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Ohio Parole Challenge Not Barred by Res Judicata

by Mark Wilson

The Ohio Court of Appeals reversed a lower court’s dismissal of a prisoner’s parole challenge, holding that res judicata did not bar the action.

In 1977, Michael Swihart was convicted of aggravated murder, murder and arson related to the deaths of his mother and two brothers. He was acquitted of his father’s murder. He was sentenced to death on the aggravated murder conviction, 15 years to life on each murder conviction and 7 to 25 years on the arson conviction.

Following Lockette v. Ohio, 438 US 586, 98 S.Ct. 2954 (1978), on December 20, 1978, Swihart’s death sentence was modified to life imprisonment and under Ohio law (RC 2967.13) his parole eligibility was set at 15 years to life.

On June 2, 1992, Swihart was interviewed by the Ohio Adult Parole Authority (OAPA), whose members said: “You got the break of your life when the Court of Appeals modified your Death Sentence.” It then concluded that Swihart’s “sentence should be ‘Life without possibility of Parole.’” The OAPA saw Swihart again on September 6, 2002, applied new guidelines to him, modified his 15 years to life sentence to 300 months to life and scheduled another hearing for October 2007.

Swihart brought suit in federal court on September 16, 2004, alleging that the OAPA violated his constitutional rights. OAPA moved to dismiss and Swihart argued in part that OAPA employed a sentence in excess of the court’s sentence. He argued further that “Defendants simply considered the crime, ignored his record, adjustment or psychological defense and treated the sentence as life without parole” in violation of Layne v. Ohio Adult Parole Auth., 97 Ohio St. 3d 456, 2002 Ohio 6719, 780 NE 2d 548. The district court dismissed and the Sixth Circuit Court of Appeals affirmed.

On February 15, 2007, Swihart sued OAPA in state court, seeking declatory judgment, injunctive relief and damages. He alleged several state law claims related to OAPA converting his sentence to life without parole through deliberate “sham” parole eligibility hearings.

Defendants moved to dismiss, asserting that res judicata barred the action because he could have raised the state law claims in the 2004 federal action. Defendants attached copies of the federal decisions to the motion. Finally, Defendants moved to dismiss, asserting that Swihart did not have a liberty interest in parole. The trial court dismissed and Swihart appealed.

The Ohio Court of Appeals reversed. The court found several errors in the lower court’s res judicata holding. First, it is an affirmative defense, which must be pled, and it cannot be asserted, as it was by OAPA, for the first time in a motion to dismiss. Second, a motion to dismiss is limited to the sufficiency of the pleadings. Therefore, the court erred in relying on the evidentiary materials appended to the motion. Accordingly, the court held that the trial court erred in granting the motion to dismiss based upon res judicata.

With respect to Defendants’ liberty interest argument, the court observed that the parties agreed parole is discretionary but determined that the proper question was “whether the discretionary nature of parole renders plaintiff’s allegations meritless as a matter of law.” Citing Layne, the court noted that “while acknowledging that the OAPA has ‘wide-ranging discretion in parole matters,’ the Supreme Court of Ohio stated ‘that discretion must yield when it runs afoul of statutorily based parole eligibility standards and judicially sanctioned plea agreements.” The court concluded that “the discretionary nature of parole does not afford defendants the right to deny plaintiff meaningful consideration on the basis of a sentence other than the one he was given…Accordingly, the trial court erred in granting defendants’…motion on the basis that parole is discretionary.”

See: Swihart v. Ohio Adult Parole Authority, No. 08AP-222, (Ohio App. 2008), 2008 WL 516020.

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Related legal case

Swihart v. Ohio Adult Parole Authority