[Cite as State ex rel. McIntyre v. Ohio Adult Parole Auth., 2021-Ohio-922.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Leroy L. McIntyre, : 

 

 Relator, : 

 No. 19AP-732 

v. : 

 (REGULAR CALENDAR) 

Ohio Adult Parole Authority, : 

 

 Respondent. : 

 

D E C I S I O N 

Rendered on March 23, 2021 

 

On brief: Leroy L. McIntyre, pro se. 

On brief: Dave Yost, Attorney General, and George Horvath, 

for respondent.

 

IN PROHIBITION AND MANDAMUS 

ON OBJECTION 

BROWN, J. 

{¶ 1} Relator, Leroy L. McIntyre, an inmate incarcerated at Ross Correctional 

Institution at the time of filing this action, commenced this original action in prohibition 

and mandamus seeking orders compelling respondent, Ohio Adult Parole Authority 

("OAPA"), to declare relator's parole proceedings prior to February 3, 2016 void and to 

release relator from custody. 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, 

this matter was referred to a magistrate who issued a decision, including findings of fact 

and conclusions of law, which is appended hereto. The magistrate recommends this court 

grant OAPA's Civ.R. 12(B)(6) motion to dismiss. 

{¶ 3} Pursuant to sentencing entries issued on September 9, 1991 and May 22, 

1992, relator was convicted of felony offenses and sentenced to an aggregate prison term of 
No. 19AP-732 2

22 to 46 years. In State ex rel. McIntyre v. Summit Cty. Court of Common Pleas, 144 Ohio 

St.3d 589, 2015-Ohio-5343, the Supreme Court of Ohio concluded that relator's 1991 and 

1992 sentencing entries failed to comply with Crim.R. 32(C) and State v. Baker, 119 Ohio 

St.3d 197, 2008-Ohio-3330. As such, the Supreme Court granted relator a writ of 

mandamus directing the trial court in relator's underlying criminal case to issue a final 

appealable order disposing of all charges against relator. On February 3, 2016, the Summit 

County Court of Common Pleas issued an entry disposing of all charges against relator and 

imposing the same 22 to 46-year prison sentence. 

{¶ 4} Relator asserts in his complaint that his 1991 and 1992 sentencing entries 

were "deemed a nullity and void" by the Supreme Court's decision in McIntyre. (Compl. at 

14.) As such, relator contends OAPA's actions premised on the 1991 and 1992 sentencing 

entries were also void. OAPA granted relator parole in 2007, revoked relator's parole in 

2009, and denied relator parole in 2012 and 2016. Relator seeks a writ of prohibition "to 

declare" all his parole proceedings prior to February 3, 2016 "void." (Compl. at 14.) Relator 

seeks a writ of mandamus to compel OAPA "and/or the Department of Rehabilitation and 

Correction to immediately release him from further unauthorized and unconstitutional 

confinement in the (DRC) forthwith." (Compl. at 20.) 

{¶ 5} The magistrate concluded relator was not entitled to a writ of prohibition, as 

OAPA had "already denied parole to relator" and a writ of prohibition could not issue to 

"prohibit the occurrence of an act which has already occurred." (Mag. Decision at 3.) The 

magistrate determined that relator's request for a writ of mandamus truly sought a writ of 

habeas corpus and that this court lacked jurisdiction to rule on relator's request for habeas 

corpus. 

{¶ 6} Relator has filed an objection to the magistrate's decision. Relator asserts 

that, because the OAPA patently and unambiguously lacked jurisdiction over relator's 

parole proceedings prior to February 3, 2016, this court could issue a writ of prohibition to 

"correct the results of prior jurisdictionally unauthorized actions." (Obj. at 4.) Relator states 

that he is entitled to a writ of mandamus to compel OAPA to release him from custody. 

{¶ 7} A court may dismiss a complaint seeking writs of prohibition or mandamus 

pursuant to Civ.R. 12(B)(6) if, after all factual allegations in the complaint are presumed 

true and all reasonable inferences are made in relator's favor, it appears beyond doubt that 

relator could prove no set of facts entitling them to the requested extraordinary writ. State 
No. 19AP-732 3 

ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5; State ex rel. Conkle v. 

Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, ¶ 8. "Although factual allegations in the 

complaint are taken as true, 'unsupported conclusions of a complaint are not considered 

admitted * * * and are not sufficient to withstand a motion to dismiss.' " Justice v. JeffersonPilot Life Ins., 10th Dist. No. 98AP-177 (Dec. 24, 1998), quoting State ex rel. Hickman v. 

Capots, 45 Ohio St.3d 324 (1989). 

{¶ 8} "The purpose of a writ of prohibition is to restrain inferior courts from 

exceeding their jurisdiction." State ex rel. Roush v. Montgomery, 156 Ohio St.3d 351, 2019-

Ohio-932, ¶ 5, citing State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 73 (1998). To 

demonstrate entitlement to a writ of prohibition, relator must establish that OAPA: (1) has 

exercised or is about to exercise judicial or quasi-judicial power, (2) that the exercise of that 

power is unauthorized by law, and (3) that denying the writ will cause injury for which no 

other adequate remedy in the ordinary course of the law exists. Roush at ¶ 5; State ex rel. 

Newell v. Tuscarawas Cty. Bd. of Elections, 93 Ohio St.3d 592, 594 (2001); State ex rel. 

Wright v. Ohio Bur. of Motor Vehicles, 87 Ohio St.3d 184, 185 (1999). See State ex rel. 

McKee v. Cooper, 40 Ohio St.2d 65, 68 (1974) (stating that the "act of holding a hearing to 

decide whether one convicted of a crime shall be held in confinement or granted parole 

constitutes an exercise of judicial or quasi-judicial power"). 

{¶ 9} "Where an inferior court patently and unambiguously lacks jurisdiction over 

the cause, prohibition will lie both to prevent the future unauthorized exercise of 

jurisdiction and to correct the results of previous jurisdictionally unauthorized actions." 

(Emphasis sic.) State ex rel. Litty v. Leskovansky, 77 Ohio St.3d 97, 98 (1996). Accord 

State ex rel. Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, ¶ 24 (concluding the fact 

the judge had "already exercised his judicial power by granting O'Brien's motion" did not 

preclude the opposing party from "obtaining a writ of prohibition," as prohibition will lie to 

correct the results of previous jurisdictionally unauthorized actions); Roush at ¶ 1; State ex 

rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 2003-Ohio-2506, ¶ 14; State ex rel. Brady v. 

Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, ¶ 8. 

{¶ 10} Relator contends OAPA patently and unambiguously lacked jurisdiction to 

render parole decisions in his case prior to February 3, 2016, because relator's 1991 and 

1992 sentencing entries were void. However, a sentence is void only "when a sentencing 

court lacks jurisdiction over the subject-matter of the case or personal jurisdiction over the 
No. 19AP-732 4

accused." State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, ¶ 42. When a sentencing 

court has jurisdiction to act, sentencing errors render the sentence "voidable, not void." Id. 

at ¶ 5. See State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 1 (following Harper

to hold that "sentences based on an error, including sentences in which a trial court fails to 

impose a statutorily mandated term, are voidable if the court imposing the sentence has 

jurisdiction over the case and the defendant"). The Summit County Court of Common Pleas 

had subject-matter jurisdiction over relator's criminal case and personal jurisdiction over 

relator. See Harper at ¶ 25, citing Smith v. Sheldon, 157 Ohio St.3d 1, 2019-Ohio-1677, ¶ 8; 

Henderson at ¶ 36, citing Tari v. State, 117 Ohio St. 481, 490 (1927). 

{¶ 11} Accordingly, although the 1991 and 1992 sentencing entries failed to comply 

with Crim.R. 32(C) and Baker, the sentence imposed by those entries was not void. As such, 

OAPA's parole determinations premised on relator's 1991 and 1992 sentencing entries were 

lawful. Construing the factual allegations in relator's complaint as true, relator cannot 

establish that the OAPA patently and unambiguously lacked jurisdiction over his parole 

proceedings prior to February 3, 2016. As such, relator was not entitled to a writ of 

prohibition. 

{¶ 12} When an action seeking a writ of mandamus can be "construed as a request 

for immediate release from prison, habeas corpus, rather than mandamus, is the proper 

action." State ex rel. Sampson v. Parrott, 82 Ohio St.3d 92, 93 (1998), citing State ex rel. 

Johnson v. Ohio Parole Bd., 80 Ohio St.3d 140 (1997). See also State ex rel. Key v. Spicer, 

91 Ohio St.3d 469, 470 (2001). As relator sought a writ of mandamus to compel his 

immediate release from prison, habeas corpus, not mandamus, was relator's proper action. 

Pursuant to R.C. 2725.03, only a court located in the county in which the petitioner is 

incarcerated possesses jurisdiction to issue or determine a writ of habeas corpus. Because 

the Tenth District Court of Appeals is located in Franklin County, Ohio, and relator is not 

incarcerated in Franklin County, Ohio, this court does not have jurisdiction over relator's 

habeas corpus proceeding. 

{¶ 13} Following an independent review of this matter, we find the magistrate has 

properly determined the pertinent facts and applied the appropriate law. We therefore 

overrule the objection to the magistrate's decision and adopt the magistrate's decision as 

our own, including the findings of fact and conclusions of law therein, but modify that 

decision to additionally reflect that OAPA did not patently and unambiguously lack 
No. 19AP-732 5

jurisdiction over relator's parole proceedings prior to February 3, 2016. Consequently, we 

overrule relator's objection to the magistrate's decision, adopt the magistrate's decision as 

modified, and grant respondent's motion to dismiss the action. 

Objection overruled; 

 motion to dismiss granted; action dismissed. 
No. 19AP-732 6

SADLER and LUPER SCHUSTER, JJ., concur. 

_________________ 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State ex rel. Leroy L. McIntyre, : 

 

 Relator, : 

 

v. : No. 19AP-732 

 

Ohio Adult Parole Authority, : (REGULAR CALENDAR) 

 Respondent. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on February 27, 2020

 

Leroy L. McIntyre, pro se. 

Dave Yost, Attorney General, and George Horvath, for 

respondent.

 

 

IN PROHIBITION AND MANDAMUS 

ON RESPONDENT'S MOTION TO DISMISS 

{¶ 14} Relator, Leroy L. McIntyre, has filed a complaint in this court seeking writs 

of prohibition and mandamus against respondent, Ohio Adult Parole Authority ("OAPA"), 

asserting that OAPA did not have jurisdiction to deny him parole and no longer has 

jurisdiction to keep him in custody. 

Findings of Fact: 

{¶ 15} 1. Relator is an inmate currently incarcerated at Ross Correctional 

Institution. 
No. 19AP-732 7 

{¶ 16} 2. Relator filed his complaint in this court on October 25, 2019. Relator 

asserts: 

From September 9, 1991, up until February 3, 2016, McIntyre 

never had a final appealable order finalizing his case and 

sentence and it was not until the Ohio Supreme Court[']s 

granting of McIntyre's writ of mandamus and issuing the writ 

pursuant to S.Ct. Prac. R. 12.04(C), thus directing the Summit 

County Court of Common Pleas to dispose of all charges 

against him and to provide him with a final appealable order, 

to which then rendered McIntyre's sentence valid for the very 

first time. 

 (Emphasis sic.) 

{¶ 17} Relator also asserts that "because no final appealable order existed prior to 

February 3, 2016, the Ohio Adult Parole Authority patently and unambiguously lacked 

jurisdiction over all parole proceedings prior to that date. * * * McIntyre respectfully 

requests a writ of prohibition to declare these proceedings void." Because the "Ohio Adult 

Parole Authority exercised executive power over all parole proceedings * * * premised upon 

the September 9, 1991, and May 22, 1992, judgment entries to which both was deemed a 

nullity and void by the Ohio Supreme Court. State ex rel McIntyre 2015-Ohio-5343 * * * the 

Ohio Adult Parole Authority patently and unambiguously lacked jurisdiction over the 

parole proceedings held against McIntyre" and he "requests a writ of prohibition to declare 

all Parole release consideration hearings, including and not limited to revocation 

proceedings void." 

{¶ 18} 3. Relator also seeks a writ of mandamus to compel OAPA and/or the 

Department of Rehabilitation and Correction "to immediately release him from further 

unauthorized and unconstitutional confinement in the (DRC) forthwith." 

{¶ 19} 4. On November 26, 2019, respondent filed a motion to dismiss asserting two 

grounds. First, respondent asserted relator sought habeas corpus relief, and this court did 

not have jurisdiction to provide him relief. Second, respondent asserted relator had failed 

to comply with the mandatory filing requirements of R.C. 2969.25(A) when he filed his 

prior cases affidavit. 

{¶ 20} 5. On December 9, 2019, relator filed a brief in opposition. 

{¶ 21} 6. On December 16, 2019, respondent filed a reply. 

{¶ 22} 7. The matter is currently before the magistrate. 
No. 19AP-732 8

Conclusions of Law: 

{¶ 23} For the reasons that follow, it is this magistrate's decision that this court 

should grant respondent's motion and dismiss relator's complaint. 

{¶ 24} A writ of prohibition is an extraordinary judicial writ, the purpose of which is 

to restrain inferior courts and tribunals from exceeding their jurisdiction. State ex rel. 

Tubbs Jones v. Suster, 84 Ohio St.3d 70 (1998). A writ of prohibition is customarily granted 

with caution and restraint, and is issued only in cases of necessity arising from the 

inadequacy of other remedies. Id. In order to be entitled to a writ of prohibition, relator 

must establish that: (1) respondent is about to exercise judicial or quasi-judicial powers; (2) 

the exercise of the power is unauthorized by law; and (3) the denial of the writ will cause 

injury for which no other adequate remedy in the ordinary course of law exists. State ex 

rel. Henry v. McMonagle, 87 Ohio St.3d 543 (2000). 

{¶ 25} In the present case, relator asserts that he is entitled to a writ of prohibition 

because the OAPA lacked jurisdiction over his parole hearings. However, as above 

indicated, a writ of prohibition issues when a governing body is about to exercise 

jurisdiction. Here, the OAPA already denied parole to relator. Hence, those actions have 

occurred, and this court cannot prohibit the occurrence of an act which has already 

occurred. As such, relator is not entitled to a writ of prohibition. 

{¶ 26} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course of 

the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 27} As indicated in the findings of fact, relator argues the OAPA did not have 

jurisdiction over him until February 2016 when the trial court issued a final appealable 

order. On those grounds, relator argues he can no longer be confined in custody. 

{¶ 28} A writ of habeas corpus is an extraordinary remedy that is available only in 

cases "where there is an unlawful restraint of a person's liberty and no adequate remedy at 

law." Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980. 

 R.C. 2725.03 provides: 

If a person restrained of his liberty is an inmate of a state 

benevolent or correctional institution, the location of which is 

fixed by statute and at the time is in the custody of the officers 
No. 19AP-732 9

of the institution, no court or judge other than the courts or 

judges of the county in which the institution is located has 

jurisdiction to issue or determine a writ of habeas corpus for 

his production or discharge. Any writ issued by a court or 

judge of another county to an officer or person in charge at the 

state institution to compel the production or discharge of an 

inmate thereof is void. 

{¶ 29} It is clear what relator seeks here is in fact a writ of habeas corpus and not a 

writ of mandamus as relator seeks immediate release from custody. R.C. 2725.03 requires 

that petitions for habeas corpus be filed in the county where the inmate is detained. 

Inasmuch as he is incarcerated at Ross Correctional Institution in Ross County, the Tenth 

District Court of Appeals which sits in Franklin County does not have jurisdiction over his 

habeas corpus proceeding. 

{¶ 30} Based on the foregoing, relator cannot demonstrate that he is entitled to a 

writ of prohibition, and this court does not have jurisdiction to grant him relief in habeas 

corpus. As such, respondent's motion to dismiss should be granted. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), 

unless the party timely and specifically objects to that factual 

finding or legal conclusion as required by Civ.R. 53(D)(3)(b).