State ex rel. Nelson v. Russo
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[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. 2011-Ohio-6552.] 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. 2011-OHIO-6552 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. 2011-Ohio-6552.] Appellant had adequate remedy by way of appeal to raise claim of sentencing error Court of appeals judgment denying request for writ of mandamus affirmed. (No. 2011-1438 Submitted December 7, 2011 Decided December 22, 2011.) APPEAL from the Court of Appeals for Cuyahoga County, No. 96706, 2011-Ohio-3698. __________________ 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. SUPREME COURT OF OHIO {¶ 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, 2011Ohio-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, 2010Ohio-6032, 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-Ohio1258, 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. ______________________ 2
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