FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE Nos. CR-2010-08-2244 CR-2010-07-1951-B
APPEARANCES: NICHOLAS SWYRYDENKO, Attorney at Law, for
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
S. CALLAHAN JUDGE
Appellant, Nicholas Castagnola, filed three appeals arising
from three journal entries in the Summit County Court of
Common Pleas which denied his motion for return of seized
property in two separate cases. Having consolidated the appeals,
this Court affirms in part and vacates in part.
Following the disposition of two separate criminal cases, Mr.
Castagnola sought the return of two computers and their
accessories, a cell phone, and a GPS obtained by a search
warrant in the retaliation case. Additionally, Mr. Castagnola
sought the return of his vehicle which was seized pursuant to
his arrest in the retaliation case.
This Court previously summarized the procedural history of
the underlying criminal cases as follows:
A grand jury indicted Mr. Castagnola in two separate cases.
In Case No. 2010-07-1951(B) ("the retaliation
case"), Mr. Castagnola was indicted on counts of
criminal damaging, vandalism, criminal trespass, possession
of criminal tools, two counts of retaliation, and multiple
forfeiture specifications. In Case No. 2010-08-2244
("the pandering case"), Mr. Castagnola was indicted
on ten counts of pandering sexually oriented matter involving
a minor. Mr. Castagnola filed a motion to suppress in both
cases, challenging the warrant the police relied upon to
seize the computer from his home. The trial court held a
suppression hearing and ultimately denied the motion.
Subsequently, a jury trial took place in the retaliation
case. The jury found Mr. Castagnola guilty on all counts, but
did not find that his property was subject to forfeiture. The
pandering case then was tried to the bench, and the judge
found Mr. Castagnola guilty on all counts.
State v. Castagnola, 9th Dist. Summit Nos. 26185 and
26186, 2013-Ohio-1215, ¶ 5. This Court affirmed the
trial court's denial of the motion to suppress in both
the pandering case and the retaliation case. Id. at
¶ 5, 19, 35. The Supreme Court reversed this Court's
decision, finding the search warrant to be invalid and
suppressing the evidence obtained in executing the warrant.
State v. Castagnola, 145 Ohio St.3d 1,
2015-Ohio-1565, ¶ 1, 108.
Upon remand to the trial court, the convictions in the
pandering case were vacated and that case was dismissed.
Similarly, the convictions in the retaliation case were also
vacated. A year later, Mr. Castagnola pled guilty to one
count of retaliation while the remaining charges in the
retaliation case, including the forfeiture specifications,
On September 30, 2016, Mr. Castagnola filed an application to
reopen his appeal of the retaliation case. This Court denied
the motion to reopen the appeal as well as the subsequent
motion for reconsideration, motion to certify a conflict,
motion for en banc consideration, and motion for an
evidentiary hearing. On February 6, 2017, Mr. Castagnola
filed an appeal to the Ohio Supreme Court, which declined
jurisdiction on April 19, 2017.
On December 8, 2016, Mr. Castagnola filed a pro se motion for
return of seized property which listed the case numbers for
both the pandering case and the retaliation case in the
caption. A week earlier, on November 30, 2016, Mr.
Castagnola's counsel filed a motion to seal in the
pandering case. The trial court set the motion to seal the
pandering case for a hearing. However, the trial court did
not schedule a hearing on the pro se motion for return of
seized property in either case.
On March 22, 2017, the trial court convened the sealing
hearing in the pandering case. After hearing arguments from
counsel for both sides, the sealing hearing was continued for
additional briefing. The trial court then said, "I want
to now address this motion for the seized property. That
motion was filed on December 8th pro se. Attorney James, are
you going to speak on that motion on behalf of your
Despite the court's recognition that the motion was pro
se and counsel's subsequent acknowledgement that he did
not represent Mr. Castagnola on the motion for return of
seized property in either case, counsel proceeded to address
the motion without objection from Mr. Castagnola. The trial
court determined that it was "divested of the ability to
consider these matters" because of the appeal pending in
the Ohio Supreme Court.
On March 28, 2017, the trial court filed a journal entry in
the pandering case which 1) denied the motion for return of
seized property, and 2) continued the hearing on the motion
to seal and set a schedule for further briefing on that
motion. On May 12, 2017, the trial court filed a journal
entry in the retaliation case, calling it a nunc pro tunc
order to correct the entry filed on March 28, 2017. The nunc
pro tunc journal entry deleted the reference to the sealing
motion and denied the motion for return of seized property.
On June 13, 2017, the trial court filed a journal entry in
the retaliation case denying the motion for return of seized
property. Mr. Castagnola timely filed separate appeals from
each of these journal entries.
On June 6, 2017, Mr. Castagnola filed a pro se renewed motion
for return of seized property in the retaliation case only.
The trial court did not rule on this motion and it remains
Mr. Castagnola asserts two assignments of error. For ease of
discussion, this Court will review ...