[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Clark v. Adult Parole Auth., Slip Opinion No. 2017-Ohio-8391.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2017-OHIO-8391

CLARK, APPELLANT, v. ADULT PAROLE AUTHORITY, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Clark v. Adult Parole Auth., Slip Opinion No. 

2017-Ohio-8391.] 

Mandamus—Parole—Appellant failed to show double-jeopardy, due-process, or 

equal-protection violations—Court of appeals’ dismissal of petition for writ 

affirmed. 

(No. 2016-1036—Submitted May 16, 2017—Decided November 2, 2017.) 

APPEAL from the Court of Appeals for Belmont County, 

No. 16 BE 0005, 2016-Ohio-3383. 

________________ 

 Per Curiam. 

{¶ 1} We affirm the judgment of the Seventh District Court of Appeals 

dismissing the petition of appellant, Leodius Clark, for a writ of mandamus. 

{¶ 2} Clark was indicted on multiple felonies, including aggravated 

burglary, kidnapping, and involuntary manslaughter, in Mahoning County case No. 
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95 CR 589. He was convicted and sentenced to an indefinite term of 8 to 25 years 

in prison. On February 15, 2011, Clark was paroled and released. 

{¶ 3} In August 2011, he was arrested on new charges involving drug 

trafficking and receiving stolen property, in Mahoning County case No. 11 CR 

1078. His parole officer found him in violation of his parole and imposed the 

following sanctions, effective September 29, 2011: 90 days of electronic 

monitoring, residence at an address approved by the Ohio Adult Parole Authority 

(“APA”), reporting to his parole officer as ordered, and compliance with all court 

orders on the new charges. On September 28, he was granted bond in order to 

complete the sanctions. On March 22, 2013, Clark was sentenced to a definite 

prison term of three years on the new charges. 

{¶ 4} On December 22, 2015, the APA held a hearing regarding case No. 

95 CR 589. The APA determined that Clark was not suitable for release and 

assessed a 36-month continuance. Clark requested reconsideration, which the APA 

denied. 

{¶ 5} On March 4, 2016, Clark filed an original action in the Seventh 

District Court of Appeals seeking a writ of mandamus against the APA. He argued 

that his parole officer had already imposed punishment for the parole violation 

when he subjected Clark to 90 days of electronic monitoring and that the parole 

board’s decision to keep him in prison for another 36 months for the same violation 

therefore violated the Double Jeopardy Clause. He also asserted due-process and 

equal-protection violations and asked the court of appeals to order the APA to 

reinstate his parole. 

{¶ 6} On June 13, 2016, the court of appeals dismissed Clark’s action, 

holding that he had not received multiple punishments and that he had failed to 

demonstrate any constitutional injury. 2016-Ohio-3383, ¶ 8, 12. 

{¶ 7} Clark timely appealed and filed a brief on the merits. The state filed 

its brief, and Clark filed a reply brief. Clark filed a motion for leave to supplement 
January Term, 2017 

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his reply brief on March 27, 2017, and the state filed a memorandum opposing the 

motion. 

{¶ 8} Clark filed his motion for leave for two stated purposes. First, he 

wishes to present additional argument, supported by additional evidence. But 

S.Ct.Prac.R. 16.08 prohibits supplementation of merit briefs except in rare 

circumstances that Clark has not alleged exist in this case. Second, he wishes to 

discuss Johnson v. Smith, 3d Dist. Marion No. 9-09-04, 2009-Ohio-1914, which his 

merit and reply brief do not address. Supplemental authority, as contemplated by 

S.Ct.Prac.R. 16.08, is relevant authority “issued after the deadline has passed for 

filing a party’s merit brief.” Johnson, issued in April 2009, does not qualify. 

{¶ 9} We therefore deny Clark’s motion for leave to supplement his reply 

brief. 

{¶ 10} Proceeding to the merits of the appeal, we note that Clark is now 

challenging the jurisdiction of the Seventh District to hear the mandamus complaint 

he himself filed there. He argues that in suits against the APA, venue is proper only 

in Franklin County, citing State ex rel. Bobbitt v. Adult Parole Auth., 8th Dist. 

Cuyahoga No. 91341, 2008-Ohio-3046. He contends that the Seventh District 

should have transferred the case to Franklin County, as occurred in Bobbitt. 

{¶ 11} Venue, unlike jurisdiction, is an affirmative defense, which a 

defendant may waive. Civ.R. 3(C)(1) and 12(H)(1). The APA did not raise the 

defense in this case. And Clark has cited no authority for the proposition that the 

party who chooses the forum can later assert improper venue after receiving an 

adverse ruling on the merits. 

{¶ 12} Clark also asserts that the APA’s imposition of an additional 36 

months’ incarceration after he was already subjected to 90 days of electronic 

monitoring amounted to a violation of the Double Jeopardy Clauses of the United 

States and Ohio Constitutions. He maintains that he received two punishments for 

a single offense—his parole violation. 
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{¶ 13} The protection provided by the Ohio Constitution’s Double Jeopardy 

Clause is coextensive with that provided by the Double Jeopardy Clause of the 

United States Constitution. State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 

435 (1999). The state is prohibited from putting a person “ ‘twice * * * in jeopardy 

for the same offense.’ ” Id., quoting Ohio Constitution, Article I, Section 10. But 

the Double Jeopardy Clauses prohibit only multiple criminal punishments for a 

single offense. Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 

L.Ed.2d 450 (1997), citing Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 

82 L.Ed. 917 (1938); State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 

N.E.2d 250, ¶ 8. In Martello, we considered the double-jeopardy implications of 

incarceration following a violation of postrelease-control conditions. We 

concluded that “jeopardy does not attach when a defendant receives a term of 

incarceration for the violation of conditions of postrelease control. Such a term of 

incarceration is attributable to the original sentence and is not a ‘criminal 

punishment’ for Double Jeopardy Clause purposes * * *.” Id. at ¶ 26; see also 

Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). 

Likewise, the sanctions imposed for Clark’s parole violation were not criminal 

punishments. The Double Jeopardy Clauses were not violated by the sanctions 

imposed for his parole violation. 

{¶ 14} Next, Clark argues that once his parole officer had imposed 

sanctions against him, the APA no longer had jurisdiction to hold a parole hearing 

and it therefore violated his due-process rights by doing so. He bases this claim on 

Ohio Adm.Code 5120:1-1-18(B), which provides, in relevant part, that if a paroleboard member or hearing officer decides to order an offender reincarcerated for a 

parole violation, that decision “shall constitute the official and final determination 

of the adult parole authority to revoke release, unless the decision is reversed by 

the chief of the adult parole authority.” But by its terms, Ohio Adm.Code 5120:1-
January Term, 2017 

5

1-18(B) applies only if the parole officer orders reincarceration, which did not 

happen in this case. 

{¶ 15} Finally, Clark alleges an equal-protection violation under the theory 

that he constitutes a “class of one.” An equal-protection claim may be brought on 

behalf of a class of one when “the plaintiff alleges that she has been intentionally 

treated differently from others similarly situated and that there is no rational basis 

for the difference in treatment.” Willowbrook v. Olech, 528 U.S. 562, 564, 120 

S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Clark’s mandamus petition alleges neither 

of these mandatory elements. 

{¶ 16} Accordingly, we deny Clark’s motion for leave to supplement his 

reply brief and affirm the judgment of the court of appeals. 

Motion denied 

and judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,

and DEWINE, JJ., concur. 

_________________ 

Leodius Clark, pro se. 

Michael DeWine, Attorney General, and Jocelyn K. Lowe and Kelly N. 

Brogan, Assistant Attorneys General, for appellee. 

_________________