[Cite as State ex rel. Brust v. Mohr, 2018-Ohio-1067.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. Shawn K. Brust, : 

 Relator, : 

v. : No. 17AP-275 

Gary Mohr, Director of the : (REGULAR CALENDAR) 

Ohio Department of 

Rehabilitation and Correction et al., : 

 Respondents. : 

 

D E C I S I O N 

Rendered on March 23, 2018 

 

Shawn K. Brust, pro se. 

Michael DeWine, Attorney General, and Byron D. Turner, for 

respondents.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

TYACK, J. 

{¶ 1} Shawn K. Brust filed this action in mandamus, seeking a writ to compel the 

Ohio Department of Rehabilitation and Correction to make changes in his Ohio Parole 

Board Information Sheet. 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the 

pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision, 

appended hereto, which contains detailed findings of fact and conclusions of law. The 

magistrate's decision indicates that one error alleged by Brust has been corrected and that 

there is no clear legal duty to make more changes. 
No. 17AP-275 2 

{¶ 3} Brust has filed objections to the magistrate's decision. The case is now before 

the court for a full, independent review. 

{¶ 4} Brust acknowledges that one of the four factual inaccuracies he alleged has 

now been corrected. The remaining three factual issues are apparently related to factual 

issues presented at his trial. 

{¶ 5} Brust states that he shot the victim one time in the leg and that the victim 

died four days later. He seems to be contesting whether his shooting of the victim was a 

proximate cause of the victim's death. The case law on proximate cause is not favorable to 

Brust. If you do serious harm to someone necessitating hospitalization and further medical 

treatment, the fact that you shot the person is still a proximate cause of the victim's death, 

even if better treatment might have saved the life of the victim. Brust cannot prevail on this 

factual issue. 

{¶ 6} The second factual issue involves whether Brust's statements prior to the 

shooting constitute bragging. Brust states now that he stated then that he was going back 

to confront the people who pulled a gun on him, and get his money and/or drugs back. 

Brust acknowledges that he was taking a gun to confront a person or persons who were also 

armed. The fact that shooting erupted comes as no surprise. Going looking for someone 

who pulled a gun on you while armed yourself is planning on having an armed conflict. In 

legalese, Brust had prior calculation and design to engage in armed conflict. Someone died 

following that plan for conflict. 

{¶ 7} We do not find that our magistrate erred in her magistrate's decision finding 

that Brust was not entitled to the specific factual changes he sought and seeks. We overrule 

the objections to the magistrate's decision. We adopt the findings of fact and conclusions 

of law in the magistrate's decision and deny the request for a writ of mandamus. 

Objections overruled; writ denied. 

DORRIAN and LUPER SCHUSTER, JJ., concur 

in judgment only. 

 

 
No. 17AP-275 3 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

 

The State ex rel. Shawn K. Brust, : 

 

 Relator, : 

v. : No. 17AP-275 

 

Gary Mohr, Director of the : (REGULAR CALENDAR) 

Ohio Department of 

Rehabilitation and Correction et al., : 

 Respondents. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on November 22, 2017

 

Shawn K. Brust, pro se. 

Michael DeWine, Attorney General, and Byron D. Turner, for 

respondents.

 

IN MANDAMUS 

{¶ 8} Relator, Shawn K. Brust, has filed this original action requesting this court 

issue a writ of mandamus ordering respondent Gary Mohr, director of the Ohio Department 

of Rehabilitation and Correction ("ODRC") and Andre Imbrogno, chairman of the Ohio 

Parole Board ("parole board"), to correct inaccuracies in the record which the parole board 

has used to deny him parole, pursuant to the Supreme Court of Ohio's decision in State ex 

rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, and ordering 

the parole board to reconsider his suitability for parole. 
No. 17AP-275 4 

Findings of Fact:

{¶ 9} 1. Relator is an inmate currently incarcerated at Marion Correctional 

Institution. 

{¶ 10} 2. Relator was arrested and charged with one count of aggravated murder in 

violation of R.C. 2903.01 with two firearm specifications: one under R.C. 2941.145, a 

second pursuant to R.C. 2941.146 asserting relator discharged a firearm from a motor 

vehicle (drive-by specification). Essentially, relator was charged with having shot and killed 

Anthony Truff on August 5, 1997 as relator drove by him on a street in Urbancrest, Ohio. 

{¶ 11} 3. Relator was found not guilty of the aggravated murder charge, but guilty 

of the lesser-included offense of murder. Relator was also found guilty of the first firearm 

specification, but not guilty of the drive-by specification. The trial court sentenced relator 

accordingly. 

{¶ 12} 4. Relator's appeal of his conviction was upheld by this court in State v. 

Brust, 10th Dist. No. 99AP-509 (Mar. 28, 2000). In his fourth assignment of error, relator 

argued that the trial court erred in denying his motions for acquittal. This court's discussion 

of this particular assignment of error is relevant to relator's mandamus action. Specifically, 

in denying this assignment of error, this court stated: 

Crim.R. 29(A) requires the court to enter a judgment of 

acquittal if the evidence is insufficient to sustain a conviction 

of the offenses alleged in the indictment. "Pursuant to 

Crim.R. 29(A), a court shall not order an entry of judgment of 

acquittal where the evidence is such that reasonable minds 

can reach different conclusions as to whether each material 

element of a crime has been proved beyond a reasonable 

doubt." State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514 

N.E.2d 394. In reviewing a ruling on a Crim.R. 29(A) motion 

for judgment of acquittal, the reviewing court construes the 

evidence in a light most favorable to the state. State v. Wolfe

(1988), 51 Ohio App.3d 215, 555 N.E.2d 689, paragraph one 

of the syllabus; State v. Busby, 1999 Ohio App. LEXIS 4222 

(Sept. 14, 1999), Franklin App. No. 98AP-1050, unreported. 

At the end of the prosecution's case-in-chief, defendant 

moved for a judgment of acquittal on the basis that the state 

presented no evidence to support the drive-by specification 

and no evidence of premeditation or intent. After the defense's 

presentation of evidence, defendant renewed his request for a 
No. 17AP-275 5 

judgment of acquittal, reiterating the same premises and 

adding the contention that Truss' wound was not the cause of 

his death. Similarly, after the jury's guilty verdict, defendant 

again moved for a judgment of acquittal, pursuant to Crim.R. 

29(C), on the same grounds: the state failed to prove 

defendant acted purposely and the gunshot wound did not 

cause Truss' death. 

In both the offense of aggravated murder and murder, the 

prosecution is required to prove beyond a reasonable doubt 

that defendant purposely caused the death of another. 

R.C. 2903.01; R.C. 2903.02. Purposely is defined in 

R.C. 2901.22(A): 

A person acts purposely when it is his specific intention to 

cause a certain result, or, when the gist of the offense is a 

prohibition against conduct of a certain nature, regardless of 

what the offender intends to accomplish thereby, it is his 

specific intention to engage in conduct of that nature. 

Purpose or intent can be established by circumstantial 

evidence, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 

492, and by the surrounding facts and circumstances in the 

case. Lott, supra. These circumstances include the means or 

weapon used, its tendency to destroy life if designed for that 

purpose, and the manner in which the wounds are inflicted. 

State v. Robinson (1954), 161 Ohio St. 213, 118 N.E.2d 517; 

Busby, supra. The specific intent to kill may be reasonably 

inferred from the fact that a firearm is an inherently 

dangerous instrument, the use of which is likely to produce 

death. State v. Mackey (Dec. 9, 1999), Cuyahoga App. No. 

75300, unreported, citing State v. Widner (1982), 69 Ohio 

St.2d 267, 431 N.E.2d 1025 (finding purpose to kill in 

passenger's firing gun at individual from moving vehicle); 

State v. Dunlap (1995), 73 Ohio St.3d 308, 316, 652 N.E.2d 

988. 

Defendant argues that whoever shot Truss did not intend for 

him to die, as Truss was shot in his right leg, a "non-vital" area 

of the body, and that an inference of intent to kill should not 

be allowed simply because a gun was used. State v. Pleasant, 

1996 Ohio App. LEXIS 1572 (Apr. 17, 1996), Lawrence App. 

No. 94-CA-39, unreported. However, in Pleasant, the court 

twice noted that defendant testified he did not intend to kill 

the victim. He also testified that he only struck the victim once 

and that he did not think the wound was fatal. The evidence 
No. 17AP-275 6 

thus was sufficient to allow a jury to reasonably find that 

defendant did not intend to kill, but did intend to cause 

physical harm, rendering the trial court's instruction on the 

lesser included offense of involuntary manslaughter 

appropriate. By contrast, defendant here did not testify. 

Moreover, unlike Pleasant, where the defendant there used a 

club, defendant here fired a gun at Truss. 

Defendant nonetheless contends Dr. Fardal's testimony 

supports a finding that the person who shot Truss acted 

"knowingly," but not purposely. The coroner, Dr. Fardal, 

testified that the bullet entered Truss' right thigh with a 

slightly upward and back trajectory. In leaving Truss' right 

leg, the bullet injured his right femoral artery before going 

through his scrotum and eventually passing to his left side. 

Truss suffered extensive bleeding both externally and 

internally. Fardal testified that, given the injuries he saw, 

Truss would likely lose a third of his blood, enough to effect 

his brain within ten minutes of being shot. Fardal's final 

medical opinion was that Truss died due to a diffuse hypoxic 

brain injury, or the lack of oxygen to the brain, caused by the 

loss of blood as a result of the gunshot wound. Fardal, 

however, also testified that the wound was survivable, and in 

most circumstances the worst outcome would be the loss of a 

limb. In fact, Fardal testified that Truss should have survived 

the wound. 

The medical evidence, coupled with the remaining evidence 

and construed in favor of the state, indicates that defendant 

told a bartender he was going to get his gun, go back to 

Urbancrest and get his drugs or his money. The day of the 

shooting, defendant went to the pawnshop where he had 

pawned a gun and bought it. He then went to Urbancrest, 

where Truss was struck with a bullet from a .38 special caliber 

revolver fired from no less than two to three feet away. The 

gun, introduced at trial, was identified by workers at the pawn 

shop as the one that defendant pawned and redeemed that 

day. 

From that evidence, reasonable minds could reach different 

conclusions on whether the prosecution proved beyond a 

reasonable doubt that defendant acted purposely. " The trier 

of fact may infer an intention to kill from the surrounding 

circumstances where the natural and probable consequence 

of a defendant's actions is to produce death." State v. Turner, 

1997 Ohio App. LEXIS 6021 (Dec. 30, 1997), Franklin App. 
No. 17AP-275 7 

No. 97AP-709, unreported (finding sufficient evidence of 

intent to kill in firing a gun from an automobile at a group of 

individuals) citing Robinson, supra, paragraph five of the 

syllabus. "The act of pointing a firearm and firing it in the 

direction of another human being is an act with death as a 

natural and probable consequence." Id., quoting State v. 

Brown (Feb. 29, 1996), Cuyahoga App. No. 68761, 

unreported; cf. State v. Smith (1993), 89 Ohio App.3d 497, 

501, 624 N.E.2d 1114 (finding that pointing gun at a group of 

people less than twenty feet away and shooting at least one 

shot could be used by the trier of fact as proof of intention to 

kill). The evidence was sufficient to allow the jury here to infer 

that defendant acted with purpose or intent to kill. The issue 

was properly presented to the jury for consideration. 

Defendant also contends the state presented insufficient 

evidence to prove beyond a reasonable doubt that defendant 

caused Truss' death. Defendant argues that Truss would have 

survived but for the grossly negligent medical treatment Truss 

received that day. In support, defendant cites the testimony of 

his expert witness, Dr. David DeHart, who testified that the 

treatment Truss received was gross maltreatment, even 

bordering on recklessness, and was the sole cause of Truss' 

death. 

"It is the general rule that one who inflicts injury upon another 

is criminally responsible for that person's death, regardless of 

whether different or more skillful medical treatment may have 

saved his life. This rule has been qualified where there has 

been a gross or willful maltreatment of the patient by the 

medical personnel, which is shown to have been an 

independent intervening cause of the patient's death." State v. 

Johnson (1978), 56 Ohio St.2d 35, 40, 381 N.E.2d 637 

(citations omitted). Simple negligence is not enough. State v. 

Beaver (1997), 119 Ohio App.3d 385, 394, 695 N.E.2d 332. 

Contrary to DeHart's testimony, Fardal testified that Truss 

bled internally as well as externally, and that the main loss of 

blood came from an injury to the right femoral artery. While 

Fardal testified that people survive such a wound, he noted 

survival depends on a lot of factors, but primarily how much 

blood is lost. According to Fardal, without treatment Truss 

would have bled to death in twenty to thirty minutes, unless 

he stopped the bleeding on his own; after only ten minutes of 

bleeding, Truss would have suffered brain damage. Fardal 
No. 17AP-275 8 

then stated the cause of death: the gunshot wound that caused 

Truss to lose blood, which in turn caused oxygen deprivation. 

A coroner is an expert witness who is permitted to give an 

opinion on matters within his scope of expertise. State v. 

Cousin (1982), 5 Ohio App.3d 32, 449 N.E.2d 32, limited by 

State ex rel. Blair v. Balraj (1994), 69 Ohio St.3d 310, 312, 631 

N.E.2d 1044. The testimony of a coroner that details the 

possible cause of death is sufficient evidence to sustain a 

homicide conviction. State v. Heinish (1990), 50 Ohio St.3d 

231, 235, 553 N.E.2d 1026, citing State v. Manago (1974), 38 

Ohio St.2d 223, 227, 313 N.E.2d 10. Fardal's testimony was 

sufficient evidence to prove that defendant caused Truss' 

death. 

Given DeHart's testimony, defendant nonetheless attacks the 

paramedic's using MAST trousers instead of applying direct 

pressure to Truss' wound, and contends the evidence supports 

reversal. Paramedic Perry testified he used the MAST trousers 

because Truss was no longer actively bleeding and Perry 

wanted Truss' remaining blood to be directed toward his heart 

and lungs. Had Truss been actively bleeding, he would not 

have used the MAST trousers. 

As a result, despite the testimony of defendant's expert that 

the medical treatment Truss received was gross maltreatment 

and the cause of his death, the jury heard conflicting 

testimony from Perry, who testified that he felt the 

paramedics acted appropriately. Weight and credibility 

questions are primarily for the trier of fact. DeHass, supra, 

paragraph one of the syllabus. Viewing Perry's testimony in 

the light most favorable to the prosecution, the evidence is 

such that reasonable minds could reach different conclusions 

on whether the prosecution proved that Truss' death was 

caused by the gunshot wound, or whether the treatment that 

Truss received was so grossly negligent that it became an 

independent intervening cause of Truss' death. The trial court 

properly denied defendant's motions for acquittal. 

Defendant's fourth assignment of error is overruled. 

Id. 

{¶ 13} One judge dissented specifically stating that, in his opinion, the evidence did 

not demonstrate that relator acted with a purpose to kill. Specifically, the dissent stated: 
No. 17AP-275 9 

A summary of a witness's prior statement which materially 

deviates from in-court testimony should be provided whether 

the summary is a statement or not. Either way, the content of 

the summary is " *** evidence, known or which may become 

known to the prosecuting attorney, favorable to the defendant 

and material either to guilt or punishment *** " for purposes 

of Crim.R. 16(B)(1)(f). Crim. R. 16(D) imposes on the 

prosecution a continuing duty to disclose such evidence when 

discovered "before or during" trial. A failure to enforce this 

duty strikes at the very core of the fairness we expect to be 

present in our criminal trials. 

I also believe that the trial court erred in finding the evidence 

sufficient to support a conviction for murder, as opposed to 

involuntary manslaughter with a firearm specification. The 

evidence simply did not demonstrate that Mr. Brust acted 

with a purpose to kill. 

In his statements prior to the shooting, Mr. Brust never 

threatened to kill anyone. Instead, Mr. Brust stated that he 

was going back to confront the people who had earlier pulled 

a gun on him and that he was going to get his money or his 

drugs. The fact that he returned with a firearm to confront 

people who had earlier used a gun to rob him is not proof of 

an intention to kill. 

Further, the gunshot wound was inflicted in an area of the 

body which would not indicate an intention to kill. The shot 

entered the right thigh of the victim, not the trunk and not the 

head. Only a single bullet wound was inflicted, not several. 

The coroner who performed the autopsy testified that the 

victim should have survived the wound. 

After the shooting occurred, the victim refused medical 

treatment for several minutes. He refused to take even 

rudimentary steps to help his chances of survival, such as 

lying down and applying pressure to his wounds. Instead, he 

remained upright, walking around while bleeding. 

After emergency personnel arrived, they made a very 

questionable judgment call as to their treatment. Instead of 

locating the wounds and applying pressure while transporting 

the victim to the hospital, they placed MAST pants or trousers 

on the victim. The result seems to have been to squeeze even 

more blood out of the victim while he was being transported 

to the hospital. The victim died from blood loss. 
No. 17AP-275 10 

I do not doubt that Mr. Brust shot the victim and that the 

shooting was a proximate cause of the victim's death. As a 

result, I believe that Mr. Brust was guilty of involuntary 

manslaughter with a firearm specification, a serious felony in 

and of itself. However, I do not believe that the evidence 

supports a finding that Mr. Brust had a specific intention to 

cause the victim's death. I, therefore, would sustain the fourth 

assignment of error in part. 

Id. at 40-42. 

{¶ 14} 5. On July 22, 2015, the parole board conducted a hearing where it 

determined that relator was "not suitable for release and is assessed a 5 year continuance." 

{¶ 15} 6. The parole board information sheet which was provided to the parole 

board members provided the following details of the offense: 

On 8/5/97, the inmate shot and killed the male victim. The 

victim was riding his bicycle at the intersection of Agustus 

Court and Urban Hollow Court in Columbus when the inmate 

shot him from his tan Isuzu Trooper. On 8/17/97, the Franklin 

County Sheriff's Office received information that the inmate 

was the shooter. The next day, deputies searched his parent's 

house and found the gun that was used in the murder. A short 

time before the shooting, the inmate was heard bragging 

about going to the Urbancrest area to get some people back 

for pulling a gun on him. 

{¶ 16} 7. Relator pursued administrative remedies in hopes of convincing the 

parole board to reconsider its decision to deny him parole. Relator's attempts failed. 

{¶ 17} 8. On April 20, 2017, relator filed the instant mandamus action requesting 

this court order the parole board to correct what he asserts are factual inaccuracies in the 

records upon which the parole board has relied to deny him parole and to conduct a new 

parole hearing. Specifically, relator asserts the following four errors exist on the parole 

board's information sheet and suggests the following corrections: 

Error 1: The (O.P.B.I.S.), states: "On 8-5-97, the inmate shot 

and killed the male victim." 

Factual Clarification of Error 1: The (O.P.B.I.S.) should 

contain the facts in the record: On 8-5-97, the inmate shot the 
No. 17AP-275 11 

male victim one time in the leg. The victim subsequently died 

four (4) days afterwards on 8-9-97. * * * 

Error 2: The (O.P.B.I.S.), states "The inmate shot him from 

his tan Isuzu Trooper." 

Factual Clarification of Error 2: The (O.P.B.I.S.), should 

contain the facts in the record: A trial by jury revealed after a 

week of testimony and evidence presented, that the accused 

"did not cause or attempt to cause physical harm to another 

by discharging a firearm from a motor vehicle." * * * 

Error 3: The (O.P.B.I.S.), states: "A short time before the 

shooting the inmate was heard bragging about going to the 

Urbancrest area to get some people back for pulling a gun on 

him." 

Factual Clarification of Error 3: The (O.P.B.I.S.), should 

contain the facts in the record: In his statements prior to the 

shooting, Mr. Brust never made any threats, nor was he heard 

"bragging." Mr. Brust stated that he was going back to 

confront the people who had earlier pulled a gun on him and 

that he was going to "get his money or drugs back." * * * 

Error 4: Offender Background Information (O.B.I.) report, as 

stated in paragraph 5; states: "On 8-5-97, Anthony Truss was 

gunned down while riding his bicycle." 

Factual Clarification of Error 4: The (O.B.I.), should contain 

the facts in the record: "The victim was conversive and 

responsive, he remained upright, walking around and refused 

medical treatment for several minutes after Paramedics 

arrival on the scene. The victim was an adult, male, 6' tall, 209 

lbs." 

(Emphasis omitted.) 

{¶ 18} 9. Prior to the filing of his mandamus action, respondent did correct what 

relator has identified as the second error. Specifically, respondent removed the language 

from the parole board's information sheet which had indicated that relator shot the victim 

"from his tan Isuzu Trooper." The parole board information sheet now provides the 

following details of the offense: 
No. 17AP-275 12 

On 8/5/97, the inmate shot and killed the male victim. The 

victim was riding his bicycle at the intersection of Agustus 

Court and Urban Hollow Court in Columbus when the inmate 

shot him. On 8/17/97, the Franklin County Sheriff's Office 

received information that the inmate was the shooter. The 

next day, deputies searched his parent's house and found the 

gun that was used in the murder. A short time before the 

shooting, the inmate was heard bragging about going to the 

Urbancrest area to get some people back for pulling a gun on 

him. 

{¶ 19} 10. Also prior to the filing of relator's mandamus action, in a letter dated 

April 4, 2017, relator was notified by respondent of this correction: 

Attorney Ashley Parriman in DRC Office of Legal Services 

forwarded your correspondence dated March 22, 2017 to our 

office for review and response. 

After reviewing the contents of your information sheet dated 

May 6, 2015, our office has updated your information sheet to 

remove the wording "from his tan Isuzu Trooper" from the 

document. We removed this language from the information 

sheet because the jury did not find you guilty of a drive-by 

specification. Copies of the amended and voided decision 

sheets have been saved to your parole board file. I have also 

enclosed a copy of these documents so that you may have 

them for your records. 

Please note that the removal of this language from your 

information sheet does not impact the Board's continuance 

decision. the Board will consider you for release consideration 

in June 2020 (April 2020 actual). A copy of your letter and my 

response to you has been placed in your file. 

(Emphasis sic.) 

{¶ 20} 11. On October 20, 2017, respondent filed a motion to supplement the 

evidence which was granted. The supplemental evidence indicates that a new hearing was 

scheduled for October 11, 2017. However, by letter dated September 10, 2017, relator 

notified respondent that he would not attend, stating: 

It is with much regret that I am compelled to inform each 

parole board member of my present inability to participate in 

my tentatively scheduled October 2017 consideration for 

suitability hearing. I do not feel it would be prudent to actively 
No. 17AP-275 13 

participate in a suitability hearing where there are several 

known inaccuracies contained within the known existing 

parole board files. This detrimental information is 

simultaneously being disputed in a Court of Law. 

I do wish all of the parole board members to know the extent 

of my efforts, as I have endeavored to convey the facts of my 

criminal conduct to accurately reflect what actually occurred 

in this case repeatedly through various methods since 

September 2014 until the present time. 

Unfortunately, I have exhausted every possible means of 

administrative reconciliation without success and therefore 

cannot actively participate in this October 2017 suitability 

hearing. 

Thank you for your consideration in this consequential 

matter. 

{¶ 21} 12. The matter is currently before the magistrate. 

Conclusions of Law: 

{¶ 22} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course of 

the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 23} As noted previously, relator cites the Supreme Court of Ohio's decision in 

Keith in support of his argument. Bernard Keith had filed a mandamus action asserting 

that the parole board was required to correct erroneous information contained in his 

records regarding the number of times he had been paroled, as well as other alleged 

inaccuracies. In finding that a writ of mandamus was appropriate, the Keith court stated: 

A prisoner has no constitutional or statutory right to parole. 

State ex rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81 

Ohio St.3d 267, 268, 1998 Ohio 631, 690 N.E.2d 887 (1998). 

Because there is no such right, a prisoner who is denied parole 

is not deprived of liberty as long as state law makes the parole 

decision discretionary. Id. at 125. Under R.C. 2967.03, the 

parole decision in Ohio is discretionary. Id. And we have held 

that because a potential parolee was not deprived of life, 

liberty, or property by being denied parole, he could not 
No. 17AP-275 14 

invoke due process to challenge his allegedly inaccurate 

scoresheet. State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 

123, 126, 1994 Ohio 81, 630 N.E.2d 696 (1994). Therefore, 

relying upon that authority, the court of appeals was not 

unreasonable in concluding that the parole board had no clear 

legal duty to correct Keith's records. Id. 

Keith cites Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 

456, 2002-Ohio-6719, 780 N.E.2d 548, to support his 

argument that he has a right to a corrected record. * * * 

* * * Layne establishes a minimal standard for the OAPA, that 

is, that statutory language "ought to mean something." Id. at 

¶ 27. At issue in Layne were the words "eligible for parole" in 

former R.C. 2967.13(A). We held there that inherent in the 

language is "the expectation that a criminal offender will 

receive meaningful consideration for parole." Id. 

* * * 

Inherent in the language of Ohio Adm.Code 5120:1-1-07(B) is 

that the board must consider various reports and "other 

relevant written information" pertaining to the inmate whose 

parole is being considered. The existence of this formal 

process for considering parole rightly gives parolees some 

expectation that they are to be judged on their own

substantively correct reports. Requiring the board to consider 

specific factors to determine the parolee's fitness for release 

would not mean anything if the board is permitted to rely on 

incorrect, and therefore irrelevant, information about a 

particular candidate. 

* * * 

* * * [H]aving set up the system and defined at least some of 

the factors to be considered in the parole decision, the state 

has created a minimal due-process expectation that the 

factors considered at a parole hearing are to be as described 

in the statute or rule and are to actually and accurately pertain 

to the prisoner whose parole is being considered. 

We recognize that the OAPA's discretion in parole matters is 

wide-ranging. Layne, 97 Ohio St.3d 456, 2002-Ohio-6719, 

780 N.E.2d 548, ¶ 28, citing State ex rel. Lipschutz v. 

Shoemaker, 49 Ohio St.3d 88, 90, 551 N.E.2d 160 (1990). 

R.C. 2967.03 vests discretion in OAPA to "grant a parole to 
No. 17AP-275 15 

any prisoner for whom parole is authorized, if in its judgment 

there is reasonable ground to believe that * * * paroling the 

prisoner would further the interests of justice and be 

consistent with the welfare and security of society." However, 

as in Layne, that discretion must yield to statutory or 

regulatory requirements. Therefore, we hold that in any 

parole determination involving indeterminate sentencing, the 

OAPA may not rely on information that it knows or has reason 

to know is inaccurate. 

This is not to say that the OAPA must conduct an extensive 

investigation on the information it reviews for every prisoner 

to ensure accuracy, nor does it mean that the OAPA must 

credit every unsupported allegation by a prisoner that the 

information is inaccurate. 

But where there are credible allegations, supported by 

evidence, that the materials relied on at a parole hearing were 

substantively inaccurate, the OAPA has an obligation to 

investigate and correct any significant errors in the record of 

the prisoner. 

(Emphasis sic.) Keith at ¶ 19-28. 

{¶ 24} In the present case, respondent has removed from the information sheet the 

language indicating that relator shot the victim "from his tan Isuzu Trooper." This 

corresponds with the jury's determination finding relator not guilty of the drive-by 

specification. In as much as the evidence demonstrated that the materials relied on at the 

parole hearing were substantially inaccurate, respondent corrected this error. 

{¶ 25} However, as the Keith court stated, there is no requirement to conduct an 

extensive investigation or credit unsupported allegations by a prisoner that information is 

inaccurate. With regard to the remaining three errors which relator alleges are contained 

in his records, relator is essentially arguing that the evidence was insufficient to establish 

the intent to kill and, further, that the medical evidence demonstrated that the victim would 

have lived if he would have accepted and received proper medical attention. The problem 

with relator's argument is that the jury, the trial judge, and the majority of this court 

concluded that there was sufficient evidence in the record from which the jury could 

determine that relator was guilty of murder and not involuntary manslaughter as relator 

asserts. The language to which relator objects does not constitute an error; instead, it is a 
No. 17AP-275 16 

matter of wording which, on review of the facts, is consistent with the evidence presented 

at trial. 

{¶ 26} In the present case, the magistrate finds that respondent has corrected the 

error contained within relator's records thereby rendering that issue moot. Regarding the 

remaining alleged errors, the magistrate finds that relator has not demonstrated that 

respondent has a clear legal duty to make the changes relator suggests and, as such, this 

court should deny his request for a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically objects 

to that factual finding or legal conclusion as required by Civ.R. 

53(D)(3)(b).