IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Anthony Thompson,
:
Plaintiff-Appellant,
:
v.
No. 00AP-331
:
Margarette Ghee,
(ACCELERATED CALENDAR)
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on September 12, 2000
Anthony Thompson, pro se .
Betty D. Montgomery, Attorney General, and J. Eric Holloway,
for appellee.
APPEAL from the Franklin County Court of Common Ple as.
BROWN, J.
Anthony Thompson, plaintiff-appellant, appeals a j udgment of the Franklin
County Court of Common Pleas granting a motion for
summary judgment in favor of
Margarette Ghee, defendant-appellee.
Appellant is confined at the Chillicothe Correctio nal Institution. While
confined, a panel of the Ohio Adult Parole Authorit y ("OAPA") granted appellant parole on
or after July 27, 1998, contingent upon his complet ing a counseling program. The victims'
families were notified of OAPA's decision, and appe llee issued a "stop letter" after the
No. 00AP-331
8
Office of Victims Services petitioned the OAPA boar d for a hearing. On October 16,
1998, the full OAPA board held a hearing on the mat ter, and, thereafter, a majority of the
OAPA board determined that appellant's parole date should be June 5, 2003.
On April 30, 1999, appellant filed an action seeki ng declaratory, injunctive,
and monetary relief against appellee, the chairpers on of the OAPA. Appellant claimed in
his complaint that the OAPA violated the ex post fa cto and equal protection clauses of the
Ohio and United States Constitutions in denying him parole because they used the parole
guidelines that were currently in effect rather tha n the guidelines in effect at the time he
was originally sentenced.
On June 4, 1999, appellee filed a motion to dismis s appellant's complaint
pursuant to Civ.R. 12(B)(1) and 12(B)(6). On July
13, 1999, the trial court granted
appellee's motion to dismiss the action as it perta ined to monetary damages but denied
the motion in all other respects. On February 4, 20 00, appellee filed a motion for
summary judgment on the declaratory and injunctive claims. On February 29, 2000, the
trial court granted appellee's motion for summary j udgment, noting that the motion was
unopposed. On March 6, 2000, appellant filed a resp onse to appellee's motion for
summary judgment. Appellant filed a motion to recon sider on March 8, 2000, which the
trial court denied. Appellant now appeals the Febru ary 29, 2000 judgment of the trial
court, asserting the following assignments of error :
[1.] THE TRIAL COURT ERRED IN GRANTING MOTION
FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
WITHOUT ALLOWING FULL 28-DAY PERIOD AFTER
No. 00AP-331
8
SERVICE OF MOTION IN WHICH TO SET DATE FOR NON-
ORAL HEARING AS ALLOWED BY LOCAL RULE, OR
INFORMING PLAINTIFF THAT LIMITATION TIME SET
FORTH IN LOCAL RULE WOULD BE SHORTENED.
[2.] THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT TO DEFENDANT WHERE THERE EXISTED A
GENUINE ISSUE OF EX POST FACTO VIOLATION,
WHERE A NEW LEGAL CONDITION AND CRITERIA FOR
PAROLE RELEASE CONSIDERATION WAS APPLIED TO
APPELLANT AFTER THE GRANTING OF PAROLE.
[3.] OHIO'S NEW BINDING PAROLE GUIDELINES ARE
UNCONSTITUTIONAL
AND
UNENFORCEABLE
ON
GROUND[S] THAT THEY WERE PROMULGATED BY
BODY TO WHICH LEGISLATURES, CONSISTENT WITH
THE
OHIO
CONSTITUTION
AND
UNITED
STATES
CONSTITUTION, COULD NOT OR DID NOT DELEGATE
THE TASK OF FIXING CRIMINAL PENALTIES FOR
VIOLATION OF STATE LAW, AS THOSE VIOLATIONS
RELATES [sic] TO PRE-SB 2 PRISONERS, WHEN SUCH
GUIDELINES
EXCEEDS
[ sic]
THE
MAXIMUM
PUNISHMENT/PENALTIES PRESCRIBED UNDER SB 2.
Appellant argues in his first assignment of error
that he was precluded from
responding to the motion for summary judgment becau se the trial court granted the
summary judgment before the expiration of twenty-ei ght days as required by Loc.R.
57.01. Loc.R. 57.01 provides, in pertinent part:
All motions for summary judgment filed pursuant to Civil Rule
56 are hereby set for a non-oral hearing date on th e 28
th
day
following the filing of the motion for summary judg ment.
Motions shall be deemed submitted to the judge for
non-oral
hearing on that date.
Any party seeking to change
the
hearing date must do so by entry signed by the Tria l Judge
and served on all counsel.
This rule does not alte r the
response dates for memorandum contra and replies un der
Local Rule 21.01 ***.
No. 00AP-331
8
Loc.R. 21.01 provides:
*** The opposing counsel or a party shall serve any
answer
brief on or before the 14
th
day after the date of service as set
forth on the certificate of service attached to the
served copy
of the motion. *** On the 28
th
day after the motion is filed, the
motion shall be deemed submitted to the Trial Judge .
In the present case, the certificate of service on
appellee's motion for
summary judgment indicated that it was served upon
appellant on February 4, 2000.
Thus, including the three additional days for maili ng pursuant to Civ.R. 6(E), appellant
had until February 21, to file his responsive brief . However, he did not file such brief until
March 6, 2000. Loc.R. 57.01 specifically states tha t its provisions do not alter the
fourteen-day response time for memoranda contra und er Loc.R. 21.01. Therefore,
appellant failed to file a timely responsive brief.
However, appellant also asserts that because only
twenty-five days –
instead of twenty-eight days – elapsed between the
date the motion was filed and the
date of the trial court's decision, he "was not pro vided any opportunity to defend the
motion other than motion in opposition. For exampl e, [appellant] would have asked [for]
leave to attend Oral Hearing as provided under Loc. R. 21.01." Thus, appellant seems to
be arguing that because the trial court issued the
decision three days earlier than
specified in Loc.R. 57.01, he was deprived of the o pportunity to file certain pleadings
during those three days.
However, appellant's argument hinges on a hypothet ical situation that
clearly did not take place. Appellant's argument is
insincere in that he claims he was
No. 00AP-331
8
prejudiced by the trial court issuing the judgment three days early. The twenty-eighth day
after submission of the motion for summary judgment was March 3, 2000. Appellant could
not have been prevented from filing any pleadings b efore that time because he could not
have been aware of the trial court's judgment until he received it on March 2 or 3, at the
earliest. Therefore, even if the trial court would have not have issued its decision until the
twenty-eighth day, on March 3, the record is clear
that appellant failed to submit any
motion or other pleading by that date. Simply, appe llant did not file any timely pleadings
with regard to appellee's motion for summary judgme nt and cannot argue now that
hypothetically he "could have" but for the trial co urt's actions. Thus, any error by the trial
court in rendering a decision before the expiration of twenty-eight days pursuant to Loc.R.
21.01 and 57.01 was harmless error. Appellant's fir st assignment of error is overruled.
Before addressing the remaining assignments of er ror, we must address
another issue. It is a fundamental tenet that a par ty who does not respond to an adverse
party's motion for summary judgment may not raise i ssues on appeal that should have
been raised in response to the motion for summary j udgment. Maust v. Meyers Products,
Inc. (1989), 64 Ohio App.3d 310, 313-314; Haas v. Indus. Comm. (Dec 21, 1999),
Franklin App. No. 99AP-475, unreported; Bradley v. Kijauskus (Mar. 26, 1998); Bank
One, Columbus, N.A. v. Adams (Mar. 18, 1993), Franklin App. No. 92AP-1413,
unreported. Thus, because appellant failed to file a timely response to appellee's motion
for summary judgment, he should be precluded from r aising the remaining arguments.
We also note that appellant's third assignment of e rror raises two additional grounds –
No. 00AP-331
8
nondelegation of authority and separation of powers – that he failed to present in any
meaningful or timely manner below. As such, these a rguments should also be deemed
waived for appellate purposes. State v. Stojetz (1999), 84 Ohio St.3d 452, 455. However,
despite these deficiencies, in the interests of jus tice, we will address the argument
contained in appellant's assignment of error number two and three with regard to ex post
facto prohibition, which appellant raised below and was the gravamen of his complaint.
Appellant argues in his second assignment of error that the trial court erred
in granting summary judgment because there remained a genuine issue of material fact
as to whether the OAPA's use of different guideline s, than were in place at the time of his
original parole hearing, violated the ex post facto
prohibition of the United States
Constitution. He argues in his third assignment of error that the trial court erred in failing
to find that a genuine issue of material fact remai ned as to whether the OAPA's use of
parole guidelines, in general, violates the ex post facto clause. Pursuant to Civ.R. 56,
summary judgment is appropriate when there remains no genuine issue of material fact,
and, when construing the evidence most strongly in
favor of the non-moving party,
reasonable minds can only conclude that the moving
party is entitled to judgment as a
matter of law. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370.
"When reviewing a trial court’s ruling on summary j udgment, the court of appeals
conducts an independent review of the record and st ands in the shoes of the trial court."
Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103.
No. 00AP-331
8
Under R.C. 2967.03, the parole decision is discre tionary. State ex rel. Blake
v. Shoemaker (1983), 4 Ohio St.3d 42; State ex rel. Ferguson v. Ohio Adult Parole Auth.
(1989), 45 Ohio St.3d 355. The OAPA's use of intern al guidelines does not alter the
decision's discretionary nature. State ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d
123, 125. Because neither statute nor regulation cr eated the guidelines, and the board
need not follow them, they place no "substantive li mits on official discretion," and
appellant cannot claim any right to have any partic ular set of guidelines apply. Olim v.
Wakinekona (1983), 461 U.S. 238, 239, 103 S.Ct. 1741, 1747. W e have specifically held
that a prisoner has no right to rely on the parole
guidelines in effect prior to his parole
hearing date, and, thus, any application of amended
parole guidelines are not
retroactively applied ex post facto. State v. Caslin (Sept. 29, 1998), Franklin App. No.
98AP-463, unreported. Therefore, appellant was depr ived of no protected liberty interest
when the OAPA used different guidelines than were e ffective during his original parole
hearing, and he can claim no due process rights wit h respect to the parole determination.
See Jago v. Van Curen (1981), 454 U.S. 14, 20-21, 102 S.Ct. 31, 35.
Further, as the trial court pointed out, the Unit ed States District Court for the
Southern District of Ohio has held that the parole
guidelines are not violative of ex post
facto prohibition, stating:
*** [C]hanges in the parole matrix or parole guidel ines may
constitutionally be applied to inmates even though
the
changes occur after the inmates entered the state p rison
system. As the Court noted in its previous opinion
and order,
parole is a discretionary decision, and a state may
constitutionally add or delete factors which guide the Parole
No. 00AP-331
8
Board's exercise of its discretion without running afoul of the
Constitution. Simply put, an inmate has no vested i nterest in
any particular set of parole guidelines, regulation s, or matrices
which assist the Parole Board in exercising its dis cretion, and
changes in those matters do not impair any rights e njoyed by
state prisoners pursuant to the United States Const itution.
Akbar-El v. Wilkinson (S.D. Ohio 1998), unreported, affirmed
(C.A. 6, 1999), 181 F.3d 99.
We also note that appellant states a fourth assign ment of error in his
statement of facts. However, this assignment of err or is not referenced elsewhere, and he
fails to present any argument regarding this assign ment of error. Therefore, we decline to
address it. See App.R. 12(A)(2).
For the reasons set forth above, we find that the
trial court did not err in
granting appellee's motion for summary judgment. A ppellant's three assignments of error
are overruled, and the judgment of the Franklin Cou nty Court of Common Pleas is
affirmed.
Judgment affirmed.
TYACK and DESHLER, JJ., concur.
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