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State v. Cartellone

Court of Appeals of Ohio, Eighth District

August 8, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOHN CARTELLONE DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-413486

FOR APPELLANT John Cartellone, pro se.

ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor, BY Adam Chaloupka Assistant County Prosecutor.

BEFORE: E.A. Gallagher, J., Stewart, A.J., and Rocco, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, JUDGE.

{¶1} John Cartellone appeals from the denial of his motions for expungement in the Cuyahoga County Court of Common Pleas. For the following reasons, we dismiss this appeal.

{¶2} Appellant presents six assignments of error pertaining to the trial court's denial of his motion for expungement of a third-degree felony theft conviction. The record indicates that appellant filed his motion under case numbers CR-413486 and CR-401663. Although appellant asserts that he was indicted, pleaded guilty to and was convicted of one count of theft in case CR-413486, the record shows otherwise. The indictment in CR-413486 charged appellant with 19 counts of forgery. The record reflects that the state entered a nolle prosequi on the indictment in CR-413486 on November 30, 2001, and appellant was never convicted of any crime in that case. Nonetheless, appellant's notice of appeal lists only CR-413486, as does the affidavit of indigence that appellant filed, pro se.

{¶3} We acknowledge that appellant filed a motion to seal the record and captioned that single motion with both case numbers CR-413486 and CR-401663.

{¶4} The hearing conducted by the trial court addressed both case numbers as reflected by the transcript before us.

{¶5} To compound matters, the trial court's opinion and judgment entry denying the motion for expungement and attached to the notice of appeal references only CR-413486 and states that "Cartellone pled guilty to one count of theft, a felony of the third degree * * *." That is not the fact of the matter in CR-413486. To reiterate, CR-413486 was nolled.

{¶6} The arguments presented by appellant all relate to alleged errors in the trial court's denial of his motion for expungement for a theft conviction. Unfortunately, appellant has failed to appeal from a case in which he was actually convicted of theft. In his arguments, appellant makes repeated references to sentencing entries that are not part of the record in CR-01-413486. Because appellant's assignments of error all pertain to an outstanding restitution obligation that appellant asserts was part of his sentence for a theft conviction and such sentence and case are not part of this appeal, we find that his failure to appeal the correct case precludes our review.

{¶7} Accordingly, without any record to review, we must presume regularity in the proceedings of the trial court and summarily reject appellant's assignments of error. State v. Bruce, 8th Dist. Cuyahoga No. 96365, 2011-Ohio-2937; State v. Bleehash, 5th Dist. Licking No. 05CA123, 2006-Ohio-4580 (dismissing appeal where appellant had appealed the wrong case).

{¶8} Accordingly, this appeal is dismissed.

It is ordered that appellee recover of appellant ...

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