[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

2

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 
January Term, 2020 

3

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 dueprocess 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. 
SUPREME COURT OF OHIO

4

{¶ 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 
January Term, 2020 

5

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. 

_________________