[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Nelson v. Russo, Slip Opinion No. 2020-Ohio-1541.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2020-OHIO-1541
    THE STATE EX REL. NELSON, APPELLANT, v. RUSSO, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as State ex rel. Nelson v. Russo, Slip Opinion No.
                                     2020-Ohio-1541.]
Mandamus—Inmate had adequate remedy at law by way of direct appeal to
        challenge his consecutive sentences—Court of appeals’ dismissal of
        petition affirmed.
    (No. 2019-1455—Submitted February 11, 2020—Decided April 22, 2020.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 108531,
                                      2019-Ohio-3895.
                                   __________________
        Per Curiam.
        {¶ 1} Appellant, Carl A. Nelson Sr., appeals the Eighth District Court of
Appeals’ judgment dismissing his petition for a writ of mandamus. Nelson seeks
to compel appellee, Cuyahoga County Court of Common Pleas Judge Nancy
                             SUPREME COURT OF OHIO




Margaret Russo, to vacate the consecutive prison sentences imposed on Nelson in
1987. For the reasons explained below, we affirm.
                                Factual Background
       {¶ 2} Nelson was convicted in 1987 of four counts of rape and one count of
kidnapping of a teenage girl. Following a sentencing hearing, the common pleas
court journalized an entry imposing prison terms of 15 to 25 years for each of the
five counts, to be served consecutively. The Eighth District affirmed Nelson’s
convictions on direct appeal. State v. Nelson, 8th Dist. Cuyahoga No. 54791, 1989
Ohio App. LEXIS 908 (Mar. 16, 1989). In his appeal, Nelson did not assign any
error related to the imposition of consecutive prison terms. See id. Nelson later
sought postconviction relief, which was denied.         State v. Nelson, 8th Dist.
Cuyahoga No. 77094, 2000 Ohio App. LEXIS 4279 (Sept. 21, 2000). As in his
direct appeal, Nelson did not challenge the consecutive prison terms. See id.
       {¶ 3} In 2010, Nelson filed in the trial court a motion to amend his sentence
under Crim.R. 36, arguing that the sentencing entry imposing consecutive terms
contained a clerical error because it was inconsistent with the court’s oral
pronouncement during the sentencing hearing. The trial court denied his motion,
and the court of appeals affirmed. State v. Nelson, 8th Dist. Cuyahoga No. 95420,
2010-Ohio-6032. The court of appeals concluded that the sentencing-hearing
transcript demonstrated the trial court’s intent to impose consecutive sentences. Id.
at ¶ 14. The court of appeals also determined that Nelson’s action was barred by
the doctrine of res judicata because he could have raised the alleged sentencing
error in his previous appeals. Id. at ¶ 12-13.
       {¶ 4} Undeterred by the res judicata ruling, Nelson made subsequent
challenges to his consecutive sentences.         In 2011, Nelson sought a writ of
mandamus in the Eighth District to compel Judge Russo to “correct a clerical error”
in his sentence. The Eighth District denied the writ, State ex rel. Nelson v. Russo,
8th Dist. Cuyahoga No. 96706, 2011-Ohio-3698, and this court affirmed, 131 Ohio



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St.3d 51, 2011-Ohio-6552, 960 N.E.2d 448. Then, in 2018, Nelson filed in the trial
court a motion to vacate his consecutive sentences as void. The trial court denied
Nelson’s motion, and the Eighth District affirmed. State v. Nelson, 8th Dist.
Cuyahoga No. 106798, 2018-Ohio-4794.
       {¶ 5} In yet a third challenge to the consecutive sentences, Nelson
commenced this case in the Eighth District on May 7, 2019. Nelson seeks a writ
of mandamus to compel Judge Russo to vacate his consecutive sentences, arguing
that the sentences are void because Nelson was not present at the time that the
“increased” aggregate sentence was imposed. Though Nelson acknowledges he
was present for the sentencing hearing, he argues that he was not present when the
court journalized the sentencing entry imposing consecutive sentences. According
to Nelson, the consecutive sentences therefore violate Crim.R. 43(A) and his due-
process rights.
       {¶ 6} The Eighth District dismissed Nelson’s writ action, determining that
res judicata barred his claim and that his prior appeals were an adequate remedy at
law to address the alleged infirmity in his consecutive sentences. 2019-Ohio-3895,
¶ 8-9. The Eighth District also reiterated its previous ruling that the trial court
intended to impose consecutive sentences at Nelson’s 1987 sentencing hearing and
imposed sentence accordingly. Id. at ¶ 8.
       {¶ 7} Nelson appealed to this court as of right.
                                     Analysis
       {¶ 8} To be entitled to a writ of mandamus, Nelson must show a clear legal
right to the requested extraordinary relief, a clear legal duty on the part of Judge
Russo to provide the relief, and the lack of an adequate remedy in the ordinary
course of law. State ex rel. Cowell v. Croce, 157 Ohio St.3d 103, 2019-Ohio-2844,
131 N.E.3d 934, ¶ 4. This court reviews de novo a lower court’s dismissal of a
mandamus action. State ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-
Ohio-9183, 92 N.E.3d 871, ¶ 8.




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        {¶ 9} In an earlier case, this court affirmed the denial of Nelson’s request
for a writ of mandamus because (1) Nelson had an adequate remedy at law by way
of his direct appeal and (2) res judicata barred him from relitigating sentencing
issues he raised or could have raised in his prior appeal. State ex rel. Nelson, 131
Ohio St.3d 51, 2011-Ohio-6552, 960 N.E.2d 448, at ¶ 2. The same reasoning
applies in this case.
        {¶ 10} Nelson is reprising his argument that consecutive sentences should
not have been imposed, albeit under a different legal theory. Rather than positing
that the consecutive sentences were a “clerical error” correctable under Crim.R. 36,
Nelson argues this time that Crim.R. 43(A) and due-process principles render his
consecutive sentences void. But as a general matter, an extraordinary writ is not
the proper remedy for alleged sentencing errors, because a convicted defendant has
or had an adequate remedy at law by way of direct appeal. State ex rel. Ridenour
v. O’Connell, 147 Ohio St.3d 351, 2016-Ohio-7368, 65 N.E.3d 742, ¶ 3. Nelson’s
challenge to his consecutive sentences falls within this general rule. Cowell at ¶ 5.
        {¶ 11} Moreover, res judicata bars Nelson from litigating alleged
sentencing errors that he raised or could have raised on direct appeal. State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16-17. Nelson
could have raised the arguments asserted in this case in his direct appeal. He failed
to do so and cannot use a mandamus action as a substitute for appellate review.
Cowell at ¶ 6.
        {¶ 12} Res judicata also bars Nelson from raising claims he could have
asserted in his previous mandamus action. State ex rel. Newell v. Gaul, 135 Ohio
St.3d 187, 2013-Ohio-68, 985 N.E.2d 463, ¶ 2; see also Hughes v. Calabrese, 95
Ohio St.3d 334, 2002-Ohio-2217, 767 N.E.2d 725, ¶ 12 (“Res judicata bars the
litigation of all claims that either were or might have been litigated in a first
lawsuit”).   Having already raised claims of sentencing error in his previous




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mandamus action, Nelson is barred from asserting additional claims of sentencing
error that he could have raised there.
                                                             Judgment affirmed.
          O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ.,
concur.
          KENNEDY, J., concurs in judgment only.
          STEWART, J., not participating.
                                 _________________
          Carl A. Nelson Sr., pro se.
          Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
                                 _________________




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