Summary
holding that conclusory allegations are not sufficient to withstand summary judgment
Summary of this case from State ex rel. Awms Water Sols. v. MertzOpinion
No. 91-133
Submitted March 12, 1991 —
Decided September 25, 1991.
APPEAL from the Court of Appeals for Franklin County, No. 90AP-784.
Appellant, Ralph P. Coulverson, filed a mandamus action in the Court of Appeals for Franklin County against appellees, the Ohio Adult Parole Authority ("APA") and its chief, John W. Shoemaker. The court granted summary judgment for appellees. Coulverson appeals.
According to Coulverson's complaint, he was charged in 1989 with receiving stolen property. Since he was on parole at the time of the offense, the APA commenced parole revocation proceedings. Before the final hearing, Coulverson met four times with assistant state public defenders. Each time, he refused to accept representation by the Ohio Public Defender Commission, claiming that an unspecified conflict of interest existed. At the second of these meetings, Coulverson asked the assistant public defender for discovery, the right to call witnesses, and cross-examination of adverse witnesses. According to Coulverson, the assistant public defender promised to bring these requests to the APA's attention.
On January 25, 1990, the Parole Board held Coulverson's final hearing. Coulverson insisted that, although he had refused a public defender, he had not waived his right to counsel. Coulverson also objected to the hearing on the grounds that he had been denied discovery and the opportunity to call two inmates as witnesses. The board overruled his objections.
A parole officer testified and submitted a journal entry showing that Coulverson had pled guilty to a misdemeanor charge of receiving stolen property. At this point, according to Coulverson's complaint, the board informed Coulverson that it found him guilty of a parole violation on the strength of the entry, and that he would not be allowed to call witnesses on that charge.
Coulverson's complaint alleged that he was denied due process because the board did not provide him with conflict-free counsel, denied him discovery, did not let him call witnesses, and accepted the judgment entry as conclusive proof that he violated parole.
The APA moved for summary judgment. In support of its motion, the APA submitted, inter alia, copies of Coulverson's guilty plea to receiving stolen property and the judgment of conviction. Coulverson filed a brief in opposition and a cross-motion for summary judgment, but submitted no evidence. Coulverson also requested a continuance in order to conduct discovery. To support this request, he submitted a purported affidavit, which is witnessed and contains Coulverson's declaration "under the penalty of perjury" that his statements are true, but is not notarized.
The court of appeals entered summary judgment for the APA. From this judgment, Coulverson appeals as of right.
Ralph P. Coulverson, pro se. Lee I. Fisher, Attorney General, and Gerald E. Dailey, for appellees.
In this appeal, Coulverson contends that the court of appeals erred in denying a continuance and granting summary judgment. We affirm.
Coulverson asked for a continuance under Civ.R. 56(F) for the purpose of conducting discovery in this mandamus action, but the court of appeals refused. Coulverson assigns this refusal as error. However, Coulverson did not submit a valid affidavit for the court to consider under Civ.R. 56(F). His "affidavit" is not sworn before anyone authorized to give oaths. It is void. Thus, the court of appeals could not act under Civ.R. 56(F).
We turn to the propriety of granting summary judgment. A court may render summary judgment only if the evidence, construed most strongly in the non-moving party's favor, shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Civ.R. 56(C). Coulverson contends that summary judgment was improper here because genuine issues of material fact exist.
Rejecting Coulverson's claim that he was denied counsel at the parole hearing, the court of appeals noted that Coulverson rejected the public defender's proffered services. Coulverson argued that the public defender had a conflict of interest; however, Coulverson submitted no evidence of any conflict.
Coulverson argues that he did not need to submit such evidence. To obtain summary judgment, he argues, the APA had to prove that no conflict existed. We disagree. The moving party need not support its motion with affidavits negating every claim of the non-moving party. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114, 526 N.E.2d 798, 800-801, fn. 5. Instead, the moving party must "specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond." Mitseff, supra, syllabus.
The APA carried this burden. Citing Coulverson's own complaint, the APA pointed to three specific occasions when Coulverson refused a public defender. The APA thus specifically delineated the basis on which it sought summary judgment: that Coulverson had not been denied counsel, but had refused to accept it when offered. This was sufficient to establish the absence of a genuine issue.
It was then Coulverson's task to negate the APA's showing by establishing that a genuine issue existed. His conclusory, nebulous allegation of a conflict of interest was not enough. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. Since Coulverson declined to submit evidence, the court of appeals had no choice but to grant summary judgment against him.
Rejecting Coulverson's claim that the APA denied him discovery, the court of appeals held that Coulverson's discovery request to the public defender, who did not represent him, was "insufficient to constitute a request of respondents.' Coulverson responds that his request to the public defender should be deemed a request to the APA, because the APA requires that inmates request discovery through the public defender. Like his conflict-of-interest argument, however, this claim is devoid of evidentiary support.
Coulverson complains that the Parole Board refused to let him call as witnesses inmates of other prisons and the police officers who arrested him for receiving stolen property. The court of appeals reasoned that these witnesses could have given no relevant testimony, since "[t]he only issues before the parole board were the conviction of a crime, to which relator voluntarily pled guilty, and his failure to stay in a drug rehabilitation program and to report to his probation officer."
Coulverson argues that the testimony cannot be dismissed as irrelevant on the basis of his misdemeanor conviction, because such a conviction cannot constitute conclusive proof of a parole violation. Coulverson quotes Ohio Adm. Code 5120:1-1-19(A)(1): "In the event a releasee is convicted and sentenced on a new felony under Ohio law, it shall be conclusively presumed that Administrative Regulation 5120:1-1-12 has been violated. In such cases, as applicable, the parole revocation hearing will be confined to the determination of mitigating circumstances." According to Coulverson, by not mentioning misdemeanor convictions, the regulation implicitly forbids the board to treat them as conclusive.
We cannot agree. If the regulation merely authorized the board to treat felony convictions as conclusive, omission of misdemeanors might well imply that the board could not treat them the same way. But the regulation actually requires the board to treat felony convictions as conclusive. While misdemeanor convictions are excluded from this requirement, it does not follow that the board may never treat them as conclusive. Expressio unius est exclusio alterius does not mean that anything not required is forbidden. Cf. State, ex rel. Lipschutz, v. Shoemaker (1990), 49 Ohio St.3d 88, 551 N.E.2d 160.
The regulatory context supports our interpretation. Ohio Adm. Code 5120:1-1-12(B)(1) requires that, as a condition of parole, "[t]he releasee shall abide by all federal, state, and local laws * * *." Thus, a misdemeanor, no less than a felony, is a parole violation, which need only be proved by "substantial evidence." Ohio Adm. Code 5120:1-1-19(D) and (E). A conviction, of course, means that the state has already carried a heavier burden of proof. It would thus be pointless to permit parolees to relitigate their guilt in revocation hearings. We doubt that the drafters of Ohio Adm. Code 5120:1-1-19(A)(1) meant to expand a parolee's rights so far beyond due process, see Morrissey v. Brewer (1973), 408 U.S. 471, 490, 92 S.Ct. 2593, 2604-2605, 33 L.Ed.2d 484, 499, and find it even less likely that they would seek to do so by implication.
A parolee convicted of a new crime has no right to defend against revocation by insisting that, conviction or no conviction, he is really innocent. The board, in its discretion, may treat misdemeanor convictions as conclusive evidence of a violation. Thus, Coulverson had no right to present testimony on the issue of his guilt or innocence. We agree with the court of appeals that such testimony was irrelevant.
Coulverson also argues that the APA's motion made no contention that the testimony would have been irrelevant, denying him "a meaningful opportunity to respond" to that contention, Mitseff, supra, which the court of appeals found decisive. We disagree. The APA's motion stated that Coulverson "received the process due him" at the hearing, implicitly asserting that he was not denied his right to call witnesses. The motion further stated that "Coulverson admitted violation of laws." The APA submitted certified copies of Coulverson's guilty plea and the judgment of conviction. The APA was clearly arguing that Coulverson had no right to relitigate his guilt in a revocation hearing. Coulverson thus had notice of the motion's basis. Mitseff, supra.
Finally, Coulverson complains that the parole officer's reports, which came into evidence against him, contained information from the arresting officers. Since the officers did not testify, Coulverson contends that the reports' admission denied him "the right to confront and cross-examine adverse witnesses * * *." Morrissey, supra, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. But a parolee contesting revocation does not have the same confrontation rights as does a trial defendant. The Parole Board may admit hearsay. Morrissey, supra.
The court of appeals' judgment is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.