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State v. Castagnola

Court of Appeals of Ohio, Ninth District, Summit

April 25, 2018

STATE OF OHIO Appellee
v.
NICHOLAS J. CASTAGNOLA Appellant

          APPEAL 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 Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN JUDGE

         {¶1} 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.[1] Having consolidated the appeals, this Court affirms in part and vacates in part.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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, were dismissed.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 client?"

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 pending.

         {¶11} Mr. Castagnola asserts two assignments of error. For ease of discussion, this Court will review ...


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