State v. Lenard , 2013 Ohio 171 ( 2013 )

[Cite as State v. Lenard, 2013-Ohio-171.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 96975 and 97570
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICHARD M. LENARD
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-533654
Application for Reopening
Motion No. 456563
RELEASE DATE: January 23, 2013
FOR APPELLANT
Richard Lenard, pro se
Inmate #570-627
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} In State v. Lenard, Cuyahoga C.P. No. CR-533654, applicant, Richard
Lenard, pled no contest to and was found guilty of aggravated theft as well as several
counts each of: forging identification cards; tampering with records; breaking and
entering; and theft. In State v. Lenard, 8th Dist. Nos. 96975 and 97570,
2012-Ohio-1636, this court: affirmed Lenard’s conviction as well as the denial of his
motions to suppress and dismiss; reversed the denial of his motions to vacate the
imposition of court costs and for return of his property; and remanded to notify Lenard as
to court costs and the consequences if he fails to pay them. The trial court made
Lenard’s sentence consecutive to Cuyahoga C.P. No. CR-463837.1 The Supreme Court
of Ohio declined jurisdiction to hear the case and dismissed the appeal as not involving
any substantial constitutional question. State v. Lenard, 132 Ohio St.3d 1515,
2012-Ohio-4021, 974 N.E.2d 113.
{¶2} Lenard has filed a timely application for reopening. He asserts that he was
denied the effective assistance of appellate counsel because his appellate counsel did not
assign as error that: the sentence in Cuyahoga C.P. No. CR-463837 was vacated; and, in
light of the Bureau of Sentence Computation’s refusal to recognize the 556 days jail-time
credit in his sentencing entry, there has been a breach of his plea agreement.
Lenard has repeatedly asserted his position that the judgment in Cuyahoga C.P. No.
1
CR-463837 is void. Lenard v. McGinty, 8th Dist. No. 98677, 2012-Ohio-5189; State v. Lenard, 8th
Dist. Nos. 98212 and 98362, 2012-Ohio-4603; Lenard v. Russo, 8th Dist. No. 98185,
2012-Ohio-4294; and State v. Lenard, 8th Dist. No. 93373, 2010-Ohio-2220.
{¶3} We deny the application for reopening. As required by App.R. 26(B)(6), the
reasons for our denial follow.
{¶4} On direct appeal, Lenard’s counsel filed a notice of appeal (8th Dist. No.
96975) and Lenard filed a notice of appeal pro se (8th Dist. No. 97570). The cases were
briefed separately, and Lenard filed a supplemental pro se brief in 8th Dist. No. 96975 as
well as a pro se brief in 8th Dist. No. 97570. This court consolidated the two cases.
This court’s opinion addressed the merits of all the errors assigned by counsel and
Lenard, pro se.
{¶5} In State v. Howell, 8th Dist. No. 92827, 2011-Ohio-3683, applicant Howell
sought reopening of the judgment finding him guilty of several offenses.
{¶6} This court granted Howell leave to file a pro se supplemental brief.
“[T]he courts have repeatedly ruled that res judicata bars an
application to reopen when the appellant has filed a pro se brief.”
(Citations deleted.) State v. Wright, Cuyahoga App. Nos. 92594 and
95096, 2010- Ohio-243 and 2011-Ohio-733, reopening disallowed,
2011-Ohio-2657, ¶4. The fact that Howell filed a pro se brief and
assignment of error on direct appeal provides a sufficient basis for denying
reopening.
Id. at ¶ 7.
{¶7} Likewise, in this action, Lenard filed two pro se briefs. This court addressed
the merits of the errors he assigned pro se as well as the errors assigned by counsel.
Lenard had the opportunity to raise the errors that he would have this court consider on
reopening. Res judicata bars the proposed assignments of error presented in an
application for reopening filed by an applicant who had filed a pro se brief on direct
appeal. State v. Webb, 72 Ohio St.3d 248, 1995-Ohio-53, 648 N.E.2d 1354; State v.
Maddox, 8th Dist. No. 96885, 2012-Ohio-3800. Res judicata bars Lenard’s proposed
assignments of error.
{¶8} As a consequence, Lenard has not met the standard for reopening.
Accordingly, the application for reopening is denied.
LARRY A. JONES, SR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
TIM McCORMACK, J., CONCUR