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