AGO 1993-073.

• Case Date: December 30, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-073. December 30, 1993OPINION NO. 1993-073Reginald A. Wilkinson, Director Department of Rehabilitation and Correction 1050 Freeway Drive, North Columbus, Ohio 43229 Dear Director Wilkinson: You have requested an opinion regarding the parole eligibility of an individual serving a life sentence for the forcible rape of a juvenile(fn1) consecutive to another sentence of imprisonment. By way of background, your letter refers to [1983-1984 Monthly Record, vol. 1] Ohio Admin. Code 5120:1-1-05(D)(1)(d) at 712 and 713, in effect between January 16, 1984, and February 29, 1988,(fn2) which provided, in pertinent part, as follows:

[W]hen any consecutive or aggregated sentence includes a sentence for a crime, other than aggravated murder or murder, punishable by a minimum sentence of life imprisonment, the inmate shall be eligible for parole pursuant to rule 5120:1-1-03(fn3) of the Administrative Code after serving the sum of all terms of actual incarceration imposed pursuant to section 2929.71(fn4) of the Revised Code, plus the aggregate of the designated time for parole eligibility for the life sentence plus the designated time for parole eligibility for any other crimes. The inmate's term of incarceration prior to parole eligibility, excluding any terms of actual incarceration [imposed] pursuant to section 2929.71 of the Revised Code, shall not exceed fifteen years. (Emphasis and footnotes added.)

Under this rule, the term of incarceration prior to parole eligibility of an individual serving a life sentence for the forcible rape of a juvenile consecutive to another sentence of imprisonment, excluding a sentence of imprisonment for aggravated murder or murder and any terms of actual incarceration imposed pursuant to R.C. 2929.71, must not exceed fifteen years. You state further that,

[t]he fifteen year "cap" was placed into the Administrative Rule by the Adult Parole Authority because [R.C. 2967.13] failed to articulate how parole eligibility was to be calculated for an offender serving ... a life sentence consecutive to another sentence. A number of inmates who were admitted prior to February 29, 1988 had their parole eligibility calculated on the basis of fifteen full years pursuant to Administrative Rule 5120:1-1-05 and are still present in our system.

Consequently, you ask the following:

1. Since [R.C. 2967.13] did not articulate the manner in which parole eligibility should be calculated for an offender serving a life sentence for [forcible] rape of a [juvenile] consecutive to another sentence, did the Adult Parole Authority have the authority to establish through an Administrative Rule a "cap" of fifteen full years before parole eligibility?

2. If the Adult Parole Authority did have the authority to promulgate such a rule, what is the effect of the repeal of such a rule? To which, if any, should the fifteen year cap continue to be applied?

A. Those offenders committed to the Department on or before February 29, 1988?

B. Those offenders who committed their crimes on or before February 29, 1988?

3. If the Adult Parole Authority did not have the authority to establish a fifteen year ["cap,"] does an inmate who committed [his crimes,] or [who] was admitted to [the Department,] between the time the rule was promulgated and time it was repealed, have a right to be considered for parole pursuant to the 15 year cap established in the rule?

4. If a person is serving a life sentence for the offense of [forcible] rape of a [juvenile] consecutive to an indefinite sentence or another type of life sentence, is the offender required to serve ten full years plus the time necessary to be eligible for parole on the other offense before becoming eligible for parole?

Authority of the Department of Rehabilitation and Correction to Promulgate Rules Concerning Parole Eligibility

An answer to your first question requires an examination of the statutes concerning the granting of paroles in effect since January 16, 1984, to determine whether the Department of Rehabilitation and Correction ("Department") was authorized to promulgate a rule that provided that the term of incarceration prior to parole eligibility of an individual serving a life sentence for the forcible rape of a juvenile consecutive to another sentence of imprisonment must not exceed fifteen years. Pursuant to R.C. 2967.03 as it existed on January 16, 1984, the Department was authorized to "grant a parole to any prisoner, if in its judgment there [was] reasonable ground to believe that, if ... the prisoner [was] paroled, such action would further the interests of justice and be consistent with the welfare and security of society." 1964 Ohio Laws, Part II, 151 (Am. Sub. H.B. 28, eff. March 18, 1965). In order to discharge its responsibilities relating to the granting of parole to individuals, the Department was further authorized to make rules for the proper execution of its powers. 1971-1972 Ohio Laws, Part II, 1724, 1794 (Am. Sub. H.B. 494, eff. July 1, 1972) (setting forth the provisions of R.C. 5120.42 in effect on January 16, 1984; R.C. 5120.42 requires the Department to make rules for the proper execution of its powers). It is, thus, clear that since January 16, 1984, the Department has had the power to promulgate administrative rules concerning the granting of paroles.(fn5) See generally 1927 Op. Att'y Gen. No. 556, vol. II, p. 918. That the Department is empowered to promulgate rules governing the granting of paroles, however, does not confer upon the Department an unlimited authority to declare the general policy of the state with respect to parole eligibility. See State ex rel. Bryant v. Akron Metro. Park Dist., 120 Ohio St. 464, 478-79, 166 N.E. 407, 411-12 (1929), aff'd, 281 U.S. 74 (1930). Rather, the rules of the Department "may facilitate the operation of what has been enacted by the General Assembly but may not add to or subtract from the legislative enactment." State ex rel. Foster v. Evatt, 144 Ohio St. 65, 102, 56 N.E.2d 265, 281 (1944), cert. denied, 324 U.S. 878 (1944); accord Ransom & Randolph Co. v. Evatt, 142 Ohio St. 398, 407-08, 52 N.E.2d 738, 742-43 (1944). Insofar as the purpose of administrative rulemaking is to facilitate the implementation of legislative policy, the Department may not promulgate rules that are arbitrary, unreasonable, or in conflict with the statutory law of the state. Carroll v. Department of Admin. Serv., 10 Ohio App. 3d 108, 460 N.E.2d 704 (Franklin County 1983); see also Williams v. Morris, 62 Ohio St. 3d 463, 468, 584 N.E.2d 671, 675 (1992) ("when a statute is in conflict with a rule, the rule must yield"). The Department's rulemaking power is thus subject to the limitations the General Assembly enacts with regard to the granting of paroles. See 1936 Op. Att'y Gen. No. 5737, vol. II, p. 894 at 900; 1933 Op. Att'y Gen. No. 106, vol. I, p. 111 at 118.

Parole Eligibility Provisions of R.C. 2967.13

Because the Department may not promulgate a rule that conflicts with a statute, it must be determined whether former rule 5120:1-1-05(D)(1)(d) conflicts with R.C. 2967.13, the statute that addresses parole eligibility for Ohio prisoners. R.C. 2967.13, as in effect on January 16, 1984, provided:

(A) A prisoner serving a sentence of imprisonment for a felony for which an indefinite term of imprisonment is imposed becomes eligible for parole at the expiration of his minimum term, diminished as provided in section 2967.19 of the Revised Code.

(B) A prisoner serving a sentence of imprisonment for life for the offense of first degree murder or aggravated murder, which sentence was imposed for an offense committed prior to October 19, 1981, becomes eligible for parole after serving a term of fifteen full years.

(C) A prisoner serving a sentence of imprisonment for life with parole eligibility after serving twenty years of imprisonment imposed pursuant to section 2929.022 or 2929.03 of the Revised Code becomes eligible for parole after serving a term of twenty years, diminished as provided in section 2967.19 of the Revised Code.

(D) A prisoner serving a sentence of imprisonment for life with parole eligibility after serving twenty full years of imprisonment imposed pursuant to section 2929.022 or 2929.03 of the Revised Code becomes eligible for parole after serving a term of twenty full years. A person serving such a sentence is not entitled to any diminution of the twenty full years that he is required to serve before parole eligibility.

(E) A prisoner serving a sentence of imprisonment for life with parole eligibility after serving thirty full years of imprisonment imposed pursuant to section 2929.022 or 2929.03 of the Revised Code becomes eligible for parole after serving a term of thirty full years. A person serving such a sentence is not entitled to any diminution of the thirty full years that he is required to serve before parole eligibility.

(F) A prisoner serving a sentence of imprisonment for life for an offense other than the offense of first degree murder or aggravated murder, which sentence was imposed prior to October 19, 1981, serving a term of imprisonment for life for rape or felonious sexual penetration, or serving a minimum term or terms, whether consecutive or otherwise, of imprisonment longer than fifteen years, imposed under any former law of this state, becomes eligible for parole after serving a term of ten full years'

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