State ex rel. Nelson v. Russo

2019 Ohio 3895

• Court: Ohio Court of Appeals
• Decided: September 23, 2019
• Docket: 108531
• Status: Published

Opinion

[Cite as State ex rel. Nelson v. Russo, 2019-Ohio-3895.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL. CARL A. NELSON, SR., :

Relator, : No. 108531 v. :

COURT OF COMMON PLEAS JUDGE, NANCY M. RUSSO, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED DATED: September 23, 2019

Writ of Mandamus Motion No. 528988 Order No. 531422

Appearances:

Carl A. Nelson, Sr., pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.

MARY EILEEN KILBANE, A.J.:

On May 7, 2019, the relator, Carl Nelson, commenced this mandamus

action against the respondent, Judge Nancy Russo, to compel her to vacate his

November 2, 1987 sentence in the underlying case, State v. Nelson, Cuyahoga C.P. No. CR-86-212590-B, and resentence him in open court. Nelson argues that his

sentence is void because the sentencing entry imposed consecutive sentences when

the trial judge indicated concurrent sentences during the sentencing hearing. On

June 3, 2019, the respondent judge, through the Cuyahoga County Prosecutor,

moved to dismiss on the basis of adequate remedy at law and res judicata. Nelson

filed a reply brief on June 21, 2019. For the following reasons, this court grants the

respondent judge’s motion and dismisses the application for a writ of mandamus.

In the underlying case in 1987, a jury convicted Nelson of four counts

of rape and one count of kidnapping of a 14-year-old girl.1 At the sentencing hearing,

Judge Terrence O’Donnell, then a trial court judge, noted the extreme emotional

injury inflicted on the girl. 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.

1 The evidence at trial showed that Nelson and a codefendant took the girl, her mother, and younger brother on a picnic after meeting them at a fast-food restaurant. As darkness fell, Nelson and the codefendant separated the girl from her family and drove her to the codefendant’s residence. There they tied the girl to a bed and raped her repeatedly. When they released her, they threatened her if she told anyone. In his direct appeal, State v. Nelson, 8th Dist. Cuyahoga No. 54791,

1989 Ohio App. Lexis 908 (Mar. 16, 1989), 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. Nelson, 8th Dist. Cuyahoga No. 77094, 2000 Ohio App.

Lexis 4279 (Sept. 21, 2000), this court affirmed the trial court’s denial of the

petition. In State v. Nelson, 8th Dist. Cuyahoga 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

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.

Nelson argued that 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.

1Additionally, Nelson tried twice to file delayed appeals. State v. Nelson, 8th Dist. Cuyahoga Nos. 59268 and 59530. He also had another appeal dismissed for failure to file a brief. State v. Nelson, 8th Dist. Cuyahoga No. 80208 (Oct. 15, 2001). Nelson also appealed his classification as a sexual predator. State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2014-Ohio-5285. In State v. Nelson, 8th Dist. Cuyahoga No. 95420, 2010-Ohio-6032,

this court affirmed that denial and 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 community and his dismay with the then legislative scheme

limiting 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. Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d

385.

In January 2018, Nelson moved the trial court to vacate his sentence

as void, arguing that the trial court imposed concurrent sentences at the sentencing

hearing, but ordered consecutive sentences in the sentencing entry. The trial court

quickly denied the motion, and Nelson appealed. This court affirmed the denial,

reasoning that the record demonstrates that the trial judge intended to impose

consecutive sentences by expressing his outrage at the acts perpetrated and

pronouncing Nelson as unfit to live in the community. This court further noted that

this was the third time Nelson had presented substantially the same argument

regarding his sentence and that “Nelson has taxed the limited resources of this court

through continuous filing of appeals that are not reasonably grounded in fact or warranted by existing law.” State v. Nelson, 8th Dist. Cuyahoga No. 106798, 2018-

Ohio-4794, ¶ 8.

Now, Nelson has resurrected the concurrent—consecutive argument

in this writ action, arguing that the trial court lacked jurisdiction to increase his

sentence without his presence from concurrent to consecutive. He further argues

that because there was a lack of jurisdiction, mandamus may be used as a remedy to

correct the void sentence. Nelson continues that it would be a miscarriage of justice

to allow the void sentence to stand.

As the court explained in previous opinions, the trial judge intended

and imposed consecutive sentences because of Nelson’s egregious actions.

Moreover, res judicata and adequate remedy at law also bar this mandamus action.

The courts have rejected Nelson’s arguments that the inconsistency between the

sentencing hearing and the sentencing entry was either a clerical error or a

jurisdictional error resulting in a void sentence. Under res judicata Nelson may not

relitigate the issue.

Mandamus will not lie if the relator had an adequate remedy at law.

State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108.

This argument could have been raised 30 years ago in his initial appeal or in one of

the many other proceedings Nelson has initiated in that time.

Finally, this court declines the state’s request to declare Nelson a

vexatious litigator at this time. The court is reluctant to impose harsh sanctions on individuals. Nevertheless, continued filing of ill-founded complaints or appeals may

result in sanctions.

Accordingly, the court grants the respondent judge’s motion to

dismiss and dismisses the application for a writ of mandamus. Relator to pay costs.

This court directs the clerk of courts to serve all parties notice of this judgment and

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

Writ dismissed.

______________________________ _ MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and MICHELLE J. SHEEHAN, J., CONCUR