IN THE COMMON PLEAS COURTLICKING COUNTY, OHIO

Ex Rel:

BERNARD HOLMESRELATOR,

VS.

OHIO PAROLE BOARD770 WEST BROAD ST.COLUMBUS, OHIO 43222

&JUDGE FROSTP.O. BOX 4370NEWARK OHIO 43055

&ATTORNEY BRUCE ENNENP.O. BOX 4461NEWARK, OHIO 43055

®JAN R 3 2011

CLERK OF COURTSUPREME COURT OF OHIO

CASE NO. 1 1-00 ^

PU2827

ORIGINAL ACTION

SUANT TO " ALL WRIT ACT"USC 1651, 1361, RC CHAPTER1.

PETITION FOR WRIT OF MANDAMUS

, Now comes Relator Pro se whom pursuant to law moves this

Honorable Court to compel the Respondant to comply with the requested

and lawfully demanded act pursuant to law as attested to in the

attached Memorandum in Support.

In order for a Writ of Mandamus to issue andJor be granted,

it first must meet the following criteria typically recommended in

order to commence a Writ of Mandamus, 1- The right to require the

performance of the relief sought, 2- The respondant is under clear

legal duty to perform the requested act, and 3- The Relator has no

adequate available remedy at law.

THEREFORE, For reasons set forth in the attached Memorandum

in Support, This Honorable Court should GRANT review and proper relief

deemed lawfully fit.

RESPECTFULLY SUBMITTED,

RELATOR PRO SE

JAN 13 2011

CLERK OF COURTSUPREME COURT [OF OH!®

BERNARD HOLMES #328-29715708 McCONNELSVILLE RD.CALDWELL, OHIO 43724

MEMORANDUM IN SUPPORT

A Writ of Mandamus WILL issue when the Petitioner can show

that there is no other means "AVAILABLE" to obtain relief and that

the issuarance of the Writ is lawfully undisputable. Mallard-v.U.S.

District 490 US 296, in re: Glass workers local No. 173 983 F.2d

725 (6th Circuit 1993), AND In order for Writ to not be issued,

There MUST be a adequate remedy AVAILABLE which is complete, beneficial,

and speedy. R.C. 2731.05, State Ex Rel. Carter v. Schotten 637 Ne2d 306,

Therefore, for the following reasons set forth in this Memorandum, This

Honorable Court should grant relief.

REASON ( S) FOR RELIEF SOUGHT :

Vt o1P7 FA c-t tp I hZ^ ,

OF -be{-A ye,.rA

^^-^^)

AFE'IDAVIT OF HIS'R%2Y OF FACI'S/CASE OF

BERNARD HOLNJES(AFFIANT)

I am writing this statement in hopes that we can resolve thismatter at this level of judicial power. I had an obligation totry to resolve this matter in the level that has jurisdictionor that is in charge of me. At this time, the Parole Board hasand/or can resolve this matter but has yet to respond to any ofmy letters. My first letter to the Parole Board was October 20,

2008 ( Please see copy of first attempt). I sent a copy of thisletter to Wendie Gerus (My appointed attorney for the Full BoardHearing on September 24, 2008.) She wrote me back telling me thatGary Croft was not the APA Director but the letter should get tothe right person but will take some time because of how busy theBoard is. My second attempt with the Parole board was to theinstitutional Parole Board Officer here at Noble CorrectionalInstitution on April 7, 2010. The institutional Parole Board

Officer response was, "You can forward this kite to the Parole

Board at Central Office in Columbus. They will be better fit toanswer your questions." (See copy of second attempt.) My thirdattempt was June 19, 2010, REQUEST FOR RECONSIDERATION HEARING,sent to the Quality Assurance Section of the Parole Board. AsI have mentioned earlier, no response has been made from the ParoleAuthority to resolve this matter. ( Sec. Exl+,b,3r,4) b' 3

On October 14, 2010, I filed a MOTION TO SUSPEND FURTHEREXECUTION OF SENTENCE FOR AGGRAVATED FELONY. This was my lastaction to tryto resolve this matter since the Licking County Courthad the jurisdiction to release me on probation under theirsupervision. That action was denied November 17, 2010.

HISTORY AT THE PAROLE BOARD LEVEL

I went to the Parole Board in March 2006. At that hearing

they gave me a PRD O/A 7-1-08. (Projected Release Date On/After

7-1-08.) Then in October 2007, the Parole Board voted as a majorityto uphold that decision. I went through Pre-Release in March 2008,and filed my Parole Plans with the Case Manager as instructed.Mrs. Liesure and I, both contacted the Community Assessment &

Treatment Services, Inc. in Cleveland where I was approved to beplaced on or after 7-1-08. On June 30, 2008 I was given a notice,

( "SUSPENSION OF THE PAROLE RELEASE")letter dated June 26, 2008.

Then I received a letter dated July 21, 2008 informing me of"Notice of Full Board Hearing." In August 2008, I was called tothe front and asked if I needed an attorney to represent me atthe hearing scheduled for September 24, 2008. I was assignedWendie Gerus of the Ohio Public Defenders Office to assist andrepresent me at that hearing. She wentC°the hearing along withmy Aunt Ellen and my Brother Murray Holmes, and the outcome ofthat Full Board Hearing is as followed:

CONTINUED TO 12/2013 CON (FULL BOARDS)Reason stated for this is as fo^llo^ws^: is ^^^ ^^^

"ll^e fiil]. lxiaxd tPS c^tettmx^d ^en {p iarnle sLrarcnciai at this tine. Inmte Ha]nrs hs.s ser%td less tlran

13 years rn his 18115 year sKberne. A relsase Lx^ to his m^m satence

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wctild d3men the seriaE^ of this offnnse. AgXuvat+ng factots oxsidaredare the lntality of the offerm alarg with ttY-e cv.er up of ttns cc:ine."

This is all stated on the "OHIO PAROLE BOARD DECISION" sheet dated9/24/2005 enclosed for your review. (See Exhibit 0.)

Now out of this hearing the question at hand, did the ParoleBoard violate Due Process Laws, and EX Post Facto clauses, becauseof the following. According to SUSPENSION OF THE PAROLE RELEASEletter states that "the Parole Board has either received additionalinformation that was not previously considered, or has been notifiedby the Office of Victim Services of an intention to petition fora Full Board Hearing, and has suspended your physical release."Now according to my brother and Aunt's account of the hearing,and from the OHIO PAROLE BOARD DECISION sheet, I can't see anynew or additional information used to justify to suspend my parole.

Instead the issue seems to be that the victim's family, prosecutor,and Victim's Services felt that I haven't spent enough time yet.

According to the OHIO PAROLE BOARD GUIDELINES MANUAL, ThirdEdition, July 1, 2007, page 56, Section (b) Pre-release Record

Review, subsection (iii) states: "Generally, an offender will be

released on the projected release date set by the Parole Boardif... (4) no new and substantial adverse information relative tothe prisoner's release on parole has been received by the Parole

Board." What was the new and substantial information related to

my release? (See Exhibit K.)According to Ohio Law in effect prior to July 1, 1996 under

§2967.12 of the Ohio Revised Code, Notice of pendency of pardon,commutation, or parole. Section (A) reads as follows:

(A) Fmmpt, as pzwic7`d in divisiai (F) of this sacba'i, at le3st tlmee waekskafi3i^ the adxlt pwro1e auHzsity xeoamErxb any parctz cr r„mm±atirn

of saterm, cr grants any parole, mtirn of tY e pmb'r.y of tln ..."This section states that information be sent to the judge and

prosecuting attorney. Section (B) states:(B) if a xeqe?st fzs nDti.fica.tirn... the adlt Fanmle antkrasty alsD shal1

sexrl.mtice- to tl-p- victim cr victim's xepmsmta.tixe prics torauu[endixr1 any Fexrtn or aimuraticn of sarterm for, or glarting

any pomk-' tD, the Per-scr.nThis section goes on about the victim's representative sendingin written statements and so forth. Nowhere in §2967.12 does it Slakthat the release of a inmate can be taken away because of this.This section pertains to hearing and not to the release of aninmate. Only that three weeks prior.to the hearing shall they

be notified.Section [2967.12.1] §2967.121, Notice of early release of

aggravated felon. In this section it reads as follows:(A) At least tsAa c,E6k bafea2 any eamvlct 4o is sa=ig a satErm fer

camdttizg an aggavatEd felrny is releaEed frcn corrEmmut in anystate erxrecti^asl institutirii pxs-ant to pwdxi, cr sliodc pExoleprsLat iv secti.rn 2967.31 of tle %-A^ Ct)da the adult p3roleat3rgity shall sa-r1 rntio'- of tYe ipA Pam to the pnoseatirqatt3Xy of the oaaity in vki.di ihe ;Trhc+'n^ of th=_ onvict tiasfaasl.

The rest of this section states basicallywh.at information isto be sent. (See pages titled PARDONS; PAROLE.; PROBATION;section §2967.12 Notice of pendency of pardon, commutation, orparole & [2967.12.1] §2967.121 Notice of early release of aggravated

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felon. Pages 229 & 230. See Exhibit M.)Now in the OHIO PAROLE BOARD HANDBOOK dated April 1, 2010,

under STATUTORY NOTICE REQUIREMENTS page 10, it states as follows:R.C. §2967.12 xa:guxes that atla-ist tline (3) umeics prior to osrl&.irz3 aparole. ocrsidsratim hemcing, ;etice of iia hearirg mst be pnaAcl-xd bDtke }xosaating attacrr=y anrl ju3ge of tYe caurty an 4idi the irncclm^agaimt t3e irnate uas faar3. ttn nctim mst ontain .... Notice ofxelease oasi.daraticn haaring mst al.ro be p;vuid33 to any victim crvictim's xepmsataticE c,hD xegmsts rntifi.cation tYffoujh the OfEice of

victins SezvicesThis states almost the way that the law was at the time of thissentence in this case. However §2967.12 applies to hearings andnot release of the inmate. In this case, the Ohio Parole Boardapplied this.section to suspend my parole. Again, by applyingthis section to the release of an inmate may constitute a EX POST

FACTO violation.In the new "OHIO PAROLE BOARD HANDBOOK" dated April 1, 2010,

under "HEARING TYPES AND OUTCOMES", HEARING TYPES, Full Board

Hearings, it states as follows: Lsge, Cz^'b'-tA1tln* t3m oukmTe of all pmole he3rings is pubUc znf3mBtian,irsti:tuti.aai Fam1e hearirr}s and dlib?ratias are clcsEd to tle pabl.ic.1b^, ef£a=tiw- July 1, 1996, Sera1e Bi1l 2 ceaats3 Fall B,-zxd Hea=gsUi.di peardtte:l paxticipatirn by a victim cr oth=r dasigcste3 irbereste3Farties in a kaaring sLtseqmt bD tl-e irstit±l.apl ha3rin3 and upcnaomptarre of a petiticn.

Again this applies to hearings and not the release of an inmate.True the Ohio Parole Board may modify conditions of parole,

or modify parole procedures, as long as the modifications are notcontrary to Ohio statutes. In this case by allowing the suspensionof the parole by using parole procedures that are different fromthe statutes allowed by law may constitute a violation of a ExPost Fact clause. U.S. CONST ART. I§ 10, cl. 1. An ex post facto

law posses two elements:(1) "it mist anDly to evEnrts ocarririg befcre its

r^^t^*,^-a^ the offxar^r affa,^ted by it."(2) "itmst•By applying statutes or procedures that changed after I wasconvicted and the fact that I am serving more time because of thechange, may constitute as a Ex Post Fact violation. The Ohio Parole

Board vote not once but twice to release this inmate.On March 3, 2006, the Parole Board recommended as follows:

10. (B) rfmairrinx 4ine ttD be s3zPs• 'ib Raleam 34 miths

a]so:12. (A) Fecame3daticn: FRD O/A 7/01/2008

Then in October 2007, the Parole Board vated as a majority to upholdthat decision. Three weeks prior to these two hearing the ParoleBoard should have notified the parties and then at that time wouldhave been the appropriate time to file a petition for a Full Board

Hearing.Now according to my understanding of what happened after these

two hearings is this: Two weeks prior to my release, the ParoleBoard notified the interested parties and one, two, or all of themcomplained about my early release from prison. The Parole Boardissued a "NOTICE OF PAROLE RELEASE", then scheduled a full boardhearing, and then because I have only served less than 13 yearsof the 18-45 that the Judge sentenced me to, the Parole Board

continued this until the minimum sentence was up in December 2013,

3of6

which is actually three (3) years longer than I was told that Iwould have to serve by my court appoint attorney Bruce Ennen.Which bring me to the next possible violation.

The next issue deal with the Parole Board and the issue ofineffective assistance of counsel. The issue deals with theMultiple Sentence Law §2929.41 (E)(2) of the Ohio Revised Code.This section reads as follows:

(E) Ozsecutixe tens of ;nrrdsmrak inposEd sh31 .l n7t eOeSd;(2) Pn ag3ravai.ad minim.xn tesn of f'iLfte2n Ieasr thisticn 2929.^tYe

tems of achsl irrxoecatirn i¢pa^d P!a^»t to serIevi.sa Oocb an3 tle snn of all six-year iprns of ach.al incaxoamticn:iqosed praant to secticn 2929.72 of the Fe^ Orb, c lan ttecasECUtixe tems inpcsed are fcr felcnies other than agg:mva.te3 mmd2rcr mrxbr; (See

This section basically states, that my minimum sentence is fifteenyears. Which is not the way my court appointed attorney BruceEnnen told me to get me to plea guilty to these charges, and I

will explain that after this section.When I went to CRC ( Central Receiving Center), I was give

a piece of paper with my sentence on it. It states:(4) irslfinite satance aze sexne3 last. Ycu have a ind^fuii.te smberm td-al

of 15.00,- 45.00 yeaxs. Yax first hearing dAe is app2oximatelY 06/13/2006.Also in the Ohio Parole Board Decision sheet, dated 9/24/2008,it states as follows:

6. (B) rffe full. bcEa:d h3s de^ tfat this irnate- is mt suitahle tn by re]ea-ed

on tn pwnlP s-LVaevisiai at this tmie. Irnate Fblmm has san;el less ttsn13 years cn his 18115 year satan^e. A Lelsase 1n-ics bD his ntisnttun saten:e-kuilcl d3men the a3r;nsnaw of this offare. ^fad^ axslft-edare ttte trctality of tte offsBe alaxJ with tln omer up of tlv s crlne.

poo=dLng tn tln Uw parole Tbatd I]ee-cisiai sheet d3tPd 03/08/2006. secticn 9. (A) states:9. (A) Offentr is seevirr3 a caati..ttrmrit of 15-40 ysars fcr 17olimtm:y...

The rest goes on about the crime, my positive institutionaladjustment and programming. As this will show you is that notonce but twice did someone within the DRC recognized the 15 yearminimum sentence. If the Parole Board would have recognized this15 year minimum sentence, my continuation would have been 12/2010,not 12/2013. They even stated in their statement about the minimumsentence and still went with the 18 year minimum. This goes against§2929.41 Multiple Sentence law in effect at the time that I wassentenced. (See Exhibit S for the §2929.41 Multiple Sentence;Exhibit T, YOUR SENTENCE page from CRC; Exhibit ID, Ohio ParoleBoard Decision sheet dated 9/24/2008; and Exhibit L- , Ohio Parole

Board Decision sheet dated 3/08/2006.)Therefore, if the Parole Board would not have applied statutes that

applies to hearing to.my release, my parole release would not havebeen suspendedand then taken away from me. Also, if the ParoleBoard would have applied the Multiple Sentence law, then the ParoleBoard should have been continued to December 2010.

Now I will tie this in to the plea deal that my court appointedattorney told me in order to get me to plea guilty and to get thisall taken care of under "old" law prior to July 1, 1996.

4of6

One week prior to the start of my trial, my court appointedattorney Bruce Ennen came to me with a deal. He stated that Iwould get a term of 12-30 years, but this has to be approved bythe judge and he is out of town and won't be back until the trial.I agreed at that time to the 12-30 years.

The day of the trial I was taken to court. My attorney camein and then went back to the judge's chamber with the prosecutor.A little bit went by, and Bruce Ennen came out and told me thatthe judge would not sign off on this deal, but will sign off on18-45 years because of the 18 additional charges that they wereholdirng._against_me__pe_nding.the outcome_of_ th_is trial__._ My attoreny__then told me this:

"If was cp to trial bxlay }ou will be fcxsrl guilty of Irn.olLmtary [43rslaxJter crvol.utaxy Ma[slaujter. Wiidi both caz2ies the sane paal.ty. If the Jutftsa-terres you to 10 to 25 years as the plsa d3al, }cu will haLe to serce 7yeErs bc) the pmm1P boaxd. t1aAever, sirce ttExe isn't enzx3ll tise bu get tYieodEr 18 drargEs tlst the prcesatx plars to ]smig ag3.irst ycu befcre tY-aSetnte 2 Bi.ll gDEs in effect Juty 1, 1996, }nu will ba sutaxp-d iaxf,rs theSermte 3 Bill on the ettpr charges. If T-u are mrnaels3 of cnly thePeouvirrl Stolm PccperLy arrl tln Ju3^p settam Ku to tAD (2) years cxieac^ arr7 rin fas with km ].ilp- ln iswilli.crg ib_d:) i.urhs_the plm t1ea.Ycu will h-:I^.e tn serNe eiejit (8) years. Yeu wuilci h3w to secw this tinefirst atid ttaz start ai tl-p- 10-25 year satErm. [hiich msam ycu c,m't ecmsee tke Fexo]Q Lcard u±3.l }w h-xk.2 saied fifteEn years, arrl tYEn the pamlebaexd mn dD 4^ they v^. If yvu gk &,;er^g talm caze of bxkyand plm gxlty to tYese ten d^, tln .hrkja wilt agree to tYe 18-45 yearsenl-mm. LA-)dr ti-e 18-45 year satmca, you wi]1 h3ce to sw^e 12p3rs7 msilim beixe yw see ttn psxole bxrd an3 the ncst the pmole bx&d czuldc^e ^^ild be 2 ya,^.̂ s 5 m7itlr, ari yu will b_ eut within fiit^ ^rs."

This is the events that made me to change my plea. When I leftthat courtroom that day I thought that the most that I could servewas the fifteen years.

In 2003, I file a complaint with the Disciplinary Counsel.I was having trouble receiving anything from Bruce Ennen aboutmy case. He sent me some of the stuff from my case and respondedto my complaint. This letter from him to the The Office ofDisciplinary Counsel was time stamped May 1, 2003, DISCIPLINARYCOUNSEL SUPREME COURT OF OHIO. In this statement he states thefollowing on page 4, paragraph 2:

"I did disass cd.i$ Mr. IiclRes the fact ttat, at tknt inne Chio ]asa ocnkai.ind aFauri.si.cn, in essmoe, c.-UpLng his s°nta-ce at fi.ften (15) years ai e3ch c2re.11-e dimasmal bdc place duB to Mr. I3D7nes omrnni about the indaat^tesenbmrn. I advisa1 Mr. Holmes dg.t in each of his casev, he oail.d mtswve mge tYnn fiftaen (15) cadmrsd. I b^ dat to h3w beEn tln ]aw at a.Gtlm tine W. hahres TAas SatUCEd. I oculd mt h3m PLum.sed Mr. Holnes thatb=_ vzuld by cut in fifbaaz (15) yeaxs if he tnck the plm daa].."

Now in my position that I was in, I had to trust that what myattorney was telling me was the truth. What he should have toldme was that my minimum sentence could not be no more than fifteenyears, and then we could have still took everything to trial becausemy minimum sentence still could not exceed fifteen years under§2929.41 of the Revised Code. (See Exhibit , Bruce Ennenmsletter.)

5 of 6

AFFIDAVIT P(R2: "AFFIDAVIT OF HISTORY OF FACTS/CASE OF BERNARD HOjd9ES"

TaTAi. PAGFS OF AFFIDAVIT: 5 pgs, plus this page as 6 of 6.

A7RAMM Fffi2E1(1, E7IIIIBITS: A THR[TQ

I, ONE BERNARD HOLMES DO DECLARE UNDER OATH WITH THE FULL IINOWI.EDGE FOR

THE PENALTY FOR PERJURY DO HEREBY DECLARE THAT ALL THE ABOVE AND ENCLOSED IN THE

SIX 3lYPAL PAGES HEREIN ARE VERY TRUE AND THE AT1'ACHED EXHIBITS ARE TRUE AS WELL

TO THE VERY BEST OF MY PERSONAL P.NOWLEDGE.

BY MY SIGNATURE BELOW I DO HEREBY DECLARE ALL TO BE ACCURATE AND TRUE.

z0,^

AFFIANT, BERNARD HOLMES

I A NOTARY OF THE STATE OF OHIO DO DECLARE THAT THIS PERSON, ONE BERNARD

HOLMES HAVE PROVEN 'IO BE WHOM HE CLAIMS TO BE AND I DO HEREBY DECLARE AND SWORN

THIS L^ DAY OF )Ot cvlYl&,r 2010 TO THE ABOVE SIGNATURE. SOWRN AND SUBSCRIBED

BEFORE ME THIS DAY.

SEAL:

6of6

IN THE l_ p f^ h p^ A 1 f/^ S COURT

Li C ):,n COUNTY OHIO

IN RE: YlcTAA^rd fTUIit J vs. o11"ili u1'dO Flo^ ^J ^d ^' f

(RELATOR) (RESP ENT(S))

AFFIDAVIT IN SUPPORT OF RELATORS ACTION

I, .' i6cJd1,6.r;g t-}-d [ICGJ , RELATOR THE UNDERSIGNED DO

DECLARE UNDER OATH AND WITH FULL KNOWLEDGE FOR THE PENALTY FOR

PERJURY THAT I AM OVER THE AGE OF CONSENT IN THIS STATE AND I AM

COMPETENT TO TESTIFY TO ANY AND ALL MATTERS IN REFERENCE TO THIS

ACTFON AND I AM NOT AN ACTIVE MEMBER OF THE MILITARY.

- I HERBY FURTHER DECLARE THAT ALL THE ENCLOSED AND ATTACHMENTS AND THE

INFORMATION HEREIN IS iRUE AND ACCURATE TO THE VERY BEST OF MY PERSONAL KNOWLEDGE.

FURTHLR AFFIANT SAYETH NAUGHT.

^^^^^-----AFFIANT

SFARN AND SUBSCRIBED BEFORE ME THISv^ DAY OF Iw v

^-/3(/'C^lv^. ^NOTARY

SEAL: D=010111AAti L. Kit;Gdot^e^ FuEs, S'W'v of Cy^:io

IN THE 0- ohhs^ 8^4A-^ COURT

Li c K', n t COUNTY, OHIO--^-

IN RE: Rofll.kJ-p t-^C7L}1G s VS. © In.aO ^l^Dl.L j6e_Aj-j

CIVIL HISTORY & AFIDAVIT OFIADIGFdICY AND kTAIVER OF FEES

( R.C. CHAP. 2965, 2323:)

FOLLOWING CIVIL ACTIONS WHICH HAVE BEEN DEEMED FRIVILOUS OR MALICE:.TOTALING:

COURT IN THIS ACTION DUE TO MY INDIGENT STATE, AND 4- I HAVE PREVIOUSLY FILED THEr, .t

NOW COMES: LTt.f^1.,4.r-J 14V I/&LLd AFFIANT PRO SE WHOM FIRST BEING

DULY SWORN AND CAUTIONED ACCORDING TO LAW HEREBY DECLARES, 1- I AM WHOM I SAY I AM,

2- I AM A PARTY IN THIS ACTION, 3- I SEEK A WAIVER OF FEES AND COSTS ASSESSED BY THIS

'1- CASE NO. FILED:

CASE TITILE: /-

2- CASE NO. ___ FIL

DISPOSITION:

, DISPOSITION:

CASE TITLE:

(USE ADDITIONAL SHEETS IF NEEDED)

I, THE UNDERSIGNED AM A TRUE PAUPER IN THE TRUE SPIRIT OF R.C.2323.20, 31

AND PURSUANT TC) FEDERAL LAW AND I POSSESS NO SUFFICIENT FUNDS, PROPERTY, NOR CHATTEL

TO OFFER AS SECURITY TO THE COSTS AND FEES RELATED TO AND IN THIS ACTION.

I, DO DECLARE THAT ALL THE ABOVE IS TRUE TO THE VERY BEST OF MY PERSONAL

KNOWLEDGE AND UNDEP.STA13DING.

AFFIANT PRO SE

SWCM AND SUBSCRIBED BEFORE ME THIS(-`^ DAY OF

NOTARY PUBLICSEAL:

CERTIFICATE OF SERVICE

I hereby state that a true copy of the accompanied Petition

for Writ of Mandamus w/ attachments was forward to the -SvPL^ejjX

t®^y Clerk of Courts this __L(,_Day of ZoLt by

United States Mail services.along with a Praecipe/Summons for the

Clerk of Court to properly execut8 true copies to all parties herein.

RESPECTFULLY SUBMITTED ,

3^ " _ /^%^---FLELATOR PRO SE

NOTE: ALL IN COMPLIANCE WITH THE HOLDINGS OF THE OHIO SUPREME COURT

IN STATE EX REL. ALFORD V. WINTERS':685 Ne2d 1242 (1999).

AFFIDAVIT OF BERNARD HOLMES

EXHIBIT:

A

B

D

E

EXPLANATION OF WHAT EXHIBIT SHOWS/PROVES:

LETTER.TO GARY CROFT (APA) 10-20-08, THIS WAS MY FIRST

ATTEMPT WITH THE PAROLE ABOUT M'Y SENTENCE.

(OTHER EXHIBITS WHICH CORRESPOND): EX. I,J,L

LETTER TO INST. PAROLE OFFICER AT NOBLE C.I. 4-7-10

"HER EXHIBITS WHICH WRRESPOND): F,D

LETTER TO OPA QUALITY ASS. SEC. 6-19-10 âJHICH WAS MY 3rd

ATTEMPT TO CORRECT THIS, AND RECIEVE A HEARING, WHICH I

RMUESTED A RECONSIDERATION HEARING.

(OTHER EXHIBITS WHICH.CORRFSPOND): N,I,M,KH,E,G

LETTER FROM WENDIE GERUS (APPOINTED COUNSEL FOR FULL-BOARD

HEARING, SH04S ATTEMPT TO GARY CROFT (APA DIRICTER) 9-24-10)

r r, )

OPB HANDBOOK, APRIL 1st, 2010 WHICH SHOS:

* PG. 1-2 SHOWS PARTICIPATION BY VICTIMS/REPRESETATIVES

PRIOR TO AN IN['9ATES RELEASE SUITABLE CONSIDERATION

HEARING.

* PG. 2 SHOWS FIRST: GUIDLINES MANUAL.NO LONGER PRP.CTICED

OR IN EFFECT, AND SECONDLY: RELEASE AUTHORITY SOLBLY

BY REFERENCE TO OHIO STATUTE AND ADMINISTRATIVE CODE.

* PG. 4 SHOWS: MAY MODIFY RELEASE PROCEDURES, AS LONG AS

T'HI-:Y ARE NOT CONwr.ARY TO OHIO LAW.

* PG. 5-6 SHOWS: 15 YEARS CAPPED AS MINih`iJP".,.SlN72M-vC.̂ 'i

' ? ^.ic:v:. ^215ES Ti-;AP ttLJ'?IP ^P AGG. i'7ri

* PG. 11 SY;i`;'b :';RS7^: Pw:^_P,I:E- TYPES =^'dD O111'CG:`1ES, N r.tu!-..n "n n ^',r 7 Y

^ ^T: V , S ,.'..Aa.. i T Li. 2 ?" A"!' E; ' •`"„ )^.,-^r0 iIL^_.^.I'tk-5, . CJI' L=° ._^r^" AiyCtl RF A Ti"'nD P RT1CI TSCi:J F' 'w i2[ /Z.lp S

I??IRD: AGAIid REFERS ^ln HEA;2ING 1'330T RELEASES.

GI 13-1z' a.iD;v I:D: RICa C 7P O.^.>S, Ii` ITSt °'G Pi Oi iy^9^

^.nD APPEAR AT SU'3. CU`^I A n'En-.INC PRIOR i):<EL:-Sn, Pi3D

7.,.<:^i. : '̂:?QARD C-CirDU^tuD A 7:uARI1f" IN 'vCT. 2007 AND VOi'F:D

AS A.°.A.JO2ITti' TO UPHOLD i'iY RELE'4Si (PRD) ^NfAFir.^ ,-1-oe:nSE_, ALSO X;.IB7 ,.

;""^:??? m0 DTSCI°r1;TAP^Y Cn'uNISEL F2Or,i BRUCE rr.' :n."_•J (COURT AP.'OINT;ZC)

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AFFIDAVIT COP:iINUES.........

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TO: OHIO DEPARTMENT OF REHABILITATION AND OORRECrIONS

GARY CROFT ( APA DIRECTOR)770 W. Broad StreetColumbus, Ohio 43222

FROM: BERNARD E. HOLMES #328-297N.C.I. (E1-W79)15708 McConnelsville RoadCaldwell; Ohio 43724

October 20, 2008

Mr. Croft,

My name is Bernard E. Holmes and I am writing this letterto try to fix a mistake that the Full Board Panel of the OhioParole Board made in their Ohio Parole Board Decision onSeptember 24, 2008.

When I received my copy of the Ohio Parole Board Decisionsheet I notice that the Board said:

"The full Board has determined that this inmate isnot suitable to be released on to parole supervisionat this time. Inmate Hoolmes has served less than 13years on his 18-45 year sentence. A release priorto his minimum sentence would demean the seriausnessof this offense. Aggravating factors considered arethe brutality of the offense along with the cover upof this crime."

This is exactly what it says in section6B of the Ohio ParoleBoard Decision sheet that I received from the Parole Board.

Now the mistake or overlook is that the decision statesthat my minimum sentence is 18-45.. Although that is what theactual sentence was, at the time of sentencing there was aMulti-Sentencing Law in effect which caps my minimum sentenceat 15.years. Therefore my minimum sentence is 15 years andaccording to the decision sheet and the reason why theFullBoard Panel choose to Take away my Projected Release Date ofOn or After July 1, 2008, the continuance of this hearing shouldbe December 2010 instead of the December 2013.

Supporting evidence that I am enclosing in this letterto resolve this mistake at this level is:

1) O.R.C. §2929.41 - This shows the Law thatwasin e:ffectat the time of sentencing in theseeases.

2) Paper given At CRC, dated 4/30/96 - Thisshows that on Line 4 is:

"... You have an indefinite sentencetotafi 15.00 - 45.00 years. ..:"

-3) Ohio Parole Board Decision, dated 03/08/2006This decision sheet states in section 9A:

"Offender is serving a commitmentof 15-40 years ..."

I hope we can correct this at this level so that noadditional court involvement need to be at the present time.Thank you for your time and I await your response.

Sincerely,,:57x'

Bernard Holmes #328-297

April 7, 2010

TO . IN5"P'ITU`f'I Oi+tAv. PAROLE OFFICER

FROMS BERNARD E. HOLMES #328-297NOBLE CORRECTIONAL INSTITUTIONE1-W79

Mr. Haggertyr or Institutional Parole Officer,

I am writing this to see if you will meet with me to discussmy situation concerning the Parole Board. I will try to give yousome idea of what I am try to accomplish.

I went to the Parole Board in March 2005. At that hearingthey gave me a PRD O/A 7-01-08 (Projected Release Date On/After7-01-08. Then in October 2007, the Parole Board voted as a majorityto uphold that decision. I went through PrenRelease, and turnedin my Parole Plan as instructed. Mrs. Liesure (was El's CaseManager) and I, both contacted the Community Assessment & TreatmentServices, Inc. in Cleveland, Ohio where I was approved to be placedon or after 7-1-08. On June 30, 2008, I was given a notice("S05PENSION OF THE PAROLE RELEASE") letter dated June 26, 2008.Then I received a letter dated July 21, 2008 informing me of"Notice of Full Board Hearing." In August I was called to thefront and was asked if I needed an attorney to represent me inthe hearing. I was assigned Wendie Gerus of the Ohio PublicDefenders Office to assist and represent me at the hearing onSeptember 24, 2008. She went to the hearing along with my Auntand Brother, and the outcome of that Full Board Hearing is as

followed:CONTINUED TO 12/2013 CON (FrJLL BOARDS)

Reason stated for this is as followed:"The full board has determined that this inmate is notsuitable to be released on to parole supervision atthis tine. inmate Holmes has served less than 13 yearson his 18-45 year sentence. A release prior to hisminimum sentence would demean the seriousness of thisoffense. Aggrevating factors considered are thebrutality of the offense along with the cover up of

this crime."

I plead guilty to Voluntary Manslaughter, Gross Abuse of aCorpse, 6 counts of B&E's, and 2 counts of RSP. My total sentencewas 18-45 years. I3owever, since all cases against me was priorto July 1, 1996, the Multi-Sentence Law is in effect. When I went

to CRC and was given my packet showing my sentence, it showed thatmyminimum sez^t®nra^ wa's 15,years. when I went to the Parole '8oardmlrfirst time in March 2006, they stated in their Decision Sheetthat my minimum sentenbe was 15 years. So not once but twice didsomeone within the Department of Rehabilitation & Correctionsrecognized that my minimum sentence was 15 years. Now in the

minFull Board decision their was no meFUiln?3oardhwent with theisentenceor the Multi-Sentence Law, but theof 18-45 years. this is the reason for the continuance until

12/2013. if the Parole Board would have been presented duringthe hearing the information regarding the Multi-Sentence Lawthey may have continued the hearing until 12/2010.

On October 20, 2008, 2 sent a letter addressed to ORDC, GaryC;.oft (APA DZRECTOR), 770 W. Broad Street, Columbus, Ohio 43222.Now I understand that the wrong persons name went on this letter,but my attorney wendie Gerus said that it should get to the rightperson and that it may take some time for a response. It has been1 year and 6 months on the 20th of this month without a response.

The way m"y court appointed attorney, Hruc^ Bnnen g^at me to'plea lty to aii of th1,s w^s hoesaume of the 14ulti sei^t

He informed me that I could not sesve no m©rO tha?i" ^rea^I taok the plea deal. ( T ha"ve a four page rerrpwnse from "him pothe Eaisplanary Counsel from my elaims of i^ia ecti+te" a ssistanceof oounee3.? In this response he states this then contradickshimself. This may have to be dealt with on December 15, 2010 ifI cannot fix this situation at this level.

What I am ho i to e,com lish is for the Parole Board to

hold a hearing e'mP t^as ^ear. Iccording to their own

Decision Sheets the reason they continued the hearing to Decenber2013 was because of the 1S year minimum. when really it shouldhave been continued to December 2010, under the Multi-SentenceLaw pertaining that my minimum sentence is only 15 years.

At this time I have an obligation to try to fix this situationat this level of Judicial Procedures. which means trying to get

the Parole ?loard to have a hearing in this case this year.

My other options that I am working on is takigactTo^atvoethe higher courts and/or withdrawal of my guilty plea .done everything in my power to take responsibility for my actions

and to savethe victims family of any further pain and suffering

by accepting the plea deal. Effective December 15, 2010, becauseof the prosecutor and the victims family I may be forced to takeadditional action through the legal system. I am also lookinginto other ways to pursue this if the parole board cannot fix thissituation. Effective December 15, 2010 time limits will startregarding the breach of the plea agreement.

I would appreciate if you will schedule a time that I maycome to you and show you my paperwork in this matter. I am tryingto fix this within the Parole Board rather than having to go tothe courts. By fixing this matter through the Parole Board willsave any additional pain and suffering to the victims family.I do not 5itlly wish to put anymore suffering to them than has tobe. The way I see things right now is that I have three options.

( 1) The Parole Board can schedule a hearing for thisyear.

(2) December 15, 2010 I will have to take action against the Parole

Board and Withdraw my guilty plea due to time limits.

( 3) Just sit here and do nothing for the next 31 years.

Thank you for your time in this matter.

Bernard H1 s # 28-297

J^^^^ 0^'^2 (E1-W79)

TO: OEM I&PAKQEIP CP REI1ELf:rmiTCN ADD OaW=OHIO PAROLE BOARDQUALITY ASSURANCE SECTION770 W. BROAD STREETCOLUMBUS, OHIO 43222

FROM: BERNARD E. HOLMES #328-297N.C.I. (E1-W79)15708 McCONNELSVILLE ROADCALDWELL, OHIO 43724

JUNE 19,2010

RE: REQUEST FOR RECONSIDERATION HEARING

I am writing this letter in hopes that we can resolve thismatter at this level of judicial power. i have an obligation tOto try to resolve this matter in the level that is in charge of meor has.jurisdiction over me. At this time the Ohio Parole Boardhas jurisdiction over me and has the power to resolve this matterat this time so that no other action has to be taken in the courtsystem. This is my third attempt to resolve this matter. Firstattempt was October 20, 2008 ( Please see Copy of 1st Attempt).I sent a copy of this attempt to Wedie Gerus (My appointed attorneyfor my Full Board Hearing September 24, 2008) and she wrote me backtelling me that Mr. Gary Croft was not the APA Director at that time,but it should get to the right person but will take some time becauseof how busy the Parole B9a.rd is. Second Attempt was April 7, 2010

The Institutional Parole Board Officer here at N.C.I. His or Herresponse was "You can forward this kite to the Parole Board at CentralOffice in Columbus. They will be better fit to answer your question."Which brings me to why I am,writing this letter.

I went to the Parole Board in March 2006. At that hearing they

gave me a PRD O/A 7-01-08 ( Projected Release Date On/After 7-01-08.Then in October 2007, the Parole Board voted as a majority to uphold

that decision: "I went through Pre-Release, and turned in my parole

plans as instructed. Mrs. Liesure and I, both contacted the CommunityAssessment & Treatment Services, Inc. in Cleveland where I was approved

to be placed on or after 7-01-08. On June 30, 2008 I was given a

notice ( "SUSPENSION OF THE PAROLE RELEASE") letter dated June 26,2008. Then I received a letter dated July 21, 2008 informing me of"Notice of Full Board Hearing." in August I was called to the frontand was asked if I needed an attorney to represent me in the hearing.I was assigned Wendie Gerus of the Ohio Public Defenders Office toassist and represent me at the hearing on September 24, 2008. Shewent to the hearing along with my Aunt Ellen and my Brother MurrayHolmes, and the outcome of that Full Board Hearing is as followed:

CONTINUED TO 12/2013 CON (FULL BOARDS)

Reason stated for this is as followed:"]In full braxd hss detenmna3 tlrxt thi.s irnate is mt sui.table to be xeleassa3en to paro1P sLVm:visirn at tYns tine. Irnate Holnes h3s sesvel less t^en13 ye3xs cn his 18-45 yesx' sataize A re]sase lmm to his mirrinun s^,4,xild dmn tt^ swiasress of tYris ofi». AgXeztLng fa_-^ ,cmsirh.'a3

are tte hrual.ity of tte offerm a.lrxa3 with the cmcr up-of this eci . ne.This is all stated on the "OHIO PAROLE BOARD DECISION" sheet

dated 9/24/2008 enclosed in this packet.

I plead guilty to Voluntary Manslaughter, Gross Abuse of a Corpse,6 counts of B&E's, and 2 counts of RSP. My total sentence was18-45 years. However, since all cases against me was prior toJuly 1, 1996, the Multi-Sentence Law is in effect. (See 2929.41 E(2)under MULTIPLE SENTENCES highlighted section page 236.)When I got to CRC (Central Reception Center) and was give my packetshowing my sentences, it showed that my minimum sentence was 15 years.(See [YOUR SENTEIVCE] 1 of 2 enclosed for your review.) When I wentto the Parole Board my first time in March 2006, they stated in theirDecision Sheet that my minimum sentence was 15 years. (See Ohio ParoleBoard Decision sheet dated 03/08/2006 also enclosed for your review.)So not once but twice did someone within the Department ofRehabilitation & Corrections recognized that my minimum sentence was15 years. Now in the Full Board decision there was no mention ofthe 15 year minimum or the Multiple Sentence Law applied to casesprior to July 1, 199r6, but the Full Boardwent with the sentence of18-45 years. This is the reason for the continuance until 12/2013.If the Parole would have been presented during the hearing theinformation regarding the Multiple Sentence Law available at the timeI plead guilty the Parole Board may have continued the hearing until12/2010.

The way my court appointed attorney, Bruce Ennen got me to plea guiltyto all of this was because of the Multi-Sentence Law. He informedme that I could not serve no more than 15 years if I took the pleadeal. (See 4 page response from Bruce A. Ennen Attorney-at-Law fourthpage second paragraph highlighted in the shape of a box with yellowhighlighter.) Here he states, "I advised Mr. Holmes that in eachof his cases, he could not serve more than fifteen {15} years combine."He also in the same section contradicts himself by statingr-"fi:^wouldnot have promised Mr. Holmes that he would be out in fifteen (15)years if he took the plea deal." However, what he told me was this:

"If we cp to trial. tocy rn daiot xu will be faax3 gWlty of Inwlia'tatYNamlaL#jer cr Volutay I43rriaujtE". 4diich both r-= tY e ssre pasl-ty.If the Judge sentences you to 10 to 25 years as the plea deal,you will have to serve 7 years to the parole board. However,Since there isn't enough time to get the other 18 charges thatprosecutor plans to bring against you before the Senate 2 Billgoes in effect July 1, 1996, you will be sentenced under theSenate 2 Bill. If you are convicted of only the ReceivingStolen Property and the Judge sentence you to two (2) years oneach and run four with four like he is willing to do under theplea deal. You will have to do eight years day for day,whichwould be eight (8) years. You would have to serve this timefirst and then start on the 10 to 25 sentence. Which means youwon't even see the parole board until you have servedfifteen (15)years, and the parole Board can do whatever they want. If youget everything taken care of today and plea guilty to theseeight charges the Judge will agree to the 18-45 year sentence.Under the 18-45 year sentence you will have to serve 12 years7 months before you see the parole board and the most the paroleboard could give you would be 2 year 5 months, and you will beout within fifteen years."

Now the reason this plays a part at this level of judicial power andto you the parole board is you have the power to sive a remedy by

December 15, 2010. Which starts time limitation in filing becausethat is the date that violates the plea agreement that my courtappointed attorney told me at the time I plead guilty to thesecharges. Wendie Gerus gave me some information regardingwithdrawal of my guilty plea, and what motions I will have to file.Plus, I am researching any information and case law that I can findfor this action if needed.

The other action that I am working on at this time to be filedat the same time is to address Due Process Laws, and Ex Poct FactoClause that was addressed to my parole decision to suspend my release.In the SUSPENSION OF THE PAROLE RELEASE letter states that "the Parole

Board has either received additional information that was notpreviously considered, or has been notified by the Office of VictimServices of an intention to petition for a Full Board Hearing, and.hassuspended your physieal release." Now according to my brother and Aunt,and from the decision sheet, I can't see any new or additionalinformation used to justify to suspend my parole. Instead the issueseems to be that the victims family, prosecutor, and Victims Services

felt that I haven't spent enough time yet.My question is: According to the OHIO PAROLE BOARD GUIDELINES

MANUAL Third Edition July 1, 2007, page 56, Section (b) Pre-release

RecYd Review, subsection (iii), "Generally, an offender will bereleased on the projected release date set by the if.... (4) no newand substantial adverse information relative to the prisoner's releaseonparole has been received by the Parole Board." What was the new and

substantial information relative to my release?

I

Ohio Law in effect prior to July 1, 1996 under §2967.12 Notice ofpendency of pardon, commutation, or parole. Section t^)^ ds as follows

(A) E:t as pn^ in divisicn (F) of this ^oticnr ^^ ofbefste t2^ acla7t psmle autrr^tyrncrnma^ axry ^rdn^s^, cr gants any 1x^xnle, mti.^ of tt^e p^rY of tta...: '

This section states that information is sent to the judge and

prosecuting attorney. Section (B^) ^t ePmmae a^^ty aLso shal](B) If a x^t f^ ^^''•

send notice to the victim or commutationrepresentative

prior to recommending any pardon or ^^for, or granting any parole to, the persrn•

Thissection goes on about the victim2s967epzedoesaitvstatedthatltheritterstatement and soforth. Nowhere in § because of this. Onlythat threerelease of a inmate can be taken awayweeks prior to the hearing shall they be notified.Section [2967.12.17 §2967.121 Notice of early release of aggravated

felon. In this section it reads as follows:(A) At least toc ;,ads b.fixe any o^ 4v is servlrg a selb" fl

comRU.tting an aggravated felony is released fromconfinement in any state correctional institutionpursuant to a pardon eonenutation, parole, or shockparole pursuant to section 2967.31 of the Revised 00dethe adult parole authoritY shall send notice of therelease to the prosecuting attorney of the county inwhich the indictment of the convict was found.

The rest of this section states basically what information is

to be sent._Fnclosed for your review a copy of both laws L(S e

pages titled PENALTIES AND SENTENCING [MULTIPLE S$NT N8ES] §2929.41

pages 235 & 236, section (E)2. See pages titled PARDONS; PAROLE;PROBATION §2967.12 Notice of pendency of pardon, commutation, or parole.&[§2967.12.11 §2967.121 Notice of early release of aggravated felon.

pages 229 & 230.)

Now in your OHIO PAROLE BOARD HANDBOOK dated APRIL 1, 2010, underSTATUTORY NOTICE REQUIREMENTS page 10, it states as follows:

R.C. §2967.12 xeg.rires tist atieast tYmEe (3) uasss pncr ta cxftrtin3tia:pmb7eoaisi&x2.tia1 lE-ax3rg, mt1ae of the hmcn-ig mst te jx^ 1v tYn pncmatin3atb3a-,Ly and ju5p of the c=ty in v,tiidz- ttg indict^ agairst th= inmttecas faxz3. M7n noticV mst czrta:in .... N^ of release casicbCattialYeaxing mst alse be pxwi^ to any victim cr victim's xEgeotatiw- whoseqdff^ts xrkifdomticn tYmugh tke OfS.ce of VicL-ins ServicES ••--

This states almost the way that the law was at the time of thissentence. However 2929.12 applies to hearing and not release

of the inmate.

How this effects the Parole Hearing is that according to Ohio Revis4Code §2967.12 the Parole Board only applies to hearing and to apply thisstatute to release of an inmate may constute as a Ex Post Facto clauseviolation and decided by the courts.

In your new OHIO PAROLE BOARD HANDBOOK dated APRIL 1, 2010, UNDER"HEARING TYPES AND OUTCOMES", HEARING TYPES, Full Board Hearings it

states as follows:Although the outcome of all parole hearings is publicinformation, institutional parole hearings and deliberationsare closed to the public. However, effective July 1, 1996,Senate Bill 2 created FullBoard Hearings which permittedparticipation by a victim or other designated interestedparties in a hearing subsequent to the institutional hearingand upon acceptance of a petition.

Again this applies to hearings and not releases.

True the Board may modify conditions of parole, or modify paroleprocedures, as long as the modification are not contrary to Ohio stautesIn this case by allowing the suspension of the parole by using parolerelease procedure that are different from the statutes allowed by lawmay constitute a violation of a Ex Post Facto clause. U.S. CONST.art. I, § 10, cl..1. An ex post facto law posses two elements:

(1) "it must apply to events occurring before itsenactment," and (2) "it must disadvantage theoffender affected by it."

By applying release procedures that has changed and not contraryto Ohio statutes may be considered a violation of ex post factolaw.

I am not saying that in some case that the Parole Boarddoesn't have the authority to suspend a parole, but in this casethere was no new or additional information that was not availablepriar to ther sus}.sion -of ttii5'inri,iates parole. I could see if there were

threats`to'the ef4CfWs family, or even if they were not comfortablewith me getting parole to the city they live in. In this case, I amperty sure that his family lives in either Newark or Columbus and Iwas going to Cleveland to a nine month program at Community Assessment& Treatment Services, Inc. was approved, accepted, and was to be

released July 7, 2010.

I do not mean to question the authority or powers of the ParoleBoard. The way I see the event that unfolded concerning my release wasthis. On March 3, 2006, where the Ohio Parole Board panel recommended

as follows:10. (B) Remaining Time to be Served: To Release 34 ..months

also;12. (A) recommendation: PRD O/A 7/01/2008

As I said earlier, the panel also referred to my minimum sentence being 15 years.everything in this hearing was by the laws and procedures that I,can find. Threeweeks prior to this hearing the judge prosecutor, and the victim'srepresentative should have been notified to submit any information thatthey wanted to send or even set up an interview during the month beforethe hearing to talk t a parole board member about my first parole hearin<

pursuant to §2967.12.In October 2007, the Parole Board held a Pre-release Record Review.

The outcome of this hearing was that the Parole Board vote as a majorityto up their previously decision of PRD O/A 7/01/2008. Again, Three week:prior to this hearing the parties should have notified to voice theirconcerns for this board to review pursuant to §2967.12 of the OhioRevised code prior to July 1, 1996.

I think I understand what happened after this hearing and if I amwrong please let me know. The "OVS" petition for a Full Board hearing.Now what "new and substantial adverse information relative to theprisoner's release on parole has been received by the Parole Board" isbeyond me. According to the statute [2967.12.11 §2967.121 of the OhioRevised code prior to July 1, 1996, only states must notify the partiesof my release. I under the responsibility and the pressure of thecommunity on the parole board. The board not once but twice agreedafter two separate hearings voted to release me on or after 7/1/2008.Because of the parties not wanting me relea"se at that time the paroleboard felt a full board hearing was the right choice contrary to Ohio

laws at the time of this inmates sentence.At the Full Board hearing, September 24, 2008, after reviewing what

was present decided as follows:Ohio Parole Board Decision sheet 9/24/2008

Section 6 (B)"The full board has determined that this inmate is not suitableto be released on to parole supervision at this time. InmateHolmes has served less than 13 years on his 18-45 yearsentence. A release prior to his minimum sentence woulddemean the seriousness of this offense. Aggravating factorsconsidered are the brutality of the offense along with thecover up of this crime."

Section 10 (A)"Recommendation: MODIFY PREVIOUS ACTION 10/09/2007

Section (B)"CONTINUED TO 12/2013 CON (FULL BOARDS)

Although I was not happy with the outcome of that decision, I haveexcepted that decision for now. If the Board would have received theinformation about my minimum sentence being 15 years and not 18 yearsdue to Ohio Revised code §2929.41 (E)(2) Multiple Sentences, theoutcome would have been possibly CONTINUED TO 12/2010.

Because I agreed to serve up to fifteen (15) years and the factthat I knew nothing about the laws or procedures is the reason I am

trying to resolve this issue at this time. Plus the time restrictionsto withdraw my guilty plea starts December 15, 2010. I am not wantingto put any additional pain and suffering on the victim's family oreven upset this Board. All I am trying to ask for is what is fairand required under the law at the time of my sentence. I knew theday of my trial when I was advised by my attorney Bruce Ennen thesentence and the amount of time I would have to serve. I have livedup to my end of the plea agreement, and if this Board does not resolvethis at this level, will mean a breach of contract.

I have tried to give you enough information in this packet foryou to consider this matter and hopefully come to the conclusion tohold a Full Board hearing before December 15,2010. I have enclosecopies of the law at the time of my sentence pertaining to MultipleSentences, notification to judge, prosecuting attorney, and thevictim's family regarding notice of hearings and releases. I haveenclosed Parole Decision sheet and paper from CRC showing that on twooccasions someone within the Department of Rehabilitation:& Correctiot§s'recognized that my minimum sentence was fifteen years. I have alsoshowed how Ex Post Facto laws could have been violated by applyingprocedure changes that was applied to this case before the Board andcan prove a"sufficient increase of incarceratioli'. duiei tm.this.

Therefore the relief sought by this committee is proper withinthe authority of this Board. If you have any questions for me or needany other information, please let me know and I will respond as soonas possible. Again I am trying to resolve this matter as soon aspossible. Thank you for your time and consideration in this matterand hope to hear from you as soon as possible.

Bernard E E . olme Ts ^328-297N.C.I. (E1-W79515708 McCONNELSVILLE Rd.CALDWELL OHIO 43724

S' cerely, ^^..

cc..

Office of the Ohio Public Defender8 East Long StreetColumbus, Ohio 43215-2998(614) 466-5394Fax: (614) 644-9972 -

TIMOTHY YOUNGState Public Defender

Ohio Reformatory for Women1479 Collins AvenueMarysville, Ohio 43040(937) 642-1065 Ext. 2033

WENDIE GERUSLegal Services Attorney

November 24, 2008

Bernard E. Holmes #328-297N.C.I. (E1-W79)15708 McConnelsville RoadCaldwell, Ohio 43724

Dear Mr. Holmes:

Your legal documents were mailed out by our docket clerk on November 10. Shetold me last Friday that she has received a receipt that the materials were delivered bycertified mail. I hope by now the envelope has reached you.

As for your letter, first of all Gary Croft is not the Director of the APA, he iscurrently with the Chief Inspector's office. Mr. Croft was formerly the Chair of the OhioParole Board. However, the person who has occupied that position for several years isCynthia Mausser. If you are trying to write to the individual in charge of the Adult ParoleAuthority, the acting Deputy Director in charge of Parole and Community Services isLinda Janes. Your letter was sent to the correct address, so I would assume it willeventually be forwarded to Ms. Mausser. As you can imagine, she receives a largevolume of mail, so it may take some time for you to receive a response.

You have asked about a transcript of the full board hearing. There was no courtreporter present, and to the. best of my knowledge there was no recording equipment inthe room during your hearing. The only time I have seen a recording made of full boardhearings has been when media were present, which was not the case during yourhearing.

I agree that your first opportunity to be considered for possible parole was after15 years. However, when and if you receive a parole is entirely up to the discretion ofthe Parole Board. The decision to deny your parole was made by the entire ParoleBoard. Unfortunately there is no procedure for appealing their decision to a court of law.I'm sure the Board's decision is frustrating. However, the Public Defender's office willnot be filing any civil action to challenge their decision in your case. We do not have theresources to provide research assistance to individuals attempting to litigate on theirown behalf.

I have enclosed some material concerning options in guilty plea cases. I do nothave any forms which you could use to try to file a motion to withdraw your plea. Thiswould be no simple matter, particularly so many years after your conviction. In addition,

you should be aware that if you do succeed in withdrawing your guilty plea, your originalcharges could be reinstated. If you are convicted of those charges as the result of atrial, you could receive more time than you are presently serving.

I wish you the best of luck with your future parole consideration.

Sincerely,

Wendie A. GerusAssistant State Public Defender.

1 11i}S.r,.u^^ ^

HANDBOO

APRIL `Y, 2010

1

TABLE OF CONTENTS

1. INTRODUCTION Page 1

PAROLE Page 4

Inmates Subject to the Disaretionar`y Releasing Authority Page 4of the Parale B,oard

Eligibility Determination

Suitability Determination

III. STATUTORY NOTICE REQUIREMENTS

Page 4

Page 7

Page 10

NFARiNG TYPES AND OUTCOMES Page 11

Hearing Types

Hearing Procedures

Hearing Outcomes

Page 11

Page 12

Page 13

V. RESCISSION AND RECONSIDERATION Page 17

VL CONCLUSION Page 19

VII. REFERENCELIST Page 20

IlNTRODiTCTION

Ohio Revised Code ("R.C.") § 5149.02 created the Adult Parole Authority ("APA") "in

the division, of parole and community serviees-of the I)epartrnent of Rehabilitation and

Correction" ("DRG"). The Ohio Parole Board:("Board") is one of the sections within the

APA. Pursuant to R.C. § 5149.10, the Board consists of up• to twelve (12) members,

including 1he Chair. The members are appointed by the Director of the DRC, and must

be qualified by education or experience in correqtionai work, incl,uding law enforcement,

prosecution of offenses, advocating for the rights of victims of crime, probation or parole,

in law, in social work, or Yn a combination of the three categories. The Director, in

eonsultati:on with the Governor, must appoint one individual to the Board who is a victim

of crime,'a meriiber of a victims family, or who represents, an organization that advocates

for the rights of victims of crime.

The Board detercn;nes release saitability of eligible offenders seiving indefinite sentences

through decisions that promote fairness, objectivity, and public safety and are responsive

to the concerns of victims, members of the community, and other persons within the

criminal justice system

The Board consists of seven members, at this time, whose primary duty entails

eonducting release consideration hearings on all parole-eligible inmates. Thesehearings

are held every month at the institutions, witha Board Member(s) conducting a personal

interview with eaeh parole-eligible inmate. 'Fhesehearings are usuaIIy conducted, using

video-conference technology. If parole is denied at the initial hearin.g; because:an inma.te

is not suitable for release, the Board.establishes a, future release- date or a subsequent

hearing date. In making release decisions;. the Board is mandated-by Administrative

Regulation 5120;1-1-07 to considei certain factors, when exercising its discretion, in

determining an inmate's.suitability for r`eiease.

Although the outcome of all parole hearings is public information, instrtntion^l; parole

release hearings and deliberations are closed to the public. However, the Boardoffers

participation in offender conference and victim conference days each month, providing

victims and/or their representatives and offender families andlor their representatives an

1

opportunity to exchange information with the Board prior I

suitability consideration hearing.

Previously, the Board developed and used a number of tools to promote consistency with

its decisions because of the large diversity of crinies committed by imnates in the DRC.

Since the, "truth.:in sentencing" legislation was enacted, the once diverse population has

been significantly narrowed. As such; the Board will no longer use one of'these tools, the

Ohio Paroie Board Guidelines Manual, in the release process.

The Oliio Parole Board Guidelines Ivlanual aad Matcix, initially developed in 1998, and

most recently amended in 2007, was created and used by the Board to promote consistent

decision making for a large number of parole eligible inmates. The matrix and the

guidelines suggested a range of time based on common crimes, histories, and risks,

considering how those cases had been decided through the years. These suggested ranges

of time,however, did not'niean thatsomeone would be released once this time had been

met.

Ohio's change to a detemrninate sentencing system in 1996 (Senate Bill 2) has, over time,

dramatically trnnsfomied Ohio's parole eHgible population. The majority of pre-Senate

Bill 2 inmates who were committed for commonly-seen crimes that demonst[ate ordinary

riskpatterns have been heard and; released: However, many paroleeligible inmates

remain incarcerated because the uncommon and sedous nature of their crimes does not

conform with general risk patterns. Most of these cases have unique factors thatEhwart

any, effort to generalize a suggested range of time or specify comrnon risk factors.

Consequently, most paroie-eligible innates:.are:reviewed by a ri►ajority of-the Boardwho

colleectively determine suitability for release by majority vote. These votes are based

upon consideration of the unique factors and variables of the individual case. Therefore,

use of the Ohio Parole Board Cruidelin.es Mantial-is no longer practieal ^or effect3ve.

Accordingly, after April 1, 2010, the Board will continue to exercise its discretionary

releiise'aitth.ot'ity'solely by reference to Ohiosfatute and administrative code provisions.

The Bdard will no longer use the Ohio ParoIe Board Guiilelines Manual and Matrix in the

ielease decision process.

2

The Board may grant parole "if in its judgment there is reasonable grouwd to,beTieve

that...paroling the prisoner would fnrther the interests of justice and be consistent with

the+ welfare and security of society." R.C. § 2967.03: In keeping with its statutory

mission and the. guidance of the courts, the Parole Board provides meaningfiit

consideration for al1 inmates who are eligible for parole: Such consideration must iefer

to the faetorsand risks, and'the facts and circumstances, presented inthe individual'cases.

These faetors, risks, facts and cireumsfances may'bediseernedftofn many soutces of

information, and do not come solely fromtheentry of oonviction; or even the legal record

as a whole. In exercising its funetions and duties re1"ative to parole release decisions, the

Board nta.y, putsuant to R.C. § 2967.63; :"investigate and examine, or cause the

investigation and exainination of, prisoners confined in state correctional institutions

coneerning their.-conduct irr the institutions; their mental and morat qualities and

characteristics, their kinowledge of a trade or professioa,their forriter means of livelihood,

their family relationships, and any other matters affecting their fitries"s to be at liberty

without being a threat to society."

PAROLE

Parole in Ohio is subject to the absolute discretion of the Board. Discretion, by its very

nature, is subject to the chauging norms and context in which it is exercised. The..Board.is vested,witlt.the responsibilityto,determine when>an inmate is suitable for release.

Under Obiq law,, inmates -.have neither the constitutional nor inherent right to be

conditionally released .on p,arole beforethe expiration of the maxiinum term of his or her

sentence.. Additionally, the Ohio Supreme Gourt has specifically held that Ohio inmates

have no right to rely on a partipular set, of parole, guidelines, or have parole guidelines in

effect at the timo of their conviction applied.at subsequent parole hearings. Thus,it is

clearly established that Ohio inmates do not ilave, a constitutionally protected liberty

interest in parole or parole procedures. Furthermore, fihe Board_ ma^ _r^odiSy; oo:nditions

of.parole, or modzfy,parole release-praoedum, as loFtg as -tlte_tnodifieApns:ateMaot

.eonfraryto 014o.statatez,

INMATES SUBJECT TO THE DISCRETIONARY RELEASING AUTHORITY OF

THE PAROLE BOARD

Those inmates whose crimes were committed prior to.July 1, 1996, and to whom the

court imposed an indefinite term of imprisonment pursuant to P.C. Chapter 2967 as it

existed prior to July 1, 1996, are subject to the discretionary releasing authority of the

Board. In addition, RC. §§ 2967.13 and 2967.021 provide that inmates serving a life

sentence for an offense committed on or after July 1, 1996 are also subject to the

discretionary releasing authority of the Board.

'ELIGIBILITY DETERMINATION

Those offenders who are subject to the discretionary releasing authority of the Board

become eligible for parole after serving the imposed minimum sentence as described in

R.C. § 2967.13. Ohio Administrative Code ("O.A.C") § 5120:1-1-03 ("Minimum

1 'IYfis section is meant to provide a general description of parole eligibility determination, and should notbe construed as containing all applicable rules and law that govem the calcutation of parole eligibilitydates. Any questions regarding the calculation of any individual inmate's statutory parole eligibility dateshould be addressed by the Bureau of Sentence Computation ("BOSC").

Eligibility for Release onParole") expresslyprobibits=tlie release of any inmate seiving

an i,ndefinite sentence prior to the expiration of that inmate's minimum sentence.

An inmate's initial parole eligibility date is calculated by the DRC's Bureau of Sentence

Computation ("BOSC") in accordance with: RC. §§ 2967.13, 2967.191, 2967.193 and

O.A.C. §§ 5120-2-03^ ("Determination of minimum, maximurn and definite sentences

when multtple sentences are imposed"); 5120-2-031 .("Determination of stated prison

terms and, life sentences when multiple terms or sentences are imposed"); 5120-2-032

("Detenmination of multiple sentences or prison terms,with an offense connnitted before

July 1, 1996 and an offense committed on or, after 7uly 1, 1996") and 5120-2-10, ("Life

sentences").

In general, inmates serving concurrent indefinite sentences for-crimes committed prior to

July 1, 1996 become pntole eligible after serving the imposed minimum sentence. That

minimum sentence may be diminished by 30% for good behavior, also known as "good

time°° (OAC § 5120-2-05). If an inmate fails to maintain good behavior,time credited off

of the sentence can be reinstated. The minimum sentence can also be diminished by jail

time credit (O:A.C. § 5120-2-04). For example, an inma.te sentenoed to 10-25 years will

become statutoriiy parole eHgible after serving 7 years minus jail time credit, ifhe or she

maintains ¢ood behavior. The minimum term can also be further diminished by earned

credit (O.A.C: § 5120-2-06) or maintaining minimum security status (O.A.C. § 5120-2-

07), if not precluded due to the offense of conviction. Inmates sentenced to life under

Senate Bill 2 for crimes committed on or after July 1, 1996, who are sentenced

concurrently, are parole eligible after serving the minimum sentence, diminished only by

jail time credit

In addition; as, described in O.A.C: § 5120=2-03,' ininates serving consecutive indefuute

senterices for ciiines other than Aggrdvated Murder comrnitted'prior to'Jtaiy 1, 1996, have

thei= .aggtegate minimum sentences eapped, and thereby become statutorily parole

eligible:earlier than service of the aggregate minimum sentence imposed. Inm.afes who

are-serving consecutive sentences for crimes other thau Murder or Aggravated Murder

coinrnitted prtor to'7uly`T, 1996 have their aggregate miniiiittm sentences capped at 15

5

years, diminished by 30°/a:for goodbehavior, jail time credit,: and, carned creditwhen

applicable. Irnuates serving cottsecuHve ,.sentences- for crimes including Murder

committed prior to July 1, 1996 have the minimum portion of their consecutive sentences

capped at 20 years, diminished by 30% for good behavior, jail time credit, and eained

credit when applicable. This statutory cap on the minimtim portion of the consecutive

sentences results in inmatesbecomittg eligible for parole sooner#han the expiration of the

actaal aggregate minimrim seintence impiised. iVorietheless, these inmates can be released

onto parole supervision when they' become eligible pursuant to statnte, and are not

required to serve the fnll aggeegate minimum sentence imposed prior to release onto_,.

parole supervision, if found to be suitable by the Board.

There is no statutory cap on aggregate minimum sentences for crimes committed prior to

July 1; 1996, ifthe crimes comr<iitfed include Aggravateil Ivli.itder. Lilcewise, inmates

sentenced to life ^under Senate Bill 2 for crimes comtmitted after July 1, 1996, do not

receive a cap on aggregate rriii7itnum sentences imposed, and become paTole eligible after

servi.ng the aggcegate minimum-term, diminished only by jail time credit.

Once an inmate: becomes parole-eligible, the Board must consideir the inmate for release.

Each month, Ohio's correctional institutions provide the Board,with a list, known, as "call

sheets", identifying all inmates who are statutorily eligible for parole. The,irunates

identified on the monthly "call sheets" are then scheduled for parole release consideration

hearings.

If an inmate is released onto parole supervision and returned for either technical

violations of the conditions of parole or for committing a new offense, subsequent parole

eligibility is governed by O.A.C. §§ 5120:1-1-18 ("Release revocation hearing"), 5120:1-

1-19 ("Procedures after revocatian and release"), and 5120:1-1-21 ("Revoeakion of

release if releasee recommitted fornew offense"). Parole violators who are returned for

technical violations are again considered for parole saitability at a hearing date

recommended by the Hearing -.Qfflcer who conducted the- violation hearing. The

recommended hearing date is either approved or modified by the Chair of the Board or

designee. Parole violators, who, are returned for committing new offenses for which they

6

receive prison sentences, are scheduled for farther parole consideration after serving the

new defiaite sentence or the minimum term of an indefinite sentence, as calculated by

BOSC pursuant to O.A.C. §§5120-2-03 to 5120-2-08 and 5120:1-1-13.

SUITABII,ITY DETERMINATION

Once aninmate becoines parole-eiigible, theBoard is required to conduct a hearing,

pursuant to O.A.C. § 5120:1-1-11, to determine whether the inmate is suitable for release.

The Board ean only grant parole, pursuant to IL C. § 2967.03, "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 weifare and "secutity of society." hi "making parole

suitability determinations, O.A.C. § 5120:1-1-07 lists the`following factors that must be

considered by the Board:

Any. reports prepared by any institutional staff, member relating to the inmate's

personality, social history, and adjustment to institutional psograms and

assignrnnents;

. Any official report of the inmate's prior criminal record, including a report or

record of earlier probation or parole;

• Any presentence or postsentence report;

. Any recommendations regarding the inmate's release made at the time of

sentencing or at any time thereafter by the sentencing judge, presiding judge,

prosecuting attorney, or defense counsel, and any infomzation received from a

victim or victim's representative;

• Any reports of physical, mental or psychiatric examination of the inmate;

• Such other relevant written information concerning the inmate as may be

reasonably available, except that no document related to the filing of a grievance

under rule 5120-9-31 of the Administrative Code shall be considered;

• Written or oral statements by the inmate, other than grievances filed under rule

5120-9-31 of the Administrative Code;

7

. The equivalent sentence range under Senate Bill 2, (effective July 1, 1996,) for

the same offense ofconviction if applicable; 2

• The inmate's ability and readiness to assume obligations and undertake

responsibilities, as well as the inrnate's own goals and needs;

• The inmate's family status, including whether any relatives display an interest in

the inmate or whether the inmate has other close and constructive association in

the comtnunity;

• The type of residence, neighborhood, or community in which the inmate plans to

five;

• The inmate's employment history and occupational skills;

• The inmate's voeational, educational, and other training;

• The adequacy of the inmate's plan or prospects on release;

e The availability of community resources to assist the inmate;

The physical and tnental heaith of the inmate as they reflect upon the inmate's

ability toperform his plan ofielea.se;

. The presence of outstanding detainers against the inmate;

. Any otfier factors which the board determ.ines to be relevant, except for

documents related to the ftling of a grievance undei rule 5120-9-31 of the

Administrative Code.

After considering all the mandatory factors, the Board may recommend parole if it finds

the inmate suitable for release. The Board may also, pursuant;to O.A.C. § 5120-1-1-07,

determine that an inmate is not suitable for release if it finds that at least one of the

following reasons is applicable:

. There is substantial reason to believe that the inmate will engage in further

ciiminal conduct, or that the inmate will not conform to such conditions of

release as may be established;

Z SB2 parity is only considered when the comparable range would result in a lesser penalty than the actua.lsentence imposed, if the offender were sentenced under SB2. SB2 parity is not considered if thecomparable range would result in a lengthier sentence. An inmate will not be denied release because he orshe has not served the comparable SB2 sentence.

8

• There is substantial reason,to believe that due,to the serious nature' of the eriTne,

the release of the inmate into society would create undue risk to public safety, or

that due 'to the serious ttature of the crime, the release of the inmate would not

further the interest of justice nor be eonsistent with the welfare and security of

society;'

There is substantial reason to believe that due to the serious infraetions of nxle

5120-9=06 of the Administrative Code, the release of the inmate would not act as

a deterrent to tlie ` inmate or to other institutiortalized inmates from viotating

insfitutional rales and regulations.

STATIITORY NOTICE REOUIRE^.1^tENTS

R.C. § 2967.12 -requires^tWatleast:three,(3) weeks«prior to conducting,a;parole release

^ :tionheaz-ing, nol^eoftt.^e he^ing xn3ast be provided to.thcprospcuting attorney.r.ausie._ w4

and the judge of the court of common pleas of the county in which the iadictment against

.ttie i,=A usas EQuud. The natice must contain the name of the inmate, the inmate's

offense of convic,tion, the sentence imposed by the cotut, andihe date of conviction.

Notice of the rel^ase r,.orisideration he-.aring must also be provided to. any victim or

victim's representative who requests notification through the Office of Victim Services

("OVS'). At the time notice is provided to the prosecutor and judge, DRC must also post

on the database it maintains, pursuant to R.C. § 5120.66 (known as "Laura's Law"), the

inmate's name and the date of any hearing regarding the possible grant of parole, along

with the right to submit a written statement regarding the proposed release consideration

hearing. Any information or correspondence received by the Board in response to these

notices must be considered in determining an inmate's suitability for release. If it is

discovered at the time of the release consideration hearing that the above-referenced

statutory notice requirements were not met, the hearing will not be conducted but will be

rescheduled to ensure notice is provided.

The Board, although not statutorily required, offers victims/representatives and inmate

supporters the opportunity to meet with a Board Member, or other designated staff

person, to provide input and share information regarding the potential release of an

inmate scheduled for a parole consideration hearing. These conferences are scheduled

monthly and are limited to those victimsfrepresentatives and inmate supporters who have

an interest in an inmate who is scheduled to be heard during the following month.

O.A:C. 5120:1-1-10 ("lnitial and coritinued Parole Board hearing dates; projected release

dates") and 5120:1-1-11 ("Proeedure, of release consideratiori hearirig") govem the

timeframes for schedutinghearings, the,possible results of hearings, and those`atithorized

to .conduct hearings. In addition, DRC policy 105-PBD-03 ("Parole Board Release

Proeesses"), farther describes the hearing process.

IdBAR1N0 TYPES:

First Hearing. This is the initial hearing at which an inmate can be considered for

parole based upon the sentencing court's order and statute. The hearing is held on or

about the date when the inmate has completed the imposed minimum sentence, as

calculated by,B,OSC,and.,has becoxne parole-eligible. Th.e-purpose of the hearing is

for the Board to determine if the inmate is suitable for release.

Continued Hearing: This is a subsequent hearing conduetsd if release is not:granted

at the first hearing. Currently, pursuant to O.A.C. § 5120:1-1-10, a continued hearing

can be scheduled no further than ten (10) years from the first hearing, or a previous

continued hearing.

FuII Board Hearings: Although the outcome of all parole hearings is public

information, institutional parole release hearings and deliberations; are closed to the

public. I3owever,.effeetive ,July1, 1995, rBenate Bt11..2 creqted F4ll Board,Hearings

uahich permitted parGicipat^onryby a vietim or` othez. designated interested parties in a

hearing subseqilent to the institutional h.ear^g aud .upon.= acceptance- of a petition.

R.C. § 5149:101 provides that when the Board initially believes an inmate may be

suitable and proposes parole or re-parole, a Hearing Officer, Parole Board Member or

the OVS may petition for a Full Board hearing. The Board considers the petition and

decides by majority vote whether to conduct the Full Board hearing.

If the inmate for whom parole or re-parole is proposed is convicted of Aggravated

Murder or Murder, the Board cannot deny the petition and must conduct the Full

Board hearing. Full Board hearings are conducted;prior tothe release of an inmate at

DRC Centcal Office with;at least seven (7) Board Members participating. Theinmate

is not present,_but maybe repxesented by counsel or some other designated person.

The Boatd, in generll, has the discretion to determine who should appear and give

testimony. However, the Board must permit .cerkain persons, to 2ppear and, give

testimony or written statements. These include the following: the prosecuting

attorney; the sentencing judge or successor; the victim or victim's representative of

the original offense; and/or the victim of behavior that resulted in parole revocation.

If the inmate for which parole or re-parole is proposed is convicted of Aggravated

Murder or Mutder, the Board must also permit the appearance of the spouse, parent or

parents, sibliiig('s) or child(ren) of the victim of that offense. A final decision

regaTding the irunate's suitability for'parole is made and announced atthe conclusion

of the Full Board hearing.

HE?.RING PROCEDURES

Institution Hearing Panels: First and continued hearings are conducted by, hearing

panels that consist of a designated number of Board Members andlor Hearing

Officers. Given the decrease in the number of parole hearings since Senate Bill 2

was enacted; institution hearirigs are prlmarily conducted by one or rnore Board

Members. IIearing Officers are only rarely utilized when monthly hearings cannot be

conducted timely by the Board Members due to unforeseen circumstances. Many

heaYings a're now-conducted with a`niajority of Board Membersparticipating through

video-conferencing, so that decisions that require a majority.Board Meniber vote do

not need tobe referred to Cential Office Board Review (COBR) and decided at a later

time.., 'COBR is the mechanism by which the Board considers cases referred by

Hearing Panels tlsat require approdal of a final decision by a maJority of Board

Members, and occurs at a time subsequent to the institution hearing.

12

Institn#ion Hearing Participants¢ Fiustand continued hearings are condueted at the

various correctional institutions with the inmate present. The Board Members and/or

Hearing Officers conduct the heafuig"s ei"ther in person at the institutions, or through

video-conferenciing from DRC Central Office or a district office. Participation in a

hearing is limited to Board 'staff, the inmater, and if required, special needs facilitators.

Information considered: The, hearing panel considers all information pertaining to

the mandatory factors listed in O.A.C. § 5120:1-1-07. In addition, the inmate is given

the opportunity to speak and respond to any factual information presented during the

hearing and to provide any informa.tion deemed relevant to the release decision.

Recommendation: After considering all relevant information, the hearing panel

formulates a decision or recommendatipn regarding the inmate's suitability for

release. O.A.C. § 5120:1-1-11 indicates that the decision or recommendation slaall be

communicated to the inmate both verbally and in writing immediately or as soon as

administratively possible following the hearing. If the decision or recommendation is

to deny reiease, the written notice must cite the grounds under § O.A.C. 5120:1-1-07

on which the decision was based, and the factors deemed significant in making the

decision. The notice must alsoinclude the next hearing date-at which the inmate will

again be considered for release. If the recommendationmust be approved by a

majority of Board Members as described below, the written notice will be provided to

the inmateafter the majority vote is obtained.

HEARING OUTCOMES

O.A.C. § 5120:1-1-10 provides the potential outcomes of a parole consideration hearing.

If an inmate is found suitable for release and parole is recommended, the release date will

genirally be established approximately sixty (60) days fr̂ om the hearing`date. This is

known as the "Parole On Or After Date" ("POA"). If parole is not recommended, and. the

recommendation is not a continuance to the expiration of the maximum sentence, the

Board shalleither set a continued hearing date, not to exceed 10 years from the current

hearing date, or establish a projected release date. 'Tfa projeoted t''elease daate is set, the

13

not be,r^^u^ed,fio;agpear=ata subsequent hearing priir-toreleiise. However,

the release date is:; subject to r,escission, at the Board's discretion, after review of the

inmate's conduct, adjustment and program participation subsequent to" the granting of the

projeeted release date. O.A.C. § 5120:1-1-10; expressly prohibits certain inm.ates from

re4giving>projectesi,releasedates including those serving life,sentences, sentences of

fifteen (15) years to life, or for any sentence imposed for a sex offense. These inmates

iiitist appear at a subsequent release con'sideration hearing if deterrruned fobe tiot suitable

for parole and denied release.

In addition, DRC.policy 105-PBD-03 dictates thatthe Board give special attention to

certain inmates and to certain offenses to ensure public safety and public confidence in

the release pidcess. These designa.ted cases "require that a majority of the Board Members

approve t h e f i n a l decision f i n d i n g ari inmate suita.ble `for release. Release

reeomniendations requiring a majority BoardMember vote include:

•- The initial release> of art inmate who is serving a sentence for any offense which

carries a penalty of life"imprisonment or any conspiracy or complicity to commit

such an offense;

. The initial release of an; inmate who is serving a sentence for any sex offense

contained in Chapter 2907.of the Ohio Revised Code, or any attempt, conspiracy,

or complicity to commit such a sex offense, and to include any offender who is

paroled on a non-sex-related conviction and is subsequently recommissioned for a

conviction of a sex offense contained in Chapter 2907 of the Ohio Revised Code;

• The release of an inmate in any case receiving national or unusrial. state or local

attention because of the nature of the crime, arrest, trial, or position in the

community of the inma.te and/or victim;

• The release of an inmate with a Level 4(maximum) or Level 5 (high maximum)

security classification or any other comparable security classification title utilized

to denote serious security risk inmates;

• The initial release of an inmate who is serving a sentence. for voluntary or

involuntary manslaughter;

14

+ The release of aninmate whose previous hearing decision was a decision of a

:majority ofboard members.

These additionai recommendations must also receiveapproval by a majority of Board

Members:

• A continuance of an inma.te whose previous hearing decision was a decision of a

majority of board members;

a A panel recommendation from an institational hearing conducted pursuant to

DRC Policy No. 105-PBD-10 ("Extended Continuance Policy");

• Any other recommendation deemed appropriate by a Parole Board Member.

The majority Board Member decision may occur at the institutional hearing if a sufficient

number of Board Members are participating and can reach a majority vote. If the Board

Members participating cannot reach a majority vote or the institutional hearing is not

conducted with at least a majority of Board Members participating, the case will be

referred to COBR to obtain the required majority vote.

As indicated above, whether the decision can be made at the institutional hearing, or must

be referred for a majority Board Member vote at COBR, written notice of the decision

will be provided to the inmate when the decision is finalized. If the decision is to deny

release, the written notice will cite which of the following reasons indicated in O.A.C. §

5120:1-1-07 are applicable, any one of which is sufficient to support a determination that

an inmate is not suitable for release:

• There is substantial reason to believe that the inmate will engage in further

oriminal conduct, or that the inmate will not conform to such conditions of

release as may be established;

• There is substantial reason to beiieve that due to the serious nature of the crime,

the release of the inmate into society would create undue risk to public safety, or

that due to the serious nature of the crime, the release of the inmate would not

further the interest of justice nor be consistent with the welfare and security of

society;

15

There is slibstantial reason to believe that due to the serious infractions of rule

5120-9-06 of the Administrative Code, the release of the inmate would not act as

a deterrent to the inmate or to other instituflonalized inma.tes from violating

institutional rules and regulations.

In addition, the written notice will cite the factors determined to be significant in finding

the inmate not suitable for parole, and will include the date atwhich the inmate will again

be provided a release consideration hearing.

16

RESCISSION AND RECONSIEDERA`I'ION

All release decisions are subject to review and approval by the Parole Board Chair and

are not final until actual physical release from custody occurs. The physical release of an

inmate onto parole may be stopped by the Parole Board Chair up to and including the day

of release. Despite every effort by the Board to receive all relevant information regarding

each inmate's case prior to or during the hearing, there are instances when relevant

information is not known or available until after a release decision has been made. In

addition, there are situations where the inmate's institutional conduct subsequent to a release .

decision has a direct bearing on the release decision.

DRC Policy No. 105-PBD-04 ("Request for Reconsideration of Parole Board Release

Consideration Decision'), outlines the circu*+±stA*+ces under which rescission and

reconsideration of the outcome of a parole hearing is permitted. A request for

reconsideration must be based on, and specifically refer to, relevant and significant new

information that was either not available or not considered at the time of the hearing.

Requests for reconsideration must be made in writing, and sent to the Quality Assurance

Section of the Board. Reconsideration requests are reviewed by the Parole Board Chair

who can authorize a rescission of the previous decision and cause a new hearing to be

scheduled, or can submit the matter to the Board Members for a majority vote.

Reconsideration requests generally decided by the Chair include information that involves

a petition by the OVS for a Full Board Hearing, pending charges or institution rules

infractions which occurred after the last rehearing or hearing but prior to release or were not

known to the Board at the last hearing, the inability of the Field Services Section to secure an

appropriate placement, or the addition or removal of a special condition of supervision. Most

other reconsideration requests that are determined to have merit, based on a review by the

Chair or designee, are submitted to the Board Members for a majority vote. After review, the

Board will adopt by majority vote the option to modify the decision with an action

commensurate with the reconsideration request, modify the decision with an alternative

action than requested, rescind the previous decision and schedule a rehearing, or maintain the

previous decision.

17

Parole decisions are not subject to appeal. R.C. § 5149.10 provides that "parole

determinations are final and are not subject to review or change by the chie£"

18

CONCLUSION

The Board exercises its disoretion in determining release suitability of eligible offenders

serving indefmite sentences. The Board strives to ensure fairness and systemic

participation in all levels of decision mak4ng, and to promete individual case

consideration when determining release sti[itability: Tt' serves offenders, victims,

community members and other interested parties within the criminal, justice system by

promoting balanced and objective decision making to help achieve understanding af and

participation in 3ts statutory duties. By doing this, the Ohio Parole Board helps the

Department of Rehabilitation and Correction achieve tcatesparency in decision making by

promoting public confidence in its processes.

19

REFERENCE LIST

STA'PUTES

2967:01 Pardon^=pa'role - probation definitions2967.03 Duties,and powers as to pardon,commutation, reprieve or parole2967.12 Notice of pendency of pardon, commutation, or parole sent to prosecutor

anrl'courE2967.13 Eligzbility for.parole2967.191 Reduction of prison term or parole eligibility date for related days of

coufinement2967.193 Earning days of cre(ht5149.01 Adult parole authority def nitions5149.02 Adult parole authority5149.10 Parole board5149.101 Full board hearings5120.66 Intemet database of inmate offense, sentence, and release information

AllMINISTRATIVE RULES

5120:1-1-03 Minimum Eligibility for Release on Parole5120:1-1-06 Shock Parole5120:1-1-07 Procedure for Release on Parole and Shock Parole; Factors that Shall be

Considered in a Release Hearing5120:1-1-10 .Initiai and Continued Parole Board Hearing Dates; Projected Release

Dates5120:1-1-11 Procedure of Release Consideration Hearing5120-2-03 Determination of Minimum, Maximum and Definite Sentences when

Multiple Sentences are Imposed5120-2-031 Determination of Stated Prison Terms and Life Sentences When Multiple

Terms or Sentences are Imposed5120-2-032 Determination of Multiple Sentences or Prison Terms with an Offense

Committed Before July 1, 1996 and an Offense Committed On Or AfterJuly 1, 1996

5120-2-04 Reduction of Minimum and Maximum or Definite Sentence or statedprison term for Jail Time Credit

5120-2-05 Time Off for Good Behavior5120-2-06 Earned Credit for Productive Program Participation5120-2-07 Days of Credit of Maintaining Minimum Security5120-2-10 Life Sentences

20

DRC POLYCIES

105-PBD-03 Parole Board Release Processes105-PBD-04 Request for Reconsideration of Parole Board Release Consideration

Decision105-PBD-06 Full Board Hearing03-OVS-04 Victim Notification

CONTACT INFORMATION

Ohio Parole Board, 770 West Broad Street, Columbus, Ohio 43222 (Phone 614-752-1200or toll-free 888-344-1441)

Adult Parole Authority (APA), Field Services Section, 770 West Broad Street,Columbus, Ohio 43222 (Phone 614-752-1136)

Bureau of Sentence Computation (BOSC), 11781 State Route 762, P.O. Box 450, Orient,Ohio 43146 (Phone 614-877-3336)

Office of Victim Services (OVS), 770 West Broad Street, Columbus, Ohio 43222 (Phone614-728-1976 or toll-free 888-842-8464)

21

Bruce A. EnnenAttorney-at-Law

P.O. Box 4461, Newark, OH 43058-4461Telephone (740) 522-7106

April 28, 2003

Stacy Solodhek BeckmanThe Office of Disciplinary CounselThe Supreme Court of Ohio250 Civic Center Drive, Suite 325Columbus, Ohio 43215-5454

Re: Bemard HomesFile No.: A3-0383Response to letter of Inquiry

iiEGEtlw

MAY -

{ SL%„

GISCIPLIEVAfitY %INSE LS^

^^EME. COJRT OF 0;::li;-^ . .

Dear Ms. Beckman:

I am writing in response to your letter of inquiry dated April 2, 2003. I apologize for the delay in myresponse. I have had significant problems with my computers and for various reasons this is the fourthtime I have rewritten this letter.

I have enclosed copies of a number of documents for your review. Specifically, please find enclosed thefollowing documents:

1. Indictment, Ucking County Common Pleas Court, Case No. 96-CR-16;2. Pre-Trial Entry, file stamped 2115/96, Licking County Common Pleas Court, Case No.. 96-CR-

16;3. . Letter from the Licking County Prosecuting Attomey, dated 4/10/96 with summary of charges

enclosure;4. Summary of Charges, dated 4/19/96, Licking County Common Pleas Court, Case No. 96-CR-

16;5. !^lalver t :̀f Prose:.Ution By Indiytment, fi!e stamped 4/22/96, Licking County Common Pleas

Court, Case No. 96-CR-146; 16. Bill Of Information, file stamped 4/22/96, Licking County Common Pleas Court, Case No. 96-

CR-146;7. Judgment Entry Change of Plea and Entry of Guilty Plea, both file stamped 4/22/96, Licking

County Common Pleas Court, Case No. 96-CR-16;8. Judgment Entry Change of Plea and Entry of Guilty Plea, both file stamped 4122/96, Licking

County Common Pleas Court, Case No. 96-CR-146;

1 will address, to the extent possible, the specific allegations of Mr. Holmes letter later. However, I denythe general allegations of his letter that I coerced, threatened, made false statements to induce or in anyway persuaded Mr. Holmes to ptead guilty to the charges in the two (2) cases in which I represented himin the Licking county Case No. 96-CR-16 and Case No. 96-DR-146; and that I failed or refused to providehim a copy of the file I kept in his case.

BACKGROUND

Mr. Holmes was charged in Licking County Common Pleas Court, Case No. 96-CR-16, with one (1) countof murder, in violation of ORC 2903.02, an unclassified felony, punishable by an indeterminate sentenceof 15 years to life; and one (1) count of gross abuse of a corpse, ORC 2927.01 (B), a felony of the fourthdegree, punishable by a determinate sentence of one-half (1/2), one (1), or one and one-half (11/2) years.In Licking County Common Pleas Court Case No. 96-CR-146 with six (6) counts of breaking and enteringwith a specification, in violation of ORC 2911.13 and ORC 2941.143, felonies of the fourth degree,punishable by an Indeterminate sentence of one and one-half (11/2), two (2), two and one-half (21/2) orthree (3) to five (5) years; and two (2) counts of receiving stolen property with a specification in violation ofORC 2913.51 and ORC 2941.143, both felonies of the fourth degree, punishable by an indeterminatesentence of one and one-half (11/2), two (2), two and one-half(21/2) or three (3) to five (5) years. Thespecification in ORC 2941.143 was Mr. Holmes previous conviction of an offense of violence, Mr. Holmeswas indicted in Case No. 96-CR-16 and was charged by a bill of information in Case No. 96-CR-146.

In Licking County Common Pleas Court Case No. 96-CR-16, Mr. Holmes entered a plea of guilty to acharge of Voluntary manslaughter, an aggravated felony of the first degree, punishable by anindeterminate sentence of five (5), six (6), seven (7), eight (8), nine (9), and ten (10) to twenty-five yearsand the gross abuse of a corpse. In Licking County Common Pleas Court Case Nos 96-CR-146, Mr.Holmes pleaded guilty to the charges in the bill of information listed above. In Licking County CommonPleas Court, Case No. 96-CR-16, Mr. Holmes was sentenced to an indeterminate sentence of ten (10) totwenty-five (25) years for voluntary manslaughter and a determinate sentence of one (1) year concurrentwith the previous count, on the gross abuse of a corpse. In Licking County Common Pleas Court CaseNo. 96-CR-146, Mr. Holmes was sentenced to a indeterminate sentence of two (2) to five (5) years oneach of the fourth degree felonies, with four (4) counts served consecutivelyand four (4) counts servedconcurrently.

Mr. Holmes was initially charged with murder for strangling Clarence Ohde at Mr. Holmes' residence. Mr.Holmes was also alleged to have inflicted blunt force trauma injuries to M. Ohde. The murder occurredsometime from late evening December 12 to the early morning of December 13, 1995. Mr: Holmes thenwrapped the corpse in a tarp, put a plastic bag over the head and left the corpse on his back porch fromDecember 13 until December 15, 1995.

On December 15, 1995, Mr. Holmes contacted his father, who was, at the time, a Newark, Ohio policeofficer. Mr. Holmes confessed to his father that he had caused the death of Mr. Ohde. Mr Holmes' fatherreported the murder to the Newark Police Department. Later, after being advised of his rights andindicating he understood those rights, Mr. Holmes again confessed, during a taped interview, to causingthe death of Mr. Ohde.

During the search of Mr. Holmes residence, the Newark Police Department found evidence of othercrimes. In April 1995, I was advised by the Licking County Prosecutor of the intent of his office to chargeMr. Holmes with an additional eighteen (18) felony counts including burglary, arson, breaking andentering, and receiving stolen property. I was provided discoverable information and copies ofinvestigative reports from the prosecutor.

Mr. Holmes statement to me about his conduct was that he had been out drinking the evening ofDecember 12 and Mr. Ohde had provided Mr. Holmes a ride home and had gone into Mr. Holmesresidence to continue drinking with Mr. Holmes. Mr. Homes and Mr. Ohde passed out. When Mr. Holmesregained consciousness he was bound hand and foot, laying on his couch, with his underwear around hisknees. Mr. Ohde allegedly had his pants down. Mr. Holmes wrestled with Mr. Ohde and Mr. Ohde died.Mr. Holmes denied intentionally causing Mr. Ohde's death. Mr. Holmes admitted to hiding the corpse onhis porch for two days as alleged.

I reviewed with Mr. Holmes the information provided to me by the Licking County Prosecutor regarding theadditional offenses. Mr. Holmes denied committing any of the alleged offenses. I didn't confront Mr.Holmes about the inconsistencies between his statements and evidence at any and merely accepted his

denials at face value. It was clear these charges would be tried separately from the murder charge and Iwould not have to deal with specifics until a later date.

I prepared a defense for Mr. Holmes to the murder and abuse of a corpse charges based upon hisstatements to me about his conduct. I think I made it clear to Mr. Holmes that I did not feel that he wouldbe acquitted. I advised that while I would use my best efforts to construct an argument in favor of acquittalif sufficient evidence supporting such an argument was presented at trial. But, I felt I made it clear, thatmy primary objective was to attempt to convince a jury that he should be convicted of a lesser includedoffense and not murder. I also made it clear that his best realistic hope was to be convicted of voluntarymanslaughter. I was prepared for trialbn the date of Mr. Holmes plea. I had subpoenaed witnesses andwas well prepared to present a defense on behalf of Mr. Holmes.

MR. HOLMES' FILE

I don't recall and can find no evidence of any telephone calls, letters or other written communication fromMr. Holmes requesting his file. Since Mr. Homes said I spoke with him by telephone from prison, I won'tdispute that statement. However, if Mr. Holmes had requested his file, I would have sent it to him. At thattime I was sympathetic to and favorably disposed towards Mr. Holmes and his plight and I would haveprovided him with anything he requested.

It was not unusual for me to refuse to accept collect telephone calls from former court appointed clientsonce they were transferred to prison. In fact, I advised all my court appointed clients, immediately aftertheir sentencing hearing, that I would not accept collect telephone calls from prison and to communicatewith me by letter. I am sure I advised Mr. Holmes in a similar fashion. I never received a letter from Mr.Holmes.

I do not recall Mr. Holmes cousin contacting me in an effort to obtain Mr. Holmes file. If Mr. Patton didcontact me, I would have advised him to have Mr. Holmes write me a letter requesting his file.

From the date he left the Licking County Justice Center, upon being transferred to prison, I have not had amailing address for Mr. Holmes.

I have been able to locate Mr. Hoimes' file, after an extensive search. I have made copies of his entire fileand sent the copies to him. The copies were sent by ordinary U.S. mail. I have enclosed a copy of thecoverietter.

MR. HOLMES PLEA

I deny Mr. Holmes accusation that I coerced, persuaded or made false statements to him in an effort toinfluence his decision to plead gailty to the various criminal counts with which he was charged. I madeevery effort to make certain that Mr. Holmes was fully informed on the law and the facts of his case, as Iunderstood them, and answered all of his questions. I believe he made a fully informed, free andvoluntary decision.

The day Mr. Holmes changed his plea, the murder and abuse of a corpse chargeswere scheduled fortrial. I was fully prepared to go to trial on those charges. I had advised Mr. Holmes that I felt the mostreasonable best-case scenario to come out of that trial was that he would be convicted of voluntarymanslaughter.

I thought Mr. Holmes made a reasonable and prudent decision in accepting the terms of the pleaagreement offered to him. At the time I represented Mr. Holmes I had practiced law for close to sixteen(16) years in Licking County. In that time, I had never had the Licking County Prosecutor make a pleaoffer to me as generous as the plea offer made in this case. Not only did the Prosecutor agree to reducethe murder charge to Voluntary Manslaughter; he agreed to allow Mr. Holmes to plead guilty to eight (8)fourth degree felony counts, when his previously disclosed intention was to seek indictment on eighteen(18) additional felony counts. I presumed that this generous offer was due to the fact that Mr. Holmes

father was a police officer. While I think Mr. Holmes made the right decision in accepting the pleaagreement, I did not do anything to persuade, coerce or influence him to change his plea.

I don't recall sufficiently, and my notes do not provide me enough detail, to fully dispute Mr. Holmesversion of the plea negotiations. I know that over the weeks preceding trial there were a couple ofdifferent offers. I also know that somewhere shortly before trial (and Mr. Holmes statement of one (1)week sounds reasonable) the prosecutor, Mr. Holmes and I agreed on a deal, subject#o the approval ofthe judge, who was not available at that time. Mr. Holmes knew the judge's agreement to the plea wasrequired. At the time he entered his changed plea, Mr. Holmes knew the sentences he could receive atlaw and the sentences he was to receive specifically.

I did discuss with Mr. Hotmes the fact that, at that time Ohia iaw con,t;3ined a,provision,in essenre,capping his sentence atffteen (15) years'on each case: The disi u^sjon took place due to Mr. Holmesconeem about the- indeterminate sentence. I advised Fvir. Holmes;that in each of his cases, he could notsen%e more than fifteen (1S) years co"mbined: I believe that to have been the law at the time Mr. Holmeswas sentenced. I would not have promised Mr. Holmes that he would be out in fifteen (15) years if he tookthe plea deal.

I don't recall discussing with Mr. Holmes the implications of the Senate Bill 2 changes to the criminal code,as Mr. Holmes said we discussed them. If I advised Mr. Holmes about the change in law,"k would haveadvisedthat he could have choSen whether to be charged under theotd or the rfe* statut€:. At the time, Ifelt there was an advantage to being charged under the old statute, but at this time do not recall why I sobelieved. I don't recall discussing that issue with Mr. Holmes. I don't know that I understand why this wasa major factor in Mr. Holmes decision.

I deny Mr. Holmes statement that I told him to state on the record that there was no deal. Everything thatwe did, including the advice given to Mr. Holmes was done in writing. There was not reason to deny theactions that were documented in writing.

As to Mr. Holmes statement that the only thing he was guilty of, in regards to the stolen propertyfound inhis house, was receiving stolen property. I can't refute#hat statsrnent. I never really discussed his guilt orinnocence regarding that property. I shared with Mr. Holrnes the inforination provided to me by theProsecutor. I advised him of the intent of the Prosecutor. I advised Mr. Holmes of the number of chargeshe would face if he rejected the deal (18), and the number of charges he faced if he accepted the deal (8).I also advised him that all the charges against him under the deaFwere fourth degree felonies. Receivingstolen property is a fourth degree felony. Mr. Holmes made his decision to plead guilty to those chargeson his own. If he believed he was innocent, he could have advised me and we could have taken thosecharges to trial. The offer of the plea on his murder charge was not contingent on his accepting the pleaon the "thef4' offenses.

While I understand Mr. Holmes frustration with his sentence, I did not do anything improper in myrepresentation of Mr. Holmes. I did not coerce, persuade, lie to or otherwise influence Mr. Holmes in hisdecision to change his plea in the criminal case against him.

If you have further questions or need further information, please feel free to contact me at (614) 292-9521during business hours or by mail.

Community Assessment & Treatment Services, Inc.

Date: 7/7/08

To Bernard Holmes # 328297,

I have received your letter informing me of your situation concerning your release.

These types of situations do arise on occasion and there is nothing to do but wait for the

final reply from the Parole Board.

I will be notified of your release date in advance, so you should have no concerns about a

bed beittg available at that titne

If I can be, of any further assistance, please feel free to contact me.

Sincerely,

Deborah Schon¢NJC) pj-'Ju^

Manager of Admissions

Caring, Comprehensive and ConfdentialP.O. Box 27470, Cleveland, Ohio 44127

Phone: 216-441-0200 • Fax: 216-441-3176Contact Agency of rhe Alcohol and Drug Addicrion Services Board of Cuyahoga County

An Equal Opportunity Employer and Provider of Services

tobelievemutation,ionvvquld>tentr, the a ._amutation ,:onvict orthe appli-16 of theient madeis relevantras sent to)e Revisedictim or ae conviet's^ authoritythe action. The triall court inatthe re-

lent of theicts havingg a pardonher with anmutation,nendation.

f̂ ,rmation tothe perfor-

S 172(Eff9-)-6-94); 145 v

on foIlowing

mutations;

anted upons the gover-tated intheall not takere accepted- having hisis indorsedsted by oneclerk of thesentence is

xinvict. Theldorsement,h record, oievidence ofons thereof,

429 PARDON; PAROLE; PROBATION

cludes a conditional pardon with respect to which allconditions have been performed or have transpired.

HISTORY: 130 v PtH, 151 (Eff 3-18-65); 134 v H 511. EH 1-1-74. .

§ 2967 .05 Parole of dying prisoner.

Upon recommendation of the director of rehabilita-tion and correction, accompanied by a certificate ofthe attending physician that a prisoner or convict is inimminent danger of death, the govemor may order hisrelease as if on parole, reserving the. right to return himto the institution pursuant to this section. If, subsequentto his release, his health improves so that he is no lov.gerin imminent danger of deatb, he shall be returned, by,order of the govemor, to the institution from whichhe was released. If he violates any rules or conditionsapplicable to him, he may be retumed to an institutionunder the control of the department of rehabilitationand correction.

HiSTORY: 132 v S 395 (Eff 12-13-67); 139 v S 199 (Eff 7-1-83); 145 v H 571. Eff 10-6-94.

Analogous to form^ RO § 2967.05 (130 v Pt11,152), repealed132 v S 395, § 2, eff 12-13-67.

§ 2967.06 Warrants of pardon and com-mutation.

Warrants of pardon and commutation shall be issuedin triplicate; one to be given to the convict, one to befiled with the clerk of the oourt of common pleas inwhose office the sentence is recorded, and one to befdedwith the head of the institution in which the eonvictwas confined, in case he was confined.

All warsants of pardon, whether conditional or other-wise, shall be recorded by said clerk and the officer ofthe institution with whom such warrants and copies arefiled,-in a book pxnvided for that purpose; which recordshallinelude the indorsements on such wan-ants. A co pyof sucha warrant with all indorsementz,.certified bysaid clerk under seal, shall be received in evidence asproof of.the facts set forth in such copy with in-dorsements.

HI$TORY:130 vBtH, 152. Eff 3-18-65. .-

§ 2967 .07 ApplicaHons for executive par-don, commutation, or reprieve.

All applications for pardon, commutation of sentence,or reprieve shaR be made in writing to the adult paroleauthority. Upon the filing of such application, or whendirected by the govemor in any case, a thorough investi-gation into the'propnety of granting a pardon; commu-tation; or reprieve shall be made by the authority, whichshall report in writ ng to the govemor a brief statementof the facts ia the case, together with the recommenda-tion of the authority for or against the granting of apardon, commutation, or reprieve, the grounds therefor

§ 2967.

and the records.or minutes relating to the case.HISTORY: 130 v PBI, 152. Eff 3-18-65.

§ 2967.08 Reprieve to a person under sen-tence of death.

The governor may grant a reprieve for a definite time ''.to a person under sentence of death, with or withoutnotices or application.

HISTORY: 130 v PtH, 153. Eff 3-18-65.

§ 2967.09 Warrant of reprieve.

On receiving a warrant of reprieve, the head of theinstitution, sheriff, or other officer having custody oftheperson Teprieved, shall file it forthwith with the clerkof the court of common pleas in which the sentence isrecorded, who shall thereupon record the warrant inthe journal of the court.

HISTORY: 130 v M 153. Eff 3-18-65.

§ 2967 . 10 Confinement of prisoner dur=ing reprieve.

When the goveraor directs in a warrant of reprievethat the prisoner be ccnfined in a state correctionalinstitution for the tiuie of the reprieve or any partthereof, the sheriff or other officer having the prisonerin custodyshall convey him to the state correctionalinstitution in the manner provided for the conveyanceof convicts, and the warden shall receive the prisonerand warrant and proceed as the warrant directs. At the ^expiration of the time specified in the warrant for-the-confinement of the prisoner in the state correctionalinstitution, the warden shall deal with him accordingto the sentence as originally imposed, or as modifiedby executive clemency as shown by a new warrant of,pardon, eommutation, or reprieve executed by the gov=i'ernor.

HISTORY: 130 v PtH,153 (Eff 3-18-65);145 vH 571. Eff 10• .654:

§`°96Z.1.2 Notice of pendency of pardan,comm.ntntion, or parole.

(A) Except as provided in division (F) of tJus section,at least three weeks before the adult parole authorityrecominends any pardon or commutation of sentence,orgrants any parole,'notice of tlie pendency of fhepardon, oommutation, or parole, setting forth the nameof the person on whose behalf it is made, the crime ofwhich he was convicted, the Iime of conviction, andthe term of sentence, shall be sent to theprosecuh[eg

'attomey and t11e judge of the court of cotrimob,pw^Of the e011IIty in wlrich tlre indictment agains`t tliepo3was found. If there is more than one ]'udge$bfcourt of common pleas, the notice shall lie seA to;presiding judge of the court.

§ 2967.12.1 OHIO CRIMIN

(B) If a request for notification has been made pursu-ant to section 2930.16 of the Revised Code, the adultparole authority also shall send a notice to the victimor the victim's representative prior to recommendingany pardon or commutation of sentence for, or grantingany parole to, the person. The notice shall be providedat the same tiine as the notice required by division(A) of this section and shall contain the information

. required to be set forth in that notice. The notice alsoshall inform the victim or the victim's representativethat he may send a written statement relative to thevictimization and the pending action to the adult paroleauthority and that any statement received by the adultparole authority prior to recommending a pardon orcommutation or granting a parole will be consideredby the authority before a pardon or commutation isrecommended or a parole is granted.

(C) When notice of the pendency of any pardon,commutation, or parole has been given es provided indivision (A) of this section and a hearing on the pardon,commutation, or parole is continued to a date certain,notice of the further consideration of the pardon, com-mutation, or parole shall be given by mail to the properjudge and prosecuting attomey at least ten days beforethe further consideration. When notice of the pendencyof any pardon, commutation, or parole has been givenas provided in division (B) of this section and a hearingon it is continued to a date certain, notice of the furtherconsideration shall be given to the victim or the victim'srepresentative in accordance with section 2930.03 ofthe Revised Code.

(D)In case of an application for the pardon or com-mutation of sentence of a person sentenced to ca italppunishment, the govemor maymodify the requirementsof notification and publication if there is not suf$cienttime for compliance therewith before the date fixed forthe execution of sentence.

(E) The failure ofthe adult parole authorityto complyiwitli the notice provisions of division (A), (B), or (C)

of this section does not give any rights or any groundsfor appeal or post-conviction relief to the person servingthe sentence.

(F) Divisions (A), (B), and (C) of this section do notapply to the parole of a person that is of the typedescribed in division (B)(2)(c) of section 5120,031[5120.03.1] of the Revised Code.

HISTORY: 130 v PtII, 153 (Eii 3-18-65); 140 v S 172 (Eff 9-26-84); 143 v S 258 (Eff 11-20-90); 145 v 8186. E£f 10-12-94.

Lnw HaxnsooK 430

of the release to the prosecuting attorney of the countyin which the indictment of the convict was found.

(B) The notice required by division (A) of this sectionmaybe contained in aweekly list of all aggravated felonswho are scheduled for release. The notice shall containall of the following:

(1) The name of the convict being released;(2) The date of the convict's release;(3) The offense for the violation of which the convict

was cronvicted and incarcerated;(4) The date of the convict's conviction pursuant to

which he was incarcerated;(5) The sentence to which the convict was sentenced

for that convice.on;(6) The length of any supervision that the convict will

be under;(7) The name, business address, and business phone

number ofthe convict's supervising officer;(8) The address at which the convict will reside.HISTOItY: 140 v H 399 (Eff 9-26-84); 145 v H 571. Eff 10-6-

94.

§ 2967.13 Parole eligibility.

s (A) Aprisoner serving a sentence of imprisonment fora felonyfor which an indefinite term of imprisonment isimposed beoomes eligible for parole at the expiration ofhis minimnm term, diminished as provided in sections2967.19, 2967.193 [2967.19.3], and 5145.11 of the Re-vised Code:

(B) Aprisonerseroing a sentence of imprisonment forlife for the offense of first degree murder or aggravatedmurder, which sentence was imposed for an offensecommitted prior to October 19, 1981, becomes eligiblefoY parole after serving a term of fifteen full years.

(C) A prisoner serving a sentence of imprisonmentfor life with parole eligibility after serving twenty yearsof imprisonment imposed pursuant to section 2929.022[2929.02.2] or 2929.03 of the Revised Code becomeseligible for parole after serving a term of twenty years,diminished as provided in sections 2967.19, 2967.193[2967:19.3], and 5145.11 of the Revised Code. -

(D) A prisoner serving a sentence of imprisonmentfor life with parole eligibility after serving twenty fuâyears of imprisonment imposed pursuant to section2929.022 [2929.02.2] or 2929.03 of the Revised Codebecomes eligible for parole after serving a term oftwenty full years. A person serving such a sentence isnot entitled to any diminution of the twenty full yearsthat he is required to serve before parole eligibilityunder section 2967.19, 2967.193 [2967.19.3], or 5145.11of the Revised Code.

(E) A prisoner serving a sentence of imprisonmentfor life with parole eligibility after serving thirty fuâyears of imprisonment imposed pursuant to section2929.022 [2929.02.2] or 2929.03 of the Revised Codebecomes eligible for parole after serving a term of thirt)full years. A person serving such a sentence is not enti.

[§ 2967:12.1] § 2967.121 Ivotice ofearly release of;aggravated felon.

'-(A)tlt leamttwo weeks before any convict who isservinga sentence for committing an aggravated felonyis released from confinement in any state correctionalin's[itut9on pursuant to a pardon, commutation, parole,or shock parole pursuant to section 2967.31 of the Re-vised Code,flie adult parole authority shall send notice

to be subpoend -nnel or documei^"se agency involve,ision, that it rnten,resses or use the' .

offender shallas%ncy as descnbedi.the agency rnte,n

itnesses or to use puest shall indiaaluing subpoena's';j

specifically nai ...orfordocuirtini

y described or gen;the agency to ini=to present suchle^h documentation^)mptly reply toT:tMcy is prohrbrtei ,;ses or from us{ngadicates to the offiresponse to a e

ivision, or rfrtJ;h a request.the court shaH4

stablished by a precosts setforth mcurred as desdribed that the offende'`sement purposerC(ether theoffende

all such agenaEablished costs, an`dravailable, it shall isentence, to renjfor all or a'Spests.

86.

PENALTIES

tional penalties,, ,.

ies provided m,se_,of the Revised(3qi.ense pursuant to shall be fined, w]r;t:iollows:not more tharqon`^

than fifty thousft'A

ry of the first de,zd more than tw^'e¢1AA,ly of the second`+e, not more th

PENALTSES AND SENTENCING

) For an aggravated felony of the third degree or.,,elony of the third degree, not more than fifteen

pusand dollazs;*(6). For a felony of the fourth degree, not more than

thousand dollars;,7)For a misdemeanor of the first degree, not more

. an`five thousand dollars;($j ; For a misdemeanor of the second degree, nntrethan four thousand dollars;

) For a misdemeanor of the third degree, not moreP h thd dllarstreeousano;

10) For a misdemeanor of the fourth degree, notiethan two thousand dollars;11) For a minor misdemeanor, not more than oneu'sand dollars;12) For a felony not specifically classified, not more

a^n ten thousand dollars;Z For a misdemeanor not specifically classified,more than two thousan(I dollars;

M ;(T!9) For a minor misdemeanor not specifically classi-l;'not more than one thousand dollars.$^ When ari organization is convicted of an offensespecifically classified, and the section defining thepse or penalty plainly indicates a purpose to imposeypenalty provided for violation upon organizaflonsuspch penalty shall be imposed in lieu of the penalty

uided in tbissection.C) When an organization is convicted of an offense

t;specifically classified, and the penalty provided in-es a higher fine than that provided in this section,,the penalty imposed shall be pursuant to the pen-provided for violation of the section defining the

nse:)Tliis section does not prevent the imposition ofable civil sanctions against an organization con-

ed of an offense pursuant to section 2901.23 of thee^i3c„ed Gode, either in addition to orin lieu of a fine

ed pursuant to this section.p6,^"°3TOHY 134 H 511 (Efi 1I74); 139 v S 799 Eff 7-1-63,: v-- . .

e effective date of SB 199 (139 v-) is set by § 4 of H

39 v ).

Organizational Penalties

[MULTIPLE SENTENCES]

§ 2929.41

§ 2929.41 Multiple sentences.

(A) Except as provided in division (B) of this section, asentence of imprisonment shall be served concurrentlywith any other sentence of imprisonment imposed bya court of this state, another state, or the United States.

In any case, a sentence of imprisonment for misde-meanor shall be served concurrently with a sentenceof imprisonment for felony served in a state or federalcorrectional institution.

(B) A sentence of imprisonment shall be served con-secutively to any other sentence of imprisonment, inthe following cases:

(1) When the trial court specifies that it is to be servedconsecutively;

(2) When it is imposed for a violation of divisron(A)(2), (3), or (4) of section 2907.21, division (B) ofsection 2917.02, section 2907.321 [2907.32.1], section2907.322 [2907.32.2], division (B)(5) or (6) of section2919.22, section 2921.34, or division (B) of section2921.35 of the Revised Code, for a violation of section2907.22 of the Revised Code that is a felony of thesecond degree, or for a violation of section 2903.13 ofthe Revised Code for which a sentence of imprisonment

uttee Comment to H 511 is im osed pursuant to division (C)(2) of that section;Pnder the criminal code, an organization such as a (3) When it is imposed for a new felony committedidiation partnership, or jointventure can be convicted by a probationer, parolee; or escapee;

byoffense under certain circumstances (See, section (4) When a three-year tenn of actual incarceration0^7,23).SSince an organization cannot bejailed, this sec- is imposed pursuant to section 2929.71 of the Revised

Ii d" separate schedule of fines to be app e Code;b rovides a ff^ch cases. If the section defimng a particular o ense (5) When a six-yeaz term of actual rncarceration iss'riot follow the penalty scheme in the new criminale;`andplainly intends that the penalty stated in that imPosed pursuant to section 2929.72 of the Revised"' It t he used in- Code.ion must apply, then such pena y mus (C) Sub'ect to the maximums provided m division

tion Aiso ifanysuchsection J1 thiia^,otthepenatyn ssec . , of this section:v ftlesfor a higher fine than in this section, the higher O^^applies even though the section defining the offense (1) When consecutive sentences of imprisonment are:snot plainly intend its penaltyto apply to organizations. imposedforfelonyunderdivision(B)(1)ofthissection,F,for organizations are as follows: the minimum term to be served is the aggregate of the

Offense Maximum Fine

Aggravated murder $100,000

Murder $ 50,000

Felony 1 $ 25,000

Felony 2 $ 20,000

Felony 3 $ 15,000

Felony 4 $ 10,000

Misdemeanor 1 $ 5,000

Misdemeanor 2 $ 4,000

Misdemeanor 3 $ 3,000

Misdemeanor 4 $ 2,000

Minor misdemeanor $ 1,000

Unclassified felony $ 10,000

Unclassified misdemeanor $ 2,000Unclassified minor misdemeanor $ 1,000

§ 2929.51 OHIO CRIMINAL 1,AW 1'fANDBOOK

consecutive minimum terms imposed, and the maxi-mum term to be served is the aggregate of the consecu-five maximum terms imposed.

(2) When consecutive sentences of imprisonment areimposed for felony under division (B)(2) or (3) of thissection, the minimum term to be served is the aggregateof the consecutive minimum terms imposed reducedby the time already served on any such minimum term,and the maximum term imposed is the aggregate of theconBecutive maximum terms imposed.

(3) When consecutive sentences of imprisonment areimposed under division (B)(4) or (5) of this section, aIlof the three-year terms of actual incarceration imposedpursuant to section 2929.71 of the Revised Code andal] of the six-year terms of actual incarceration iinposedpursuant to section 2929.72 of the Revised Code shallbe served first, and then the indefinite tenns of impris-onment shall be served, with the aggregate minimumand maximum terms being determined in the samemanner as aggregate minimum and maximum terms aredetermined pursuant to division (C)(2) of this section.

(4) When a person is serving definite terms of impris-onrnent consecutively to indefinite terms of imprison-ment, to three-year terms of actual incarceration im-posed pursuant to section 2929.71 of the Revised Code,to six-year terms of actual incarceration imposed pursu-ant to section 2929.72 of the Revised Code, or to bothindefinite terms of imprisonment and the three-year orsix-year terms of actual incarceration, the aggregate ofall of the three-year or six-year terms of actual incarcera-tion shall be served first, then the aggregate of thed `efmite terms of imprisonment shaIl be served, andthen the indefinite terms of imprisonment shall beserved,with the aggregate minimum and maximumtenns being determined in the same manner as aggre-gate minimum and maximum terms are determinedpursuant to division (C)(2) of this section. _

(D) Subject to the maximum provided in division (E)of this section, when consecutive sentences of imprison-ment are imposed for misdemeanor, the term to beserved is the aggregate of the consecutive terms im-posed.

(E) Consecutive tenns of imprisonment imposedshaIl not exceed:

(1) An aggregate minimum term oftwenty years,when the consecutive terms imposed include a tenn ofimprisonment for murder and do not include a termof imprisonment for aggravated murder:

(2) An aggregate minimum term of fifteen years plus,the sum of all three-year terms of actual incarcerationimposed pursuant to section 2929.71 of.the RevisedCode and the sum of ai six-year terms of actual incarcer-ation imposed pursuant to section 2929.72 of the Re-vised Code, when the consecutive terms imposed aref for elonies other than ap,gravated murder or mnrdrr•

(a) nn aggregate term of eighteen months, when theconsecutive terms imposed are for misdemeannrs.

(F) When consecutive terms aggregating more than

one year are imposed for misdemeanors under the Re-vised Code and at least one of the consecutive termsis for a misdemeanor of the first degree that is an offenseof violence, the trial court may order the aggregate termimposed to be served in a state correctional institution.

HISTORY: 134 v H 511 (Eff 1-1-74); 137 v H 202 (Eff 10-9-78); 139 v S 1(EH 10-19-81); 139 v S 199 (Eff 1-5-83); 140 v S210 (EfT 7-1-83); 142 v 1151 (Eff 3-17-89); 143 v S 258 (Eff 11-20-90); 144 v H 561 (Eff 4-9-93); 145 v H 571. Et£ 10-0-94.

Committee Comment to H 511

This section.provides rules for determining when sen-tences are to be served concurrently or consecutively,places maximums orn consecutive sentences, and allowscourts to commit offenders to the penitentiary or reforma-tory when consecutive misdemeanor sentences totallingmore than one year are imposed.

A misdemeanor sentence is always served concurrentlywith a penitentiary or reformatory sentence for felony. Twoor more felony sentences are served concurrently unlessthe trial court specifies that they are consecutive, or unlessone such sentence is tor prison riot under section2917.02(B), or for escape or aiding escape under 2921.34or 2921.35(B), respectively, or unless one such sentenceis imposed for a new felony committed by a probationer,-parolee, or escapee.

When consecutive sentences for felony are imposed,the minimum and maximum terms are separately totalledto determine a single minimum and a single maximum.For example, if an offender is sentenced to 2 to 5 yearsfor grand theft and 7 to 25 years for aggravated robbery,the sentence to be served is 9 to 30 years. The totalminimum term, however, may not exceed 20 years whenone of the sentences is for aggravated murder, and may --,not exceed 15 years in other cases. If one consecutiveterm is for prison riot, escape, aiding escape, or a felonycommitted by a probationer, parolee, or escapee, thetotal .'^minimum term is reduced by the time already served bythe offender on any term included in the consecutive sen-',;tence.

Consecutive terms for misdemeanor are totalled todetermine the term to be served, but the total may not exceerl18 months. If the total exceeds one year, and one ofconsecutive terms is for a first degree misdemeanor,ahetrial court has the option of committing the offender to theipenitentiary or reformatory to serve his sentence.

[MODIFICATION OF SENTENCE]

§ 2929.5 1 Modification of sentence>' *i(A)(1) At anY time after comnliance with the nrtlei

aures contained in division (C) of this section, if compance with those procedures is required by that divis;rand before an offender is delivered into the custodj-ithe institution in which he is to serve his sentence;iat any time between the time of sentencing, if'.€om,p.ance with the procedures contained iu divisiom{C:);;;this section is not required by that division, and-tltime at which an offender is delivered into the custaf h0 t e institution in which he is to serve hisseiitene

page: 156 Document Name: untitled

Printed: 04/30/1996 Pagea 1 of 2

PRINT DATE:

PAGE 0

----------------^---------Y O U R S E N T E N C E

INMATE NAME: HOLMES, BERNARD E

-------------------------------------------------------

DATE OF BIRTH: 09/15/1965-----^^^-----------------------------------------------

NEW NUMBER: A328297

-------------------------------------------------------

OLD NUMBER:

-------------------------------------------------------

AC-C•REF>ATF SENTENCE' 15.0e-45_00

---------------------------------'-----------'-----

THE FOLLOWING CRIMES AND SENTENCE INFORMATION IS COMPUTER GENERATED AT

TIME OF ADMISSION AND MAY NEED TO BE VERIFIED WITH THE RECORD OFFICE.

O. R. C. 2 9 2 9. 4 1

The following is the order in which sentences are to be served.

If one of the following paragraphs does Nc;'t' apply, it will ;^e left b1a.L^.

1. Actual Incarceration (Gun) - AI(G) - Time is served first. Time

begins on the day youarrive at THIS INSTITUTION. You have -

years gun specification. Your actual incarceration for

the weapon is up

2. You have years of actual incarceration time.

3. Definite sentences are served rnext. You have a definite sentence

total of years. The end of your definite sentence is

4. Inde€inite sentences are served last. You have an indefinite

sentencetotalof 15.00 - 45.00 years. Your €irst.hearing date

is approximately 06/13/2006.

The following is the most current address of the LICKING----------------------

Date: 4 30 96 Time: 7c05:24AM

Page: 158 Document Name: untitled

Printed: 04/30/1996 Page; 2 of 2

PRINT DATE:

PAGE 0

THE FOLLOWING CRIMES INFORMATION IS COMPUTER GENERATED AT THE TIME OF

ADMISSION AND MAY NEED TO BE VERIFIED WITH THE RECORDOFFICE.

Please examine thisIMbtEDIATELY, paying particular attention to the

following:

1. Look under the heading of "JTC" (jail time credit) and check the

computation. Consult your legal packet for further information

on "JAILCREDIT".

2. Look under the heading of "FEL" and check for the existence of an

"A" (aggravated felony) preceding the degree of felony. Check your

legal packet as to the importance of an aggravated felony in terms

of "SHOCK/SUPER-SHOCK" eligibility.

3. Look under the heading of "GN" and "AIT". If a number appears in

either of these two columns, you are serving either a"gun spec"

or a term of "actual incarceration". Check your legal packet

to the importance of these in terms of "SHOCK/SUPER-SHOCK"

eligibility.

4. if you were "found guilty" in court, you will want to preserve

your Appellate Rights. Consult under "APPEAL" in your legal packet

for furthe•r intormacion.

Please check the specific designation of S - (conSecutive) orC - (conCurrent) for each individual charge and count.

PLED GUILTY SHOCK PAROLE ELIGIBILE: NO

----------------------------------------------------------------------------

OFFENSE INFORMATION

OFFENSE CNTS C DOCKET# FEL COUNTY JTC GN DEF MIN/ MAX AIT LIFE/ Cg FULL DEATH S

----------------------------------------------------------------------------

ABUSE OF C 1 C 96CR16 4 LICKING 129 1.0 C

VOL MANSLA 1 C 96CR16 Al LICKING 129 10.0 25 S

B E 4 S 96CR146 4 LICKING 2.0 5 C

B& E 2 C 96CR146 4 LICKING 2.0 5 C

RSP 2 C 96CR146 4 LICKING 2.0 5 C

.Date: 4 30 96 Time: 7:05:24AM

i

OHIO PAROLE BOARD

GUIDELINES MANUAL

First EditionMarch 1, 1998

Ohio Department of Rehabilitation and CorrectionReginald A. Wilkinson, Director

7. Principle ofParity

It is the intent of the Parole Board to use the most appropriate sanction required to fulfill itsstatutory purposes. It is expected that when a decision within the guidelines is recommended, a casegeneradly will be placed in the middle of the guideline range unless the offense behavior or priorrecord/Criminal H'istory/Risk Score is among the more serious or less serious contained within thecategory. For example, other factors being equal, a property offense with a monetary loss near thelower limit of the applicable guideline range generally would be placed towards the bottom of therange, a property offense with a monetary loss near the upper lirnit of the applicable guideline rangegenerally would be placed higher in the range; less culpable codefendants would generally be placedtowards the bottom of the range; codefendants with prime responsibility would generally be placedhigher in the range. Similarly, if the offense behavior involved muitiple: separate offenses notsufficient to raise the seriousness level, the case will normally be placed in the upper half of theapplicable guideline range. It is to be stressed that this paragraph is intended to provide amethodology to promote analysis, not a mechanical rule.

8. ProjectedRelease Dates.

Ao Release on projected release date. Generally, an offender will be released on the projectedrelease date set by the Board if(1) the offender has satisfactordy observed the rules of the institution(i.e., the offender has no Class 2 disciplinary infraction(s)); (2) the offender has satisfied any specialcondition set by the Board as part of the grant of the projected release date; (3) the offender has a

_ suitable release plan, and (4) no new and substantial adverse information relative to the prisoner'srelease on parole has been received by the Board.

cellation or postponement ofprojected release dr••rte. If (1) the offender has not satisfactorilyserved the iules of the institution (i.e., the offender has one or more Class 2 disciplinary infractions

not previously considered by the Board); (2) the offender has not satisfied any special condition(s)set by the Board as part of the grant of the projeeted release date (e:g., satisfactory completion of asex offender program); (3) the offender does pbt have a suitable release plan; or (4) the Board hasreceived nevv and substantial adverse information relative to the offender's release on parole, theoffender's projected release date may be retarded or canceled.

C. Advancement of projected release date. The Board may advance a projected release date onlyfor (1) participation in a reparative work program or other sustained superior program achievement;or (2) new and substantial favorable information relative to the offender's release on parole.

D. Setting of projected release date.

(1) Generally at the first hearing at which these procedures are applicable, the offender shall be(i) given a projected release date, either by parole or expiration of sentence, within ten yearsof the date of the hearing, or (ii) scheduled for a ten-year reconsideration hearing (at tenyears from the month of the hearing).

87

OHIO PAROLE BOARD

GUIDELINES MANUAL

Third EditionJuly 1, 2007

Ohio Department of Rehabifitation and CorrectionTerry J. Collins, Director

July 1.2007

(iv) The Parole Board may, in addition, schedule a special interim review uponthe request of the warden (e.g., in the case of a serious disciplinaryinfraction).

(b) Pre-relea.se Record Re'view.

(i) The purpose of a pre-release record review shall be to determine whetherthere have been any changes in circumstances sufficient enough to warrantthe rescission of a projected release date, and require that the itunate againappear at a release consideration hearing.

(ii) A pre-release record review shall consist of a review of the record by aHearing Officer nine months prior to the projected release date except inthe case of a projected release date set for eighteen months or less from thehearing, in.which case the review shall be 120 days prior to the projectedrelease date. The Hearing Officer shall recommend whether to approvethe projected release date, modify the projected release date, or rescind theprojected release date and schedule the inmate for a release considerationhearing. The recommendation will be reviewed by a Parole BoardMember. If the Parole Board Member rejects a Hearing Officer'srecommendation to approve a projected release date, the inmate will bescheduled for a release consideration hearing.

Generally, an offender will be released on the projected release date set bythe Parole Board if (1) the offender has satisfactorilv observed the rules ofthe institution; (2) the offender has satisfied any special condition set bythe Parole Board as part of the grant of the projected release date; (3) theoffender has a suitable release plan, and (4) no new and substantialadverse information relative to the prisoner's release on parole has beenreceived by the Parole Board.

(iv) If (1) the offender has not satisfactorily observed the rules of theinstitution; (2) the offender has not satisfied any special condition(s) set bythe Parole Board as part of the grant of the projected release date; (3) theoffender does not have a suitable release plan; or (4) the Parole Board hasreceived new, substantial and credible adverse information relative to theoffender's release on parole, the offender's projected release date may berescinded.

(v) If the Projected Release Date is rescinded, the case shall be scheduled fora hearing with the inmate so that the rescission issue can be addressed. Incases where the projected release date was rescinded due to institutionalmisconduct, the institutional panel may assess a new projected release dateup to nine (9) months beyond the previously imposed projected releasedate. If the panel determines that nine (9) months is insufficient to address

56

ohio Parole Board DecisionInmate LsstName:

HOLMES

CurrentHearingIdentifier:

Hearing Month (mmm yyyy)

May 2006

Offense(s) Of Conviction:

2903.03

2911.13

Type Of Heering:

1 st/2nd FIRST

2911.13

2913.51

Inmate FirstName:

BERNARD# Prefuc:A

Inmate Number:

328297

Record Number. Date Of Hearing:

03/08/2006

1. Category 9 for the conviction . . .

A. Guideline Section No.(s): 203

B. Details of the conviction behavior. Only state the facts that support the specific offense category, which corresponds to the offense(s) of

conviction:

You were convicted of Voluntary Manslaughter, Abuse of a Corpse, B&E and RSP.

C. The equivalent SB2 sentence range for this (these) sentences(s) of conviction is 72-228 months

2. Criminal HistorylRisk Score: . 2 13. The Guideline Range is 0' 144 months.

4. Total Time Served: 122 months - atrivedwby- A. PnsonTime: 118 months + B.lai77imeCredit: 4 momhs

TPV Arrest Date:

5. 0 infractions that resulted in a new conviction for felony crintinal conduct corrimitted in a prison facility/or while in custody. Only stateI the facts that support the specific offense category, which con•esponds to the offense(s) of conviction.

Category for new conviction:

Details of Conviction Behavior:

Section No.(s): Criminal History/Risk Score:

AMENDED

DATE'2(/;:tt(06

Guideline Range:

DRC3039 E (Rev I0/04) Distribu6on: Inmate, Board File, Record Office Page 1

Inmate LastName:

HOLMESInmate FirstName:

BERNARD

6, Class Rescission Behavior Guideline Range is 0 - 4 months.

A. 0 disciplinary infractions involving felonious conduct

1.0-18 months for each inffaction

Details:

# Pcefix:

AInmate Number:

328297

2. = 0 - 0 months

B. 0 disciplinary infractions involving threatening conduct against staff and/or possession of a dangerous instrument

1. 0-12 months for each infraction

Details:

2. = 0 - 0 months

C. 0 disciplinary infractions involving possession or use of alcohol and/or a contmlled substance

1. 0-6 months for each infraction

Details:

2. = 0 - 0 months

D. 0 disciplinary infractions involving other misdemeanor conduct

. 1. 0-6 months for each infraction

Details:

2 significant disciplinary infracCtons

2. = 0 - 0 months

1. 0-2 months for each infraction j 2. = 0 - 4 months

Details:

7l98;3/98

Page 2 of 3

InmateLartName:

HOLMES7. Aggregate Guideline Range is: 0' 148 months (#3 ±#5 +#6 ):

{

S. Rationale of Decision within Aggn:gate Guidelino Raage:

9: A. Circumstances related to the offense(s) of oonviction, including crimes that did not result in conviction, and any otherfaatots the APA deemsrelevant

Offender is serving a commitment of 15-40 years for Voluntary Manslaughter; Abuse of a Corpse, & B&Ewhereby the offender straligled the male victim and later. hid the victim's body under a paint cover on thebackporch of his apartment. Offender waited a period of 2 days before reporting the crime. Offender hasmainatined fairly positive institutional adjustment and has completed some programming which is recognizedby the panel. Hearing panel has considered all factors listed in section (b) of 5120:1-1-07 and after weighingthese factors, panel believes that parole at this time would not fiuther the interest ofjustice.

B. Based on these additional factors, an additional 28 months, should be served fmm the date of this hearing before release/next hearing.

10: A. Total Time to be Served: To next hearing q montlvs B. Remaining Time to be Setved: To next hearing q months

To Release ® 156 months ToReleaee ^ 34 months

• total time to be served cannotezceed the maxbnum sentence

11. A. Outstanding Program Achievement m gmnted Q aot gtanted

B. 6 month credit for the following programs:Therapolitic Conl. Stress managt. PTSD,

voTunteer Tutor Workshop

C. AdjustedToteltimetobe Served: 150 months D. AdjustedRemainingTimetobeServed: 28 months

12. A. Recommendation: PRD O/A

wlSAS & PII. CON

13. Instructions/Notes:

14. HearSngPanel

Board Member Signamce:Kathleen KovachBoardKEK embw

InmateFimtName: #PreCuc IamateNambcr.

BERNARD A 328297

07/01/2008

Iieazing Offiarr Signature (if applicable):

Vield Kemmer

BaNMOffl- (if applicable):

Rekeaseon PRD is contingent on good itstitution behavior and/or reduction fiom maximum security statvs. A PRDviolation when the case is reviewed at thePRD Pre-Releese-Review.

be exiendedfor a Class 11

Pageof -3-

ff\^

Ohio Department of Rehabilitation and Correction^.^5°x``^D,ad^

Ted Strickland, Governor

JUNE 26, 2088

www.drc.state.oh.us

BERNARD HOLMESA328-297NOBLE CORRECTIONAL INSTITUTION

RE: SUSPENSION OF THE PAROLE RELEASE

Dear Mr. HOLMES:

1050 Freeway Drive NorthColumbus, OH 43229

Terry Collins, Director

On OCTOBER 2007, the Parole Board voted to release you onto parole supervision on or after07/01/2008 with the Special Conditions SAS PII TCNE ARSTAPP & CON. Since that vote, theParole Board has either received additional information that was not previously considered, orhas been notified by the Office of Vietim Services of an intention to petition for a Full BoardHearing, and has suspendacl your physical release.

If additional information was submitted, the Parole Board wiIl review the information anddetermine by majority vote whether to reinstate its previous decision, modify that decision orconduct a rehearing. If the Parole Board has been notified of an intention to petition for a FullBoard Hearing, it will consider the petition and determine by majority vote whether to conductsaid hearing. In either case, you will be notified within 60 days of receipt of this letter regardingthe outcome of the Parole Board's determination.

The institutional Record Office has been notified to stop your physical release while the ParoleBoard considers its next course of action. ,

Thank you for your patience in this matter.

Sincerely,

Cynthia MausserParole Board Chair

1TV1aILLV.I1 l' (-/a

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.,^^:0%^Ohio Department of Rehabilitation and Correction

190W ,91 1050 Freeway Drive NorthCofumbus, OH 43229

www.dro.Statc.oh.usw. .M...-^wMTessqCOUbs,DPrectoF_^.-•.-_,_

July 2l, 2008

8ern,ard Holmes, A328297Noble Correctional Iastitution

Adult Parole Authority, Parole Board

Su^ject: Notice of Full Board Hearing

A Board Aearing regatding your case is scheduled for September 24, 2008 at 10:15 a m. This hearfing will be

Shel tat the Aepartment of Rehabilitation & Corrections Central Office Building located at 770 West Broad

, Colambus, Ohio, 43222.

Al ough you are not permitted to attend, section 5149-101 of the Ohio Revised Code provides you the right to$el a representative to attend and speak ht your behalf You are permitted to have a Publ'xo Defender or privateco nsel along with family and friends represent you at the hearing, Please note you are limited to a total of tlsree

s se y torP4le Board, e

era , or oonutyjunschcuon. To be ehgible, your representative must meet the re uirement t f th b hasentahves. The person(s) whom you select mnst not bo under the jurisdiotion of this departmeat, or any other

£d l

Yo representatives and any other persons interested in attending must obtain approval from the Parole Board atlea t seven (7) calendar days prior to the date of the hearing by oalling 6I4-752-1200. Without prior approval,a ce to the hearins w;t1 nrM i,a ^„+PA is..,,,. vie^.,,.. .. z- --°°---...- _. ._... _. ...

♦eM:.ei-^..A.en......i..n___s^___...._..- ^..-.. . - __^_._.-_____.--_--__...MJ.........^vwuu^

wu ^avi vuauicno uuY3 fJAIVl' W 4[110 Qare orLPenearUlg,

Yo^will receive notification of the hearing results from your aase r.uanager or by the Record Office at yourins tion.

Pleaso indicate your ]nmate Representative(s)and check appropriate box(es)

Public Defender[ ] Othe'=

-7INMATES SIGNA & INST. NLII1313ER

1)ATE ! (3f//1 _t>^

Sin<

CynOhiiCc:

erely, '

ia Mausser, Cha'vParole Board

ltecord OfFice

Ohio Parole Board DecisionInmate Last Name:Holmes

Imnate First NBernard

ame: # Prefix:A

Inmate Number:328297 !1/c

Current Hearing Identifier:Hearing Month (mmm yyyy)Nov 2008

Type of Hearing:FULL BOARD

Record Number: Date of Hearing:09/24/2008

Offense(s) Of Conviction:

2903.03

2911.13

2911.13

2913.51

2927.01

1. Category 9 for the conviction

A. Guideline Section No.(s): 202

B. Details of the conviction behavior. Only state the facts that support the specific offense category, which corresponds to theoffense(s) of conviction:

Inmate stands convicted of Vol. Manslaughter, Abuse of a Corpse, B&E, and RSP

2. Criminal History/Risk Score: 2

4. The equivalent SB 2 sentence range: 60-196

5. A. Institntional Conduct:

q Superior

0 Good

q Fair

n Poor

C. Explanation of ratings:

^ Fair

Poor

Good

Inmate has not had any serious conduct reports. He has also completed some relevant programming and waspreviously awarded outstanding programming achievement by the.panel.

6. Rationale: Cite specific factors, indicators and considerations relevant to the offense and offender. The reconunendation cannotbe based solely on time served or yet to be served within the guideline range.

A. A within the guideline range is recommended based on the following factors, indicators and considerations:

3. The Guideline Range is 0 - 144 months.

B. Institutional Progrannning:

F^ Superior

0

DRC3039 E(Rev. 08/2007) Page 1 of 2

InmateInma¢ LastLZet Nane'Name:. Luoah F irst Name :Inmate First Name: Prefix :# Prefix: NwnInmate Number:HolmesHolmes I C1^18ItjBernard A 32829732829]B. A Continuance above the guideline range is recommended based on the following factors, indicators and considerations:

The full board has determined that this inmate is not suitable to be released on to parole supervision at this time.Inmate Holmes has served less than 13 years on his 18-45 year sentence. A release prior to his minimumsentence would demean the seriousness of this offense. Aggravating factors considered are the brutality of theoffense along with the cover up of this crime.

C. An additional 63 months should be served from the date of this hearing before release/next hearing.

7. The above-indicated factors, indicators and considerations support one or all of the following reasons cited in AR 5120:1-1-07for continued incarceration.

A. q There is substantial reason to believe that the inmate will engage in fu.*iher criminal conduct, or that the inmate will notconform to such conditions of release as may be established under AR 5120:1-1-12.

B. Q There is substantial.reason to believe that due to the serious nature of the crime, the release of the inmate into societywould create andue risk to public safety, or that due to the serious nature of the crime, the release of the inmate wouldnot further the interest of justice or be consistent with the welfare and security of society.

C. q There is substantial reason to believe that due to serious infractions of division leve15120:9-06 of the AdministrativeCode, the release of the inmate would not act as a deterrent to the inmate or to other institutionalized inmates fromviolating institutional rules.

D. q Not applicable.

8. Total Time Served: 153 months

arrived at by -- A. Prison Time: 149 months + B. Jail Time Credit: 4 months

TPV Arrest Date:

9. A. Total Time to be Served:

To next hearing q 216 monthsB. Remaining Time to be Served:

To next hearing q 63 months

To Release q months To Release q months

Total time to be served cannot exceed the maximum sentence

10. A. Recommendation: MODIFY PREVIOUS ACTION 10/09/2007

B. CONTINUED TO 12/2013 CON (FULL BOARDS)

11. Instructions/Notes:

12. Hearing Panel

Board Member Signature: Hearing Officer Signature (if applicable):

Board Member.Full Board

Hearing Officer (if applicable):

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