No. 92-1231.

69 Ohio St.3d 489 (1994)


Supreme Court of Ohio.

Decided June 22, 1994.

Attorney(s) appearing for the Case

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, 546 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. (CA6, 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, 1991 WL 144357. 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.



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