[Cite as Lenard v. McGinty, 2012-Ohio-5189.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98677

RICHARD LENARD

RELATOR 

vs. 

PROSECUTOR TIMOTHY J. McGINTY, ET AL.

RESPONDENTS 

JUDGMENT: 

WRIT DENIED 

Writ of Prohibition 

Motion No. 457278 

Order No. 459480 

RELEASE DATE: November 6, 2012 
FOR RELATOR

Richard Lenard, pro se 

Inmate No. 570-627 

Noble Correctional Institution 

15708 McConnelsville Rd. 

Caldwell, Ohio 43724 

ATTORNEYS FOR RESPONDENTS

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: James E. Moss 

Assistant County Prosecutor 

9th Floor Justice Center 

1200 Ontario Street 

Cleveland, OH 44113 
MARY EILEEN KILBANE, J.: 

{¶1} Relator, Richard Lenard, is the defendant in State v. Lenard, Cuyahoga C.P. 

Nos. CR-463837, CR-468589, and CR-508101 (which are assigned to respondent Judge 

John J. Russo) as well as CR-533654 (which is assigned to respondent Judge Nancy A. 

Fuerst). Respondent Timothy J. McGinty is the prosecuting attorney.1

{¶2} In Case No. CR-463837, Lenard pled guilty to several counts. In the 

December 12, 2005 entry memorializing Lenard’s plea, respondent Judge Russo 

identified Count 15 (telecommunications fraud in violation of R.C. 2913.05) as a 

fourth-degree felony. In the March 17, 2006 sentencing entry, however, respondent 

Judge Russo included Count 15 among several third-degree felonies and sentenced 

Lenard to three years on each of the third-degree felonies to be served concurrently with 

each other but consecutive to the one year on the fourth-degree felonies (which also were 

to be served concurrently with each other). On April 3, 2006, respondent Judge Russo 

issued a nunc pro tunc order restating the terms of the sentence but including Count 15 

only among the counts receiving a one year sentence. Lenard did not appeal. 

{¶3} On March 13, 2012, respondent Russo issued an entry correcting the 

December 12, 2005 plea entry and the March 17, 2006 sentencing entry. Lenard 

 1

 The original respondent was former prosecuting attorney William D. Mason. In a prior 

entry, we recognized that Timothy J. McGinty succeeded Mason in office and instructed the clerk to 

substitute Timothy J. McGinty for William D. Mason as one of the respondents and to change the 

caption accordingly. See Civ.R. 25(D). 
appealed, commencing State v. Lenard, 8th Dist. No. 98212. On April 30, 2012, while 

App. No. 98212 was pending, respondent Russo: 1) issued an entry vacating the April 3, 

2006 nunc pro tunc entry and the March 13, 2012 entry correcting the original plea and 

sentencing; and 2) issued a separate entry granting the state’s motion to dismiss Count 15 

with prejudice. Lenard appealed, commencing State v. Lenard, 8th Dist. No. 98362.2

{¶4} In this action in prohibition, Lenard claims that his sentence in Case No. 

CR-463837 was void ab initio because Count 15 was included among the third-degree 

felonies and received a three-year term. Likewise, he claims that the sentences imposed 

by Judge Russo in Case Nos. CR-468589 and CR-508101 and Judge Fuerst in Case No. 

CR-533654 were void ab initio because they were consecutive to Case No. CR-463837. 

Lenard requests that this court grant relief in prohibition and require respondent judges to 

vacate the sentences in their respective cases and to prevent respondent prosecuting 

attorney from defending this action. 

{¶5} Respondents have filed a motion for summary judgment and argue that 

Lenard is not entitled to relief in prohibition. We agree. 

{¶6} In Lenard v. Russo, 8th Dist. No. 98185, 2012-Ohio-4294, Lenard sought 

relief in prohibition. 

On April 5, 2012, the petitioner, Richard Lenard, commenced this 

prohibition action against the respondent, Judge John J. Russo. Lenard 

argues that in the underlying case, State v. Lenard, Cuyahoga C.P. No. 

 2

 We consolidated App. Nos. 98212 and 98362. For a detailed description of the 

proceedings in Case No. CR-463837, see State v. Lenard, 8th Dist. Nos. 98212 and 98362, 

2012-Ohio-4603. 
CR-463837, the judge’s misidentifying a felony 3 as a felony 4 during a 

guilty plea colloquy, sentencing him on that charge as a felony 3, and then 

making various efforts to correct any error render the entire proceedings 

void. Lenard seeks prohibition to stop the continued exercise of 

unauthorized jurisdiction and to correct the results of the prior 

jurisdictionally unauthorized actions by having this court order a de novo 

plea hearing. 

Id. at ¶ 1. Lenard’s argument hinged on the sentence imposed on Count 15. 

Thus, Lenard maintains his sentence is void because the judge disregarded 

the statutory requirements by sentencing him to a third degree felony 

sentence for a fourth degree felony. Any further actions were without 

jurisdiction because he had already begun his sentence. Lenard 

characterized the errors surrounding count 15 as rendering his entire plea 

and sentence void. 

Id. at ¶ 12. We held, however, that “prohibition will not lie because appeal is the proper 

adequate remedy at law to correct void sentences.” Id. at ¶ 14. 

{¶7} Likewise, in this action, Lenard bases his claim in prohibition on the 

premise that the sentence in Case No. CR-463837 is void. Yet, as was the case in 8th 

Dist. No. 98185, 2012-Ohio-4294, Lenard had an adequate remedy by way of appeal. 

As a consequence, relief in prohibition is not appropriate. 

{¶8} We also note Lenard argues that his sentence is void because the April 30, 

2012 entry vacated the April 3, 2006 nunc pro tunc entry (which included Count 15 

among the fourth-degree felonies). Yet, in State v. Lenard, 8th Dist. Nos. 98212 and 

98362, 2012-Ohio-4603, this court vacated the April 30, 2012 entry because Judge Russo 

issued that entry while an appeal was pending from the March 13, 2012 entry correcting 

the December 12, 2005 plea entry and the March 17, 2006 sentencing entry. Obviously, 
this court’s judgment in 8th Dist. Nos. 98212 and 98362, 2012-Ohio-4603, eliminates the 

basis for Lenard’s argument that his sentence is void.3

{¶9} Accordingly, respondents’ motion for summary judgment is granted. 

Lenard to pay costs. This court directs the clerk of court to serve all parties notice of 

this judgment and its date of entry upon the journal as required by Civ.R. 58(B). 

{¶10} Writ denied. 

___________________________________________________ 

MARY EILEEN KILBANE, JUDGE 

MARY J. BOYLE, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR 

 3

While this action was pending, respondents filed a notice of judicial action attached to which 

is a copy of Judge Russo’s October 22, 2012 entry in C.P. No. CR-463837 dismissing Count 15 with 

prejudice. As the history of the underlying case demonstrates, relator has asked this court to exercise 

its appellate jurisdiction to consider orders entered in the court of common pleas. In light of the 

discussion above, we need not address the October 22, 2012 entry in this original action.