Summary
In Nedea, although a constitutional argument could be made that a parolee's procedural due process rights are violated if he has ineffective assistance of counsel, the Ohio Supreme Court refused to consider this constitutional claim because it was not one of the clearly established rights of parolees as enumerated in Morrissey.
Summary of this case from Brewer v. DahlbergOpinion
No. 88-364
Submitted September 8, 1988 —
Decided December 14, 1988.
Mandamus — Admission of parole violation is sufficient grounds for revocation of parole — No clear legal right to assistance of counsel during parole revocation hearing.
APPEAL from the Court of Appeals for Franklin County, No. 87AP-829.
Appellant, a parolee, was charged in the Cleveland Municipal Court with public indecency. That charge was ultimately dismissed, but appellant was subsequently charged with a parole violation for exposing his genitals. He waived formal hearing and pleg guilty to the parole violation at an informal parole revocation hearing. On the basis of his guilty plea, appellant's parole was revoked.
On September 9, 1987, appellant filed a petition for a writ of mandamus in the court of appeals alleging that there was no factual basis for revoking his parole since the public indecency charge was dismissed and that his appointed counsel at the parole revocation hearing was ineffective. The court of appeals referred the case to a referee who recommended dismissing the complaint. Accepting that recommendation, the court denied the writ on February 5, 1988.
The cause is now before this court on an appeal as of right.
Romulus Nedea, pro se. Anthony J. Celebrezze, Jr., attorney general, and Gary D. Andorka, for respondents.
Under R.C. 2967.15, the Adult Parole Authority is authorized to revoke parole when the parolee has violated the terms and conditions of his parole. Therefore, regardless of the fact that the trial court dismissed the public indecency charge, the appellant's admission of a parole violation was sufficient grounds for the revocation of this parole.
The ineffective assistance of counsel claim must also fail. A parolee is entitled to procedural due process protection; however, it has never been affirmatively decided whether a parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent. Morrissey v. Brewer (1972), 408 U.S. 471, 489. Therefore, since appellant can establish no clear legal right or duty regarding the assistance of counsel during a parole revocation hearing, he can establish no right to the effective assistance of counsel.
To be entitled to a writ of mandamus, appellant must demonstrate that he has a clear legal right to the relief prayed for, that respondents are under a clear legal duty to perform the requested act, and the relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 51, 451 N.E.2d 225, 226-227.
As appellant has not established a clear right to relief or a clear duty of respondent to grant relief, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.