State v. Cartellone

2013 Ohio 3429

Opinion

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99203

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

JOHN CARTELLONE

DEFENDANT-APPELLANT

JUDGMENT:

DISMISSED

Criminal Appeal from the

Cuyahoga County Court of Common Pleas Case No. CR-413486

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

RELEASED AND JOURNALIZED: August 8, 2013

FOR APPELLANT

John Cartellone, pro se 11525 Dunham Road Sagamore Hills, OH 44067

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Adam Chaloupka Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

EILEEN A. GALLAGHER, J.:

{¶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 costs herein taxed.

It is ordered that a special mandate be sent to said lower court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

KENNETH A. ROCCO, J., CONCURS; MELODY J. STEWART, A.J., CONCURS IN JUDGMENT ONLY, WITH SEPARATE CONCURRING OPINION

MELODY J. STEWART, A.J., CONCURRING IN JUDGMENT ONLY:

{¶9} I agree that this appeal should be dismissed, but for different reasons than the majority.

{¶10} The appellant must designate in the notice of appeal the order being appealed. Parks v. Baltimore & Ohio RR., 77 Ohio App.3d 426, 428, 602 N.E.2d 674 (8th Dist.1991), citing Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 258-259, 436 N.E.2d 1034 (1982). An appellate court “is without jurisdiction to review a judgment or order that is not designated in the appellant’s notice of appeal.” State v. Dixon, 9th Dist. Summit No. 21463, 2004-Ohio-1593, ¶ 7.

{¶11} Cartellone lists only CR-413486 in the notice of appeal, so that is the only case that this court can consider on appeal. While it is true that the state dismissed CR-413486, Cartellone asked the court to seal the record in that case. That request was viable under R.C. 2953.52(A)(1) because the statute applies not only to convictions, but to records in a case that has been dismissed against the defendant.

{¶12} Unfortunately, Cartellone presented no argument at the hearing in support of sealing the dismissed case, and he likewise did not do so on appeal — his arguments relate solely to a case other than that listed in his notice of appeal.