DUGANITZ v. OHIO ADULT PAROLE AUTHORITY ET AL

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Docket Number

No. 01-468.

Attorney(S)

Michael J. Duganitz, pro se. Betty D. Montgomery, Attorney General, and Diane Mallory, Assistant Attorney General, for appellees.

Judges

PER CURIAM.

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Smart Summary

Factual and Procedural Background

Michael J. Duganitz was convicted in three separate cases spanning from 1981 to 1993 and sentenced to prison. After being paroled, he assaulted Tyrica Holmes in 1998 with a baseball bat, causing injuries. The Ohio Adult Parole Authority ("APA") found that this assault violated the conditions of his parole and revoked his parole in January 1999. Although a Cuyahoga County grand jury declined to indict Duganitz for the assault, the Ohio Parole Board denied parole after a postrevocation hearing in March 1999, continuing his incarceration until December 2001.

In August 2000, Duganitz filed a habeas corpus petition in the Court of Appeals for Ashtabula County seeking immediate release, arguing that his parole was improperly revoked based on conduct for which the grand jury refused to indict him. Following an evidentiary hearing, a magistrate recommended denying the writ, and the court of appeals adopted this decision on the same day it was filed. Duganitz filed a late objection fifteen days after the magistrate's decision, which the court of appeals overruled as untimely. Duganitz appealed, claiming procedural errors by the court of appeals in adopting the magistrate’s decision prematurely and not ruling on his objection.

Legal Issues Presented

Whether the court of appeals erred by adopting the magistrate's decision before the expiration of the time allowed for filing objections.
Whether Civ.R. 6(E) extends the time for filing objections to a magistrate's decision under Civ.R. 53(E)(4)(a).
Whether the court of appeals erred by not ruling on the merits of Duganitz's objection.
Whether a grand jury's refusal to indict precludes parole revocation based on the same conduct.

Arguments of the Parties

Appellant's Arguments

The court of appeals prematurely adopted the magistrate's decision before the objection period expired.
The court failed to apply Civ.R. 6(E) to extend the time for filing objections.
The court did not rule on the merits of his objection.
The parole revocation was improper because it was based on conduct for which the grand jury refused to indict him.

Appellees' Arguments

The court of appeals acted within its procedural authority under Civ.R. 53(E)(4)(c) in adopting the magistrate's decision without waiting for objections.
Civ.R. 6(E) does not extend the objection filing period under Civ.R. 53(E)(4)(a).
The objection was untimely and thus the court was not required to rule on its merits.
A grand jury's refusal to indict does not bar parole revocation based on the same conduct.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Buxton, Montgomery App. No. 17279, 1999 WL 218140 (Apr. 16, 1999)	A grand jury's refusal to indict does not preclude parole revocation based on the same violation.	The court relied on this precedent to affirm that parole revocation can stand despite no indictment.
State ex rel. Smith v. Ohio Adult Parole Auth., Franklin App. No. 88AP-565, 1990 WL 74013 (June 5, 1990)	Supports the principle that parole revocation is independent of criminal indictment outcomes.	Used to reinforce that parole revocation was proper despite grand jury's refusal to indict.
Reyes v. Tate, 91 Ohio St.3d 84, 742 N.E.2d 132 (2001)	Parole may be revoked even if criminal charges are dismissed or the defendant acquitted, unless all factual support for revocation is removed.	The court cited this as controlling authority confirming the validity of parole revocation here.
Moore v. Leonard, 85 Ohio St.3d 189, 707 N.E.2d 867 (1999)	Clarifies that parole revocation does not depend on criminal conviction outcomes.	Quoted in Reyes and used to support the court's conclusion that revocation was justified.
Pulfer v. Pulfer, 110 Ohio App.3d 90, 673 N.E.2d 656 (1996)	Civ.R. 6(E) does not extend time for filing objections to magistrate's decision under Civ.R. 53(E)(4)(a).	Applied to reject appellant’s argument that filing time should be extended under Civ.R. 6(E).

Court's Reasoning and Analysis

The court analyzed the procedural rules governing magistrate decisions and objections. It noted that under Loc.App.R. 18(J) and Civ.R. 53(E)(4)(c), the court of appeals was authorized to adopt the magistrate’s decision and enter judgment without waiting for timely objections. The appellant’s objection, filed fifteen days after the magistrate’s decision, was untimely as Civ.R. 53(E)(3)(a) requires objections within fourteen days. Furthermore, Civ.R. 6(E), which allows extensions of time in certain contexts, does not apply to objections under Civ.R. 53(E)(4)(a), as supported by Pulfer v. Pulfer.

On the merits, the court held that a grand jury’s refusal to indict does not remove all factual support for parole revocation. It relied on prior Ohio appellate decisions and the Supreme Court of Ohio’s precedent in Reyes v. Tate and Moore v. Leonard, which establish that parole may be revoked even if criminal charges are dismissed, acquitted, or overturned, provided factual support for revocation remains. Because the grand jury’s "no bill" did not eliminate all factual basis for revocation, the parole revocation was proper.

Accordingly, the court found no procedural or substantive error in the court of appeals' denial of the writ and overruling of the untimely objection.

Holding and Implications

The judgment of the court of appeals is affirmed.

The court held that the court of appeals did not err in adopting the magistrate's decision before the objection period expired, nor in overruling the untimely objection. It also confirmed that a grand jury’s refusal to indict does not preclude parole revocation based on the same conduct. The direct effect is that Duganitz’s parole revocation and continued incarceration were lawful. The opinion does not establish new precedent beyond reaffirming existing principles regarding parole revocation and procedural rules for magistrate decisions.

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Duganitz, Appellant, v. Ohio Adult Parole Authority et al., Appellees.

PER CURIAM.

In three separate cases, appellant, Michael J. Duganitz, was convicted of receiving stolen property (1981), aggravated assault and attempted felonious assault (1984), and drug abuse (1993), and was sentenced to prison. After being paroled, Duganitz assaulted Tyrica Holmes in 1998 with a baseball bat and injured her legs and groin. In January 1999, appellee Ohio Adult Parole Authority ("APA") found that by assaulting Hoskins, Duganitz was guilty of violating the conditions of his release and therefore revoked his parole.

A Cuyahoga County grand jury, however, issued a "no bill," refusing to return an indictment against Duganitz for the assault of Hoskins. In March 1999, after a postrevocation hearing, the Ohio Parole Board denied parole and continued Duganitz's incarceration until December 2001.

In August 2000, Duganitz filed a petition in the Court of Appeals for Ashtabula County seeking a writ of habeas corpus to compel appellees, APA and Duganitz's prison warden, to immediately release him. Duganitz claimed that the APA had improperly revoked his parole based upon conduct on which the grand jury had refused to indict him. On December 27, 2000, following an evidentiary hearing, a court magistrate issued a decision recommending that the court of appeals deny the writ. On the same date that the magistrate filed his decision, the court of appeals adopted the decision and denied the writ.

On January 11, 2001, i.e., fifteen days after the magistrate's decision was filed, Duganitz filed an objection to the decision. The court of appeals subsequently overruled the objection as untimely.

In his appeal of right, Duganitz claims that the court of appeals erred by prematurely adopting the magistrate's decision before the time for filing objections had expired, failing to apply Civ.R. 6(E) to extend the time for filing objections, and not ruling on the merits of his objection.

On the contrary, the court of appeals properly denied the writ. It did not err procedurally in adopting the magistrate's decision on the same date that it was filed and before waiting for the filing of timely objections. Loc.App.R. 18(J) of the Eleventh Appellate District (Ashtabula County) provides that original actions in that court may be referred to a magistrate and that "[u]nless otherwise indicated in the order of reference to a magistrate, the magistrate shall have all the powers specified in Civ.R. 53, and the proceedings and decision of the magistrate shall be governed by Civ.R. 53." Under Civ.R. 53(E)(4)(c), a court "may adopt a magistrate's decision and enter judgment without waiting for timely objections by the parties * * *." Therefore, the court of appeals was empowered by Civ.R. 53(E)(4)(c) to adopt its magistrate's decision before Duganitz filed his objection.

Moreover, as appellees note, Civ.R. 6(E) does not extend the time for filing objections to a magistrate's decision under Civ.R. 53(E)(4)(a). See Pulfer v. Pulfer (1996), 110 Ohio App.3d 90, 92-93, 673 N.E.2d 656, 657. The court of appeals, thus, did not have to rule on the merits of appellant's objection because it was not timely filed. Duganitz's objection was filed on the fifteenth day after the filing of the magistrate's decision. See Civ.R. 53(E)(3)(a), which requires written objections to a magistrate's decision to be filed within fourteen days of the filing of the decision.

Furthermore, the court of appeals was also correct on the merits. A grand jury's refusal to indict does not preclude parole revocation based on the same violation. See State v. Buxton (Apr. 16, 1999), Montgomery App. No. 17279, unreported, 1999 WL 218140; State ex rel. Smith v. Ohio Adult Parole Auth. (June 5, 1990), Franklin App. No. 88AP-565, unreported, 1990 WL 74013. These cases are consistent with our holding that "`[p]arole may be revoked even though criminal charges based on the same facts are dismissed, the defendant is acquitted, or the conviction is overturned, unless all factual support for the revocation is removed.'" Reyes v. Tate (2001), 91 Ohio St.3d 84, 742 N.E.2d 132, 133, quoting Moore v. Leonard (1999), 85 Ohio St.3d 189, 190, 707 N.E.2d 867, 868. The grand jury's failure to indict Duganitz for the assault of Hoskins did not remove all factual support for his parole revocation based on that conduct.

Based on the foregoing, the court of appeals neither erred in adopting the magistrate's decision and denying the writ nor in overruling Duganitz's untimely objection. We affirm the judgment of the court of appeals.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.