[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