Opinion
No. 90-1273
Submitted October 15, 1991 —
Decided February 5, 1992
APPEAL from the Court of Appeals for Scioto County, No. 1835.
On August 30, 1989, appellee, Larry D. Williams, filed an amended petition for a writ of habeas corpus in the Court of Appeals for Scioto County, contending that he was being held in the Southern Ohio Correctional Facility at Lucasville without having been given a lawful parole revocation hearing. The court of appeals allowed the writ and referred the case to a referee.
The referee filed her report on October 26, 1989, in which she found the following facts:
(1) that appellee was paroled by appellant Ohio Adult Parole Authority ("APA"), on May 26, 1987;
(2) that on June 3, 1988, appellee was arrested and charged in Warren Municipal Court with aggravated menacing and having a weapon while under disability, and was subsequently released on bond;
(3) that on June 14, 1988, appellee was arrested and detained in the Warren County Jail as a parole violator;
(4) that appellee subsequently waived his right to a probable cause hearing on the parole violation charge and elected to have probable cause determined at his preliminary hearing;
(5) that the criminal charges were dropped, and the preliminary hearing was never held;
(6) that appellee was returned to prison;
(7) that the APA conducted a parole revocation hearing on August 9, 1988, according appellee the right to counsel, to present witnesses and documents, and to speak on his own behalf;
(8) that the APA revoked appellee's parole on August 16, 1988, but rescinded that action or or about October 21, 1988;
(9) that on December 15, 1988, appellee appeared before a four-member panel of the parole board, but was not given notice of the hearing or permitted to present witnesses, evidence or personal testimony; and
(10) that on December 29, 1988, the parole board issued a document stating that a parole hearing had been held on appellee's behalf and that he was not to be released, but was required to serve his maximum sentence.
The referee held that the hearing held on December 15, 1988, did not comply with the due process requirements of Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and that appellee had been detained from October 21, 1988, the date of rescission of the previous parole revocation decision, until July 24, 1989, when he initially filed his action, in violation of Morrissey and Ohio Adm. Code 5120:1-1-19(A), which provides that the releasee shall be granted a revocation hearing within a reasonable time. The referee then said: "See also, R.C. 2967.15." Finally, she recommended that, "pursuant to R.C. 2725.17, * * * [appellee] should be discharged forthwith from confinement."
R.C. 2725.17 is part of the law of habeas corpus and states that if a judge finds a "person is unlawfully imprisoned or detained, he shall forthwith discharge such person from confinement."
On December 19, 1989, the court issued an amended judgment entry that adopted the referee's findings of fact and conclusions of law and ordered "that, pursuant to R.C. 2725.17, Williams be immediately discharged from the Ohio State Corrections Facility at Lucasville, Ohio."
On February 12, 1990, appellee filed a motion to compel appellants to show cause why they should not be held in contempt, stating that appellants had not released him pursuant to the court of appeals' prior order, but had instead placed him in a halfway house in Toledo for approximately two weeks, then in the Lucas County Jail, where he was served a notice of parole violation involving threats to residents of the halfway house. He further alleged that, on January 31, 1990, appellants had notified him that there had been a finding of probable cause and that, on February 1, 1990, appellants had appellee transported to the state correctional facility at Mansfield.
On March 15, 1990, the court of appeals ordered appellants to show cause why they had failed to comply with R.C. 2967.15 and release appellee under the same terms and conditions of his original parole.
On March 26, 1990, appellants responded to the show-cause order, stating that instead of releasing appellee pursuant to the terms and conditions of his original parole they had decided to parole him under new special conditions of parole because of his past aggressive behavior. These special conditions were: (1) that appellee successfully complete the halfway house program, and (2) that appellee (a) not enter Trumbull County, or (b) not leave the halfway house or Lucas County, or (c) purchase or operate an automobile, without the written permission of his parole officer.
On June 19, 1990, the court of appeals found appellants in contempt because they had not complied with R.C. 2967.15, but imposed no sanction. It further ordered that appellee be released from custody within seven days and upon the same conditions as under his original parole.
The cause is now before the court upon an appeal as a matter of right.
Saundra J. Robinson, for appellee.
Lee I. Fisher, Attorney General, and John J. Gideon, for appellants.
For the following reasons, we affirm the judgment of the court of appeals in part and reverse it in part.
I Specificity of the Order
R.C. 2967.15 states in part:
"In the event the [adult parole] authority fails to make a determination of the case of a parolee alleged to be a violator of the conditions of his pardon or parole within a reasonable time such parolee shall be released from custody under the same terms and conditions of his original pardon or parole." (Emphasis added.)
Appellants first argue that they cannot be held in contempt because the order they were found to violate merely ordered them to release appellee, not release him under the terms and conditions of his original parole, or even pursuant to R.C. 2967.15. They cite South Euclid Fraternal Order of Police, Lodge 80 v. D'Amico (1987), 29 Ohio St.3d 50, 52, 29 OBR 398, 400, 505 N.E.2d 268, 270, in which we stated:
"* * * [W]e hold that in a declaratory judgment action contesting the constitutionality of an ordinance, an entry granting judgment to plaintiffs without expressly directing the defendants to do, or refrain from doing, a particular thing or things, cannot be the basis of finding the defendants in contempt upon the enactment of subsequent legislation, allegedly containing the same or similar infirmities. * * *"
In that case, the city adopted an ordinance governing sick leave for police and firefighters. The plaintiffs challenged the constitutionality of the ordinance. The trial court upheld the constitutionality of the ordinance, but the court of appeals found it unconstitutional and reversed and remanded the cause, ordering the trial court to enter final judgment for the plaintiffs, which the trial court did. Thereafter, the city enacted a new ordinance, which, in a motion for contempt, plaintiffs argued violated the prior order. The trial court denied the motion, and the court of appeals affirmed, holding that its prior order and the trial court's prior order pursuant to remand did nothing but find the first ordinance unconstitutional; neither order directed the city to do anything, and therefore there was no order that the city could have violated. This court affirmed, pursuant to the above-quoted language.
The instant case is similar. Here, the court of appeals ordered appellants to release appellee, which they did. In its judgment entry, it did not specifically or generally refer to R.C. 2967.15's language that appellee should be released under the terms and conditions of his original parole. Moreover, the referee's report, which the judgment entry adopted, only referred to R.C. 2967.15 in passing in connection with the duty to hold a hearing within a reasonable time, and did not mention it as the basis on which appellee must be discharged from custody.
Subsequently, appellants released appellee under their own interpretation of R.C. 2967.15. That interpretation may have been wrong, as discussed in Part II, infra, but it was not in disregard of the court of appeals' express judgment entry. Accordingly, there was no basis for the finding of contempt.
II Construction of R.C. 2967.15
The court of appeals enforced R.C. 2967.15 literally. Appellants argue that the provision should be read in pari materia with other statutes and rules governing parole, particularly R.C. 2967.01(E), which states:
As used in Chapter 2967. of the Revised Code:
"* * *
"(E) 'Parole' means the release from confinement in any state penal or reformatory institution by the adult parole authority that is created by section 5149.02 of the Revised Code and under any terms and for any period of time that is prescribed by the authority in its published rules and official minutes. A parolee so released shall be supervised by the authority. Legal custody of a parolee shall remain in the department of rehabilitation and correction until a final release is granted by the authority pursuant to section 2967.16 of the Revised Code." (Emphasis added.)
This virtually plenary authority, they argue, provides a basis for Ohio Administrative Code 5120:1-1-12(B)(3), which states:
"(B) The Parole Board shall impose the following minimum conditions of release:
"* * *
"(3) The releasee shall comply with all lawful orders given him by duly authorized representatives of the Department of Rehabilitation and Correction or its agencies, which shall include any special conditions of release that may be issued orally or in writing at any time during supervision[.]" (Emphasis added.)
Thus, "parole" is defined as release subject to whatever rules the authority adopts, and the authority has adopted Ohio Adm. Code 5120:1-1-12(B)(3), which states that special conditions of parole may be issued at any time during supervision. This is the general law of parole. However, the court of appeals construed R.C. 2967.15 as a special provision that restrains part of the APA's otherwise near plenary authority to adopt rules. We agree.
R.C. 2967.15 states that a parolee must be released under the same terms and conditions of his prior parole. "Conditions" are not part of R.C. 2967.01(E)'s definition of parole. They are imposed by rule via the parole agreements entered into with parolees. "Conditions" includes "special conditions," which were specifically identified in the agreement in question. Thus, by requiring parolees to be released under the conditions of their original parole, R.C. 2967.15 creates a specific statutory exception to the general term of parole, established by Ohio Adm. Code 5120:1-1-12(B)(3), that special conditions may be issued at any time. However, when a statute is in conflict with a rule, the rule must yield. McAninch v. Crumbley (1981), 65 Ohio St.2d 31, 34, 19 O.O.3d 225, 226-227, 417 N.E.2d 1252, 1255. This means that new special conditions cannot be imposed until the parolee is rereleased from confinement.
There appears no reason why the APA could not immediately impose new special conditions on the parolee after release. However, in this case, the APA imposed new special conditions before releasing the parolee. This was not in accord with R.C. 2967.15, which specifies release under the same conditions as the original parole.
While it might be argued that construing R.C. 2967.15 to require release under the conditions of the original parole, but permitting the conditions to be changed immediately after release, is an absurd result, we perceive that a parolee detained for an unreasonable time before hearing has been denied a statutory right under R.C. 2967.15 and possibly a constitutional right under Morrissey v. Brewer, supra. By ordering release under prior conditions, the General Assembly is commanding that the parolee be restored to his former status immediately, without further administrative delay in derogation of these rights.
Accordingly, we reverse the decision of the court of appeals insofar as it held appellants in contempt, but affirm the decision insofar as it ordered appellee's release on parole subject to the special conditions of his original parole.
Judgment affirmed in part and reversed in part.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.