State v. NelsonState v. Nelson
STATE OF OHIO PLAINTIFF-APPELLEE vs. CARL A. NELSON DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-212590
RELEASED AND JOURNALIZED: December 9, 2010
Carl A. Nelson, Sr., pro se
Inmate No. 199-605
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, A.J.:
{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to
{¶ 2} Appellant Carl Nelson appeals his sentence from the Cuyahoga County Court of Common Pleas. For the reasons stated herein, we affirm.
{¶ 3} On October 21, 1987, Nelson was convicted of four counts of rape and one count of kidnapping, for crimes against a 14-year-old girl. At the
{¶ 4} The transcript of the sentencing hearing reflects that the court then stated: “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 * * * then the General Assembly also enacts a
{¶ 5} In 1987, Nelson appealed his convictions, which this court affirmed, holding that the jury verdict was not against the manifest weight of the evidence and that Nelson was not denied effective assistance of counsel. See State v. Nelson (Mar. 16,1989), Cuyahoga App. No. 54791. Nelson did not assign as error any inconsistency between the oral pronouncement of sentence and the sentencing entry.
{¶ 7} In 2004, Nelson petitioned for DNA testing, which the trial court denied. On appeal, this court affirmed the lower court‘s decision finding that Nelson “failed to demonstrate that DNA testing would prove to be outcome determinative.” See State v. Nelson, Cuyahoga App. No. 85930, 2005-Ohio-5969.
{¶ 8} In 2010, nearly 23 years after his conviction, Nelson filed a motion to amend the sentencing journal entry on the basis that the trial court increased his punishment by running his sentences consecutively in the journal entry, which is inconsistent with the sentenced pronounced at the hearing. On July 1, 2010, the trial court denied his motion.
{¶ 9} Here, Nelson appeals the trial court‘s denial of his motion. In his sole assignment of error, Nelson argues that “[t]he trial court abused its discretion when it denied defendant-appellant‘s motion for a nunc pro tunc sentencing judgment entry for the sole purpose of correcting a clerical error in
{¶ 10} Nelson contends that because the sentencing journal entry does not accurately represent the sentence pronounced at his hearing, this court must correct the “clerical error” and run his sentences concurrently.
{¶ 11} We agree that
{¶ 12} “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Reynolds, 79 Ohio St.3d 158, 161, 1997-Ohio-304, 679 N.E.2d 1131, quoting State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, at the syllabus.
{¶ 13} Nelson filed a direct appeal of his conviction in 1987 and could have raised any sentencing errors then. He did not. Furthermore, Nelson never raised any sentencing errors in his second and third appeals. Therefore, he is precluded from appellate review of his sentence now.
{¶ 14} Even if Nelson‘s claim were not barred by res judicata, we do not find that the sentencing journal entry was a clerical error. A review of the record demonstrates that the trial court intended to run Nelson‘s five sentences consecutively. At the hearing, the court made its intentions known by stating that it felt constrained by the enactment of maximum terms and that it felt Nelson was a menace to society and unfit to live in the community.
{¶ 15} Although a nunc pro tunc judgment entry would be proper to record the true action of the trial court had it made a genuine clerical error, we do not find it applies here, where to enter the requested change would modify the court‘s judgment. See State v. Starks (Dec. 31, 1997), Sandusky App. No. S-97-034.
{¶ 16} Nelson‘s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
LARRY A. JONES, J., and JOSEPH J. VUKOVICH, J.,* CONCUR
*(Sitting by assignment: Judge Joseph J. Vukovich, of the Seventh District Court of Appeals.)