[Cite as State ex rel. Brust v. Mohr, 2018-Ohio-1067.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Shawn K. Brust,                        :

                 Relator,                                :

v.                                                       :         No. 17AP-275

Gary Mohr, Director of the                               :    (REGULAR CALENDAR)
Ohio Department of
Rehabilitation and Correction et al.,                    :

                 Respondents.                            :


                                            D E C I S I O N
                                      Rendered on March 23, 2018


                 Shawn K. Brust, pro se.

                 Michael DeWine, Attorney General, and Byron D. Turner, for
                 respondents.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.
        {¶ 1} Shawn K. Brust filed this action in mandamus, seeking a writ to compel the
Ohio Department of Rehabilitation and Correction to make changes in his Ohio Parole
Board Information Sheet.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the
pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision,
appended hereto, which contains detailed findings of fact and conclusions of law. The
magistrate's decision indicates that one error alleged by Brust has been corrected and that
there is no clear legal duty to make more changes.
No. 17AP-275                                                                                2


       {¶ 3} Brust has filed objections to the magistrate's decision. The case is now before
the court for a full, independent review.
       {¶ 4} Brust acknowledges that one of the four factual inaccuracies he alleged has
now been corrected. The remaining three factual issues are apparently related to factual
issues presented at his trial.
       {¶ 5} Brust states that he shot the victim one time in the leg and that the victim
died four days later. He seems to be contesting whether his shooting of the victim was a
proximate cause of the victim's death. The case law on proximate cause is not favorable to
Brust. If you do serious harm to someone necessitating hospitalization and further medical
treatment, the fact that you shot the person is still a proximate cause of the victim's death,
even if better treatment might have saved the life of the victim. Brust cannot prevail on this
factual issue.
       {¶ 6} The second factual issue involves whether Brust's statements prior to the
shooting constitute bragging. Brust states now that he stated then that he was going back
to confront the people who pulled a gun on him, and get his money and/or drugs back.
Brust acknowledges that he was taking a gun to confront a person or persons who were also
armed. The fact that shooting erupted comes as no surprise. Going looking for someone
who pulled a gun on you while armed yourself is planning on having an armed conflict. In
legalese, Brust had prior calculation and design to engage in armed conflict. Someone died
following that plan for conflict.
       {¶ 7} We do not find that our magistrate erred in her magistrate's decision finding
that Brust was not entitled to the specific factual changes he sought and seeks. We overrule
the objections to the magistrate's decision. We adopt the findings of fact and conclusions
of law in the magistrate's decision and deny the request for a writ of mandamus.
                                                         Objections overruled; writ denied.

                      DORRIAN and LUPER SCHUSTER, JJ., concur
                                 in judgment only.
No. 17AP-275                                                                             3


                                    APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                              TENTH APPELLATE DISTRICT


The State ex rel. Shawn K. Brust,              :

              Relator,                         :

v.                                             :                  No. 17AP-275

Gary Mohr, Director of the                     :             (REGULAR CALENDAR)
Ohio Department of
Rehabilitation and Correction et al.,          :

              Respondents.                     :



                          MAGISTRATE'S DECISION

                              Rendered on November 22, 2017



              Shawn K. Brust, pro se.

              Michael DeWine, Attorney General, and Byron D. Turner, for
              respondents.


                                        IN MANDAMUS

       {¶ 8} Relator, Shawn K. Brust, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Gary Mohr, director of the Ohio Department
of Rehabilitation and Correction ("ODRC") and Andre Imbrogno, chairman of the Ohio
Parole Board ("parole board"), to correct inaccuracies in the record which the parole board
has used to deny him parole, pursuant to the Supreme Court of Ohio's decision in State ex
rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, and ordering
the parole board to reconsider his suitability for parole.
No. 17AP-275                                                                                 4


Findings of Fact:
       {¶ 9} 1. Relator is an inmate currently incarcerated at Marion Correctional
Institution.
       {¶ 10} 2. Relator was arrested and charged with one count of aggravated murder in
violation of R.C. 2903.01 with two firearm specifications: one under R.C. 2941.145, a
second pursuant to R.C. 2941.146 asserting relator discharged a firearm from a motor
vehicle (drive-by specification). Essentially, relator was charged with having shot and killed
Anthony Truff on August 5, 1997 as relator drove by him on a street in Urbancrest, Ohio.
       {¶ 11} 3. Relator was found not guilty of the aggravated murder charge, but guilty
of the lesser-included offense of murder. Relator was also found guilty of the first firearm
specification, but not guilty of the drive-by specification. The trial court sentenced relator
accordingly.
       {¶ 12} 4. Relator's appeal of his conviction was upheld by this court in State v.
Brust, 10th Dist. No. 99AP-509 (Mar. 28, 2000). In his fourth assignment of error, relator
argued that the trial court erred in denying his motions for acquittal. This court's discussion
of this particular assignment of error is relevant to relator's mandamus action. Specifically,
in denying this assignment of error, this court stated:
               Crim.R. 29(A) requires the court to enter a judgment of
               acquittal if the evidence is insufficient to sustain a conviction
               of the offenses alleged in the indictment. "Pursuant to
               Crim.R. 29(A), a court shall not order an entry of judgment of
               acquittal where the evidence is such that reasonable minds
               can reach different conclusions as to whether each material
               element of a crime has been proved beyond a reasonable
               doubt." State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514
               N.E.2d 394. In reviewing a ruling on a Crim.R. 29(A) motion
               for judgment of acquittal, the reviewing court construes the
               evidence in a light most favorable to the state. State v. Wolfe
               (1988), 51 Ohio App.3d 215, 555 N.E.2d 689, paragraph one
               of the syllabus; State v. Busby, 1999 Ohio App. LEXIS 4222
               (Sept. 14, 1999), Franklin App. No. 98AP-1050, unreported.

               At the end of the prosecution's case-in-chief, defendant
               moved for a judgment of acquittal on the basis that the state
               presented no evidence to support the drive-by specification
               and no evidence of premeditation or intent. After the defense's
               presentation of evidence, defendant renewed his request for a
No. 17AP-275                                                                    5


           judgment of acquittal, reiterating the same premises and
           adding the contention that Truss' wound was not the cause of
           his death. Similarly, after the jury's guilty verdict, defendant
           again moved for a judgment of acquittal, pursuant to Crim.R.
           29(C), on the same grounds: the state failed to prove
           defendant acted purposely and the gunshot wound did not
           cause Truss' death.

           In both the offense of aggravated murder and murder, the
           prosecution is required to prove beyond a reasonable doubt
           that defendant purposely caused the death of another.
           R.C. 2903.01; R.C. 2903.02. Purposely is defined in
           R.C. 2901.22(A):

           A person acts purposely when it is his specific intention to
           cause a certain result, or, when the gist of the offense is a
           prohibition against conduct of a certain nature, regardless of
           what the offender intends to accomplish thereby, it is his
           specific intention to engage in conduct of that nature.

           Purpose or intent can be established by circumstantial
           evidence, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
           492, and by the surrounding facts and circumstances in the
           case. Lott, supra. These circumstances include the means or
           weapon used, its tendency to destroy life if designed for that
           purpose, and the manner in which the wounds are inflicted.
           State v. Robinson (1954), 161 Ohio St. 213, 118 N.E.2d 517;
           Busby, supra. The specific intent to kill may be reasonably
           inferred from the fact that a firearm is an inherently
           dangerous instrument, the use of which is likely to produce
           death. State v. Mackey (Dec. 9, 1999), Cuyahoga App. No.
           75300, unreported, citing State v. Widner (1982), 69 Ohio
           St.2d 267, 431 N.E.2d 1025 (finding purpose to kill in
           passenger's firing gun at individual from moving vehicle);
           State v. Dunlap (1995), 73 Ohio St.3d 308, 316, 652 N.E.2d
           988.

           Defendant argues that whoever shot Truss did not intend for
           him to die, as Truss was shot in his right leg, a "non-vital" area
           of the body, and that an inference of intent to kill should not
           be allowed simply because a gun was used. State v. Pleasant,
           1996 Ohio App. LEXIS 1572 (Apr. 17, 1996), Lawrence App.
           No. 94-CA-39, unreported. However, in Pleasant, the court
           twice noted that defendant testified he did not intend to kill
           the victim. He also testified that he only struck the victim once
           and that he did not think the wound was fatal. The evidence
No. 17AP-275                                                                 6


           thus was sufficient to allow a jury to reasonably find that
           defendant did not intend to kill, but did intend to cause
           physical harm, rendering the trial court's instruction on the
           lesser included offense of involuntary manslaughter
           appropriate. By contrast, defendant here did not testify.
           Moreover, unlike Pleasant, where the defendant there used a
           club, defendant here fired a gun at Truss.

           Defendant nonetheless contends Dr. Fardal's testimony
           supports a finding that the person who shot Truss acted
           "knowingly," but not purposely. The coroner, Dr. Fardal,
           testified that the bullet entered Truss' right thigh with a
           slightly upward and back trajectory. In leaving Truss' right
           leg, the bullet injured his right femoral artery before going
           through his scrotum and eventually passing to his left side.
           Truss suffered extensive bleeding both externally and
           internally. Fardal testified that, given the injuries he saw,
           Truss would likely lose a third of his blood, enough to effect
           his brain within ten minutes of being shot. Fardal's final
           medical opinion was that Truss died due to a diffuse hypoxic
           brain injury, or the lack of oxygen to the brain, caused by the
           loss of blood as a result of the gunshot wound. Fardal,
           however, also testified that the wound was survivable, and in
           most circumstances the worst outcome would be the loss of a
           limb. In fact, Fardal testified that Truss should have survived
           the wound.

           The medical evidence, coupled with the remaining evidence
           and construed in favor of the state, indicates that defendant
           told a bartender he was going to get his gun, go back to
           Urbancrest and get his drugs or his money. The day of the
           shooting, defendant went to the pawnshop where he had
           pawned a gun and bought it. He then went to Urbancrest,
           where Truss was struck with a bullet from a .38 special caliber
           revolver fired from no less than two to three feet away. The
           gun, introduced at trial, was identified by workers at the pawn
           shop as the one that defendant pawned and redeemed that
           day.

           From that evidence, reasonable minds could reach different
           conclusions on whether the prosecution proved beyond a
           reasonable doubt that defendant acted purposely. " The trier
           of fact may infer an intention to kill from the surrounding
           circumstances where the natural and probable consequence
           of a defendant's actions is to produce death." State v. Turner,
           1997 Ohio App. LEXIS 6021 (Dec. 30, 1997), Franklin App.
No. 17AP-275                                                                    7


           No. 97AP-709, unreported (finding sufficient evidence of
           intent to kill in firing a gun from an automobile at a group of
           individuals) citing Robinson, supra, paragraph five of the
           syllabus. "The act of pointing a firearm and firing it in the
           direction of another human being is an act with death as a
           natural and probable consequence." Id., quoting State v.
           Brown (Feb. 29, 1996), Cuyahoga App. No. 68761,
           unreported; cf. State v. Smith (1993), 89 Ohio App.3d 497,
           501, 624 N.E.2d 1114 (finding that pointing gun at a group of
           people less than twenty feet away and shooting at least one
           shot could be used by the trier of fact as proof of intention to
           kill). The evidence was sufficient to allow the jury here to infer
           that defendant acted with purpose or intent to kill. The issue
           was properly presented to the jury for consideration.

           Defendant also contends the state presented insufficient
           evidence to prove beyond a reasonable doubt that defendant
           caused Truss' death. Defendant argues that Truss would have
           survived but for the grossly negligent medical treatment Truss
           received that day. In support, defendant cites the testimony of
           his expert witness, Dr. David DeHart, who testified that the
           treatment Truss received was gross maltreatment, even
           bordering on recklessness, and was the sole cause of Truss'
           death.

           "It is the general rule that one who inflicts injury upon another
           is criminally responsible for that person's death, regardless of
           whether different or more skillful medical treatment may have
           saved his life. This rule has been qualified where there has
           been a gross or willful maltreatment of the patient by the
           medical personnel, which is shown to have been an
           independent intervening cause of the patient's death." State v.
           Johnson (1978), 56 Ohio St.2d 35, 40, 381 N.E.2d 637
           (citations omitted). Simple negligence is not enough. State v.
           Beaver (1997), 119 Ohio App.3d 385, 394, 695 N.E.2d 332.

           Contrary to DeHart's testimony, Fardal testified that Truss
           bled internally as well as externally, and that the main loss of
           blood came from an injury to the right femoral artery. While
           Fardal testified that people survive such a wound, he noted
           survival depends on a lot of factors, but primarily how much
           blood is lost. According to Fardal, without treatment Truss
           would have bled to death in twenty to thirty minutes, unless
           he stopped the bleeding on his own; after only ten minutes of
           bleeding, Truss would have suffered brain damage. Fardal
No. 17AP-275                                                                                   8


              then stated the cause of death: the gunshot wound that caused
              Truss to lose blood, which in turn caused oxygen deprivation.

              A coroner is an expert witness who is permitted to give an
              opinion on matters within his scope of expertise. State v.
              Cousin (1982), 5 Ohio App.3d 32, 449 N.E.2d 32, limited by
              State ex rel. Blair v. Balraj (1994), 69 Ohio St.3d 310, 312, 631
              N.E.2d 1044. The testimony of a coroner that details the
              possible cause of death is sufficient evidence to sustain a
              homicide conviction. State v. Heinish (1990), 50 Ohio St.3d
              231, 235, 553 N.E.2d 1026, citing State v. Manago (1974), 38
              Ohio St.2d 223, 227, 313 N.E.2d 10. Fardal's testimony was
              sufficient evidence to prove that defendant caused Truss'
              death.

              Given DeHart's testimony, defendant nonetheless attacks the
              paramedic's using MAST trousers instead of applying direct
              pressure to Truss' wound, and contends the evidence supports
              reversal. Paramedic Perry testified he used the MAST trousers
              because Truss was no longer actively bleeding and Perry
              wanted Truss' remaining blood to be directed toward his heart
              and lungs. Had Truss been actively bleeding, he would not
              have used the MAST trousers.

              As a result, despite the testimony of defendant's expert that
              the medical treatment Truss received was gross maltreatment
              and the cause of his death, the jury heard conflicting
              testimony from Perry, who testified that he felt the
              paramedics acted appropriately. Weight and credibility
              questions are primarily for the trier of fact. DeHass, supra,
              paragraph one of the syllabus. Viewing Perry's testimony in
              the light most favorable to the prosecution, the evidence is
              such that reasonable minds could reach different conclusions
              on whether the prosecution proved that Truss' death was
              caused by the gunshot wound, or whether the treatment that
              Truss received was so grossly negligent that it became an
              independent intervening cause of Truss' death. The trial court
              properly denied defendant's motions for acquittal.
              Defendant's fourth assignment of error is overruled.

Id.
       {¶ 13} One judge dissented specifically stating that, in his opinion, the evidence did
not demonstrate that relator acted with a purpose to kill. Specifically, the dissent stated:
No. 17AP-275                                                                   9


           A summary of a witness's prior statement which materially
           deviates from in-court testimony should be provided whether
           the summary is a statement or not. Either way, the content of
           the summary is " *** evidence, known or which may become
           known to the prosecuting attorney, favorable to the defendant
           and material either to guilt or punishment *** " for purposes
           of Crim.R. 16(B)(1)(f). Crim. R. 16(D) imposes on the
           prosecution a continuing duty to disclose such evidence when
           discovered "before or during" trial. A failure to enforce this
           duty strikes at the very core of the fairness we expect to be
           present in our criminal trials.

           I also believe that the trial court erred in finding the evidence
           sufficient to support a conviction for murder, as opposed to
           involuntary manslaughter with a firearm specification. The
           evidence simply did not demonstrate that Mr. Brust acted
           with a purpose to kill.

           In his statements prior to the shooting, Mr. Brust never
           threatened to kill anyone. Instead, Mr. Brust stated that he
           was going back to confront the people who had earlier pulled
           a gun on him and that he was going to get his money or his
           drugs. The fact that he returned with a firearm to confront
           people who had earlier used a gun to rob him is not proof of
           an intention to kill.

           Further, the gunshot wound was inflicted in an area of the
           body which would not indicate an intention to kill. The shot
           entered the right thigh of the victim, not the trunk and not the
           head. Only a single bullet wound was inflicted, not several.
           The coroner who performed the autopsy testified that the
           victim should have survived the wound.

           After the shooting occurred, the victim refused medical
           treatment for several minutes. He refused to take even
           rudimentary steps to help his chances of survival, such as
           lying down and applying pressure to his wounds. Instead, he
           remained upright, walking around while bleeding.

           After emergency personnel arrived, they made a very
           questionable judgment call as to their treatment. Instead of
           locating the wounds and applying pressure while transporting
           the victim to the hospital, they placed MAST pants or trousers
           on the victim. The result seems to have been to squeeze even
           more blood out of the victim while he was being transported
           to the hospital. The victim died from blood loss.
No. 17AP-275                                                                             10



                I do not doubt that Mr. Brust shot the victim and that the
                shooting was a proximate cause of the victim's death. As a
                result, I believe that Mr. Brust was guilty of involuntary
                manslaughter with a firearm specification, a serious felony in
                and of itself. However, I do not believe that the evidence
                supports a finding that Mr. Brust had a specific intention to
                cause the victim's death. I, therefore, would sustain the fourth
                assignment of error in part.

Id. at 40-42.

       {¶ 14} 5. On July 22, 2015, the parole board conducted a hearing where it
determined that relator was "not suitable for release and is assessed a 5 year continuance."
       {¶ 15} 6. The parole board information sheet which was provided to the parole
board members provided the following details of the offense:
                On 8/5/97, the inmate shot and killed the male victim. The
                victim was riding his bicycle at the intersection of Agustus
                Court and Urban Hollow Court in Columbus when the inmate
                shot him from his tan Isuzu Trooper. On 8/17/97, the Franklin
                County Sheriff's Office received information that the inmate
                was the shooter. The next day, deputies searched his parent's
                house and found the gun that was used in the murder. A short
                time before the shooting, the inmate was heard bragging
                about going to the Urbancrest area to get some people back
                for pulling a gun on him.

       {¶ 16} 7. Relator pursued administrative remedies in hopes of convincing the
parole board to reconsider its decision to deny him parole. Relator's attempts failed.
       {¶ 17} 8. On April 20, 2017, relator filed the instant mandamus action requesting
this court order the parole board to correct what he asserts are factual inaccuracies in the
records upon which the parole board has relied to deny him parole and to conduct a new
parole hearing. Specifically, relator asserts the following four errors exist on the parole
board's information sheet and suggests the following corrections:
                Error 1: The (O.P.B.I.S.), states: "On 8-5-97, the inmate shot
                and killed the male victim."

                Factual Clarification of Error 1: The (O.P.B.I.S.) should
                contain the facts in the record: On 8-5-97, the inmate shot the
No. 17AP-275                                                                            11


              male victim one time in the leg. The victim subsequently died
              four (4) days afterwards on 8-9-97. * * *

              Error 2: The (O.P.B.I.S.), states "The inmate shot him from
              his tan Isuzu Trooper."

              Factual Clarification of Error 2: The (O.P.B.I.S.), should
              contain the facts in the record: A trial by jury revealed after a
              week of testimony and evidence presented, that the accused
              "did not cause or attempt to cause physical harm to another
              by discharging a firearm from a motor vehicle." * * *

              Error 3: The (O.P.B.I.S.), states: "A short time before the
              shooting the inmate was heard bragging about going to the
              Urbancrest area to get some people back for pulling a gun on
              him."

              Factual Clarification of Error 3: The (O.P.B.I.S.), should
              contain the facts in the record: In his statements prior to the
              shooting, Mr. Brust never made any threats, nor was he heard
              "bragging." Mr. Brust stated that he was going back to
              confront the people who had earlier pulled a gun on him and
              that he was going to "get his money or drugs back." * * *

              Error 4: Offender Background Information (O.B.I.) report, as
              stated in paragraph 5; states: "On 8-5-97, Anthony Truss was
              gunned down while riding his bicycle."

              Factual Clarification of Error 4: The (O.B.I.), should contain
              the facts in the record: "The victim was conversive and
              responsive, he remained upright, walking around and refused
              medical treatment for several minutes after Paramedics
              arrival on the scene. The victim was an adult, male, 6' tall, 209
              lbs."

(Emphasis omitted.)

       {¶ 18} 9. Prior to the filing of his mandamus action, respondent did correct what
relator has identified as the second error. Specifically, respondent removed the language
from the parole board's information sheet which had indicated that relator shot the victim
"from his tan Isuzu Trooper." The parole board information sheet now provides the
following details of the offense:
No. 17AP-275                                                                           12


              On 8/5/97, the inmate shot and killed the male victim. The
              victim was riding his bicycle at the intersection of Agustus
              Court and Urban Hollow Court in Columbus when the inmate
              shot him. On 8/17/97, the Franklin County Sheriff's Office
              received information that the inmate was the shooter. The
              next day, deputies searched his parent's house and found the
              gun that was used in the murder. A short time before the
              shooting, the inmate was heard bragging about going to the
              Urbancrest area to get some people back for pulling a gun on
              him.

       {¶ 19} 10. Also prior to the filing of relator's mandamus action, in a letter dated
April 4, 2017, relator was notified by respondent of this correction:
              Attorney Ashley Parriman in DRC Office of Legal Services
              forwarded your correspondence dated March 22, 2017 to our
              office for review and response.

              After reviewing the contents of your information sheet dated
              May 6, 2015, our office has updated your information sheet to
              remove the wording "from his tan Isuzu Trooper" from the
              document. We removed this language from the information
              sheet because the jury did not find you guilty of a drive-by
              specification. Copies of the amended and voided decision
              sheets have been saved to your parole board file. I have also
              enclosed a copy of these documents so that you may have
              them for your records.

              Please note that the removal of this language from your
              information sheet does not impact the Board's continuance
              decision. the Board will consider you for release consideration
              in June 2020 (April 2020 actual). A copy of your letter and my
              response to you has been placed in your file.

(Emphasis sic.)

       {¶ 20} 11. On October 20, 2017, respondent filed a motion to supplement the
evidence which was granted. The supplemental evidence indicates that a new hearing was
scheduled for October 11, 2017. However, by letter dated September 10, 2017, relator
notified respondent that he would not attend, stating:
              It is with much regret that I am compelled to inform each
              parole board member of my present inability to participate in
              my tentatively scheduled October 2017 consideration for
              suitability hearing. I do not feel it would be prudent to actively
No. 17AP-275                                                                               13


              participate in a suitability hearing where there are several
              known inaccuracies contained within the known existing
              parole board files. This detrimental information is
              simultaneously being disputed in a Court of Law.

              I do wish all of the parole board members to know the extent
              of my efforts, as I have endeavored to convey the facts of my
              criminal conduct to accurately reflect what actually occurred
              in this case repeatedly through various methods since
              September 2014 until the present time.

              Unfortunately, I have exhausted every possible means of
              administrative reconciliation without success and therefore
              cannot actively participate in this October 2017 suitability
              hearing.

              Thank you for your consideration in this consequential
              matter.

       {¶ 21} 12. The matter is currently before the magistrate.
Conclusions of Law:
       {¶ 22} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 23} As noted previously, relator cites the Supreme Court of Ohio's decision in
Keith in support of his argument. Bernard Keith had filed a mandamus action asserting
that the parole board was required to correct erroneous information contained in his
records regarding the number of times he had been paroled, as well as other alleged
inaccuracies. In finding that a writ of mandamus was appropriate, the Keith court stated:
              A prisoner has no constitutional or statutory right to parole.
              State ex rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81
              Ohio St.3d 267, 268, 1998 Ohio 631, 690 N.E.2d 887 (1998).
              Because there is no such right, a prisoner who is denied parole
              is not deprived of liberty as long as state law makes the parole
              decision discretionary. Id. at 125. Under R.C. 2967.03, the
              parole decision in Ohio is discretionary. Id. And we have held
              that because a potential parolee was not deprived of life,
              liberty, or property by being denied parole, he could not
No. 17AP-275                                                                   14


           invoke due process to challenge his allegedly inaccurate
           scoresheet. State ex rel. Hattie v. Goldhardt, 69 Ohio St.3d
           123, 126, 1994 Ohio 81, 630 N.E.2d 696 (1994). Therefore,
           relying upon that authority, the court of appeals was not
           unreasonable in concluding that the parole board had no clear
           legal duty to correct Keith's records. Id.

           Keith cites Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d
           456, 2002-Ohio-6719, 780 N.E.2d 548, to support his
           argument that he has a right to a corrected record. * * *

           * * * Layne establishes a minimal standard for the OAPA, that
           is, that statutory language "ought to mean something." Id. at
           ¶ 27. At issue in Layne were the words "eligible for parole" in
           former R.C. 2967.13(A). We held there that inherent in the
           language is "the expectation that a criminal offender will
           receive meaningful consideration for parole." Id.

           ***

           Inherent in the language of Ohio Adm.Code 5120:1-1-07(B) is
           that the board must consider various reports and "other
           relevant written information" pertaining to the inmate whose
           parole is being considered. The existence of this formal
           process for considering parole rightly gives parolees some
           expectation that they are to be judged on their own
           substantively correct reports. Requiring the board to consider
           specific factors to determine the parolee's fitness for release
           would not mean anything if the board is permitted to rely on
           incorrect, and therefore irrelevant, information about a
           particular candidate.

           ***

           * * * [H]aving set up the system and defined at least some of
           the factors to be considered in the parole decision, the state
           has created a minimal due-process expectation that the
           factors considered at a parole hearing are to be as described
           in the statute or rule and are to actually and accurately pertain
           to the prisoner whose parole is being considered.

           We recognize that the OAPA's discretion in parole matters is
           wide-ranging. Layne, 97 Ohio St.3d 456, 2002-Ohio-6719,
           780 N.E.2d 548, ¶ 28, citing State ex rel. Lipschutz v.
           Shoemaker, 49 Ohio St.3d 88, 90, 551 N.E.2d 160 (1990).
           R.C. 2967.03 vests discretion in OAPA to "grant a parole to
No. 17AP-275                                                                               15


              any prisoner for whom parole is authorized, if in its judgment
              there is reasonable ground to believe that * * * paroling the
              prisoner would further the interests of justice and be
              consistent with the welfare and security of society." However,
              as in Layne, that discretion must yield to statutory or
              regulatory requirements. Therefore, we hold that in any
              parole determination involving indeterminate sentencing, the
              OAPA may not rely on information that it knows or has reason
              to know is inaccurate.

              This is not to say that the OAPA must conduct an extensive
              investigation on the information it reviews for every prisoner
              to ensure accuracy, nor does it mean that the OAPA must
              credit every unsupported allegation by a prisoner that the
              information is inaccurate.

              But where there are credible allegations, supported by
              evidence, that the materials relied on at a parole hearing were
              substantively inaccurate, the OAPA has an obligation to
              investigate and correct any significant errors in the record of
              the prisoner.

(Emphasis sic.) Keith at ¶ 19-28.

       {¶ 24} In the present case, respondent has removed from the information sheet the
language indicating that relator shot the victim "from his tan Isuzu Trooper." This
corresponds with the jury's determination finding relator not guilty of the drive-by
specification. In as much as the evidence demonstrated that the materials relied on at the
parole hearing were substantially inaccurate, respondent corrected this error.
       {¶ 25} However, as the Keith court stated, there is no requirement to conduct an
extensive investigation or credit unsupported allegations by a prisoner that information is
inaccurate. With regard to the remaining three errors which relator alleges are contained
in his records, relator is essentially arguing that the evidence was insufficient to establish
the intent to kill and, further, that the medical evidence demonstrated that the victim would
have lived if he would have accepted and received proper medical attention. The problem
with relator's argument is that the jury, the trial judge, and the majority of this court
concluded that there was sufficient evidence in the record from which the jury could
determine that relator was guilty of murder and not involuntary manslaughter as relator
asserts. The language to which relator objects does not constitute an error; instead, it is a
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matter of wording which, on review of the facts, is consistent with the evidence presented
at trial.
        {¶ 26} In the present case, the magistrate finds that respondent has corrected the
error contained within relator's records thereby rendering that issue moot. Regarding the
remaining alleged errors, the magistrate finds that relator has not demonstrated that
respondent has a clear legal duty to make the changes relator suggests and, as such, this
court should deny his request for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b).
