 25, 2005. In pertinent part, these letters state, "When
considering an inmate for parole, the parole board retains its discretion to consider any
circumstances related to the offense or offenses of conviction, including crimes that did not
result in conviction as well as any other factors the parole board deems relevant." Copies of
these letters were mailed in advance to the Attorney General's Office.
6 Layne v. Adult Parole Authority, 97 Ohio St. 3d 456 (Oh. 2002) [hereafter Layne].
5
more time than required by this guideline range, under the New Constitutional
Rule, the increment of time exceeding the guideline boundary is prohibited
and constitutes an ultra vires exercise of authority. Further, the fragment of a
sentence extending beyond this maximum timeline boundary is void.
10. Because the time served in excess of the maximum timeline
boundary has been ordered by the Parole Board, this constitutes a Parole Board
sentence.
11. Under Ohio's Constitution, the Parole Board has no sentencing
authority. Accordingly, after serving every day of the guideline matching their
court conviction, Named Plaintiffs have been serving a void prison sentence
and they are presently being detained unlawfully by Director Wilkinson.
12. Because of the new Constitutional Rule created by Booker and
Blakely, the rights for some of our Named Plaintiffs have been elevated.
Plaintiffs serving or ordered to serve the fragment of a sentence beyond their
maximum guideline boundary have now got a legal basis for asserting a
remedy – habeas corpus – which previously did not exist.
13. In all of the representative clients which follow, none of our Named
Plaintiffs are challenging their original convictions. These representative
clients and all similarly situated Named Plaintiffs are primarily engaging 28
U.S.C. § 2241, because their claims arise from the execution of a sentence, as
6
opposed to the imposition of a sentence.
14. These representative clients and similarly situated Named Plaintiffs
are challenging their Parole Board sentences. Pursuant to 28 U.S.C. § 2254 (b),
Plaintiffs state that there are no legitimate court avenues to pursue for
reversing the result of a parole board decision and, further, there is both an
absence of available state corrective process, and circumstances exist that
render such process ineffective to protect the rights of these applicants.
15. Plaintiffs maintain that the New Constitutional Rule applies to the
decisions of a Parole Board with the same weight and force as they apply to a
trial court. Plaintiffs further state that the Parole Board steadfastly refuses to
apply the New Constitutional Rule to a new context where it should apply,
namely at a parole hearing. Instead, the Parole Board insists upon applying its
Parole Guidelines, which are hopelessly conflicted and cannot be reconciled
with the current reading of the U.S. Constitution's Sixth Amendment. Hence,
this decision-making constitutes an unreasonable application of clearly
established Federal law as determined by the United States Supreme Court.
First Representative Client
16. Plaintiff James Crawford7 was given a sentence of 7 to 25 years for
Involuntary Manslaughter. This occurred in December of 1991. In two Layne
7 See Document No. 215, Plaintiff's Exhibit 440, Layne Decisions for James Crawford.
7
review hearings, the Parole Board calculated his offense score at 8, and placed
him in a guideline range requiring 60 to 84 months. At the time of his second
Layne hearing, Mr. Crawford had already served 157 months.
17. Under the New Constitutional Rule, 84 months is the maximum
amount of time that Mr. Crawford can be held for his crime.
18. Mr. Crawford served every day of the guideline matching his court
conviction, then every day of the guideline range for Category 9 (i.e. 7 to 10
years) and, to date, he has served all but three months of the guideline range
for Category 10 (i.e. 10 to 15 years). The criminal conduct engaging these
higher categories requires the commission of Involuntary Manslaughter
coupled with aggravating factors, such as the commission of a robbery or a sex
offense. Mr. Crawford's trial court has not sanctioned any of the aggravating
factors enumerated in Offense Categories 9 and 10 for Involuntary
Manslaughter. Accordingly, since crossing the timeline of 84 months, Mr.
Crawford has been serving a prison sentence appropriate for criminal conduct
never sanctioned by his trial court. This added fragment of time is unlawful.
19. In detaining and depriving Mr. Crawford of his freedom unlawfully,
Defendants have at all times acted under color of State law.
20. Mr. Crawford represents a sub-class of Named Plaintiffs assigned to
a guideline range that is shorter than the general criminal statute for which he
8
was convicted. Under the New Constitutional Rule, Mr. Crawford's guideline
range of 5 to 7 years trumps his statutory sentence of 7 to 25 years. Like Mr.
Crawford, inmates in this sub-class have served every day of their guideline
range. As a result, members of this sub-class are serving a parole board
sentence requiring time for aggravating factors or more serious criminal
wrongdoing never sanctioned by their trial courts.
21. Questions of law and fact common to members of the sub-class
predominate over any questions affecting individual members. Further, Mr.
Crawford and similarly situated Named Plaintiffs constitute an identifiable
sub-class which qualifies for the relief afforded by the Writ of Habeas Corpus.
Second Representative Plaintiff
22. Phillip Jovanovic8 was convicted of murder in 1981. He was given a
sentence of 15 years to life with eligibility for parole. Mr. Jovanovic was not
given any additional time for a gun specification. He is a first time offender
and he has been a model prisoner.
23. The Parole Board Guidelines designate Category 11, requiring 15 to
20 years for murder. However, if the victim is a minor child, these guidelines
stipulate a longer sentence, Category 12, which requires 20 to 25 years. Mr.
8 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 5
Jovanovic's victim was a five year old child. The guidelines further require
consideration of mitigating factors.9 Because Mr. Jovanovic was the only
person present who tried to save the child by taking him to a hospital, he could
qualify for Category 11. However, his parole panel placed him in Category 12.
24. Mr. Jovanovic served all but two months of Category 12, when he
was reviewed in February of 2005, several months after the Booker decision
was rendered and well publicized. In early April, Mr. Jovanovic was informed
through the mail that he must serve an additional 40 months.
25. In April of 2005, Mr. Jovanovic crossed the timeline for Category
12 and began serving time in Category 13, reserved for inmates convicted of
Aggravated Murder.
26. Mr. Jovanovic has no disciplinary violations and he has served his
time in an exemplary manner. He has been at minimum security since 1984. In
short, he is conspicuously well qualified to blend in with free society.
27. Under the New Constitutional Rule, 300 months [i.e. 25 years] is the
maximum amount of time that Mr. Jovanovic can be held for his crime.
28. Upon completing his 300th month of incarceration, Mr. Jovanovic
has been serving a void prison sentence. He is presently being detained
9 See Document No. 245, Revised 2003 Parole Guidelines, Part D, Guideline Application
Procedure, § 105 (c) Decisions Below the Guidelines, at (4), attempted corrective measure.
Mr. Jovanovic tried to save the victim by driving him to a hospital.
10
unlawfully by Director Wilkinson. Since crossing the timeline for his 300th
month, Mr. Jovanovic has been unlawfully deprived of his freedom. At all
times, Defendants have acted under color of State law.
29. Mr. Jovanovic represents a sub-class of Named Plaintiffs convicted
of Murder. Typically, members of this sub-class are given a minimum
sentence of 15 years and a maximum sentence of Life, with eligibility for
parole after serving 10.5 years. The matching guideline range for members of
this sub-class is Category 11, requiring 15 to 20 years. Upon serving more than
the maximum timeline for this guideline range (i.e. 20 years), members of this
sub-class begin serving time required for aggravating factors or more serious
criminal wrongdoing never sanctioned by their trial court. If the crime involves
a minor child or a policeman, members of this sub-class can be placed in
Category 12, requiring 20 to 25 years. Upon serving more than the maximum
timeline for this guideline range (i.e. 25 years), members of this sub-class
begin serving time required for a more serious crime, Aggravated Murder.
Under the New Constitutional Rule, Mr. Jovanovic's guideline range of 20 to
25 years trumps his statutory sentence of 15 years to Life. Like Jovanovic,
inmates in this sub-class have served every day of their respective guideline
range (i.e. Category 11 or 12). Members of this sub-class are serving time in a
guideline range requiring aggravating factors or, like Mr. Jovanovic, for the
11
crime of Aggravated Murder, never sanctioned by their trial court.
30. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Further, Mr.
Jovanovic and similarly situated Named Plaintiffs constitute an identifiable
group which qualifies for the relief afforded by the Writ of Habeas Corpus.
Third Representative Client
31. Thom Hoffman10 was convicted under former R.C. § 2901.01,
which consisted of Murder in the First Degree. This occurred in 1973, before
Ohio's Legislature adopted a crime called Aggravated Murder, now codified as
R.C. § In the U.S. Supreme Court decision Furman v. Georgia,11 the death
penalty was struck down in Ohio as well as in every other state. The necessary
elements of proof for establishing a premeditated state of mind were deemed
insufficient under statutes in force at the time. As a result, Ohio enacted an
aggravated murder statute on January 1, 1974, which set out a much different
and a much higher standard for proving the premeditated state of mind.
33. When Thom Hoffman was found guilty of his crime, the elements
See Document No. 62, Volume I, Plaintiffs Exhibit 12, Affidavit of Thom Hoffman. See
former R.C. § 2901.01, Appendix to Plaintiffs’ Brief on Blakely Issues, Part II -
Supplemental Pleading, Plaintiffs’ Exhibit 1
11 408 U.S. 238 (1
necessary for establishing a premeditated state of mind did not correspond to
the elements presently required. It is an elementary principal of law that a
person cannot be assigned to a guideline range reserved for crimes with
constituent elements of proof which did not exist or which differed from the
constituent elements of proof at the time of the conviction, particularly when
these elements of proof have become more demanding and, therefore, might
not have been amenable to proof in an earlier conviction.
34. The level of proof required for the conviction of Thom Hoffman
would only satisfy R.C. § 2903.02, our current statute for Murder.
35. The Parole Board has steadfastly insisted upon placing Thom
Hoffman and other inmates similarly situated in the guideline range for
Aggravated Murder, Category 13, which begins after serving 25 years. The
correct guideline range for Mr. Hoffman is Category 11, requiring 15 to 20
years. Mr. Hoffman has already served more than 30 years.
36. Mr. Hoffman has been a model inmate and he has served his time in
an exemplary manner. He is conspicuously well suited for returning to society.
37. Under the New Constitutional Rule, 240 months [i.e. 20 years] is the
maximum amount of time that Mr. Hoffman can be held for his crime.
38. Upon completing his 240th month of incarceration, Mr. Hoffman
began serving a void prison sentence. He is presently being detained
13
unlawfully by Director Wilkinson. Since crossing the timeline for his 240th
month, Mr. Hoffman has been unlawfully deprived of his freedom. At all
times, Defendants have acted under color of State law.
39. Mr. Hoffman represents a sub-class of Named Plaintiffs convicted
of First Degree Murder prior to January 1, 1974. This sub-class also includes
Named Plaintiffs whose crimes were committed prior to January 1, 1974, even
though their convictions occurred after this date, if the Parole Board insists
upon placing them in an offense category which imposes a standard for
premeditated murder that is higher than the standard in force prior to January
1, 1974.12 Named Plaintiffs in this sub-class belong in Category 11, not 13.
40. If facts set out for Mr. Hoffman and murder can be applied to
another criminal statute whose elements have changed over the past several
decades, these inmates are similarly situated and would also be joined to this
sub-class, if they have been placed in a guideline range requiring more
stringent elements of proof than existed at the time of their conviction, and
they have served every day of the guideline which matches or comes the
closest to matching the elements of proof for their true crime of conviction.
12 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 6, Parole Board Decision for Nute Woods, dated April 27, 2004. Under
Offenses of Conviction, R.C. § 2903.01 is listed. Mr. Woods committed his crime prior to
January 1, 1974, but he was convicted afterward. The proper statute to apply is R.C. §
2903.02.
14
41. Typically, members of this sub-class are given a minimum sentence
of Life and a maximum sentence of Life, with eligibility for parole after
serving 10 or 15 actual years. The matching guideline range for members of
this sub-class is Category 11, requiring 15 to 20 years. Under the New
Constitutional Rule, Mr. Hoffman's sentence of Life and Life has been
trumped by a guideline range requiring 15 to 20 years. Like Thom Hoffman,
inmates in this sub-class have served every day of their guideline range.
Currently, members of this sub-class are serving time in a guideline matching
a crime, Aggravated Murder, which did not exist in the Ohio Code and was not
available to a trial court at the time of their conviction.
42. Questions of law and fact common to members of the sub-class
predominate over any questions affecting individual members. Further, Mr.
Hoffman and similarly situated Named Plaintiffs constitute an identifiable subclass
which qualifies for the relief afforded by the Writ of Habeas Corpus.
Fourth Representative Client
43. Cecil Allen13 cannot be found in the Department's Web Offender
Search Engine. Mr. Allen is serving his Ohio prison sentence at the U.S.
Penitentiary in Marion, Illinois. He is a Named Plaintiff and one of our clients.
13 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 2.
15
44. Mr. Allen was convicted of aggravated robbery and given a 10 – 25
year sentence by the Hamilton County Court of Common Pleas. He began
serving this sentence on June 26, 1987.
45. In April of 1993, the Southern Ohio Correctional Institution, better
known as Lucasville after the name of the city where it is located, had a riot.
Mr. Allen's role in this riot was investigated. In 1994, this investigation
resulted in an indictment for three counts of felonious assault and one count of
assault in Ross County. Sentences of 5 to 15 years were issued for Felonious
Assault charges, and these sentences were ordered to run concurrent with Mr.
Allen’s aggravated robbery conviction. A sentence of 3 to 5 years was issued
for assault. This charge runs consecutive to the aggravated robbery conviction.
46. The offense score for Aggravated Robbery was recorded on his
Offender Hearing Record, the predecessor of the current Parole Board
Decision form, as Offense Category 8. Mr. Allen has a criminal history risk
score of 5. His guideline range for the Aggravated Robbery conviction is 108
to 132 months (i.e. 9 to 11 years). The felony of assault qualifies as Offense
Score 2. 14 Factoring in Mr. Allen’s Risk Score, his guideline range for this
crime is 14 to 20 months. The minimum sentences for his two trial court
14 See Document No. 245, Revised 2003 Parole Guidelines, Chapter Two, Offenses Against
a Person, Subchapter B, Assault and Harassment Offenses, at § 213 Assault.
16
convictions are 7 plus 2 years, respectively. Applying the Parole Board’s
guidelines, the minimum sentences for his aggravated robbery and assault
convictions, run consecutively, produce a minimum guideline of 10 years and
2 months and a maximum guideline of 12 years, 8 months.
47. Adding 12 years and 8 months to Mr. Allen’s entry date of June 26,
1987 brings us to March 1, 2000. Beginning on this approximate date, Mr.
Allen began serving a guideline requiring criminal conduct never sanctioned
by his trial court in Hamilton County or Ross County. Mr. Allen has exceeded
his guideline by more than five years. Though conspicuously qualified for a
Layne review in 2003, he received no such hearing. He is now conspicuously
qualified for an Ankrom review, but his name is missing from this list.
48. Mr. Allen, like every other Ohio inmate serving their sentence under
an interstate agreement with another state or with the Federal government,
never had a parole hearing. Instead, he simply received the record of this
phantom hearing in the mail. In Mr. Allen’s case, after serving nine years, he
received a ten year continuance to June, 2008. If history repeats itself, Mr.
Allen can only look forward to another decision via the mail in June of 2008.
49. Mr. Allen’s trial court sentences were modified by the Parole
Board's Offender Hearing Record dated June 1, 1998. The Parole Board did
not run the three charges for Felonious Assault concurrent with his Aggravated
17
Robbery conviction. Instead, these charges were factored into the Parole
Board’s multiple separate offense rule and used to justify a three range upward
departure from Category 8 to 11, resulting in a guideline range that begins
after serving 240 months (20 years). In 2008, he will have served 21 years.
50. In August of 2004, Mr. Allen initiated his own Writ of Habeas
Corpus. This writ was denied and the case is closed.
51. Mr. Allen represents two different sub-classes eligible for habeas
corpus, plus a third identifiable group of Ohio inmates that has been totally
ignored by the Parole Board. Mr. Allen represents a sub-class of Named
Plaintiffs whose trial court judgments have been modified by a Parole Board
sentence. These modifications can occur in three different ways. (1) As in Mr.
Allen’s case, the Parole Board uses its multiple separate offense rule to run
sentences consecutively when the trial court has ordered sentences to run
concurrent. (2) The Parole Board has applied its multiple separate offense rule
to numerous lesser included offenses engaging a definite sentence, causing an
upward departure which essentially requires a definite sentence to be served a
second time.15 (3) The Parole Board has relied upon Administrative Rule §
5120-2-03 to reverse the presumption and the literal language of former R.C. §
15 For an example of this kind of upward departure, see the discussion of Donald Miller,
Document No. 173, Second Partial Motion for Summary Judgment, Fifth Cause of Action
for Ex Post Facto Violation, footnote 89 and accompanying text.
18
2967.13(A) and (B) by aggregating a later trial court sentence to a prior court
sentence, with no justification in the trial court judgment for doing so.
52. Mr. Allen represents a second sub-class that has already filed a writ
of habeas corpus. Members of this sub-class must necessarily fall within
another sub-class just as Mr. Allen does, because their circumstances must be
similar to one of our representative clients. For this sub-class, writs will be
bifurcated from other sub-classes, because these writs must first be presented
to a three judge panel pursuant to 28 U.S.C. § 2244 (b) (3) (A) and (B). Since
time is of the essence with a Habeas Corpus petition and this track will be
slower due to the need for appellate court approval, separate handling of these
writs will allow other sub-classes to proceed without waiting for this approval.
53. Finally, Mr. Allen represents a group of Ohio inmates serving their
sentences in other states and in Federal prisons. The habeas corpus rights of
these inmates deserve the same recognition and treatment given to inmates
serving their sentences in Ohio and whose records can be readily retrieved
upon the web offender search engine operated by Defendants.
54. Questions of law and fact common to members of these two subclasses
predominate over any questions affecting individual members. Further,
Mr. Allen and similarly situated Named Plaintiffs constitute identifiable subclasses
which qualify for the relief afforded by the Writ of Habeas Corpus.
19
Fifth Representative Client
55. Richard Dixon16 was convicted of Aggravated Murder and Robbery
in 1980. He was given a 15 year to Life sentence. On May 23, 1996, Mr.
Dixon was paroled. On December 28, 1999, he was convicted of Gross Sexual
Imposition and given a 1 year sentence under the New Law. Mr. Dixon's court
judgment marks out a field reserved for ordering sentences to run consecutive,
indicating that this does not apply. He has been ordered to serve Post Release
Control after the 1 year sentence is completed.
56. Mr. Dixon returned to prison on March 14, 2000. He served his one
year sentence on December 28, 2000. Instead of releasing him, the Parole
Board convened a parole hearing. At this hearing, the unserved portion of Mr.
Dixon's Old Law crime was reinstated and then utilized to frustrate and trump
his New Law conviction. Instead of going into Post Release Control, Mr.
Dixon was continued to December 28, 2004 with no out date. In fact, he was
told at this hearing that when he came back in December of 2004, he could
16 See Document No. 172, Motion for Partial Summary Judgment for Separation of Powers,
Claim 1, Part C – Modifying New Law Sentences, at footnotes 155 to 176 and
accompanying text; See also Document No. 200, Plaintiffs' Exhibit 26, Affidavit of Richard
Dixon.
20
expect to get some more time. True to their word and while this case was in its
indefinite stay, Mr. Dixon did receive more time. His next parole hearing has
been scheduled for March 1, 2006.
57. New Law offenders such as Mr. Dixon with un-expired sentences
under the Old Law are to be treated just as any other New Law inmate,
pursuant to R.C. § 2967.28(F)(4). Upon serving every day of his one year
sentence, Mr. Dixon should have been released and placed on Post Release
Control. Instead, Mr. Dixon began serving a void prison sentence. He is
presently being detained unlawfully by Director Wilkinson. Since crossing the
timeline marking his 1 year sentence, Mr. Dixon has been unlawfully deprived
of his freedom. At all times, Defendants have acted under color of State law
58. Mr. Dixon represents a sub-class of Named Plaintiffs convicted of a
crime under the Old Law, who have been paroled and then convicted of a new
crime under Ohio's New Law. As in Mr. Dixon's case, members of this subclass
have served every day of the prison term ordered by their judge under the
New Law sentence. Instead of being released to supervision, the Parole Board
has applied their current Parole Guidelines and issued additional time from
their dormant Old Law sentence. Mr. Dixon and similarly situated Plaintiffs
are to be released to supervision. Since the last day of their New Law sentence
was served, these Named Plaintiffs have been serving a void prison sentence.
21
59. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Further, Mr.
Dixon and similarly situated Named Plaintiffs constitute an identifiable subclass
which qualifies for the relief afforded by the Writ of Habeas Corpus.
Sixth Representative Client
60. Mr. Summers 17 was also convicted of an Old Law crime and
paroled. Like Mr. Dixon, he returned to prison after being convicted of a New
Law crime. Unlike Mr. Dixon, Mr. Summers has not yet served his entire New
Law sentence. Nevertheless, Mr. Summers already knows that a fate awaits
him, similar in kind to the fate of Mr. Dixon. The Records Office informed
him that his New Law sentence has been aggregated to his Old Law sentence.
61. The exercise of aggregating his Old Law and New Law sentences
consists of stripping away the Old Law and New Law character of each
sentence and generating in their place a hybrid or aggregated sentence. This
hybrid sentence is strictly a creation of the prison Records Office. Just as the
term aggregate implies, Mr. Summers’ Old Law and New Law sentences
become homogeneous elements to a new sentence representing a union of both
sentences. There is typically a remnant of time left upon an Old Law sentence
that has not been served. Instead of reflecting his New Law sentence as fully
17 See Document No. 204, Plaintiffs Exhibit 88, Affidavit of John Summers.
22
served, this hybrid sentence reflects both sentences as a common mass. The
fully served new law sentence becomes an indistinguishable component of the
years served, blended into years of service performed on the old law sentence.
The unserved remnant of time left on the Old Law sentence now appears as
time authorized by a trial court which can still be assigned. This remnant of
available time paves the way for applying the current parole guidelines. Upon
serving his New Law sentence, Mr. Summers can expect to receive additional
time from his Old Law sentence under these guidelines, instead of supervision.
62. The facts of Mr. Summers parallel the facts of Mr. Dixon, with one
difference. Mr. Summers is not yet serving his void prison sentence. However,
he knows for a fact that he will receive a void prison sentence upon
completing his New Law sentence, because his crimes have been aggregated.
The decision of the Records Office to aggregate his Old Law and New Law
sentences is functionally equivalent to a Layne hearing, where an inmate has
been ordered to serve time beyond their guideline range. Aggregating these
sentences erases the New Law character of his current conviction and
substitutes in its place the Parole Board's Guidelines, where an additional
prison term is virtually carved in stone and waiting for him.
63. The remedy of Habeas Corpus does not have to wait until a void
prison sentence is actually being served. If a petitioner knows for a certainty
23
that at a date certain in the future, his legitimate sentence will end and a void
prison sentence will begin, these facts are sufficient to challenge the decision,
in this case the action of the Records Office in aggregating these sentences, if
this action is certain to frustrate and derail his legitimate trial court decision.
64. Mr. Summers represents a sub-class of Named Plaintiffs whose New
Law sentence has already been aggregated to their Old Law sentence, and who
know that they will be compelled to serve a void prison sentence, once their
New Law sentence has been fully served.
65. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Further, Mr.
Summers and similarly situated Named Plaintiffs constitute an identifiable
sub-class which qualifies for the relief afforded by the Writ of Habeas Corpus.
Seventh Representative Client
66. Brian Nemeth18 has been convicted of Voluntary Manslaughter and
received a sentence of 10 to 25 years. He is a first time offender and he has a
Risk Score of zero. Mr. Nemeth's Offense Category is 9. The guideline range
for his crime is 84 to 120 months (7 to 10 years).
67. Mr. Nemeth has currently served every day of his guideline range.
18 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 4, Affidavit of Brian Nemeth.
24
He is four months into a Parole Board sentence (i.e. 124 months served).
68. At a parole hearing on August 27, 2003, Mr. Nemeth's guideline
range was expanded by a minimum of 9 months and a maximum of 30 months
for disciplinary violations. These disciplinary violations, also called bad time,
are not a part of his criminal sentence. At this August, 2003 hearing, Mr.
Nemeth was continued for 49 months, meaning that he must serve 29 of the
extra 30 months assigned to him as bad time before his next hearing.
69. Mr. Nemeth is serving his sentence at the Ohio State Penitentiary,
also called Ohio's Super Max prison. His security level is 4, which stands for
Maximum. Pursuant to Policy No. 501-36,19 Mr. Nemeth is disqualified from
becoming eligible for parole until he lowers his security rating down to Close.
70. Mr. Nemeth represents two different sub-classes eligible for habeas
corpus relief. The first sub-class consists of inmates that have served every day
of their guideline range, and they are now serving time for rules infractions or
bad time. This is a Parole Board sentence without any legitimacy.
71. Mr. Nemeth is presently being detained unlawfully by Director
Wilkinson. Since crossing the timeline for his maximum guideline range, Mr.
19 See Document No. 47, Defendants Appendix to Motion for Summary Judgment, Item B,
Department Policy No. 501-36, titled Parole Board Hearing Policy, VI Procedure,
Paragraph D, (7) at (d). "… Any inmate with a maximum security classification … shall not
be granted release. …Release at any such projected release date shall be conditioned upon
the inmate receiving a security classification less than maximum …"
25
Nemeth has been unlawfully deprived of his freedom. At all times, Defendants
have acted under color of State law.
72. The second sub-class represented by Mr. Nemeth consists of
inmates that have served every day of their guideline range but, because they
have been assigned to a security status of 4 or 5, equivalent to maximum or
high maximum, they are being denied eligibility for parole. Named Plaintiffs
in this situation are also being detained unlawfully by Director Wilkinson. At
all times, Defendants have acted under color of State law.
73. Questions of law and fact common to members of these two subclasses
predominate over any questions affecting individual members. Further,
Mr. Nemeth and similarly situated Named Plaintiffs constitute identifiable
sub-classes which qualify for the relief afforded by the Writ of Habeas Corpus.
Eighth Representative Client
74. Michael Shirley20 is a technical parole violator. He was paroled.
Allegations were made by his former girlfriend that he had stolen video tapes,
a tool and he violated his 10 p.m. curfew. The Findlay Police Department was
not impressed. However, his parole officer immediately began the process for
20 See Appendix to Plaintiffs’ Brief on Blakely Issues, Part II - Supplemental Pleading,
Plaintiffs’ Exhibit 3, Parole Board Decision of Michael Shirley.
26
revoking his parole. Mr. Shirley voluntarily asked for a polygraph to prove he
was innocent. His request was denied and he returned to prison. The Parole
Board designated Offense Category 1. The Parole Board has designated
Offense Category 1 for parole violators.21 Michael Shirley's guideline range is
0 to 9 months, which is appropriate for a technical parole violator. The
guideline range should be remedial rather than punitive.
75. At a hearing convened on April 12, 2005, Michael Shirley was
prosecuted, convicted and sentenced for crimes the Findlay Police Department
did not consider credible. Following this hearing, he was given an additional
26 months. He is being required to serve 36 months (i.e. 3 years) for this
technical parole violation. After serving these three years, he can only look
forward to another hearing, where he could easily receive still more time.
While this parole revocation process evolves, the Judiciary is firmly excluded.
76. When Michael Shirley served nine months, he should have been
returned to the supervision of his parole officer. Every day served beyond nine
months is the result of a Parole Board sentence which lacks any legitimacy.
He is presently being detained unlawfully by Director Wilkinson. At all times,
Defendants have acted under color of State law.
21 See Document No. 47, Appendix to Motion for Summary Judgment, Item D, Ohio Parole
Board Manual, Part E, § 101, Reparole Guidelines, at (a) "Treat an administrative violation
as a Category 1 offense." (p. 84).
27
77. Michael Shirley represents a sub-class consisting of parole violators
that have served every day of their Category 1 guideline range, and are now
being required to serve a void sentence in excess of this guideline range.
78. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Michael
Shirley and similarly situated Named Plaintiffs constitute an identifiable subclass
which qualifies for relief afforded by the Writ of Habeas Corpus.
Ninth Representative Client
79. Ronald Black 22 has been convicted of rape. He received a sentence
of 10 years to Life. After factoring in his risk score, his guideline range is 150
to 210 months. Mr. Black received a Layne Review. At the time of this
hearing, he had served 119 months. At the conclusion of this hearing, he was
given a ten year continuance with no projected release date. After serving
these ten years and a total of 239 months, he can only look forward to another
hearing. Mr. Black is still serving time in his guideline range. However,
because of this Layne review, he knows that he will exceed his guideline range
and begin serving a void sentence before he has a chance for another review.
80. Mr. Black represents another sub-class that has been given a parole
hearing while still serving time within their matching guideline range. As a
22 See Document No. 216, Plaintiffs Exhibit 500, Parole Board Decision for Ronald Black.
28
result of this hearing, Mr. Black and others similarly situated know that they
will have to serve a Parole Board sentence lacking any legitimacy.
81. The remedy of Habeas Corpus does not have to wait until a void
prison sentence is actually being served. If a petitioner knows for a certainty
that at a date certain in the future, his legitimate sentence will end and a void
prison sentence will begin, these facts are sufficient to challenge the decision,
in this case the last Layne review, since this action is certain to take him
beyond his guideline range.
82. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Ronald Black
and similarly situated Named Plaintiffs constitute an identifiable sub-class
which qualifies for relief afforded by the Writ of Habeas Corpus.
Tenth Representative Client
83. Claude Smith23 was convicted of Forgery and Aggravated Murder in
1976. Under Parole Guidelines in force at the time of his conviction, the Parole
Board had no authority to continue an inmate more than five years. If they
were not released by their second parole hearing, they were to receive parole
hearings annually thereafter. Mr. Smith has been a model inmate. At a parole
hearing in 1991, attended by all nine Parole Board Members, he was
23 See Document No. 204, Plaintiffs Exhibit 83, Affidavit of Claude Smith.
29
commended for his excellent institution record and told that he could certainly
expect a parole at his next hearing in 1996, if he was not released at half time.
84. In 1996, Mr. Smith was again considered for parole. At this point,
he had served 20 years. Nothing had changed since he was considered in 1991.
Instead of getting a parole, Mr. Smith was given a thirty year continuance.
This continuance is still in force.24 Mr. Smith has not been placed under the
current parole guidelines.
85. Mr. Smith represents a sub-class eligible for habeas corpus relief
consisting of inmates convicted of Aggravated Murder and receiving
continuances in excess of ten years prior to the implementation of these current
Parole Board Guidelines. All of these inmates were sentenced to Life with
eligibility for parole. Like Mr. Smith, these inmates had already served at least
15 years before they were considered for parole in 1995, 1996 and 1997. Like
Mr. Smith, these inmates have never been placed under the current parole
guidelines, because their next review is still a decade or more into the future.
86. When inmates like Mr. Smith were given continuances of 20 or 30
years, after serving 15 or 20 years, their trial court sentences were modified in
the following manner. Instead of Life with eligibility for parole, these prison
24 In 2003, Mr. Smith was given a hearing, at which time he was told not to worry about
that 30 year continuance. He was told that they wanted him to serve 30 years, which would
occur in 2006. Nevertheless, his search engine page states that his next hearing is in 2026.
30
sentences became Life without parole – a sentence that no Ohio court had the
authority to issue under Ohio’s Old Law. If the Ohio Legislature never
authorized such a sentence and Ohio trial courts were powerless to issue such a
sentence, Ohio’s Parole Board certainly has no authority to issue such a
sentence. Mr. Smith served the minimum sentence required by his trial court
back in 1991. Since the date in 1996 when Mr. Smith was given this 30 year
continuance, he has been serving a prison sentence reflecting an ultra vires
exercise of authority. Consequently, this fragment of his sentence is void.
Because this Parole Board sentence has no legitimacy, Mr. Smith is entitled to
habeas corpus relief.
87. Mr. Smith is presently being detained unlawfully by Director
Wilkinson. At all times, Defendants have acted under color of State law.
88. Questions of law and fact common to members of this sub-class
predominate over any questions affecting individual members. Claude Smith
and similarly situated Named Plaintiffs constitute an identifiable sub-class
which qualifies for the relief afforded by the Writ of Habeas Corpus.
Eleventh Representative Client
89. Cheryl Driskell was convicted of Aggravated Murder in 1980.25 She
has served nearly 25 years. Her next parole review is in July of 2005. Unlike
25 Cheryl Ann Driskell, W014-144
31
Mr. Smith, Ms. Driskell has become subject to the current parole guidelines.
90. Under the Old Law, the crime of Aggravated Murder carried several
different penalties. Because Ms. Driskell's crime was committed prior to
October 19, 1981, she was eligible for parole after serving 15 full years. In
other cases, the crime of Aggravated Murder required 20 years of service,
diminished by accrued good time. Prior to July 1, 1983, an offender was
eligible for parole after serving 16 years. Regardless of the mechanics for
calculating the sentence, the net result was the same. After serving 15 or 16
actual years, a person convicted of Aggravated Murder was eligible for parole.
These sentences were dictated by Ohio’s General Assembly. Ohio courts were
given no discretion when it came time to issue a sentence for Aggravated
Murder. The sentence declared in the statute became the sentence assigned.
91. Under the Parole Board’s current guidelines, Plaintiffs convicted of
Aggravated Murder are assigned to Offense Category 13. This guideline range
begins after 25 years (i.e. 300 months) have been served. The additional time
inserted into this guideline range is predicated solely upon the crime of
Aggravated Murder. Ms. Driskell and other similarly situated Plaintiffs have
not acknowledged any fact in their plea, nor have they been found guilty of
any fact by a jury, that could justify this additional ten years. Hence, this
additional increment of time violates the New Constitutional Rule.
32
92. If an Ohio trial court had no discretion to exercise when sentencing
a defendant convicted of Aggravated Murder, it necessarily follows that the
Parole Board has no discretion to modify and postpone the initial parole
review of these Plaintiffs. The additional ten years required by the Parole
Board’s Guidelines before an inmate can become eligible for parole constitutes
an ultra vires exercise of authority. All of these Plaintiffs have been issued a
new sentence by the Parole Board when the current parole guidelines,
requiring 25 years, were applied to them.
93. Raising the minimum sentence for this crime from 15 years to 25
years also constitutes a modification of the basic sentence. The addition of this
extra ten years is not a difference in degree but rather a difference in kind.
__________________
"Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it."
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