SUPREME COURT OF OHIO CLERK OF COURTsupremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=...IN THE SIIPI2EME COURT OF OHIfl State ex rel. Carl A. Nelson, Sr., Relator-Appellant,-vs-Judge

IN THE SIIPI2EME COURT OF OHIfl

State ex rel. Carl A. Nelson, Sr.,

Relator-Appellant,

-vs-

Judge Nancy 1VL Russo,

Respondent-Appellee

Case No. 11- 1438

On Appeal from the CuyahogaCounty Court of Appeals, EighthAppellate District Case No.96706

MERIT BRIEF OF RELATOR-APPELLANT CAIiLA, NELSON, Sit.

Liespectfully submitted,

Carl A. Nelson, Sr. #199-605, Pro seGratton Correctional Institution2500 S. Avon-Belden RoadGrafton, Ohio 44044(440)-748-1161

PRO SE

WilliamD: MasonCuyahoga County Prosecutor9* Fl., Justice tenter1200 Ontario StreetCleveland, Ohio 44113-1664(216)-443-7800

CLERK OF COURTSUPREME COURT OF OHIO

COUNSEL FOR RESPONDENT- APPELLEE

TABLE OF CONTENTS

Page.. ...TABLE OF AUTHORITIES.................................................:...............................:............... iri,iii

STATEMENT OF FACTS ....................................................................................................... 1,2

ARGUIVIENT ...... ............................... ........ .......................................... .................................... 3-13

Proposition of Law lYo.i:The Cuyahoga County Court ofAppeals, Eighth Appellate District abusedits discretion and committed plain error to the prejudice of Relator-Appellantwhen it granted Respondent-Appellee's motion for summary judgment anddenied Relator-Appeilant's writ of mandamus to compel the judge (Appellee)to perform a ministeiial duty of causinm g-the record to reflect the tnath therebyviolating Relator-Appellant's constitutional rights secured under Article I,Section 16 of the Ohio Constitution and the 5th and 14th Amendments to theUnited States Constitution . ................... ............... ....... .......... .............. ........... ......... 3

CONCLUSION ........................................................................................................................ 13

PROOF OF SERVICE ........................ ........ ............................:......................... ........................ 14

APPENDIXES Auox. Page

Appendix-A (date-stamped notice of appeal to the Supreme Court)....................:........ 1-2

Appendix-B (opinion relating to judgment being appealed) .......................................... 3-9

Appendix-C (judgment of Court of Appeals decision afI'irming denial taken fromdenial of "Motion to Amend Sentencing Journal Entry (Nunc Pro Tunc) to niake itConform to Original Sentence imposed and Pronounced in open Court, Crim.R36".... 10-17

Appendix-D (copy of Supreme Court's denial in accepting jurisdictionalmemorandum of denial of Appendix-C appeal) .........:................:.................................... 18

Appendix-E (CONSTITUTIONAL PROVISIONS; STATUTES)

Section I of the 14th Amendment United States Constittution ......................................... 19

Article I, Section 16 of the Ohio Constitution .......... ......... .............................................. 20R.C. 2901.11 ....................................................................................................................... 21- 23

Appendix-F (COURT RULES)Crim.R. i ............................................................................................................ ............ 24

Ohio-Crirn.-R.36 :..................:........:....:...........:................................:.................................. 25Ohio Crim.R.52(B) .......................................:......:............................................................. 26Ohio Civ.R56.................................................................-............................---.........---:..... 27 - 29

TABLE OFAIJTHO: TIES

CASES: Paue

Bartell v. Aurora Pub. Schs,, 263 F.3d 1143, 1149 (10th Cir.2001) ...... .............. ...:............... 12

Brissel et al. County Co3nmrs. v. State ex rel. McCarnmon (1912), 87 Ohio St. 154,

100 N.E. 348 ..................................................................:............................. .......:.................. 5

Caprita v. Caprita (1945), 145 Ohio St. 5 ..... .................. ....................................................... 7

Ohio DepC. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d

532, 605 N.E.2d 368 ............................... ..... .................. :................ ....... ..:................:: 8

Chapman v. U.S. (C.A. 6th 1957), 247 F. 2d 879 ........ ......................................................... 8

Gaddis v. U.S. (C.A.6 1960), 280 F.2d 334 ............................................................................ 13

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 I*T.E.2d 241 ....................... 4

Hill v Briggs (1996), Ill Ohio App.3d 40, 676 N.E.2d 547 ................................................. 5

Jackson v. Jamrog (6th Cir.2005), 411 F.3d 615, 619 .......................... ................. ................. 12

Kelley v. Johnson, 425 U.S. 238, 244, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) ..................... 11

Morrissey v. Brewer (1972), 408 U.S. 471...° .........................:...................:......................... 10

Reichert v. Ingersoll (1985), 18 (3hio St3d 220, 223 ........................................................... 9

Schade v. Carnegie Body Co. ( 1982), 70 Ohio St.2d 207, 209 ............................................. 9

State v. Nye (1996), Not Reported in N.E.2d, 1996 WL 303675 .......................................... 7

State v. Long (1978), 53 Ohio St.2d 91 ................. ................... ............ ......... .................... -.... 9

State v. Logan (9th Dist 1987), 1987 WL 14436, Ohio App., 1987 ...................... ............... 10

State v. Thompson (June 9, 1982), Clark App. No. 1659 ...................................................... 10

State v. Shafer (1942), 71 Ohio App. 1, 47 N.E.2d 669 (syllabus 1) ..................................... 3

State ex rel, v. Bergman, Clerk (1930), 28 Ohio N.P.N.S.,131 ...............................:............... 6

State ex rel. Bardo v. Lyndhurst (1988), 37 Ohio St.3d 106, 107, 524 N:E.2d 447 ............... 4

State ex rel. Corron v. Wisner (1970), 23 Ohio App.2d 1, 260 N.E.2d 608 .......................... 5

State ex rel. Fink v. Cincinnati (2010), 186 Ohio App.3d 484, 928 N.E.2d 1152 ................. 4

Sfate ex rei: Iioman v. Board ofEmbalmers & Funeral iiirectors of Uhio (1939),

135 Ohio St. 321, 21 N.E.2d 102 ............................................. .......,......------. 5

CASES:PAGE

State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 ............... 4

State ex rel. Hrelec v. Campbell (2001), 146 Ohio App.3d 112, 117, 765 N.E.2d 402 .......... 3

State ex rel. Hudson, Admr. v. Kelley, Sheriff (1936), 55 Ohio App. 314, 9 N.E.2d 746 ...... 5

State ex rel. Howell v. Schiele, Treas., (1950), 153 Ohio St. 235, 91 N.E.2d 5 ......... ............ 6

State ex rel. Jeringhan v. Gaughan (Sept. 26, 1994), Cuyahoga App. No.67787 .......:............ 9

State ex rel. Merydith Const. Co. v. Dean (1916), 95 Ohio St. 108, 116 N.E. 37 .................. 5,6,7

State ex rel. Mill Creek Metro. Park Dist. Bd: of Commrs. v. Tablack (1999)

86 Ohio St.3d 293, 714 N.E.2d 917 ................. ......:.......................... ..................... .............. 4

State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914 ............................. 3,9

State:ex rel. Paul Stutler, Inc. v. Yacobucci, Clerk (1958); 108 Ohio App. 41, 160

N:E:2d 300 .................... .............. .......... ............... ......... ............ ......... ....... ...............>..........: 6

State ex rel. Phelps v. Gearheart, Supt. of Ins. (1922), 104 Ohio St. 422, 135 N.E. 606 _.:. 5

State ex re1. Price, Attorney General v. Huwe (1921), 103 Ohio St. 546,

134 N.E. 456 ........................................................:..............................................:...:............ 5

State ex rel. Universal Destructor Co. v. Wieggand, Mayor & Director of

Public Works (1927), 26 Ohio App. 154, 159 N:E. 140 .................................:.............:....... 6

State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551 N.E.2d 183 .............. 4,10

Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258,

138 L.Ed.2d 772 (1997) ........ ....... ........ .... :............ ................. ....... .................. ........ ..... 12

Washington v Lee, 263 F.Supp. 327 (M:D.Ala:1966), affd per curiam

390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) ........................................................ 12

Yungwirth v. McAvoy (1972), 32 Ohio St.2d 285, 288 ..................................................... 9

CONSTIT[1TIONAL PROVISIONS; STATUTESs

Section I of the 14th Amendment United States Constitution .... ..... ............... .......... ....:... i l

Article I, Section 16 of the Ohio Constitution........:......:.............................:...................... 11

lt. C. 2901.11 ... ..........:.............:............. .......................................................................... ..... 7

COURT RULES: PAGE

Crim. R. 1 ....... ......................................................................... .......................................... 7Ohio Crim.R.36 .................... ......... .------- .............................. ........ ......... ........................... 4,7,8;10;13Ohio Crim.R. 52(B) ....... .......... ........................... ............................................................... 9Ohio Civ.R.56 ......................... ..................................... ...................................................... 4

ut

S.TATEMEIIIT OF FACTS

On June 23, 2010 in the Cuyahoga County Court of Common Pleas, Case No. 212590,

Relator-Appellant, Carl A. Nelson, Sr. (Nelson herein), filed a motion, enfiatled "Motion to

Amend Sentencing Journal Entry (Nunc Pro Tune) to Make it Conform to Original Sentence

Imposed and Pronounced in Open Court, Crim.R.36" (emphasis added). On or about June 28,

2010 the State by and through Assistant Prosecuting Attorney, T. Allan Regas, filed a reply

entitled, "Opposition to Motion to Amend Sentencing Journal Entry"; before Nelson could reply

contra, Respondent-Appellee, Judge Nancy M. Russo, (Judge Russo hereinafter) on July 1, 2010,

denied Nelson's motion for nunc pro tune ORDER to make the record reflect the truth of the

actual sentence pronounced in open court.

A timely appeal was taken from Judge Russo's denial. The Eighth District Court of

Appeals affirmed the trial court's denial on December 9, 2010, Case No. 95420. See Appendix-

C. On January 21, 2011, Nelson filed a timely appeal into the ()hio Supreme Court, Case No.

2011- 0038; this Court denied jurisdiction on March 16, 2011. See Appendix-D

Nelson submits that he has fully exhausted all available remedies and no longer had any

adequate remedy in the ordinary course of the law when he filed his Petition for writ of

mandamus, Case No.96706, to 6ontpei Judge Russo to perform the ministerial duty of causing

the record to reflect the truth.

It is worth noting and is well established on the record that former Cuyahoga County

Prosecutor John T. Corrigan offered to accept a guilty plea from Nelson to one count of rape;

Neison deeJingd the ouer electing to have a iriat'oy jtay: See attached-to compla;nt^ Exhibit-D

(copy of page 14 of plea bargain offer from transcripts). On October 28, 1987 after being found

guilty by a jury as charged in the indictment, Nelson was sentenced in open court by Judge

Terrence ODonnell. See attached to complaint Exhibit-C (copy transcripts of actual sentence

imposed in open court): Sentencing Journal Entry was journalized on November 2, 1987.

Beginning on page 17 of the sentencing transcripts, the sentencing court pronounced sentence

without stating that the sentences would be consecutive to each other. On page 18 the eourt

explained RC. 2929.41(E) relevant to consecutive terms of imprisonment and then specified that

Neison's nunimum term of imprisonment would be 15 years. In the following paragraph, the

court specifically stated that it denied consecutive sentences on each count however, the

sentencing journal entry subsequently issued by the court was made to read consecutive

sentences. See copy of sentencing journal entry attached to complaint, Exhibit-D .

On April 22, 2011, Nelson commenced a mandamus action against Judge Russo to

compel the judge to perform a ministerial duty of causing the record to speak the truth relevant

to the aforementioned sentence pronounced in open court _ See compiaint Id., at ¶4: On May 13,

2011, Judge Russo, through the Cuyahoga County Prosecutor, moved for summary judgment on

grounds of adequate remedy at law and res judicata. Notwithstanding The Eighth District Court

of Appeals determining "[t]he imposition of consecutive sentences was a clerical error which

pursuant to Criin.R. 36, the trial Court could con:ect at any time.", a zietermination that would

support Nelson's argument, it nonetheless granted judge Russo's summary judgment motion on

July 26, 2011 _ See Appendix- BOournalized copy of codrt's niling at page 3). This timely appeal

follows. See Appendix-A (copy of date-stamped notice of appeal to Supreme Court).

2

ARGUMENT

Proposition of Law No.I:The Cuyahoga County Court ofAppeals, Eighth Appellate District abusedits discretion and committed plain error to the prejudice of Relator-Appellantwhen it granted Respondent-Appellee's motion for summary judgment anddenied Relator-Appellant's writ of mandamus to compel the judge (Appellee)to perform a ministerial duty of causing the record to reflect the truth therebyviolating Relator-Appellant's constitutional rights secured under Article I,Section 16 of the Ohio Constitution and the 5th and 14th Amendments to the

United States Constitution.

Nelson contends that the standard of revie for determining whether a court properly

granted or denied a writ of mandamus is abuse of discretion. See State ea reL Hrelec v.

Campbell (2001), 146 Ohio App.3d 112, 117, 765 N.E.2d 402; and State ex rel. Ney v. Niehaus

(1987), 33 Ohio St_3d 118, 515 N:E.2d 914. This standard requires more than a determination by

the reviewing court that there was an error of judgment, but rather that the trial court acted

unreasonably, arbitrarily, or unconscionably. In State v. Shafer (1942), 71 Ohio App. 1, 47

N.E.2d 669 (syllabus 1); the Fifth District Court of Appeals of Guernsey County specifically held

that:

`1. Abuse of discretion on the part of a trial court does not necessarilymean ulterior motive,arbitrary conduct, or a willful disregard of therights of a litigant. It may mean the failure to apply the principle of

law applicable to a situation, if tlreneby pr4udice results to a litigant.

(emphasis added).'

In the instant case, the court of appeals failed to apply the proper principal of law

applicable to the situation. Judge Russo had an undeniable ministerial duty to cause the record to

refleet-the tiuth in the journaten•••tr9 oftne actuialsentence pronounced in open uurt.

However, before a court can grant a writ of mandamus, the petitioner must establish (1) a

3

clear legal right to the requested relief, (2) a clear legal duty on the part of respondents to provide

this relief and (3) the lack of an adequate remedy in the ordinary course of law to compel them

to perform the requested acts. State ex reL Mill Creek Metro. Park Dist. Bd. of Commrs. v

Tablack (1999), 86 Ohio St.3d 293, 714 N.E.2d 917. See also, State ex rel. Fink v. Cincinnati

(2010), 186 Ohio App.3d 484, 928 N.E.2d 1152; State ex reL Bardo v. Lyndhurst (1988), 37

Ohio St.3d 106, 107, 524 N.E.2d 447.

Furthermore, summary judgment pursuant to CivR56 is only appropriately granted when

there exists no genuine issue of material fact, the movant is entitled to judgment as a matter of

law, and the evidence, when viewed in favor of the nonmoving party, permits only one

reasonable conclusion that is adverse to the nonmoving party. Grafton v. Ohio Edison Co.

(1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; State eg reL Howard v. Ferreri (1994), 70

Ohio St.3d 587, 589, 639 N.E.2d 1189. Nelson contends that there was and remains a material

fact theCourt of Appeals either ignored or overlooked: Respondent had a duty under the law to

perform the nvnisterial duty of causing the record reflect the truth. After initially attempting to

correct this inconsistency via a Crim.lt.36 motion and subsequent appeals up to and including

this Court, ma.ndamus was Nelson's sole remaining adequate remedy.

This Court in State ex reL Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551

N.E.2d 183; held and mandated in its PER CURIAMopinion that:

"Because court speaks through its journal, it isimperutive that c,orrrt's joumcrt reflect the truth."(emphasis added)

ln any event, it is prolilematic and prejuaicra l-to i+iel-son `ihat the trial court's November 2,

1987 journalized sentencing entry is an inaccurate depiction of the proceedings. This Court has

4

held that a court abuses its discretion by issuing an inaccurate entry. See Worcester, supra., Id. at

120, 551 N.E.2d 183. See also Hill v. Briggs (1996), 111 Ohio App.3d 40, 676 N.E.2d 547;

holding that "[i]f an entry does not reflect what actually happened in the case, then the court has

the right, and even the duty, to vacate the erroneous entry and put on a correct one." (emphasis

added). If the circumstances disclose a non-discretionary duty to speak through the journal, the

judge may be compelled to so speak, 25 Ohio Jur. 1149; and 35 Am.Jur. 46.5, 411. Consequently,

the trial court abused its discretion when it issued an inaccurate sentencing journal entry on

November 2, 1987, indicating Nelson's sentences were consecutive.

The court in State ex reL Corron v. Wisner (1970), 23 Ohio App.2d 1, 260 N.E.2d 608;

specifically ruled that: "Ministerial acts required of public officials are mandatory and must be

followed." In the instant case, the Court of Appeals should have first determined whether or not

there was a plain and specific duty to perform, an act ministerial in nature, or a duty calling for

an exerciseof discretion. If it was determined that Judge Russo's duty was plain and specific; and

ministerial in nature, mandamus was appropriate. A multitude of cases are available with

decisions bearing upon the many facets of the use of an action in mandamus in an attempt to

compel the performance of a public duty. Ministerial duties and discretion are considered, and

frequently interwoven are the questions of gross abuse of discretion and the adequacy of a

remedy at law. A few typical cases are suggested as reference. State ex rel. Price, Attorney

General v. Huwe (1921), 103 Ohio St. 546, 134 N.E. 456; State ea reL Phelps v. Gearheart,

Supt. of Ins. (1922), 104 Ohio St. 422, 135 N.E. 606; Brissel et al. County Commrs. v. State

ex rel. MeCammon (1912), 87 Ohio St. 154, 100 N.E. 34$;State ex reL Hudson, Admr. v.

Kelley, Sheriff (1936), 55 Ohio App. 314, 9 N.E.2d 746; State ex rel. Homan v. Board of

Embalmers

& Funeral Directors of Ohio (1939), 135 Ohio St. 321, 21 N.E.2d 102; State ex reL Merydith

Const. Co. v. Dean, Aud. (1916), 95 Ohio St. 108, 116 N.E. 37; and State ex rel. v. Bergman,

Clerk (1930), 28 Ohio N.P.N.S., 131.

A plain ministerial act was involved in State ex rel. Paul Stutler, Inc. v. Yacobucci,

Clerk (1958), 108 Ohio App. 41, 160 NE.2d 300. The court, in Paul Stutler, Tnc., quoted from

State ex reL Howell v. Schiele, Treas., (1950), 153 Ohio St. 235, 91 N.E.2d 5, and relied upon it

and other cases cited at pages 237 and 238, 91 N.E.2d 5 in that decision. Howell was a discretion

case, and a writ was denied. The language of the Supreme Court, at page 237, 91 N.E.2d at page

6, is as follows:

'It is the established law of this state that a writof mandamus will lie to compel the performanceof an act *8 specially enjoined by law as a dutyresulting from a public office, but will not issueto control discretion unless it be clearly shown

that the refusal to act is an abuse of discretion.

(emphasis added).

And finally, an Eighth District Court of Appeals decision in State ex rel. Universal

Destructor Co. Y. Wieggand, Mayor & Director of Public Works (1927), 26 Ohio App. 154,

159 N.E. 140. Note particularly the syllabus of the case, setting forth the rules announced as

follows:

`2. A writ of `mandamus' is a remedy extraordinary, and can onlybe issued in cases of emergency, when there is no plain andadequate remedy at law, and relator, under the law and record, isclearly and plainly entitled to writ.' (emphasis added)

`4. Mandamus will not lie to compel the exercise of a discretionarypower unless the power is exercised flagrantly and with gr-ossabuse of sound discretion.'

Also, holding that: " To justify mandamus, respondent must refuse and neglect to perform duties

specifically enjoined on him by law."

6

Furthermore, this Court in State ea reL Merydith, supra; basically defined an adequate

remedy of law is one which would preclude mandamus as one complete in its nature, beneficial

and speedy, and which would secure absohrtely a right and relief from the wrong done.

(emphasis added)

In the case sub judice, Nelson's only remedy at law prior to filing mandamus was the use

of Crim.R.36: Ohio Crim.R.36 specifically provides:

Clerical mistakes in judgments, orders, or other parts of the record,and errors in the record arising from oversight or omission, may be

corrected by the court at any time. (emphasis added)

Ohio Crim.R. 36 permits the court to issue a nunc pro tunc entry at any time. Crim.R. 1

provides asfollows: "(A) Applicability. These rules prescribe the procedure to be followed in all

courts of this state in the exercise of criminal jurisdiction, with the exceptions stated in

subdivision (C) of this rule." (emphasis added.)

Thus, the criminal rules are to be followed when a court exercises criminal jurisdiction.

Criminal jurisdiction -attaches when a charge is filed alleging some violation of the Ohio

Criminal Statutes. See, R.C. 2901.11, which sets forth criminal law jurisdiction. Criminal

jurisdiction ends upon the defendant's release from incarceration, probation or parole, whichever

everit occurs last. See State v. Nye (1996), Not Reported in N.E.2d, 1996 WL 303675. This court

noted that the power to make nunc pro tune judgments is restricted to the "correction of judicial

records insofar as they fail to record, or improperly record, a judgment rendered by the court:"

Caprita v. Caprita (1945), 145 Ohio St. 5, paragraph two of the syllabus.

Thus, a nunc pro tunc judgment reflects action previously and actually taken. It is a

simple device by which a court may make its journal reflect the truth. The record reflects the

7

truth when a court, upon being placed on notice, properly corrects a judicial record that fails to

show a correct order or judgment of the court because the order or judgment was not recorded

properly in the first instance. Ohio Crim. R. 36 is modeled after Fed. Crim. R. 36_ If a judgment

entry is inaccurate, Rule 36 provides a remedy by motion in a direct proceeding in the same

action to correct the judgment to the end that it may speak the tnath. Chapman v. U.S. (C.A 6th

1957), 247 F. 2d 879. Under Ohio law, Crim.R.36 provides the remedy as being by motion at any

time, therefore, res judicata is not applicable as the Court of Appeals would want Nelson and this

Court to believe and accept. Also, the use of the word may in Crim.R.36 gives the trial court

absolute discretion and although it is a remedy in the ordinary course of the law Nelson cannot

control Judge Russo's discretion.

This Court in Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65

Ohio St.3d 532, 605 N.E.2d 368; defined the use of the words shall and may to mean:

In statutory construction, the word 'may' shall be construedas permissive and the word'shall' shall be constraed asmandatory unless there appears a clear and unequivocallegislative intent that they receive a construction other thantheir ordinary usage " (emphasis added)

Furthermore, Crim.R.1(B) specifically provides:

"These rules are intended to provide for the just determinationof every criminal proceeding. They shall be construed andapplied to secure the fair, impartial, speedy, and sureadministration of justice, simplicity in procedure, and theelimination of unjustifiable expense and delay."(emphasis added)

The record before this Court reflects the unjust determinations by the trial court of

Nelson's Crim.R. 36 motion and subsequent appeals. Although Crim.R36 was originally

Nelson's only remedy in the ordinary course of the law, it proved to be inadequate thereby

8

leaving mandamus as the only culequate remedy Nelson had remaining with which to compel

Judge Russo to perform the ministerial duty of making the record reflect the truth.

Nelson, contends that plain error pursuant to Crim.R52(B) and abuse of discretion has

occurred at all levels in this case. However, Nelson understands that the implementation of the

plain error doctrine is to he taken with utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice. See Reichert v. Ingersoll (1985), 18 Ohio St.3d

220, 223; State v Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. "The plain

.error doctrine permits correction of judicial proceedings where error is clearly apparent on the

face of the record and is prejudicial to the appellant." Although the plain error doctrine is a

principle applied almost exclusively in criminal cases, this Court has stated that the doctrine may

also be applied in civil causes, if the error complained of "would have a material adverse affect

on the character and public confidence in judicial proceedings." Id., citing Schade v. Carnegie

Body Co. (1982), 70 Ohio St.2d 207, 209; Yungwirth v. MeAvoy (1972), 32 Ohio St.2d 285, ,

288.

The Court of Appeals partial reliance on the Eighth Appellate Districts unreported pocket

case entitled State ea rel. Jeringhan Y. Gaughan (Sept. 26, 1994), Cuyahoga App. No.67787, is

misplaced and not applicable to the case at bar The Court of Appeals relied on Jerninghan as

authority that; "mandamus does not lie to correct errors and procedural irregularities in the

course of a case". However, Jerninghan, is distinguishable from Nelson's case because what

Jerninghan was attempting to accomplish through writ of mandamus was purely discretionary

- -matters not eognizable in mandatuus RC. 2731. et seq. -lie oniy section fnat does apply to

Nelson's case which the Court of Appeals overlooked at page 2 paragraph two of Jerninghan

relies on State ea reL Ney, supra., where this court held that: "although a writ of mandamus may

9

require a court to exercise its judgment or discharge a given responsibidity, it may not control

judicial discretion, even if such discretion is grossly abused." (emphasis added). Nelson asserts

that judge Russo had a ministerial duty and a given responsibility to cause the record to reflect

the truth.

In the case sub judice the public cannot, nor can Nelson, have confidence in the judicial

proceedings when a manifest injustice goes uncorrected. In the unreported case of State v.

Logan (9s`Dist 1987), 1987 WL 14436, Ohio App., 1987, the court stated that: "Because parole

involves an interest in liberty, due process is required." See Morrissey v. Brewer (1972), 408

U.S. 471. The Court finther found that, "While it is correct to state that a court speaks only

through its journal, that journal cannot alter the sentence of a defendant not present at the time of

the entry" See State v. Thompson (June 9, 1982), Clark App. No. 1659, unreported Because an

indefinite sentence, such as Nelson's, is subject to the Ohio Adult Parole Authority and the

exercise of its discretion prior to release or expiration of sentence the plain en-or and prejudicial

effect stemniing from the erroneous sentencing journal entry has a pernicious effect beyond

Nelson's control.

The sentence, as stated in Nelson's sentencing journal entry clearly altered the

prospective length of imprisonment and modified Nelson's sentence in his absence. Judge Russo

abused her discretion in failing to perform the required ministerial duty of causing the

sentencing journal entry to reflect the truth as found in the sentencing hearing transcript as

delineated in an analogous case by this Court, Worcester, supra. In accordance with Crim.R.36

7udge Russo "had subject riiatter jurisziiction to correct the-record by a nunc pro t-unc entry-but

refused to do so. Subsequently the Court of Appeals abused its discretion by failing to compel

Judge Russo to

10

perform the required ministerial duty and thereby continued to deprive Nelson of his

constitutional guarantees of due process and equal protection resulting in a manifest injustice.

Nelson asserts it is uncontrovertible that the sentence imposed by the trial judge in open court in

his presence and the one that was later formalized in its journal entry, outside of Nelson's

presence, are inconsistent; numerous reasonable theories can be offered by the state and the

Court of Appeals as to the cause of this inconsistency as well as what the trial court's actual

intent was, but as well reasoned as these theories may be they remain, in the end, purely

speculation.

Section I of the 14P Amendment to the United States Constitution provides in relevant

part :

"No State shall make or enforce any law which shall abridge theprivileges or immimities of citizens of the United States; nor shallany State deprive any person of life, liberty, or property, withoutdue process of law; nor deny to any person within its jurisdiction

the equal proteciion of the larvs.°' (emphasis added)

Also, Article l, Section 16 of the Ohio Constitution provides that:

"All courts shall be open, and every person, for an injury

done him in his land, goods, person, or reputation, shalf

havejusfice administered without denial or delay. "

(emphasis added)

This section of the Ohio Constitution is analogous in part to the due process and equal protection

guarantees in the Fourteenth Amendment to the US Constitution.

The,"equal protection of the laws" is a more explicit safeguard of prohibited unfairness

than "due process of law," and, therefore, the two are not always interchangeable phrases.

The Fourteenth Amendment affords not only a procedural guarantee against the

deprivation of life, liberty, and property but also protects substantive aspects of these interests

11

against unconstitutional restrictions by the states. See I£elley v. Johnson, 425 U.S. 238, 244, 96

S.Ct. 1440, 47 L.Ed.2d 708 (1976); where the United States Supreme Court set forth a criteria

for evaluating a 14a` Amendment claim and stated that; "In each case the "essence" or

"touchstone" of due process generally and equal protection specifically is protection of

individuals from the arbitrary or unfair ivnpact of government action. In each case the reviewing

court must consider the constitutional importance of the affected individual interests, the

character of the state action or ciassification in question and the state's asserted interests in

support of its action or classification. As these factors vary from case to case, it is apparent that

courts must out of necessity apply a"spectrtun of staridards" in reviewing actions or

classifications which allegedly violate the Due Process and Equal Protection Clauses."

The Equal Protection and Due Process clauses protect distinctly different interests. On the

one hand, the "substantive component" of the Due Process Clause "provides heightened

protection against government interference with certain fundamental rights and liberty interests,"

Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) In

contrast, "the essence of the equal protection requirement is that the state treat all those sinrilarly

situated similarly," Bartell v. Aurora Pub. Schs., 263 F.3d 1143, 1149 (10th Cir.2001). Prisoners

are not a suspect class, Jackson v. Jamrog (6th Cir.2005), 411 F.3d 615, 619. Prisoners do not

lose all their constitutional rights when they enter a penal institution, rather they retain all their

constitutional rights except for those which must be impinged upon for security or rehabilitation.

.Washington v. I,ee; 263 F.Supp. 327 kWiD. "-a.1966) -affd per curiarn 390U.S. 333, 88 S.Ct.

994, 19 L.Ed.2d 1212 (1968).

12

Regarding the criminal proceedings he wasinvolved in, Nelson subnuts he has a 14th

Amendment Constitutional Right to an accurate sentencing journal entry that reflects the truth

and depicts the actual sentence pronounced in open court as delineated in the transcript. As a

matter of well settled law it was incumbent upon Judge Russo to perform the required ministerial

duty.

Nelson's sentencing journal entry and transcript are in opposition and ambiguous. In

Gaddis v U.S. (C.A:6 1960), 280 F.2d 334; the court held that: "Where there was an ambiguity

in pronouncement of sentence and written judgment of conviction as to whether the two

sentences were to be served concurreatly or conseeutively, Prisoner was entitled to have

language construed most favorably to him and hence judgment of conviction would be modified

to have sentences run concurrently." Hamilton v. Atkins (1983), 10 Ohio App.3d 217, 461

N.E.2d 319.

I COJIYCLUSIOIY

Wherefore, based upon the facts and authority set forth herein and regardless of whether

this Court applies a de novo or abuse-of-discretion standard of review in this appeal, it will find

that the Court of Appeals for the Eighth Appellate District committed prejudicial plain error and

abused its discretion in denying Nelson's reqeiest for writ of mandamus to compel Respondent

Judge Russo in this case to perform the ministerial duty of causing the record to reflect the truth.

Respectfiilly submitted,

r.ko.,x A man'Carl A. Nelson, Sr., #A199605, Pro seGrafton Correctional Institution2500 S. Avon-Belden RoadGrafft.on, Ohio 44044(440)-748-1161

13

PROOF OF SERVICE

I hereby certify that a true and correct copy of the foregoing Merit Brief of Relator-

Appellant was served on Cuya.hoga County Prosecutor William D. Mason counsel for

Respondent-Appellee at 1200 Ontario Street, 90h Floor 7ustice Center, Cleveland, Ohio 44113-

1664 this J 3"day of 2011 via regular U.S. Mail postage prepaid.

Respectfully su.

(Ze f/. -LCarl A. Nelson, Sr., #A19 605; Pro seGrafton Correctional Institution2500 S. Avon-Belden RoadGrafton, Ohio 44044(440)-748-1.161

14

APPENDIXES

GASElYO

State ex rel. Carl A. Nelson, Sr.

Relator-Appellant,

-vs-

OF COMMON PLEASCOURT7UDGE NANCY M. RUSSO ,

ON APPEAL FROM THE -CUYAHOGA COUNTY COURTOF APP$ALS, EIGI3TH APPELLATEDZSTRICT

Court of Appeals Case No..96706

NOTICE OFAPPEAL OFAPPELLANT CARI;A. NELSON, SR

CarIA. Nelson, Si #199-605; Pro seGwaft-m Correctiona,l InstitutionZ5Q0 S. Avon-Beldon Road- raRon, Ohio 44044

(440)-748-1161

COUNSEL FOR BESPONII!ENT APP!ELLEE

William D.1Gfason / Cuyahoga County Prosecutor9U' Fl., Justir,eCenter1200 Ontario Street .Cleveland, Ohio: 44113 -1664

Appendix-A(1)

Notice ofAppeal ofAppellant,Car1 A. Nelson. Sr.

Relator-Appellant Carl A. Nelson, Sr., hereby gives notice of appeal to the. Supreme

Court: of Ohio from the judgment of the Cuyahoga County Cburt of Appeals, Eighth Appellate

District, entered in Gourt of Appeals Case No. 96706 on July 26, 2011.

This case originated in the Court of Appeals, Eighth Appellate District and tai' b^s a

substantial constitutional question and is one of public or great generaiinterest: Attached is the

date,stamped copy ofthe Court ofAppeals judgrnentbeing appealed:

Respectfully submitted;

Carl-A. Nelson; Sr: #199-605, Wo seGrafton Correctional Institution2500 S. Avon-Beldon RoadC'Trafton; Ohio 44044

CERTIFICATE OF SERVICE

I.hereby certify that a true 'and correct copy of this NoticeofA.ppeal was sent byordinary

IT:S. Mail to counsei of record for Respondent-Appellee; William D. Mason, Cuyahoga County

Prosecutor, at 1200 Ontario Street, 9' Floo

dayof

7ustice Center Cleveland, Ohio 44113 this

Carl A. Nelson, Sr. #199-605 Pfn e

Apperr7ix-A( 2 )

JUL 2 6 2011

01"ourt o f AppeaW v'EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 96706

STATE EX REL. CARL A. NELSON, SR.

RELATOR

vs.

JUDGE NANCY M. RUSSO

RESPONDENT

JUDGMENT:WRIT DENIED

Writ of MandamusMotion No. 444516Order No. 446244

RELEASE DATE; Ju1y 26, 2011

P,pperrlix-B ( 3 )

-1-

FOR RELATOR

Carl A. Nelson, Sr.Inmate No. 199-605Grafton Correctional Institution2500 S. Avon Belden RoadGrafton, Ohio 44044

ATTORNEYS FOR RESPONDENT

William D. MasonCuyahoga County Prosecutor

James E. MossAssistant County Prosecutor9th Floor Justice Center1200 Ontario StreetCleveland, Ohio 44113

MARY EILEEN KILBANE, A.J.:

On April 22, 2011, the relator, Carl Nelson, Sr., commenced this

mandamus action against the respondent, Judge Nancy M. Russo, to compel the

judge to "correct a clerical error" in the sentencing entry so that his sentences

would run concurrently instead of consecutively in the underlying case, State

of Ohio u. Carl Nelson, Sr., Cuyahoga County Common Pleas Court Case

No. CR-212590; OnMay 13,2011, the respondentjudge, throughthe Cuyahoga

County Prosecutor, moved for summary judgment on the grounds of adeqiiate

remedy at law and res judicata. On May 26, 2011, Nelson filed his brief in

opposition to the judge's dispositive motion. For the following reasons, this

court grants the judge's motion for summary judgment and denies the

application for a writ of mandamus.

In the underlying case in 1987, a jury convicted Nelson of four counts of

rape and'onecount of kidnapping a 14-year-old girl. At the sentencing hearing

Judge Terrence O'Donnell, then the trial court judge,. noted the extreme

emotional injury inflicted on the girl such that she could no longer live with her

mother. Then he stated as follows: "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 give this Court the

opportunity and the authority of the State Legislature to give you this sentence

Append.ix-B(5)

-2-

and also enact a Revised Code Section 2929.41 that says there are maximums

Section (E) says: `Consecutive terms of imprisonment imposed shall not exceed'

and your minimum terni of imprisonment is a term of fifteen years. In your

case I find that to be incomprehensible and therefore I am going to deny you

consecutive on each count because if you are released you are a menace to

society and you have proven your unfitness to live in our community." The

sentencing entry imposed five 15 to 25 years sentences consecutively.

In his direct appeal, State v. Carl Nelson, Sr. (Mar. 16, 1989), Cuyahoga

App. No. 54791, Nelson argued manifest weight of the evidence and ineffective

assistance of trial counsel. He did not argue any inconsistency between the oral

pronouncement of sentence and the entry itself. This court affirmed. In 2000

Nelson filed a postconviction relief petition on the grounds of new evidence. In

State v. Carl Nelson, Sr. (Sept. 21, 2000), Cuyahoga App. No. 77094, this court,

affirmed the trial court's denial of the petition. In State v. Carl Nelson, Sr.,

Cuyahoga App. No, 85930, 2005-G.hio-5961, this court affirmed the trial court's

decision denying DNA testing, because Nelson failed to demonstrate that such

testing would be outcome determinative.'

1 Additionally, Nelsor_ tried twice to file delayed appeals. State v. Carl Nelson;

Sr., Cuyahoga App. Nos. 59268 and 59530. He also had another appeal dismissed for

failure to file a brief. State v. Carl Nelson, Sr. Cuyahoga App. No. 80208.

ArmervlaY B(6)

In 2010,. Nelson moved the trial court to amend his sentence from.

consecutive to concurrent because the trial judge during the sentencing hearing

had said, "I am going to deny you consecutive on each count "(Tr. 18.) Thus,

the consecutive sentences were inconsistent with the pronouncement at the

hearing. Indeed, the imposition of consecutive sentences was a clerical error

which pursuant to Crim.R. 36., the trial court could correct at any time. The

trial court denied the motion.

In State v. Carl Nelson, Sr., Cuyahoga App. No. 95420, 2010-0hio-6032,

.this court affirmed that denial. This court further specifically rejected Nelson's

argument that the imposition of consecutive sentences was a clerical error.

This court concluded that a review of the record demonstrated that the trial

court intended Nelson's sentences to be consecutive. The trial judge's

pronouncements that Nelson was a menace to society and unfit to live in the

community and his dismay with the then legislative scheme imposing minimum

sentences showed his intent to impose consecutive sentences. Moreover, this

court found that Nelson had not raised this argument in his previous appeals.

Res judicata bars arguments that could have been raised at trial or in an appeal

from the judgment. Thus, res judicata properly barred the argument 23 years

and seven appeals later.

Appendix-B(7)

-4-

Now, Nelson tries to resurrect the clerical error argument in this

mandamus action. The requisites for mandamus are well established: (1) the

relator must have a clear legal right to the requested relief, (2) the respondent

must have. a clear legal duty to perform the requested relief and (3) there must

be no adequate remedy at law. Additionally, although mandamus may be used

to compel a court to exercise judgment or to discharge a function, it may not

control judicial discretion, even if that discretion is grossly abused: State ex rel.

Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore,

mandamus is not a substitute for appeal. State ex rel. Keenan v. Calabrese

(1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessaman

(1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Indus.

Comm: of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph three of

the syllabus. Thus, mandamus does not lie to correct errors and procedural

irregularities in the course of a case. State ex rel. Jerninghan U. Gaughan (Sept.

26, 1994), Cuyahoga App. Nb. 67787. Furtlierm.ore, if the relator had an

adequate remedy, regardless of whether it was used, relief in mandamus is

precluded. State ex rel. Tran b. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676

N.E.2d 108 and State ex rel. Boardwalk Shopping Ctr., Ine: v. Court of Appeals

for Cuyahoga County (1990), 56 Ohio St.3d 33, 564 N.E.2d 86.

Appezxli.x-s ( 8 )

5-

Nelson's arguments are ill-founded. First, he had an adequate remedy at

law which now precludes relief in mandamus. He had multiple opportunities

to raise this argument. In 2010, he;did raise it, and both the trial court and this

court specif'ically rejected it. The fact that this court has specifically rejected

theclerical error argument also means that it is barred by res judicata.

Accordingly, this court grants the respondsnt's motion for summary

judgment and denies the application for a writ of mandamus. Costs assessed

against relator. The clerk is directed to serve upon the parties notice of this,

judgment and its date of entry upon the journal. Civ.R. 58(B).

Writ denied.

MA.R.Y gILEEN KILBANE, ADMINISTRATIVE JUDGE

JAMES J. SWEENEY, J., andKENNETH A. ROCCO, J., CONCUR

FILED AND JOURNALIZEDPER APP.R. 22(0)

Court : . ...,. po : i:

EIGHTH APPELLATE DISTRICTCOUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 95420

STATE OF OHIO

PLAIN'1`YFF-API?ELLEE

ELS.ON

DEFENDANT-APPELLANT

JUDGMENT;AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. OR-212590

DEk'ORE: Gallagher; A.J.., Jones, J., and Vukovich; J.*

RELEASED AND JOURNALIZED: December 9, 2010

Bppencix-c(1o)

^

FOR APPELLAI3T

Carl A. Neison; Sr:, pro seInmate No. 199-605Grafton Correctional Institution2500 S. Avon Belden RoadGrafton, OH 44044

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

BY: T. Allan RegasAssistant Prosecuting AttorneyThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113

FiLEDa AND:J6U;F;IV:A1:rZE®'PER APP.R. 22(0)

OEC X 9 2040

E. FUERST,Q^RT ^OF^ry" ^ PEALSc^4CCIMd ^,DEP:

Apperdix-C(11)

SEANC:.GAL,I.AGI3ER, A.J.:

This; cause came to be heard upon the accelerated calendar pursuaixt tb%

.App R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of.counsel.

Appellant Carl Nelson appeals his ;sentence, from the Cuyahoga County

Court of Common Ple.as.. For the reasons; stated herein; we affirm.

On;®.ctober 21, 1987, Nelson was conyicted.of four.counts of rape and one

count,of kidnap.ping, for crimes against a 14-year.=old girl. At the sentencing

hearing on October 28, 1987, the trial court expressed extreme butrage over

Nelson's conduct and empathized. with the vietim, and' the .tragedy she had

suffered. The court sentenced Nelson to: 15 to 25 .years. on each of the five

counts, .

The^ transcript of.the sentencing hearing reflects that the court thein

stated: "It.is incomprehensible to me how the=.General,'Assembly of our State

can impanel a jury.and empow.er the Court to sit and pass senterice on an

individual like yourself and *** then ,the :General: Assembly also° enacts a

Revised. Code Section_ 2929.4:1 that says that there are xnaximums: ***- In your

case lfind that to be incomprehensible and tharefore =I am going to deny you

consecutive on eac.li count because if you are released you •are a menace to

society and you have proven your unfitness to live in our community." The

AppPndix-c(12)

sentencin:g jouri?al,entry.:indicates.t:hat Nelsonwas..sentenced to°•15 to 25 years -

®n each of:the fi^.e coiints and states: "Said counts to be:served. coiasecti^tively."

In1987, Nelson.appeale.d.his convictioris; which this court Affirmed,

hol.ding that the jury ver.dict was not against the manifest weight of the

evidence and that Nelson was in.®t denied.effective assistance of counsel. See

State v. Nelson :(IVI^ar.- 16;1.989), Ciayahoga App. ^No. 54791. NeTsori cLid not

assign as error any.:inconsiste_ncy-between the oral pronouncement of sentence

and the sentencing entry:

In 20.00,-: ,Nelson..file a- petition for.-postconvictiori relief to introduce

additionak evidence; whicli the:trial court d'e.nied without a hearing:'On:aVpeal;^

this court affirmed the lower court's decisionthat Nelson had riot introduc&d- =

evidence that warranted. g-ranting the petition. :See Stcite v. Nelson (Sept. 21,

2000),, :.Cuyahoga App. No; .'17094: It also held -that Nelson's motion for

appointment of an.expert.to:assist withDNAtestirig was properly denied. Id:

In.2004; Nelson petitioned for D•NAtesting, which the trial court denied:

On appeal; this court affirmed the'lo.wer court's decision finding that Nelson

"failed to demonstrate: that DNA -testing. would prove to be outcome

detexminative".. See State u: •^Nelsoit; Cuyahoga App: No. 85930,

20Q5 0hioZ.969.

OApperydix-C (13)

-3-

In 01.0, . rie.arly. 23 years: after:•1is: conviction, Nelson :filed: a motion t6 =

amend.:the se.ntencing: jo:urnal entryori;the basis that ihe trial court ancreased

his punishment by running his sentences :consecutively in the journal entry;

which is inconsistent with the se.ntexiced pronounced.at the liearing. On July 1,

2010;-the trial court denied his motion:

Here, Nelson appeals the trial court'e denial of his motion. In his sole

assignsnentof error, Nelson argues that "[t]he.trial eourt abused its.discretion

when it denied defendant-appellant's motion for a nunc pro tunc sentericing"

ju.dgment entry for the sole pur:pose. of correcting a clerical error in the

senteiacing:judgmen.t:entry to;ca•use;said-sentence to:reflect the actual sentence

pronounced. aiid imposed iii open court Crim;R. 36:"

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" andrun his sentence.s concurrently.

We agree that Crim.R. 36 pe.rmits a court to correct clerical mistakes in

judgments, orders, or otherparts of the record, and errors in the record arising

fro.m overs.ight or omission. Courts possess inherent authority to correct errors

in judgment entriesin.order for the record to:spe-ak the truth: State ex rel. F'ogle `

v. Steiner, 74 Ohio St.3.d 158, 163-164, 1995-Ohio-278, 656 N.E.2d 1-288.-`We

also do not take issue with Nelson's assertion that a court of record speaks only

Apperriix-C(14 )

thraugh its;joupial entxies Cr^i:sdzins u. Sl^ipl'evy:.(1996); 76,012io St.3d 3$0; 382;

667 N.E.2d 1194, citing:State. ex r.el.. Fogle v:; .Steiner: Nonethele'ss; Nels'on's

claim is barred by the doctrine 4 res judicata.

."U- nder the doctrine of res j.udicata, 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 wastraised 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 -u: Reynold=s, 79 Ohio St.3d 158; 161,

1997-Ohio-304; .679: N:E.2d 11311; :quotang^State v: :Perry(1967); 10 Ohio 9t.2d

175;:.226 N.F.2d 104, atthe skllabus:

Nelson f'iled.a direct appeal of his conviction in 1987 aiid'could.liave

rais.ed 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.

Even if Nelson's claim were not barred by res judicata, we do not fiiid 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

p;pperxiix-c(15)

-5-

that it. felt constrained by the :en:actm.ent of :m-axiiiiYZin terins :and that it felt

Nelson was ameiiace to society and unfit to Iive in the_coixiinunyty;

Although a nuric pro tunc jiidgment entry would be proper.to record the

true action of the trial court had it made a genuin® clerical.error, we do not find

it applies here, where to enter the requested change would.modify the court's

judgment. See State u: Starks (Dec. 31, 1997j; Sandusky App. No. S-97-034.

Nelson's sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee.recover from, appellant costs herein taxed.:

The -court finds there •were. reasnnable.: grounds for this a.ppeal:,

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 beeii affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

-6-

A certified copy •of tli'iss entry shail constitute:: tlie:ma:ndate gursiiant to

Rule 27 of the Rules of Appellaxe Proced.ii:xe;

LARRYA._^ONES,x.^, ^nd_rJOSEPH.J. VUKOVICH, J.,* CONCUR

*(Sitting by assignment: Judge Joseph J. Vukovich, of the Seventh DistrictCourt of Appeals.)

Z4$ ^Ujxx.Exl'tc T:tllYXt of 04T.LY MAR 16 2011

CLERK OF COURTSUPREME COURT OF OHIO

Case No. 2011-0038State of Ohio

V.

Carl A. Nelson

ENTRY

Upon consideration of the jurisdictional memoranda filed in this case, the Courtdeclines jurisdiction to hear the case and dismisses the appeal as not involving any

substantial constitutional question.

(Cuyahoga County Court of Appeals; No. 95420)

Maureen O'ConnorChief Justice

U.S.C.A. Const. Amend. XIV

United States Code Annotated Currentness

Constitution of the United States

Full text of all sections at this level AnnotatedFull text of all sections at this level Amendment XIV Citizenship; Privileges and Innnunities;

Due Process; Equal Protection; Apportionment of Representation; Disqualification of Officers;

Public Debt, Enforccment (Refs & Annos)Current selectionAMENDMENT XIV. CITIZENSHQ'; PRIVILEGES AND IIlVIMUNITTES;

DUE PROCESS; EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION;

DISQUALIFICATION OF OFFICERS; PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

OH Const. Art. I, § 16

Baldwin's Ohio Revised Code Annotated Currentness

Constitution of the State of Ohio (Refs & Annos)

Full text of all sections at this level Article I. Bill of Rights (Refs & Annos)

Current selectionO Const I Sec. 16 Redress for injury; due process

All courts shall be open, and every person, for an injury done him in his land, goods, person, or

reputation, shall have remedy by due course of law, and shall have justice administered withaut

denial or delay. Suits may be brought against the state, in such courts and in such manner, as may

be provided by law.

CREDTT(S)

(1912 constitutional convention, am. eff. 1-1-13; 1851 constitutional convention, adopted eff. 9-

1-1851)

UNCODIFIED LAW

2011 S 171, § 9, eff. 6-30-11

R.C. § 2901.11 Baldwin's Ohio Revised Code Annotated

(A) A person is subject to criminal prosecution and punishment in this state if any of the

following occur:

(1) The person commits an offense under the laws of this state, any element of which takes place

in this state.

(2) While in this state, the person attempts to commit, or is guilty of complicity in the

commission of, an offense in another jurisdiction, which offense is an offense under both the

laws of this state and the other jurisdiction, or, while in this state, the person conspires to commit

an offense in another jurisdiction, which offense is an offense under both the laws of this state

and the other jurisdiction, and a substantial overt act in furtherance of the conspiracy is

undertaken in this state by the person or another person involved in the conspiracy, subsequent to

the person's entrance into the conspiracy In any case in which a person attempts to commit, is

guilty of complicity in the commission of, or conspires to commit an offense in another

jurisdiction as described in this division, the person is subject to criminal prosecution and

punishment in this state for the attempt, complicity, or conspiracy, andfor any resulting offense

that is committed or completed in the other jurisdiction.

(3) While out of this state, the person conspires or attempts to commit; or is guilty of coniplicity

in the commission of, an offense in this state.

(4) While out of this state, the person omits to perform a legal duty imposed by the laws of this

state, which omission affects a legitimate interest of the state in protecting, governing, or

regulating any person, property, thing, transaction, or activity in this state.

(5) While out of this state, the person unlawfully takes or retains property and subsequently

brings ariy of the unlawfully taken or retained property into this state.

(6), While out of this state, the person unlawfully takes or entices another and subsequently

brings the other person into this state:

(7) The person, by means of a computer, computer system, computer network,

telecommunication, telecommunications devi^e, telecomn-iunicat'rons service, or information

service, causes or knowingly permits any writing, data, image, or other telecommunication to be

disseminated or transmitted into this state in violation of the law of this state.

(B) In honiicide, the element referred to in division (A)(1) of this section includes the act that

causes death, the physical contact that causes death, the death itself, or any other element that is

set forth in the offense in question. If any part of the body of a homicide victim is found in this

state, the death is presumed to have occurred within this state.

(C)(1) This state includes the land and water within its boundaries and the air space above that

land and water, with respect to which this state has either exclusive or concurrent legislative

jurisdiction. Where the boundary between this state and another state or foreign country is

disputed, the disputed territory is conclusively presumed to be within this state for purposes of

this section,

(2) The courts of conunon pleas of Adams, Athens, Belmont, Brown, Clermont, Columbiana,

Gallia, Hamilton, Jefferson, Lawrence, Meigs, Monroe, Scioto, and Washington counties have

jurisdiction beyond the north or northwest shore of the Ohio river extending to the opposite shore

line, between the extended boundary lines of any adjacent counties or adjacent state. Each of

those courts of common pleas has concurrent jurisdiction on the Ohio river with any adjacent

court of common pleas that borders on that river and with any court of Kentucky or of West

Virginia that borders on the Ohio river and that has jurisdiction on the Obio river under the law

of Kentucky or the law of West Virginia, whichever is applicable, or under federal law.

(D) When an offense is committed under the laws of this state, and it appears beyond a

reasonable doubt that the offense or any element of the offense took place either in this state or in

another jurisdiction or jurisdictions, but it cannot reasonably be determined in which it took

place, the offense or element is conclusively presumed to have taken place in this state for

purposes of this section

(E) When a person is subject to criminal prosecution and punishment in this state for an offense

committed or completed outside of this state, the person is subject to all specifications for that

offense that would be applicable if the offense had been committed within this state.

(F) Any act, conduct, or element that is a basis of a person being subject under this section to

criminal prosecution and punisbment in this state need not be committed personally by the

person as long as it is committed by another person who is in complicity or conspiracy with the

person.

(G) This section shall be liberally construed, consistent with constitutional limitations, to allow

this state the broadest possible jurisdiction over offenses and persons committing offenses in, or

affecting, this state.

(H) For purposes of division (A)(2) of this section, an overt act is substantial when it is of a

character that manifests a purpose on the part of the actor that the object of the conspiracy should

be completed.

(I) As used in this section, "computer," "computer system," "computer network," "information

service," "telecommunication," utelecommumcations device," "telecommunmcatlons service;"

"data," and "writing" have the same meanings as in section 2913.01 of the Revised Code.

CREDTT(S)

(2005 S 20, eff 7-13=05; 1998 H 565, eff. 3-30-99; 1992 S 3-71; eff 1-17-93; 1972 H 51111

Crim. R. Rule I

Baldwin's Ohio Revised Code Annotated Currentness

Rules of Criminal Procedure (Refs & Annos)

Current selectionCrim R 1 Scope of rules: applica.bility; construction; exceptions

(A) Applicability

These rules prescribe the procedure to be followed in all courts of this state in the exercise of

criminal jurisdiction, with the exceptions stated in division (C) of this rule.

(B) Purpose and construction

These rules are intended to provide for the just determination of every criminal proceeding. They

shall be construed and applied to secure the fair, impartial, speedy, and sure administration of

justice, simplicity in procedure, and the elimination of unjustifiable expense and delay.

(C) Exceptions.

These rules, to the extent that specific procedure is provided by other rules of the Supreme Court

or to the extent that they would by their naturebe clearly inapplicable, shall not apply to

procedure (1) upon appeal to review any judgment, order or nrlin& (2) upon extradition and

rendition of fugitives, (3) in cases covered by the Uniform Traffic Rules, (4) upon the application

and enforcement of peace bonds, (5) in juvenile proceedings against a child as defined in Rule

2(D) of the Rules of Juvenile Procedure, (6) upon forfeiture of property for violation of a statute

of this state, or (7) upon the collection of fines and penalties. Where any statute or rule provides

for procedure by a general or specific reference to the statutes governing procedure in criminal

actions, the procedure shall be in accordance with these rules.

CREDIT(S)

(Adopted eff. 7-1-73; aniended eff. 7-1-75, 7-1-96)

Crim. R. Rule 36

Bal,dwin's Ohio Revised Code Annotated Currentness

Rules of Criminal Procedure (Refs & Annos)

Current seleqtionCrim R 36 Clerical mistakes

Clerical mistakes in judgment.s, orders, or other parts of the record, and errors in the record

arising from oversight or omission, may be earrected by the court at any time.

CREDIT(S)

(Adopted eff. 7-1-73)

Crim: R. Rule 52

Baldwin's Ohio Revised Code Annotated Currentness

Rules of Criminal Procedure (Refs & Annos)

Current selectionCrim R 52 Harmless error and plain error

(A) Harniless erior

Any error, defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.

(B) Plain error

Plain errors or defects affecting substantial rights may be noticed although they were not brought

to the attention of the court.

CREDIT(S)

(Adopted eff. 7-1-73)

Civ. R. Rule 56

Baldwin's Ohio Revised Code Annotated Currentness

Rules of Civil Procedure (Refs & Annos)

Full text of all sections at this level Tltle VII. Judgment

Current selectionCiv R 56 Summary judgment

(A) For party seeking affirmative relief

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory

judgment may move with or without supporting affidavits for a summary judgment in the party's

favor as to all or any part of the claim, counterclaim, cross-claini; or declaratory judgment action.

A party may move for summary judgment at any time after the expiration of the time permitted

under these rules for a responsive motion or pleading by the adverse party, or after service of a

motion for summary judgment by the adverse party. If the action has been set for pretrial or trial,

.a motion for summary judgment may be made only with leave of court

(B) For defending party

Aparty against whom a claini, cc>unterclaim, or cross-claim is asserted or a declaratory judgment

is sought may, at any time, move with or without supporfing affidavits for a summary judgment

in the party's favor as to all oi any part of the claim, counterclaim, cross-claim, or declaratory

judgment action. If the action has been set for pretrial or trial, a motion for summary judgnient

may be made only with leave of court.

(C) Motion and proceedings

The motion shall be served at least fourteen days before the time fixed for hearing. The adverse

party, prior to the day of hearirig, may serve and file opposmg affidavits. Sumniaay judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence; and written stipulations of fact, if any, timely filed

in the action, show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. No evidence or stipulation may be considered except

as stated in this rule_ A summary judgment shall not be rendered unless it appears from the

evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can

come to but one conclusion and that conclusion is adverse to the party against whom the motion

for summary judgment is made, that party being entitled to have the evidence or stipulation

construed most strongly in the partys favor. A summary judgment, interlocutory in character,

ma.y.bexAmdered on the issue of liability alone although thcre is a genuine issue as to the amount

of dama.ges.

(D) Case not fully adjudicated upon motion

If on motion under this rule summary judgment is not rendered upon the whole case or for all the

relief asked and a trial is necessary, the court in deciding the motion, shall examine the evidence

or stipulation properly before it, and shall if practicable, ascertain what material facts exist

without controversy and what material facts are actually and in good faith controverted. The

court shall thereupon make an order on its journal specifying the facts that are without

controversy, including the extent to which the amount of damages or other relief is not in

controversy, and directing such further proceedings in the action as are just. Upon the trial of the

action the facts so specified shall be deemed established, and the trial shall be conducted

accordingly.

(E) Form of affidavits; further testimony; defense required

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers

or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The

court may permit affidavits to be supplemented or opposed by depositions or by further

affidavits. When a motion for summary judgment is made and supported as provided in this rule,

an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but

the party's response, by affidavit or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial. If the party does not so respond, summary

judgment, if appropriate, shall be entered against the party.

(F) When affidavits unavailable

Should it appear from the affidavits of a party opposing the motion for spmmary judgment that

the party cannot for sufficient reasons stated present by affidavit facts essential to justify the

party's opposition, the court may refuse the application for judgment or may order a continuance

to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

(Cr) Affidavits made in bad faith

Should it appear to the satisfaction of the court at any time that any of the affidavits presented

pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall

forthwith order the party employing them to pay to the other party the amount of the reasonable

expenses which the filing of the affidavits caisedthe other party to incur, including reasonable

attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

CREDIT(S)

(Adopted eff. 7-1-70; amended eff. 7-1-76, 7-1-97, 7-1-99)

Appendix-F

29