State ex rel. Seikbert v. Wilkinson - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Seikbert, Appellant, v. Wilkinson, Director,
et al., Appellees.
[Cite as State ex rel. Seikbert v. Wilkinson (1994),
Ohio St.3d .]
Mandamus to compel release on parole after minimum term of
incarceration had expired -- Complaint dismissed, when.
(No. 92-1231 -- Submitted April 5, 1994 -- Decided June
22, 1994.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-1181.
Ronald W. Seikbert, relator-appellant, filed a complaint
in the Franklin County Court of Appeals on October 16, 1991
seeking a writ of mandamus to compel Reginald Wilkinson,
Director of the Ohio Department of Rehabilitation and
Correction, and Raymond Capots, Chairman of the Ohio Adult
Parole Authority ("APA"), respondents-appellees, to release him
from the Chillicothe Correctional Institution.
Seikbert's complaint alleged that he had entered into a
plea agreement with the state of Ohio in November 1986 on a
charge of attempted rape in the Hamilton County Court of Common
Pleas. Seikbert was sentenced to a term of four-to-fifteen
years on the attempted rape charge and a concurrent term of two
years on a gross sexual imposition charge. According to
Seikbert, his attorney had advised him that in return for his
guilty plea, he would be released on parole after serving his
minimum four-year term, as reduced by any good-time credits he
would earn. Seikbert claimed that his release from prison
following completion of his minimum term constituted part of
the plea agreement. In 1989 and 1991, following parole
hearings, the APA continued Seikbert's incarceration and did
not release him on parole although his minimum term of
incarceration, as reduced by his good-time credits, had
expired.
On February 28, 1992, a referee of the court of appeals
filed a report recommending that the court grant appellees'
Civ.R. 12(B)(6) motion to dismiss Seikbert's complaint because
it failed to state a claim upon which relief can be granted.
Seikbert filed a notice of appeal from the referee's

recommendation to this court instead of filing objections to
the report. The court of appeals subsequently adopted the
referee's report and dismissed the complaint.
This cause is before the court upon an appeal as of right.

Ronald W. Seikbert, pro se.

Per Curiam. Seikbert asserts that the court of appeals
erred in dismissing his complaint for a writ of mandamus since
the APA ignored his plea agreement by failing to release him on
parole after his minimum term of incarceration had expired. In
order to be entitled to a writ of mandamus, the relator must
establish a clear legal right to the relief prayed for, that
respondent has a clear legal duty to perform the requested act,
and that relator has no plain and adequate remedy at law.
State ex rel. Donaldson v. Alfred (1993), 66 Ohio St.3d 327,
329, 612 N.E.2d 717, 719.
In reviewing a complaint upon a motion to dismiss pursuant
to Civ.R. 12(B)(6), a court must presume that all factual
allegations are true and all reasonable inferences must be made
in favor of the nonmoving party. Perez v. Cleveland (1993), 66
Ohio St.3d 397, 399, 613 N.E.2d 199, 200. Additionally, in
order to dismiss a complaint under Civ.R. 12(B)(6), it must
appear beyond doubt that relator/plaintiff can prove no set of
facts warranting relief. O'Brien v. Univ. Community Tenants
Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327
N.E.2d 753, syllabus. Nevertheless, unsupported conclusions of
a complaint are not considered admitted and are not sufficient
to withstand a motion to dismiss. See, e.g., State ex rel.
Hickman v. Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d 639 (an
inmate must plead specific facts to withstand dismissal of a
complaint for a writ of mandamus); cf. State ex rel. Horwitz v.
Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65
Ohio St.3d 323, 325, 603 N.E.2d 1005, 1007 (Civ.R. 12[B][6]
motions attack the sufficiency of the complaint and may not be
used to summarily review the merits of a cause of action in
mandamus.).
R.C. 2967.03 vests discretion in the APA to "grant a
parole to any prisoner, if in its judgment there is reasonable
ground to believe that * * * such action would further the
interests of justice and be consistent with the welfare and
security of society." However, R.C. 2967.03 creates no
expectancy of parole or a constitutional liberty interest
sufficient to establish a right of procedural due process.
Hattie v. Anderson (1994), 68 Ohio St.3d 232, 233, 626 N.E.2d
67, 69; State ex rel. Adkins v. Capots (1989), 46 Ohio St.3d
187, 188, 587 N.E.2d 412, 413. In other words, Ohio law gives
a convicted person no legitimate claim of entitlement to parole
prior to the expiration of a valid sentence of imprisonment.
Inmates of Orient Correctional Inst. v. Ohio State Adult Parole
Auth. (C.A.6, 1991), 929 F.2d 233, 235.
Seikbert does not contend that his criminal sentence has
expired or that the APA's decision not to grant parole was
motivated by vindictiveness rather than appropriate
considerations. See Hattie, supra. Instead, Seikbert claims
that a plea agreement has been breached and that he is thereby
entitled to specific performance of the agreement, i.e.,

release on parole, since he has served his four-year minimum
term of imprisonment.
Seikbert cites Santobello v. New York (1971), 404 U.S.
257, 92 S.Ct. 495, 30 L.Ed.2d 427, and Bordenkircher v. Hayes
(1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604, in support
of his argument on appeal. However, neither of the foregoing
cases holds that extraordinary relief is available whenever a
plea agreement is breached by the state. The United States
Supreme Court has refused to hold that the United States
Constitution always requires specific performance of a plea
agreement as the remedy for a broken promise. Mabry v. Johnson
(1984), 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437; State v.
Luciano (July 18, 1991), Cuyahoga App. No. 58812, unreported.
Further, the affidavit incorporated as part of Seikbert's
complaint indicates only that his own counsel represented to
him that he would be released after serving his minimum
sentence. Finally, Seikbert possesses an adequate legal remedy
to rectify any alleged breach of the plea agreement by filing a
motion with the sentencing court to either withdraw his
previous guilty plea pursuant to Crim.R. 32.1 or specifically
enforce the agreement. See, e.g., State v. Mathews (1982), 8
Ohio App.3d 145, 8 OBR 202, 456 N.E.2d 539.
Therefore, it appears beyond doubt that Seikbert could
prove no set of facts entitling him to extraordinary mandamus
relief. Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.