Opinion
C. A. 30259
06-30-2023
STATE OF OHIO Appellee v. NICHOLAS J. CASTAGNOLA Appellant
NICHOLAS J. CASTAGNOLA, PRO SE, APPELLANT. SHERRI BEVAN WALSH, PROSECUTING ATTORNEY, AND HEAVEN R. DIMARTINO, ASSISTANT PROSECUTING ATTORNEY, FOR APPELLEE.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 07 1951(B)
APPEARANCES:
NICHOLAS J. CASTAGNOLA, PRO SE, APPELLANT.
SHERRI BEVAN WALSH, PROSECUTING ATTORNEY, AND HEAVEN R. DIMARTINO, ASSISTANT PROSECUTING ATTORNEY, FOR APPELLEE.
DECISION AND JOURNAL ENTRY
DONNA J. CARR JUDGE
{¶1} Defendant-Appellant Nicholas J. Castagnola appeals, pro se, the judgment of the Summit County Court of Common Pleas. This Court reverses and remands the matter for proceedings consistent with this decision.
I.
{¶2} A summary of the history of this case, which began in 2010, can be found in the prior appeal. See State v. Castagnola, 9th Dist. Summit Nos. 29141, 29250, 2020-Ohio-1096, ¶ 2-10, 17. Much of the recent proceedings in this case have focused on Castagnola's motions for the return of seized property. A significant amount of the property was seized pursuant to a search warrant. See State v. Castagnola, 9th Dist. Summit Nos. 28621, 28672, 28702, 2018-Ohio-1604, ¶ 2. However, Castagnola's vehicle, which is at issue in this appeal, was seized pursuant to his arrest. See id. Castagnola filed a motion for the return of seized property in December 2016 and a renewed motion in June 2017. The initial judgment entries related to the issue were vacated by this Court. See Castagnola, 2018-Ohio-1604, at ¶ 35.
{¶3} The trial court then held a hearing on the motions. See Castagnola, 2020-Ohio-1096, at ¶ 8. Thereafter, the trial court issued a judgment entry denying Castagnola's motion for the return of property based upon its concern that it might lack jurisdiction as the criminal case was completed. See id. at ¶ 9. Castagnola appealed, and this Court reversed the decision of the trial court with respect to the return of property. See id. at ¶ 1. In so doing, we concluded "that a motion for the return of seized property may be a viable means to request the return of property even after conviction." Id. at ¶ 17. We remanded the matter "for the trial court to consider [] Castagnola's requests for the return of property and to determine whether, upon the specific facts and circumstances of this case, the requested relief is appropriate and within the trial court's authority to order." Id.
{¶4} Upon remand, in December 2020, Castagnola filed an additional motion for the return of seized property, essentially requesting the trial court to act upon this Court's remand and requesting a hearing, if necessary, "to determine the nature and current status of the seized property." The State opposed the motion asserting that it was no longer in possession of all of the seized property. In so doing, the State pointed to the transcript of a March 2017 hearing in Castagnola's other criminal case. The State asserted that the vehicle was no longer in its possession because the impound fees had not been paid and the computer contained contraband and so could not be returned. In April 2021, the trial court issued an order indicating that a hearing would be set and noting several questions it had pertaining to Castagnola's vehicle. Those questions included: "1. Under whose order was the automobile impounded? 2. Where was the automobile impounded? 3. Who owns the impound lot? 4. Was the automobile sold by the owner of the impound lot?[, and] 5. Under what authority was the automobile sold by the lot's owner and then the proceeds kept satisfying the impound fees?" While it appears a hearing was held, no transcript of it appears in this record. A further hearing was held June 25, 2021. At that hearing, no testimony was taken and no evidence was presented. Instead, the pending matter was discussed among the attorneys and trial court. The prosecutor represented to the trial court that he
inquired after our last hearing * * * of the Twinsburg Police Department. So after the trial, the forfeiture spec was - he was - the jurors found it was disproportionate to the offense, so they did not forfeit the car. Once that was done, they waited 30 to 60 days, sent notification to his last known address. And I guess - now, of course, he was in prison, but I think his mother came and picked up some other stuff up, but the car just sat. So after a certain period of time, then they turned it over to the tow yard for salvage title, and then they - I think they took - ended up taking possession and getting - going through the process to get the title. So it's no longer in the possession of Twinsburg Police Department.
{¶5} The prosecutor also stated that if the Twinsburg Police Department had been in possession of the car, the State would be "turning it over." The trial court ordered the parties to brief whether the trial court could order a police department to return something it did not have or order a police department to provide monetary compensation for an item seized and then disposed of. Briefs were filed and the trial court thereafter issue a ruling. The trial court ordered numerous items be returned to Castagnola, but also concluded that it could not order the return of Castagnola's vehicle as it was no longer in the possession of the Twinsburg Police Department. Additionally, the trial court found that it could not order a monetary judgment against the Twinsburg Police Department.
Castagnola began representing himself pro se during this time period.
{¶6} Castagnola has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CASTAGNOLA WHEN IT FOUND THAT IT COULD NOT ISSUE AN ORDER THAT THE STATE OR THE TWINSBURG POLICE DEPARTMENT EITHER TURN OVER MR. CASTAGNOLA'S 2007 BLACK HYUNDAI SONATA OR TURN OVER THE PROCEEDS FROM THE ILLEGAL SALE OF THAT VEHICLE DESPITE A JURY'S HAVING FOUND MR. CASTAGNOLA NOT GUILTY ON ALL SIX FORFEITURE SPECIFICATIONS RELATING TO THE VEHICLE IN QUESTION IN 2011 AND A PLEA DEAL BEING NEGOTIATED IN 2016 UPON REMAND FROM THE OHIO SUPREME COURT WHEREIN THE ACQUITTED FORFEITURE SPECIFICATIONS WERE DISMISSED UPON RECOMMENDATION OF THE STATE IN RETURN FOR A GUILTY PLEA TO COUNT ONE, RETALIATION, IN DEROGATION OF THE JURY'S VERDICTS, THE PLEA DEAL, THE LAW OF THE CASE IN THIS COURT'S PRIOR REMAND IN SUMMIT APPEAL NO. 29141, OHIO'S FORFEITURE STATUTES, AS WELL AS THE DUE PROCESS AND JUST COMPENSATION CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶7} Castagnola argues in his sole assignment of error that the trial court erred in failing to order the return of his vehicle or in allowing him to recover the proceeds from any sale of the vehicle. In so doing, Castagnola points out that the State failed to call witnesses or produce any evidence supporting what happened to the vehicle.
{¶8} R.C. 2981.11(A)(1) states that "[a]ny property that has been lost, abandoned, stolen, seized pursuant to a search warrant, or otherwise lawfully seized or forfeited and that is in the custody of a law enforcement agency shall be kept safely by the agency, pending the time it no longer is needed as evidence or for another lawful purpose, and shall be disposed of pursuant to sections 2981.12 and 2981.13 of the Revised Code." (Emphasis added.) As noted above, Castagnola's vehicle was seized pursuant to his arrest by the Twinsburg Police Department. Castagnola, 2018-Ohio-1604, at ¶ 2.
{¶9} Here, we conclude that the trial court erred in finding that it could not order the return of the vehicle when there was no evidence presented as to what happened to the vehicle. This Court remanded the matter to the trial court for it to consider "the specific facts and circumstances of this case" in order to determine if Castagnola could receive his requested relief. Castagnola, 2020-Ohio-1096, at ¶ 17. The trial court itself acknowledged that it had many questions as to what became of the vehicle and ordered a hearing based upon those concerns, but no evidence was presented to clarify the status.
{¶10} It is unclear from the record what became of Castagnola's vehicle. We note that as early as a 2015 motion to suppress, Castagnola himself asserted that the vehicle had been sold at a police auction. While the State also maintains that the vehicle is no longer in the Twinsburg Police Department's possession, it presented no sworn testimony or documents to support that conclusion. Instead, the prosecutor represented to the trial court at a hearing what the prosecutor had been told happened to the vehicle. Even that prosecutor's statements to the trial court were full of phrases evidencing uncertainty, such as "I guess" and "I think[.]" It is evident that the prosecutor's statements were not based upon personal knowledge.
{¶11} Thus, the trial court, and this Court have no clear picture of what happened to this vehicle, including when it was disposed of, if it was truly sold. While it may be true that both sides believe that the car is no longer in the possession of the Twinsburg Police Department, there have been no stipulations as to that fact or as to what happened to the car. Moreover, even if the Twinsburg Police Department does not have actual possession of the car, it is possible that it could have constructive possession. See State v. Pierson, 9th Dist. Lorain No. 21CA011793, 2022-Ohio-4140, ¶ 30 ("Possession may be constructive as well as actual. Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession." (Internal quotations and citations omitted.); see also Harris v. Mayfield Heights, 8th Dist. Cuyahoga No. 95601, 2011-Ohio-1943, ¶ 30. If the Twinsburg Police Department has constructive possession of the vehicle, we see no reason why it could not be returned.
{¶12} Therefore, we agree with Castagnola that the trial court erred in denying his motion as to the vehicle without having any evidence before it as to what became of the car. Castagnola's assignment of error is sustained to that extent and the matter is remanded for the trial court to receive evidence as to what became of the car so that it can determine whether Castagnola is entitled to the relief he seeks.
III.
{¶13} Castagnola's assignment of error is sustained to the extent discussed above. The judgment of the Summit County Court of Common Pleas is reversed, and this matter is remanded for the trial court to receive evidence concerning the status of the vehicle.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.
SUTTON, P. J., FLAGG LANZINGER, J. CONCUR.