[Cite as Leonard v. Russo, 2012-Ohio-2397.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98106
RICHARD LENARD PETITIONER vs.
JUDGE JOHN J. RUSSO RESPONDENT
JUDGMENT: WRIT DISMISSED
Writ of Prohibition Motion No. 453945 Order No. 454691
RELEASE DATE: May 25, 2012 FOR PETITIONER
Richard Lenard Inmate No. 570-627 Noble Correctional Institution 15708 McConnelsville Road Caldwell, Ohio 43724
ATTORNEYS FOR RESPONDENT
William D. Mason Cuyahoga County Prosecutor
By: James E. Moss Assistant County Prosecutor Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:
{¶1} On March 16, 2012, the petitioner, Richard Lenard, commenced this
prohibition action against the respondent, Judge John J. Russo, to compel the judge to
vacate Lenard’s conviction and sentence for violating a temporary protection order in the
underlying case, State v. Lenard, Cuyahoga C.P. No. CR-508101. On April 5, 2012, the
respondent judge moved to dismiss, and Lenard filed a brief in opposition on April 16,
2012. For the following reasons, this court grants the respondent’s motion to dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} In the underlying case in early 2008, the grand jury indicted Lenard on one
count of kidnapping in violation of R.C. 2905.01(A)(5), a first degree felony; one count
of violation of a temporary protection order in violation of R.C. 2919.27 (A)(1), a third
degree felony; one count of domestic violence in violation of R.C. 2919.25(A), a first
degree misdemeanor; and one count of disrupting public service in violation of R.C.
2909.04(A)(1), a fourth degree felony. Pursuant to R.C. 2919.27(B)(4), if the offender
violates a protection order while committing a felony offense, violating the protection
order is a third degree felony. Otherwise, it is a first degree misdemeanor. The
indictment for this offense includes the “furthermore clause” that “said violation occurred
during the commission of a felony offense.”
{¶3} Lenard, represented by counsel, and the state entered into a plea bargain.
Lenard would plead guilty to the felony violation of a temporary protection order count as
charged and the misdemeanor domestic violence charge, and the state would nolle the felony kidnapping and disrupting public service charges. During the plea hearing the
prosecutor in summarizing the agreement stated that the violation of the temporary
protection order was a third degree felony that carried the possibility of incarceration
from one to five years in yearly increments and a discretionary fine of up to $10,000.
Defense counsel concurred with the prosecutor’s summation and also stated that he had
discussed the plea bargain with Lenard, including the possible sentences, and that he
thought the plea would be knowingly, voluntarily, and intelligently made. (Tr. 3-4.)
{¶4} The respondent judge then fulfilled the requirements of Crim.R. 11. This
included stating the violation of a temporary protection order is a third degree felony and
carries the possible term of incarceration of one to five years and a $10,000 fine. When
the judge asked if he understood the penalty, Lenard replied, “Yes.” (Tr. 7.) After
confirming with the lawyers that he had complied with the requirements of Crim.R. 11,
the respondent judge asked Lenard how do you plead to Count 2 of the indictment a
violation of a temporary protection order, a felony of the third degree, and Lenard replied,
“Guilty.” (Tr. Pg. 9.)1
LEGAL ANALYSIS
{¶5} The principles governing prohibition are well established. Its requisites are (1)
the respondent against whom it is sought is about to exercise judicial power, (2) the
exercise of such power is unauthorized by law, and (3) there is no adequate remedy at
1 The judge initially imposed community control sanctions. When Lenard violated those sanctions, the judge imposed a prison term. law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989).
Furthermore, if a petitioner had an adequate remedy, relief in prohibition is precluded,
even if the remedy was not used. State ex rel. Lesher v. Kainrad, 65 Ohio St.2d 68, 417
N.E.2d 1382 (1981). Prohibition will not lie unless it clearly appears that the court has
no jurisdiction of the cause that it is attempting to adjudicate or the court is about to
exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571
(1941), paragraph three of the syllabus. “The writ will not issue to prevent an erroneous
judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in
deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of
Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be
used with great caution and not issue in a doubtful case. State ex rel. Merion v.
Tuscarawas Cty. Court of Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and
Reiss v. Columbus Mun. Court, 76 Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956).
Nevertheless, when a court is patently and unambiguously without jurisdiction to act
whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a
writ of prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245
(1988). However, absent such a patent and unambiguous lack of jurisdiction, a court
having general jurisdiction of the subject matter of an action has authority to determine its
own jurisdiction. A party challenging the court’s jurisdiction has an adequate remedy at
law via an appeal from the court’s holding that it has jurisdiction. State ex rel.
Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, the court has discretion in issuing
the writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d
382 (1973).
{¶6} Lenard argues that when the state nolled the two felony charges of kidnapping
and disrupting public service, it nullified the requisite commission of a felony necessary
to maintain violating a temporary protection order as a felony. Unless he was convicted
of a felony, he could not be guilty of violating a protection order as a felony. It would
have to be a misdemeanor. Lenard continues that because he was convicted of a felony
when the necessary prerequisite was absent, the trial judge violated the statutory
requirements and the conviction is void. Because the conviction is void, the trial judge
exceeded his jurisdiction, and prohibition will lie to correct the results of prior
jurisdictionally unauthorized actions. Thus, Lenard concludes that the entire
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[Cite as Leonard v. Russo, 2012-Ohio-2397.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98106
RICHARD LENARD PETITIONER vs.
JUDGE JOHN J. RUSSO RESPONDENT
JUDGMENT: WRIT DISMISSED
Writ of Prohibition Motion No. 453945 Order No. 454691
RELEASE DATE: May 25, 2012 FOR PETITIONER
Richard Lenard Inmate No. 570-627 Noble Correctional Institution 15708 McConnelsville Road Caldwell, Ohio 43724
ATTORNEYS FOR RESPONDENT
William D. Mason Cuyahoga County Prosecutor
By: James E. Moss Assistant County Prosecutor Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:
{¶1} On March 16, 2012, the petitioner, Richard Lenard, commenced this
prohibition action against the respondent, Judge John J. Russo, to compel the judge to
vacate Lenard’s conviction and sentence for violating a temporary protection order in the
underlying case, State v. Lenard, Cuyahoga C.P. No. CR-508101. On April 5, 2012, the
respondent judge moved to dismiss, and Lenard filed a brief in opposition on April 16,
2012. For the following reasons, this court grants the respondent’s motion to dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} In the underlying case in early 2008, the grand jury indicted Lenard on one
count of kidnapping in violation of R.C. 2905.01(A)(5), a first degree felony; one count
of violation of a temporary protection order in violation of R.C. 2919.27 (A)(1), a third
degree felony; one count of domestic violence in violation of R.C. 2919.25(A), a first
degree misdemeanor; and one count of disrupting public service in violation of R.C.
2909.04(A)(1), a fourth degree felony. Pursuant to R.C. 2919.27(B)(4), if the offender
violates a protection order while committing a felony offense, violating the protection
order is a third degree felony. Otherwise, it is a first degree misdemeanor. The
indictment for this offense includes the “furthermore clause” that “said violation occurred
during the commission of a felony offense.”
{¶3} Lenard, represented by counsel, and the state entered into a plea bargain.
Lenard would plead guilty to the felony violation of a temporary protection order count as
charged and the misdemeanor domestic violence charge, and the state would nolle the felony kidnapping and disrupting public service charges. During the plea hearing the
prosecutor in summarizing the agreement stated that the violation of the temporary
protection order was a third degree felony that carried the possibility of incarceration
from one to five years in yearly increments and a discretionary fine of up to $10,000.
Defense counsel concurred with the prosecutor’s summation and also stated that he had
discussed the plea bargain with Lenard, including the possible sentences, and that he
thought the plea would be knowingly, voluntarily, and intelligently made. (Tr. 3-4.)
{¶4} The respondent judge then fulfilled the requirements of Crim.R. 11. This
included stating the violation of a temporary protection order is a third degree felony and
carries the possible term of incarceration of one to five years and a $10,000 fine. When
the judge asked if he understood the penalty, Lenard replied, “Yes.” (Tr. 7.) After
confirming with the lawyers that he had complied with the requirements of Crim.R. 11,
the respondent judge asked Lenard how do you plead to Count 2 of the indictment a
violation of a temporary protection order, a felony of the third degree, and Lenard replied,
“Guilty.” (Tr. Pg. 9.)1
LEGAL ANALYSIS
{¶5} The principles governing prohibition are well established. Its requisites are (1)
the respondent against whom it is sought is about to exercise judicial power, (2) the
exercise of such power is unauthorized by law, and (3) there is no adequate remedy at
1 The judge initially imposed community control sanctions. When Lenard violated those sanctions, the judge imposed a prison term. law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989).
Furthermore, if a petitioner had an adequate remedy, relief in prohibition is precluded,
even if the remedy was not used. State ex rel. Lesher v. Kainrad, 65 Ohio St.2d 68, 417
N.E.2d 1382 (1981). Prohibition will not lie unless it clearly appears that the court has
no jurisdiction of the cause that it is attempting to adjudicate or the court is about to
exceed its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571
(1941), paragraph three of the syllabus. “The writ will not issue to prevent an erroneous
judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in
deciding questions within its jurisdiction.” State ex rel. Sparto v. Juvenile Court of
Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Furthermore, it should be
used with great caution and not issue in a doubtful case. State ex rel. Merion v.
Tuscarawas Cty. Court of Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and
Reiss v. Columbus Mun. Court, 76 Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956).
Nevertheless, when a court is patently and unambiguously without jurisdiction to act
whatsoever, the availability or adequacy of a remedy is immaterial to the issuance of a
writ of prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245
(1988). However, absent such a patent and unambiguous lack of jurisdiction, a court
having general jurisdiction of the subject matter of an action has authority to determine its
own jurisdiction. A party challenging the court’s jurisdiction has an adequate remedy at
law via an appeal from the court’s holding that it has jurisdiction. State ex rel.
Rootstown Local School Dist. Bd. of Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, the court has discretion in issuing
the writ of prohibition. State ex rel. Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d
382 (1973).
{¶6} Lenard argues that when the state nolled the two felony charges of kidnapping
and disrupting public service, it nullified the requisite commission of a felony necessary
to maintain violating a temporary protection order as a felony. Unless he was convicted
of a felony, he could not be guilty of violating a protection order as a felony. It would
have to be a misdemeanor. Lenard continues that because he was convicted of a felony
when the necessary prerequisite was absent, the trial judge violated the statutory
requirements and the conviction is void. Because the conviction is void, the trial judge
exceeded his jurisdiction, and prohibition will lie to correct the results of prior
jurisdictionally unauthorized actions. Thus, Lenard concludes that the entire
conviction for violating a temporary protection order should be vacated.
{¶7} However, R.C. 2931.03 vests the common pleas court with original
jurisdiction of all crimes and offenses. Thus, the respondent judge had basic statutory
jurisdiction to determine the case; he was not patently and unambiguously without
jurisdiction to adjudicate the case, even if there were errors or irregularities.
{¶8} Moreover, the court entertains doubt as to whether the conviction for violating
a temporary protection order as a felony was either void or erroneous. A guilty plea
admits the facts well pleaded in the indictment, and dispenses with the need of proving
them. State v. Craig, 49 Ohio St. 415, 30 N.E. 1120 (1892); State v. Greathouse, 158 Ohio App.3d 135, 2004-Ohio-3402, 814 N.E.2d 502 (2d Dist.); and State v. Moncrief, 8th
Dist. No. 85479, 2005-Ohio-4812. Thus, when Lenard pleaded guilty to violating the
protection order as a third degree felony, he admitted that he violated the order during the
commission of a felony, and the state did not need to prove that or have a predicate
conviction. At the very least, given the procedural posture of the case, i.e., a guilty plea,
the issue of whether a predicate conviction is necessary presents a possible error, properly
reviewed on appeal, and not a lack of jurisdiction. Therefore, this court declines to
issue the writ of prohibition because it has doubts about the validity of Lenard’s argument
and because he has or had an adequate remedy at law.
{¶9} Accordingly, this court grants the respondent judge’s motion to dismiss.
Petitioner to pay costs. This court directs the Clerk of the Eighth District Court of
Appeals to serve upon the parties notice of this judgment and its date of entry upon the
journal. Civ.R. 58(B).
{¶10} Complaint dismissed.
___________________________________________ KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and COLLEEN CONWAY COONEY, J., CONCUR