[Cite as State ex rel. Nelson v. Russo, 2011-Ohio-3698.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96706
STATE EX REL. CARL A. NELSON, SR.
RELATOR
vs.
JUDGE NANCY M. RUSSO
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 444516
Order No. 446244
RELEASE DATE: July 26. 2011
FOR RELATOR
Carl A. Nelson, Sr.
Inmate No. 199-605
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} On April 22, 2011, the relator, Carl Nelson, Sr., commenced this mandamus
action against the respondent, Judge Nancy M. Russo, to compel the judge to “correct a
clerical error” in the sentencing entry so that his sentences would run concurrently instead of
consecutively in the underlying case, State of Ohio v. Carl Nelson, Sr., Cuyahoga County
Common Pleas Court Case No. CR-212590. On May 13, 2011, the respondent judge,
through the Cuyahoga County Prosecutor, moved for summary judgment on the grounds of
adequate remedy at law and res judicata. On May 26, 2011, Nelson filed his brief in
opposition to the judge’s dispositive motion. For the following reasons, this court grants the
judge’s motion for summary judgment and denies the application for a writ of mandamus.
{¶ 2} In the underlying case in 1987, a jury convicted Nelson of four counts of rape
and one count of kidnapping a 14-year-old girl. At the sentencing hearing Judge Terrence
O’Donnell, then the trial court judge, noted the extreme emotional injury inflicted on the girl
such that she could no longer live with her mother. Then he stated as follows: “It is
incomprehensible to me how the General Assembly of our State can impanel a jury and
empower the Court to sit and pass sentence on an individual like yourself and give this Court
the opportunity and the authority of the State Legislature to give you this sentence and also
enact a Revised Code Section 2929.41 that says there are maximums. Section (E) says:
‘Consecutive terms of imprisonment imposed shall not exceed’ and your minimum term of
imprisonment is a term of fifteen years. In your case I find that to be incomprehensible and
therefore I am going to deny you consecutive on each count because if you are released you
are a menace to society and you have proven your unfitness to live in our community.” The
sentencing entry imposed five 15 to 25 years sentences consecutively.
{¶ 3} In his direct appeal, State v. Carl Nelson, Sr. (Mar. 16, 1989), Cuyahoga App.
No. 54791, Nelson argued manifest weight of the evidence and ineffective assistance of trial
counsel. He did not argue any inconsistency between the oral pronouncement of sentence
and the entry itself. This court affirmed. In 2000 Nelson filed a postconviction relief
petition on the grounds of new evidence. In State v. Carl Nelson, Sr. (Sept. 21, 2000),
Cuyahoga App. No. 77094, this court affirmed the trial court’s denial of the petition. In State
v. Carl Nelson, Sr., Cuyahoga App. No. 85930, 2005-Ohio-5969, this court affirmed the trial
court’s decision denying DNA testing, because Nelson failed to demonstrate that such testing
would be outcome determinative. 1
{¶ 4} In 2010, Nelson moved the trial court to amend his sentence from consecutive
to concurrent because the trial judge during the sentencing hearing had said, “I am going to
deny you consecutive on each count.” (Tr. 18.) Thus, the consecutive sentences were
inconsistent with the pronouncement at the hearing. Indeed, the imposition of consecutive
sentences was a clerical error which pursuant to Crim.R. 36, the trial court could correct at any
time. The trial court denied the motion.
{¶ 5} In State v. Carl Nelson, Sr., Cuyahoga App. No. 95420, 2010-Ohio-6032, this
court affirmed that denial. This court further specifically rejected Nelson’s argument that the
imposition of consecutive sentences was a clerical error. This court concluded that a review
of the record demonstrated that the trial court intended Nelson’s sentences to be consecutive.
The trial judge’s pronouncements that Nelson was a menace to society and unfit to live in the
1Additionally, Nelson tried twice to file delayed appeals. State v. Carl Nelson, Sr.,
Cuyahoga App. Nos. 59268 and 59530. He also had another appeal dismissed for failure to file a
brief. State v. Carl Nelson, Sr. Cuyahoga App. No. 80208.
community and his dismay with the then legislative scheme imposing minimum sentences
showed his intent to impose consecutive sentences. Moreover, this court found that Nelson
had not raised this argument in his previous appeals. Res judicata bars arguments that could
have been raised at trial or in an appeal from the judgment. Thus, res judicata properly
barred the argument 23 years and seven appeals later.
{¶ 6} Now, Nelson tries to resurrect the clerical error argument in this mandamus
action. The requisites for mandamus are well established: (1) the relator must have a clear
legal right to the requested relief, (2) the respondent must have a clear legal duty to perform
the requested relief and (3) there must be no adequate remedy at law. Additionally, although
mandamus may be used to compel a court to exercise judgment or to discharge a function, it
may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney
v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore, mandamus is not a
substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631
N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and
State ex rel. Pressley v. Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631,
paragraph three of the syllabus. Thus, mandamus does not lie to correct errors and
procedural irregularities in the course of a case. State ex rel. Jerninghan v. Gaughan (Sept.
26, 1994), Cuyahoga App. No. 67787. Furthermore, if the relator had an adequate remedy,
regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v.
McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108 and State ex rel. Boardwalk
Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga County (1990), 56 Ohio St.3d 33, 564
N.E.2d 86.
{¶ 7} Nelson’s arguments are ill-founded. First, he had an adequate remedy at law
which now precludes relief in mandamus. He had multiple opportunities to raise this
argument. In 2010, he did raise it, and both the trial court and this court specifically rejected
it. The fact that this court has specifically rejected the clerical error argument also means that
it is barred by res judicata.
{¶ 8} Accordingly, this court grants the respondent’s motion for summary judgment
and denies the application for a writ of mandamus. Costs assessed against relator. The
clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the
journal. Civ.R. 58(B).
Writ denied.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
JAMES J. SWEENEY, J., and
KENNETH A. ROCCO, J., CONCUR