[Cite as State v. Castellon, 2023-Ohio-4215.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112522 v. :
ESTEPHEN CASTELLON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 22, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610907-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.
Estephen Castellon, pro se.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Estephen Castellon appeals the trial court’s
denial of his motion for postconviction relief. For the reasons that follow, we affirm. I. Factual Background and Procedural History
Castellon is serving a seven-year prison sentence imposed after the
trial court found him guilty of rape (R.C. 2907.02(A)(2)) and kidnapping (R.C.
2905.01(A)(4)) following a bench trial. This court previously summarized the
underlying facts of the case as follows:
The following facts were adduced at trial. The victim, A.I., lived with her mother and Castellon, her mother’s boyfriend. The incident giving rise to the charges occurred in August 2016, at which time A.I. was 18 years old.
A.I. testified that, on the day at issue, she arrived home from work sometime after midnight. As she was coming in the house, Castellon was leaving to go to a bar. Upon entering the house, A.I. saw her mother sleeping on the couch in the living room.
A.I. testified that her bedroom was in the attic of the house, and that it was hot in the attic during the summer months. As such, A.I. went to her mother’s bedroom to sleep in her mother’s bed. A.I. was awakened when she heard Castellon return home. He came into the mother’s bedroom, which was where he normally slept, and, upon finding A.I. there, told her he would go sleep on the couch.
A.I. testified that she fell back asleep, but was awakened again. This time, she noticed that she was partially undressed, and that someone was engaging in sexual conduct with her. She was on her stomach and the person was on her legs and she could not move. At first A.I. thought someone had broken into the house and was scared. She did not want to move because she was afraid they would hurt her mother or son who were also in the house. After a couple of minutes, she noticed that the person was being “gentle.” The person then engaged in another form of sexual conduct with her. At that time, she realized that the person was Castellon — he was trying to have further sexual contact with her and was pulling her legs towards the edge of the bed. A.I. told him to stop, which he did.
A.I. left the bedroom and contacted a friend, who came to the house; the two locked themselves in the attic. The next day, A.I. told her mother what had happened. She went to the police the following day and provided them with the clothes she had been wearing at the time of the incident. A police officer drove A.I. to the hospital. No rape kit was administered because it was a couple of days after the fact and A.I. had showered since the incident.
A.I. testified that the following day, Castellon texted her, saying “I’m so sorry.” According to A.I., at the time of the incident, her mother was about 70 pounds heavier than she was, and so it would not have been easy for Castellon to confuse the two women. A.I.’s mother testified that Castellon told her that he blacked out and did not remember what had happened.
State v. Castellon, 8th Dist. Cuyahoga No. 106813, 2019-Ohio-628, ¶ 7–12.
The trial court, as factfinder, found Castellon guilty of two counts of
rape and one count of kidnapping with a sexual motivation specification. The court
acquitted Castellon of one count of attempted rape.
In the time between the court’s verdict and sentencing, Castellon filed
numerous pro se motions and “notices” with the trial court, requesting various
forms of relief. Among these, Castellon filed a “demand to dismiss case due to
speedy trial violation” and a “demand for time tolling calculations of 3 days for each
1 day in custody pursuant to O.R.C. 2945.71.” Castellon also filed a “demand for
acquittal due to ineffective assistance of defense counsel for failing to subpoena the
federal technicia[n] and the state technicia[n] that conducted data dump files of
defendant’s cell phone” and a “motion for new trial due to newly discovered evidence
of a cell phone data drop transcript authored by Brian E. Cooney of the Federal
Bureau of Investigation.” In the latter motion, Castellon stated that local police
investigators “learned that Castellon’s phone would have to be transfer[r]ed to
Cleveland FBI office and then transfer[r]ed to the [FBI’s] Quantico lab.” He said
that police later retrieved the cell phone from the FBI when the FBI indicated “that the phone was ready to be picked up.” Castellon argued that this “chain of events
gave rise to a cell phone data drop transcript” authored by an FBI employee, which
he said had not been produced in discovery.
As our court previously summarized:
The trial court acknowledged the [pro se] motions at the sentencing hearing, telling Castellon that “Ohio law does not allow dual representation. You have an assigned attorney * * * to represent you, which means that all of these motions can be stricken from the record because they were not filed by [your assigned attorney].” The trial court asked Castellon whether he wanted his assigned attorney to represent him at sentencing, to which he responded “no * * * unless I am given the opportunity to retain different counsel.” The trial court denied Castellon’s request for different counsel.
The trial court then engaged in colloquy with Castellon to determine if he was knowingly, intelligently, and voluntarily giving up his right to counsel. After its colloquy with Castellon, the court denied his request for self-representation. Counsel told the court that she did not wish to adopt and argue any of the pro se motions Castellon had filed.
Castellon, 2019-Ohio-628, at ¶ 5–6.
The trial court disregarded the pro se filings and sentenced Castellon
to seven years in prison. Castellon filed a direct appeal, through new counsel, in
which he argued the following five assignments of error:
I. There was insufficient evidence produced at trial to support a finding of guilt on all counts.
II. The appellant was found guilty against the manifest weight of the evidence.
III. Appellant was denied the effective assistance of counsel in his trial.
IV. The cumulative errors committed during the trial deprived the appellant of a fair trial. V. Appellant was denied his right to represent himself at sentencing.
After oral argument, Castellon filed a pro se motion to file a
supplemental brief in his direct appeal. He argued that his appellate counsel failed
to set forth several assignments of error that he wanted included in his appeal,
including, among other things: (1) there was prosecutorial misconduct in that
evidence from his cell phone was “missing,” the state never produced “the chain of
custody” over his cell phone and body-camera recordings were deleted; (2) his trial
counsel was ineffective; (3) the state falsely claimed that he was a fugitive when “it
[was] well documented that [he] had relocated to California and established
residency” before the alleged rape and his defense counsel “had [his] proof of
address but chose not to present it”; and (4) he was denied his constitutional right
to a speedy trial.
This court denied the motion to file a supplemental brief. State v.
Castellon, 8th Dist. Cuyahoga No. 106813, Motion No. 525770 (Feb. 25, 2019). The
court overruled the assignments of error that were originally raised in the appeal
and affirmed the convictions and sentence. Castellon, 2019-Ohio-628, at ¶ 56.
Castellon thereafter applied to reopen the appeal, arguing that his
appellate counsel was ineffective. He argued, among other things, that he was
denied his constitutional right to a speedy trial. This court denied the application,
finding that “a substantive review of the docket * * * fails to demonstrate a violation
of Castellon’s right to a speedy trial.” State v. Castellon, 8th Dist. Cuyahoga No. 106813, 2019-Ohio-3652, ¶ 16–18. The Ohio Supreme Court declined to accept
jurisdiction over Castellon’s appeal from that judgment. 12/17/2019 Case
Announcements, 2019-Ohio-5193.
On March 27, 2019, Castellon filed a “petition to vacate or set aside
judgement [sic] of conviction or sentence” in the trial court. In that petition, he
argued that he was entitled to postconviction relief under R.C. 2953.21 because (1)
the state allegedly failed to turn over certain evidence related to his cell phone,
certain police body-worn camera recordings and recorded jail calls, and falsely
“painted the picture that he was running” from the charges; (2) his trial counsel was
ineffective for failing to investigate the evidence he said was missing or fabricated
and “failed to present proof of [his] California address.”
The trial court summarily denied Castellon’s petition. Castellon did
not appeal that judgment.
In April 2020, Castellon filed a pro se petition in the U.S. District
Court for the Northern District of Ohio seeking a writ of habeas corpus under 28
U.S.C. 2254, arguing — among other things — that his trial counsel was ineffective
for failing to challenge “manipulated” cell-phone data, missing body-camera footage
and jail calls, and for failing to “admit proof of address to impeach implication of
flight.” Castellon v. Forshey, N.D. Ohio No. 1:20-CV-00940-JRK, 2023 U.S. Dist.
LEXIS 167433, 16 (Apr. 28, 2023). He also argued that the state engaged in
prosecutorial misconduct by presenting “post-indictment evidence” in the form of
jail-call recordings, “manipulat[ing] the content of the calls” and by “[t]he warrantless breach of [his] cell phone, manipulation of the chain of custody and lack
of testimony from the technician who supposedly performed the data dump * * *.”
Id. at 17. He also argued that he was denied his constitutional right to a speedy trial.
Id. at 18.
Castellon then moved for a stay of the federal habeas petition, arguing
that he received a federal Freedom of Information Act (“FOIA”) disclosure from the
U.S. Department of Justice that contained additional evidence he needed to present
in state court through a successive postconviction petition. Castellon v. Forshey,
N.D. Ohio No. 1:20 CV 940, 2023 U.S. Dist. LEXIS 165927, 6 (Sept. 19, 2023).
The federal trial court denied the stay and dismissed his habeas
petition, finding his claims to be either defaulted or meritless. Id. at 25.
On February 10, 2023, Castellon filed the petition at issue in this
appeal — a successive petition for postconviction relief pursuant to R.C. 2953.23. In
the petition, Castellon raised the following arguments:
I. Due to constitutional speedy trial violation(s) Castellon was denied his Sixth and Fourteenth Amendment right(s).
II. Prosecutorial misconduct
III. The state abused the grand jury process introducing post indictment evidence
IV. The structure of the trial collapsed when the defendant was denied confrontation and compulsory process
V. Ineffective assistance of counsel
VI. Cumulative errors The state opposed the petition. On February 22, 2023, the trial court
summarily denied the petition.
Castellon appealed, raising the following six assignments of error,
which mirror the arguments he made in his petition:
First Assignment of Error
Due to Constitutional speedy trial violation(s) Castellon was denied his Sixth and Fourteenth Amendment right(s)
Second Assignment of Error
Prosecutorial Misconduct
Third Assignment of Error
The State abused the grand jury process introducing post indictment Evidence
Fourth Assignment of Error
The structure of the trial collapsed when the Defendant was denied Confrontation and Compulsory process
Fifth Assignment of Error
Ineffective assistance of Counsel
Sixth Assignment of Error
Cumulative Errors
II. Law and Analysis
The trial court was without jurisdiction to consider Castellon’s
untimely and successive petition because he was not unavoidably prevented from
discovering the facts on which his arguments are based. He raised or could have raised these arguments (or permutations of them) in his direct appeal or in his
earlier petition. Moreover, his arguments are barred by res judicata.
Pursuant to R.C. 2953.21(A)(1)(a)(i), a person who has been
convicted of a criminal offense and who “claims that there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States” may file a petition in
the court that imposed sentence, asking the court to vacate or set aside the judgment
or sentence or to grant other appropriate relief. Pursuant to R.C. 2953.21(A)(2),
petitions for postconviction relief under R.C. 2953.21(A)(1)(a)(i) must generally be
filed within 365 days after the trial transcript is filed in the direct appeal of the
conviction at issue. The trial transcript in Castellon’s direct appeal was filed on
March 26, 2018. Castellon’s second petition for postconviction relief was successive
and untimely under R.C. 2953.21(A).
A trial court lacks jurisdiction over an untimely or successive petition
for postconviction relief unless the petition satisfies the criteria set forth under R.C.
2953.23(A)(1) or (2). R.C. 2953.21(A); R.C. 2953.23(A); State v. Bethel, 167 Ohio
St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 20; State v. Apanovitch, 155 Ohio
St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 36–38 (“[A] petitioner’s failure to
satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to adjudicate the merits of an untimely or successive postconviction petition.”). R.C. 2953.23(A)(1)1 states,
in relevant part:
[A] court may not entertain a petition filed after the expiration of the period prescribed in [R.C. 2953.21(A)] or a second petition or successive petitions for similar relief on behalf of a petitioner unless * * * [b]oth of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for the constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted[.]
“Res judicata generally bars a convicted defendant from litigating a
postconviction claim that was raised or could have been raised at trial or on direct
appeal.” Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 193 N.E.3d 470, at ¶ 17, citing
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the
syllabus; State v. Hatton, Slip Opinion No. 2022-Ohio-3991, ¶ 22 (“Res judicata
applies to * * * petitions for postconviction relief.”), citing State v. Reynolds, 79 Ohio
St.3d 158, 679 N.E.2d 1131 (1997). Res judicata operates to bar successive petitions
for postconviction relief that raise claims that were or could have been raised on
1R.C. 2953.23(A)(2), which applies to offenders for whom DNA testing was performed under R.C. 2953.71 through 2953.81 or former R.C. 2953.82, is inapplicable here. direct appeal or in a prior petition. See, e.g., State v. Waver, 8th Dist. Cuyahoga No.
108820, 2020-Ohio-2724, ¶ 32; see also State v. Mack, 8th Dist. Cuyahoga No.
101261, 2018-Ohio-301, ¶ 15 (“The doctrine of res judicata prevents repeated attacks
on a final judgment for issues that were or could have been previously litigated.”);
State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298,
¶ 33 (“[A] postconviction petition does not provide a petitioner a second opportunity
to litigate his or her conviction.”).
We review a decision to grant or deny a petition for postconviction
relief for abuse of discretion. Hatton at ¶ 38, citing State v. Gondor, 112 Ohio St.3d
377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51–52, 58. However, whether a trial court
has subject-matter jurisdiction to entertain an untimely or successive petition for
postconviction relief is a question of law, which we review de novo. Hatton at ¶ 38,
citing Apanovitch at ¶ 24.
In this case, Castellon’s petition did not satisfy the requirements of
R.C. 2953.23(A)(1). Castellon’s petition fails to show that he was unavoidably
prevented from discovering the facts on which the claims in his petition were based,
that any new federal or state right was recognized subsequent to his filing of the
earlier petition or that, but for the alleged constitutional error, no reasonable
factfinder would have found him guilty of the offenses of which he was convicted.
This is not a case involving new claims or issues that have not been litigated, or could
not have been litigated, before. Compare Hatton at ¶ 25. Castellon argues that his petition was based on newly discovered
information obtained through a FOIA disclosure made by the U.S. Department of
Justice on November 7, 2022. He attached the FOIA response to his petition; the
disclosure includes a search warrant issued by the Cuyahoga County Court of
Common Pleas authorizing the search of Castellon’s cell phone and internal records
and communications of the Federal Bureau of Investigation related to the FBI’s
assistance in unlocking his cell phone. Castellon argues that these documents led
him to discover constitutional violations that he was unavoidably prevented from
discovering sooner.
The state responds that Castellon knew in advance of trial that the
FBI had assisted in unlocking his cell phone and that his phone was searched
pursuant to a warrant. It argues that Castellon’s petition was not based on any newly
discovered evidence, that his claims are barred by res judicata and that the claims
are substantively meritless.
We consider each of Castellon’s assignments of error in turn.
A. First Assignment of Error – Speedy Trial
Castellon asks this court to “dismiss the entire indictment based on
the violation(s) of his constitutionally guaranteed right to a speedy trial, as the
amount of evidence that was originally available at the time of indictment that is
now either missing or destroyed has extremely prejudiced” him.
In support of his argument that he was unavoidably prevented from
making this argument sooner, Castellon points to two documents outside the record: (1) a document from the Riverside County (California) Sheriff’s Department
that states that Castellon was taken into custody on December 5, 2016, and (2) the
FBI’s FOIA response.
Castellon seems to be arguing that the state knew that he was not a
fugitive but treated him as such to manipulate the speedy-trial clock, then secured a
warrant that allowed them an indefinite amount of time to search his phone for the
purpose of further delaying trial.
Castellon was not unavoidably prevented from asserting these
arguments sooner. He knew that he was arrested on December 5, 2016, in
California, based on these allegations. He also knew — from a police report
produced in discovery that is also attached to his successive petition for
postconviction relief — that investigators secured a warrant to search his phone in
January 2017, transferred the phone to the FBI for assistance and received it back
unlocked in May 2017. Even if Castellon did not have a copy of the actual warrant
until November 2022, he knew that there had been a warrant and knew the
timetable and chain of custody of how that warrant was executed. Thus, he was not
“unavoidably prevented” from arguing that the means of searching his phone
resulted in a deprivation of his constitutional right to a speedy trial.
Indeed, Castellon has raised a constitutional-speedy-trial argument
before — he raised it in his pro se filings before sentencing, then in his motion to file
a supplemental brief in the direct appeal, then in his application to reopen that
appeal and then again in his federal habeas case. Because Castellon was not unavoidably prevented from discovering the facts on which his speedy-trial
argument is based, the trial court was without jurisdiction to consider the argument
in this successive and untimely petition.
Moreover, the argument is barred by res judicata. This court
previously considered Castellon’s constitutional-speedy-trial argument and found
that “a substantive review of the docket * * * fails to demonstrate a violation of
Castellon’s right to a speedy trial.” State v. Castellon, 8th Dist. Cuyahoga No.
106813, 2019-Ohio-3652, ¶ 16–18.
We, therefore, overrule Castellon’s first assignment of error.
B. Second Assignment of Error – Prosecutorial Misconduct
Castellon argues that the state suppressed materially exculpatory
evidence from him. He says the state suppressed a DMV record that showed that he
established a California residence in June 2016, that “Detective Mladek knew this”
and that the state continued to allege that his buying a plane ticket to California
constituted evidence of consciousness of guilt. He also says that the state suppressed
the search warrant that had been obtained to search his cell phone. He further
claims that police deleted text messages from his cell phone while he was in custody
and destroyed two body-camera recordings. Finally, he claims that the state
indicted him without securing a DNA sample from the victim’s romantic partner for
comparison to DNA recovered in the case.
Castellon again relies on only two categories of documents in support
of his argument that he was unavoidably prevented from making these claims sooner: (1) documents he says show that he established a residency in California
before the rape and (2) the FOIA response, which included the search warrant that
he knew about but apparently did not have a copy of before trial. The other citations
in the petition are to evidence in the trial record.
Castellon could have, and has, previously argued that the state
improperly cast him as a fugitive. He obviously knew the circumstances of his
residency and work in California long before he received the federal government’s
FOIA response. He raised this argument (or permutations of it) in his pro se motion
to file a supplemental brief in his direct appeal, then in his federal habeas case and
then again in his first petition for postconviction relief.
The same can be said about Castellon’s argument that the state
allegedly deleted text messages from his cell phone and deleted body-camera
recordings. Castellon obviously knew what was on his own cell phone long before
the FOIA response and his trial counsel cross-examined state witnesses about the
circumstances of the state’s deletion of the body-camera recordings at trial. Indeed,
Castellon raised these arguments in his pro se motion to file a supplemental brief in
his direct appeal, in his federal habeas case and in his first petition for
postconviction relief.
Similarly, no new evidence outside the record supports Castellon’s
argument that the state acted inappropriately in securing an indictment before
obtaining a DNA reference sample from the victim’s romantic partner. He could have raised that argument at trial, in the direct appeal or in his first petition for
While Castellon says that he was never provided a copy of the search
warrant used to search his cell phone until the FOIA response, he was well aware
that the warrant existed before trial. The fact that the warrant existed is reflected in
a police report produced by the state in discovery. Castellon could have raised an
argument regarding the state’s alleged suppression of the warrant at trial, in the
direct appeal and in his first petition for postconviction relief.
Because Castellon was not unavoidably prevented from discovering
the facts on which these arguments are based, the trial court was without jurisdiction
to consider the arguments in this successive and untimely petition. Moreover,
because Castellon raised several of these arguments in his first petition for
postconviction relief and did not appeal the trial court’s denial of his first petition,
and he could have raised all of these arguments in prior proceedings, those
arguments are barred by res judicata.
We, therefore, overrule Castellon’s second assignment of error.
C. Third Assignment of Error – Post-Indictment Evidence
Castellon argues that there was an abuse of the grand-jury process
because the state continued to possess his cell phone for purposes of searching it
pursuant to the warrant, even after he was indicted. Castellon cites no evidence
outside the record in support of this claim. To the extent that the claim is
purportedly based on the FOIA disclosure, the same reasoning applies to this assignment of error as applies to his first: Castellon was well aware, before trial, of
how investigators searched his phone and the timeline for doing so. He was not
unavoidably prevented from making this argument at trial, in the direct appeal or in
his first petition for postconviction relief. Indeed, he raised this “post-indictment
evidence” argument in his first petition for postconviction relief.
Because Castellon was not unavoidably prevented from discovering
the facts on which this argument is based, the trial court was without jurisdiction to
consider the arguments in this successive and untimely petition. Moreover, this
argument is also barred by res judicata.
We, therefore, overrule Castellon’s third assignment of error.
D. Fourth Assignment of Error – Confrontation and Compulsory Process
Castellon seems to argue that he was denied the right of compulsory
process because (1) the police detective who testified about the contents of his cell
phone was not qualified to analyze the contents of the phone, (2) it was not
sufficiently established at trial how the data extraction of the phone was performed
and (3) the testimony of the person who actually performed the extraction was
“crucial” to this case but that person did not testify. He does not point to any
evidence outside the record in support of this claim and makes no attempt to show
how he was unavoidably prevented from raising this argument sooner. Indeed, he
raised this argument in his pro se filings before sentencing.
Because Castellon was not unavoidably prevented from asserting
these arguments in his direct appeal or in his earlier petition for postconviction relief, the trial court was without jurisdiction to consider the arguments in this
successive and untimely petition. Moreover, the argument is barred by res judicata.
We, therefore, overrule Castellon’s fourth assignment of error.
E. Fifth Assignment of Error – Ineffective Assistance of Counsel
Castellon argues that his trial counsel was ineffective by (1) failing to
call the translator who translated the jail calls or move to suppress the jail calls
before trial, (2) failing to investigate or move to suppress the warrant for the cell
phone or the evidence extracted from the cell phone and failing to adequately raise
the issue of the allegedly missing text messages and (3) failing to adequately address
the issue of the missing body-camera recordings.
Castellon has raised all of these arguments before, either in his
presentence pro se motions, in the direct appeal or in his first petition for
postconviction relief. His petition fails to show that he was unavoidably prevented
from making these arguments and almost every citation in support of these
arguments is a citation to the record, not some piece of newfound evidence outside
the record.
Because Castellon was not unavoidably prevented from discovering
the facts on which these arguments are based, the trial court was without jurisdiction
to consider the arguments in this successive and untimely petition. Moreover, the
We, therefore, overrule Castellon’s fifth assignment of error. F. Sixth Assignment of Error – Cumulative Error
Castellon argues that “the cumulative effect and prejudice of these
intersecting constitutional violations” as stated in his first five assignments of error
“had a chilling effect on the defendant’s due process * * *.” As discussed above,
Castellon was not unavoidably prevented from raising any of his other arguments at
trial, in the direct appeal or in his first petition for postconviction relief. Thus, he
was not unavoidably prevented from raising the argument that those errors, taken
together, warrant a new trial.
We, therefore, overrule Castellon’s sixth assignment of error.
III. Conclusion
Castellon’s second petition for postconviction relief merely rehashes
arguments that he has previously raised. He has not shown that he was unavoidably
prevented from making these arguments in his direct appeal or in a prior petition
for postconviction relief. Because Castellon did not make the requisite showing
under R.C. 2953.23(A)(1), the trial court lacked jurisdiction to consider his petition
for postconviction relief and properly denied it.
Having overruled Castellon’s assignments of error for the reasons
stated above, we affirm.
It is ordered that the appellee recover from the appellant the costs herein
taxed.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas 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, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and MICHAEL JOHN RYAN, J., CONCUR