Duganitz v. Ohio Adult Parole Auth. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Duganitz v. Ohio Adult Parole Auth., 92 Ohio St.3d 556,
2001-Ohio-1283]

DUGANITZ, APPELLANT, v. OHIO ADULT PAROLE AUTHORITY ET AL.,
APPELLEES.
[Cite as Duganitz v. Ohio Adult Parole Auth. (2001), 92 Ohio St.3d 556.]
Habeas corpus sought to compel relator's release from prison Court of appeals'
adoption of magistrate's decision to deny writ and overrule relator's
untimely objection to the denial affirmed.
(No. 01-468 -- Submitted July 17, 2001 -- Decided August 15, 2001.)
APPEAL from the Court of Appeals for Ashtabula County, No. 2000-A-0051.
__________________

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

SUPREME COURT OF OHIO
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.
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January Term, 2001

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.
Judgment affirmed.

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

Michael J. Duganitz, pro se.

Betty D. Montgomery, Attorney General, and Diane Mallory, Assistant
Attorney General, for appellees.
__________________

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