State ex rel. Nelson v. Russo

Dec 22, 2011

2011-1438

Versions:2011 Ohio 6552

131 Ohio St. 3d 51

960 N.E.2d 448

Per Curiam.

{¶ 1} We affirm the judgment of the court of appeals denying the request of appellant, Carl A. Nelson Sr., for a writ of mandamus to compel appellee, Cuyahoga County Court of Common Pleas Judge Nancy M. Russo, to correct an alleged clerical error in his sentencing entry so that his sentences for four counts of rape and one count of kidnapping run concurrently rather than consecutively.

{¶ 2} Nelson had an adequate remedy by way of appeal to raise his claim of sentencing error. State ex rel. Gooden v. Teodosio, 128 Ohio St.3d 538, 2011-Ohio-1915, 947 N.E.2d 1206, ¶ 3. And because Nelson has already raised his claim of sentencing error, see State v. Nelson, Cuyahoga App. No. 95420, 2010-Ohio-6032, 2010 WL 5065419, res judicata bars him from using mandamus to relitigate the same issue. See State ex rel. McDonald v. Mitrovich, 113 Ohio St.3d 167, 2007-Ohio-1258, 863 N.E.2d 172, ¶ 8. Nor can Nelson raise any asserted constitutional claim that he could have raised in his prior appeal. Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 11.

Judgment affirmed.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

Carl A. Nelson Sr., pro se.

William D. Mason, Cuyahoga County Prosecuting Attorney, and James Moss, Assistant Prosecuting Attorney, for appellee.