[Cite as State v. Castagnola , 2020-Ohio-1096.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. NICHOLAS J. CASTAGNOLA Appellant C.A. Nos. 29141 29250

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 07 1951(B)

DECISION AND JOURNAL ENTRY Dated: March 25, 2020

SCHAFER, Judge. {¶1} Defendant-Appellant, Nicholas C astagnola, appeals the July 20, 2018 journal entry of the Summit County Court of Common Pleas denying his motion f or return of all seized property in Case No. CA-29141. Mr. Castagnola separately appeals from h is November 30, 2016

conviction for retaliation in Ca se No. CA-29250. We consolidat ed the appeals for purpose of this opinion. For the reasons that follow, this Court reverses the denial of Mr. Castagnola’s motion for the return of property an d affirms his conviction.

I. {¶2} The meandering history of this case stretches back to Mr. Casta gnola’s indictments in two separate cases. In the underlying case, Case No. CR-201 0-07-1951(B) (the “retaliation case”), Mr. Castagnola was indicted on six counts: criminal dam aging, vandalism, possession of criminal tools, and two counts of retaliation. A forfeiture sp ecification was attached to each count.2

Mr. Castagnola was also indicte d in a separate case, Case. No. CR-2010-08-2244 (the “pandering case”), on ten counts of pandering s exually oriented material i nvolving a minor. {¶3} In a prior appeal, we summarized the procedural history of both the retaliation case and the pandering case: Mr. Castagnola filed a motion to suppress in both cases, challe nging the warrant the police relied upon to seize the computer from his home. Th e trial court held a suppression hearing and ultimate ly denied the motion. Subseque ntly, a jury trial took place in the retaliation case. The jury found Mr. Castagn ola guilty on all counts, but did not find that h is property was subject to forfe iture. The pandering case then was tried to the bench, and the judge found Mr. Casta gnola guilty on all counts. The court sentenced Mr. Castagnola in each case and or dered the sentences to run consecutively to one anot her for a total term of 30 mont hs in prison. State v. Castagnola , 9th Dist. Summit Nos. 26185 and 26186, 2013-Ohio-1215, ¶ 5 ( Castagnola

I

). In Castagnola I , this Court affirmed the denial of Mr. Castagnola’s motion to suppress, affirmed his convictions in the pandering case, and remanded the retalia tion case for the trial court to conduct a merger analysis regarding certain offenses. Id . at ¶ 19, 29, 33, 25. {¶4} Mr. Castagnola appealed the decision in Castagnola I to the Supreme Court of Ohio. The Supreme Court revers ed this Court’s decision, holdin g “that the search warrant at issue

in this case was invalid and that the evidence obtained in exec uting the warrant must be suppressed.” State v. Castagnola , 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 1. {¶5} This Court summarized the procee dings following remand in a sub sequent appeal: Upon remand to the trial court, t he convictions in the panderin g 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. On September 30, 2016, Mr. Castag nola filed an application to r eopen his appeal of the retaliation case. This C ourt denied the motion to reope n the appeal as well as the subsequent motion for r econsideration, motion to certify a conflict, motion for en banc consideration, and motion for an evidentiary hearin g. On February 6,3

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 r eturn of seized property which listed the case num bers for both the pandering c ase and the retaliation case in the caption. A week earlier, on November 3 0, 2016, Mr. Castagnola’s counsel filed a motion to seal in the pandering ca se. The trial court set the motion to seal the pandering case for a hearing. Howev er, the trial court did not schedule a hearing on the pro se motion for return of seize d 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 additiona l 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 goin g to speak on that motion on behalf of your client?” 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 pe nding 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 ret urn of seized property, and 2) cont inued the hearing on the motion to seal and set a schedule for further briefing on t hat motion. On May 12, 2017, the trial court filed a j ournal entry in the retaliat ion case, calling it a nunc pro tunc order to correct the entry filed on March 28, 2017. Th e nunc pro tunc journal entry deleted the ref erence to the sealing motion and d enied the motion for return of seized property. On June 13, 2017, the trial court f iled a journal entry in the retaliation case denying the motion for return of seized pr operty. Mr. Castagnola timely filed separate appeals from each of these jou rnal entries. On June 6, 2017, Mr. Castagnola filed a pro se renewed motion f or return of seized property in the retaliation case only. The trial court [had] n ot rule[d] on this motion and it remain[ed] pending. State v. Castagnola , 9th Dist. Summit Nos. 28621, 28672, and 28702, 2018-Ohio-1604 , ¶ 4-10 ( Castagnola II ). {¶6} In Castagnola II , Mr. Castagnola raised two assignments of error challenging th e trial court’s denial of his motion for return of seized propert y, and argued that the trial court denied4

him an opportunity to speak regarding his motion at a hearing a nd/or the trial court’s summary denial of his motion without hearing. Regarding the pandering case, this Court held that Mr. Castagnola was represented by c ounsel when he filed his pro se motion for return of seized property; therefore it “was not p roperly before the trial court * * * [and] * * * the trial court should not have considered the pro se motion, nor was it required to c onduct a hearing or hear directly from Mr. Castagnola.” Id ., at ¶ 19. Therefore, we affirmed the March 28, 2017 entry in the pandering case. Id . at ¶ 34. {¶7} As to the retaliation case, this Court determined that Mr. Cast agnola’s pro se motion for return of seized property was properly before the trial cou rt for consideration. Id . at ¶ 21. The

trial court had “ente red two journal entries, May 12, 2017 and June 13, 2017, denying the motion for return of seized property in the retaliation case” and Mr. Castagnola separately appealed both journal entries. Id . We vacated the May 12, 2017 nunc pro tunc journal entry, con cluding it was invalid because there was no existing order in the retaliation case to correct. Id . at ¶ 23-24. Upon

consideration of the circumsta nces surrounding the June 13, 201 7 journal entry, we concluded the trial court was divested of jurisdiction from entering the deni al of his motion for the return of seized property because Mr. Castagnola had filed an appeal to t his Court one day prior. Id . at ¶ 29-30. Accordingly, we held that the June 13, 2017 journal ent ry was a nullity and vacated the entry. Id . at ¶ 30. Further, we held tha t the trial court had ruled on only the original December 8, 2016 motion, not the June 6, 2017 renew ed motion; therefore, th ere was no final appealable order

for this Court to consider. Id . at ¶ 33-34. Consequently, this Court vacated both the May 12 , 2017, and June 13, 2017 judgment entries i n the retaliation case. Id . at ¶ 35. {¶8} Following this Court’s decision in Castagnola II , the trial court set a hearing in the

retaliation case for the December 8, 2016 original motion and t he June 6, 2017 renewed motion5

for return of seized property for May 30, 2018. Notice of the hearing was issued to the State as well as Attorney Jeffrey James as counsel for Mr. Castagnola 1 . Mr. Castagnola appeared at the May 30, 2018 hearing with counsel. Following the hearing, the trial court issued an order questioning its jurisdiction to consider Mr. Castagnola’s motio ns and setting a deadline for the parties to submit briefs on the issue of jurisdiction. The Sta te filed a brief on the issue of jurisdiction on June 20, 2018. Mr. Castagnola’s brief regardin g jurisdiction was submitted on June 28, 2018. {¶9} On July 20, 2018, the trial court issued its ruling holding as follows: Once a common pleas court has imposed a sentence in a criminal case, that court no longer has jurisdiction to issue orders in the case unless t he issuance of such orders is authorized by the Ohio Revised Code. In the case of property seized pursuant to a search warrant, the proper remedy is for the pers on who believes that such property was either wrongfully seized or is being wrongful ly held is to file a petition for a wr it of replevin. Having determined that its jurisd iction was “uncer tain,” the tr ial court denied Mr. Castagnola’s motion. On August 15, 2018, Mr. Castagnola filed his notice of appeal from the trial court’s July 20, 2018 journal entry. This Cour t dismissed Case No. CA-29141 on September 11, 2018, based on Mr. Castagnola’s failure to pe rfect the appeal. However, on October 15, 2018, we granted Mr. Castagnola’s motion for reconsideration and reinstated the appe al. In CA-29141 Mr. Castagnola raised a single assignment of error for our review. {¶10} As noted above, upon remand from the Supreme Court, Mr. Castagn ola pled guilty

to one count of retaliation while t he remaining charges in the retaliation case, including the forfeiture specifications, were d ismissed. The trial court acc epted Mr. Castagnola’s change of plea, found him guilty, and sentenced him on September 26, 2016 . His conviction was journalized

1 The record reflects that Mr. J ames filed a notice of appearanc e on November 21, 2016.6

on September 30, 2016. Just over tw o years later, on November 30, 2018, Mr. Castagnola filed his notice of appeal in Case N o. CA-29250, appealing his Septem ber 30, 2016 conviction. Contemporaneously, Mr. Castagnol a filed a motion for leave to a ppeal with an affidavit setting forth the reasons for his failure to perfect a timely appeal. Mr. Castagnola averred that he was unaware he needed to appeal his conviction until the trial cour t denied his motion to return property—precisely the ruling he is presently challenging in CA -29141—and he realized that the trial court and the State had “tricked” him into pleading guilt y which amounted to a “de facto” forfeiture of his property. The State opposed the motion for a delayed appeal, arguing that Mr. Castagnola failed to show good cause as to why leave should be granted and pointing to the fact that Mr. Castagnola was also appealing the denial of his motion to return property. However, on December 20, 2018, this Court granted leave for Mr. Castagnola to file a delayed appeal. In CA29250, Mr. Castagnola raises two a ssignments of error for our r eview.

II. Assignment of Error [CA-29141] The trial court erred to the prejudice of Mr. Castagnola when i t failed to grant his motion to return his property that was either never indicte d in a forfeiture specification or that was subject to forfeiture specifications of which he was either acquitted or that were dismissed as part of a plea deal, in derogation of Ohio’s forfeiture statutes as well as the Due Process and Just Compensation Clauses of the Fifth Amendment t o the United Stat es Constitutio n. {¶11} In his merit brief, Mr. Castagnola asserted that the trial cour t erred in its conclusion that it lacked jurisdiction to return property after his guilty plea and conviction. Mr. Castagnola presents an array of arguments, many of which are not apparentl y relevant to the assigned error,

and much of his factual asser tions are not supported with citat ions to the record. See App.R. 16(A)(6),(7). In terms of property, Mr. Castagnola focuses pri marily on his vehicle, which the jury in the trial of the retaliation case found was not subject to forfeiture and the forfeiture7

specifications were eventually dismissed. He also refers to a cell phone, computers and related accessories, and other unspecifi ed property seized from his hou se. He asserts that some of these items were used, or held for use, in the pandering and/or retal iation cases. Mr. Castagnola also asserts that a portion of the pro perty was suppressed as eviden ce and should have been returned, save for the evidence of illegal pornography on one computer. Mr. Castagnola also notes that it

was reasonable for State to retain “ some of his property ” pending the conclusion of all appeals. However, Mr. Castagnola’s claim that the pandering and retaliat ion cases have “been completely settled for more than two years[,]” is contradicted by the nume rous motions he has filed regarding

his conviction in the retaliati on case seeking reconsideration or the reopening of Castagnola I and the presently pending delayed direct appeal of his conviction a nd guilty plea in the retaliation case. Additionally, Mr. Castagnola acknow ledges in his merit brief “t hat the State does not have all of this property in its possession anymore * * *” and discusses st orage fees and compensation. Nevertheless, his contention that the trial court erred by conc luding that it lacked jurisdiction to consider his motion to return seized property is sufficiently c lear from his brief to permit our

review of that limited issue. {¶12} The trial court denied Mr. Casta gnola’s motion and concluded it no longer had jurisdiction to issue orders in the case after it imposed a sen tence. However, rather than support this conclusion, the journal entr y evinces the trial court’s un certainty as whether it actually lacked jurisdiction. The trial court expressed that, while it believe d its authority “to order the return of the seized property in the context of a completed criminal case is uncertain, it is certain that Mr. Castagnola could file an action for a writ of replevin.” Conse quently, the trial court concluded “the more judicially prudent cour se of action is to decline to exercise jurisdiction perceived as uncertain” and to deny the moti on for return of property.8

{¶13} In its decision, the trial court referenced State v. Young , 5th Dist. Richland No. CA2810, 1991 WL 87203 (May 3, 1991), as authority supporting the conclusion that a replevin action is the proper remedy for the return of seized property. In Young , the Fifth District held that a motion to return property was not properly before the trial cou rt in the criminal matter because it “no longer had jurisdiction to hear [the] motion” after the con viction was entere d and the time for appeal 2 lapsed. Id. at *1. Irrespective of its holding in Young , the Fifth District later held in that

the trial court erred when it denied a postconviction request f or the return of property—filed nearly a year after the defendant’s conviction—and ordered the propert y returned to a defendant. State v. Haymond , 5th Dist. Stark No. 2009-CA -00078, 2009-Ohio-6817, ¶ 3-5, 36. {¶14} The trial court also cites to State ex rel. Jividen v. Toledo Police Dept. , 112 Ohio App.3d 458, (6th Dist.1996). In Jividen , the Sixth District held that “the proper action for seeking the return [of property] is not by mandamus but rather by an ac tion for replevin.” Id . at 459.

Jividen , however, involved a mandamus action, not a postconviction mot ion for the return of seized property. It is, therefore, inapposite upon the facts of the p resent matter. {¶15} Certainly, a civil action for replevin is an appropriate means to seek the return of property wrongly withheld by the State. See State ex rel. Johnson v. Kral , 153 Ohio St.3d 231, 2018-Ohio-2382 ¶ 5; see also Hicks v. Barberton Police , 9th Dist. Summit No. 23976, 2008-Ohio2958, ¶ 4 (“Replevin may provide a remedy when property has bee n seized by law enforcement

officers and retained after the conclusion of criminal proceedi ngs.”). Replevin, however, is not

the exclusive method for seeking the return of seized property. State v. White , 2d Dist. No. 2017- CA-28, 2018-Ohio-2573, ¶ 21.

2 We note a factual distinction in this matter: Mr. Castagnola i s presently pursuing a delayed direct appeal of his conviction.9

{¶16} A trial court has authority to order the return of property whi ch is no longer needed in a completed criminal case and which is not the subject of fo rfeiture proceedings. State v. Housley , 2d Dist. Miami No. 2018-CA-4, 2018-Ohio-4140, ¶ 9. A motion for the return of property is a viable means to seek the return of property after conviction and after a defendant has

served a sentence. White at ¶ 22, citing State v. Bolton , 2d Dist. No. 27154, 2017-Ohio-7263. In fact, “courts routinely address postconviction motions for the return of property previously seized[,] and [c]ourts have also entertained such motions filed in criminal cases even after the criminal charges have been dismissed.” State v. Harris , 10th Dist. Franklin No. 99AP-684, 2000 WL 249161, *2 (compiling cases contai ning examples of courts en tertaining such motions). {¶17} Based on the foregoing, we find that a motion for the return of seized property may be a viable means to request the return of property even after conviction. Therefore , the trial court erred when it denied Mr. Castagnola’s motion for the return of seized property based on its presumed lack of jurisdiction to consider the motion. Accordin gly, we reverse the trial court’s July 20, 2018 decision denying Mr. Castagnola’s motion for the return of seized property and remand for the trial court to consider Mr. Castagnola’s request s for the return of property and to determine whether, upon the speci fic facts and circumstances of this case, the requested relief is appropriate and within the trial court’s authority to order. {¶18} Mr. Castagnola’s assignme nt of error is sustained. Assignment of Error I [CA-29250] Mr. Castagnola’s plea of guilty was not knowing, intelligent, a nd voluntary insofar as there were errors in both the plea colloquy and the plea deal, including, but not limited to, dismissing acquitted forfeiture specifications and then failing to inform him of its illegality or that it would n ot return any of his property, whether any such property was included in a forfeitur e specification or not, thereby creating, inter alia, a de facto penalty, in vi olation of Crim.R. 11.10

{¶19} In his next assignment of error, Mr. Castagnola argues that his guilty plea “was not knowing, intelligent, and voluntary * * *” based on alleged err ors in the plea colloquy and the plea deal. As discussed herein, we conc lude that Mr. Castagnola’s a rgument lacks merit. {¶20} “When a defendant enters a plea in a criminal case, the plea mu st be made knowingly, intelligently, and voluntarily.” State v. Engle , 74 Ohio St.3d 525, 527 (1996). The trial court must engage a defendant in a colloquy as described in Crim.R. 11(C), and “the trial judge must convey accurate infor mation to the defendant so that the defendant can understand the consequences of his or her decision and enter a valid plea.” State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 26. Specifically, C rim.R. 11(C)(2), provides that a court shall not accept a plea of guilty * * * without first addressin g the defendant personally and doing all of the following: (a) Determining that the defenda nt is making the plea voluntari ly, with understanding of the nature of the charges and of the maximum p enalty involved, and if applicable, that the def endant is not eligible for proba tion or for the imposition of community control sa nctions at the sentencing hea ring. (b) Informing the defendant of and determining that the defenda nt understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and de termining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining wi tnesses in the defendant’s favor, and to require the state to prove the defend ant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be co mpelled to testify against himself or herself. Further, in the case of a negotiated guilty plea, Crim.R. 11(F) provides “the underlying agreement upon which the plea is based shall be stated on the record in o pen court.” We apply a de novo standard of review to determine whether a trial court complied with Crim.R. 11(C). State v.

Owens , 9th Dist. Summit No. 25174, 2010-Ohio-4635, ¶ 7.11

{¶21} In his merit brief, Mr. Castagnola first takes issue with the f act that the State, his counsel, and the trial court s ought to indicate on the record t hat all forfeiture specifications listed

in the indictment were dismisse d. However, Mr. Castagnola, has failed to develop any rational argument to explain how this affected the knowing, intelligent, and voluntary nature of his plea.

See App.R. 16(A)(7). Mr. Castagnola also raises a number of argum ents regarding his dissatisfaction with events that occurred subsequent to his con viction. Mr. Castagnola contends the trial court failed to inform him that his guilty plea would result in a “de facto forfeiture” of his property. As to that point, Mr . Castagnola has not identified any information the trial court was required, but failed to convey, prior to accepting his guilty p lea, nor has he identified any facts in the record to support his contention that his guilty plea actua lly resulted in a “de facto forfeiture” or a “conversion” of his property. See App.R. 16(A)(7). {¶22} Mr. Castagnola has failed to advance any argument to support hi s contention that his guilty plea was not entered knowingly, intelligently, or vo luntarily. Mr. Castagnola has not alleged any error relevant to th e plea colloquy nor has he iden tified any failure of the trial court to comply with the requirements of Crim.R. 11. Based on our revie w of the record, we conclude that the trial court complied with the requirements for accepting a guilty plea and convicting him on

one count of retaliation. Because Mr. Castagnola has failed to demonstrate that his guilty plea was not entered knowingly, intelligen tly, or voluntarily, his assig nment of error is overruled. Assignment of Error II [CA-29250] Mr. Castagnola received ineffective assistance of counsel when, inter alia, prior to pleading guilty, his trial counsel failed to notice th at it was impossible for him to have been convicted of any felony count based on the record, the evidence, and the State’ s theory of the case. {¶23} Mr. Castagnola argues that trial “counsel was ineffective for n ot realizing that Mr. Castagnola could not be convicted of a felony offense at his re trial in this matter.” Where a12

defendant pleads guilty, as Mr. Castagnola did here, he “waives the right to appeal issues of ineffective assistance of counsel, unless the ineffective assis tance of counsel caused the guilty plea to be involuntary.” State v. Carroll , 9th Dist. Lorain No. 06CA009037, 2007-Ohio-3298, ¶ 5, citing State v. Barnett , 73 Ohio App.3d 244, 248 (2d Dist.1991); State v. Dallas , 9th Dist. Wayne No. 06CA0033, 2007-Ohio-1214, at ¶ 4. {¶24} “[I]n Ohio, a properly licensed attorney is presumed competent. ” State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To establish ineffec tive assistance of counsel one must satisfy the test set forth in Strickland v. Washington , 466 U.S. 668, 687 (1984). In the context

of a guilty plea, “First, the defendant must show that counsel’s per formance was deficient[,]” and “[s]econd, the defendant must show that there is a reasonable p robability that, but for counsel’s errors, he would not have pleaded guilty * * *.” (Internal cit ations and quotations omitted.) State

v. Xie , 62 Ohio St.3d 521, 524 (1992), quoting Strickland at 687, and Hill v. Lockhart , 474 U.S. 52, 59 (1985). To demonstrate defi cient performance, a defenda nt must show that the representation fell below an obj ective standard of reasonablene ss. Strickland at 687-688. {¶25} The theory Mr. Castagnola presents in support of his argument i s premised upon

his unsubstantiated contention t hat his appellate counsel in Castagnola I was ineffective, and that Mr. Castagnola “should have been acquitted of all four felony c ounts at his first trial” in the retaliation case in 2011. Mr. Castagnola speculates that such “ineffectiveness” led trial counsel to advise Mr. Castagnola “to plead guilty despite the fact that it was impossible for Mr. Castagnola to be convicted of a felony at a second trial * * *.” Mr. Cast agnola argues, inter alia, that the “evidence was insufficient as a matter of law to prove Count 1, Retaliation, in violation of R.C. 2921.05(A).”13

{¶26} Mr. Castagnola has not establishe d, based on the record, that t here was no possibility he could have been convicted of the retaliation cha rge to which he pleaded guilty, or as

to other counts of the indictment that were dismissed pursuant to plea negotiations. “‘[A] claim

of ineffective assistance of couns el on direct appeal cannot be premised on decisions of trial counsel that are not reflected in the record of proceedings * * * [and] [s]peculation regarding the prejudicial effects of counsel’s performance will not establish ineffective assistance of counsel.’” State v. Zupancic , 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4, quoting State v. Leyland , 9th Dist. Summit Nos. 23833 & 23900, 2008-Ohio-777, ¶ 7. Moreo ver, this Court “must indulge a strong presumption that counsel’s conduct falls within the wi de range of reasonable professional assistance[.]” Strickland at 689. Even debatable trial tactics will not constitute inef fective

assistance of counsel where “ther e is no showing that counsel d id not research the facts or the law, or that he was ignorant of a crucial defense.” State v. Clayton , 62 Ohio St.2d 45, 49 (1980). {¶27} Mr. Castagnola has not demonstrat ed that counsel’s performance when he advised Mr. Castagnola to enter a guilty plea fell below an objective standard of reasonable representation.

See Strickland at 687-688. Because Mr. Castagnola’s argument is based on con jecture and is “entirely speculative in nature” he has not demonstrated error in counsel’s performance and cannot

establish that he received ineff ective assistance of counsel. State v. Fridley , 9th Dist. Wayne No. 17AP0029, 2019-Ohio-3412, ¶ 32. Accordingly, his assignment of error is overruled.

III. {¶28} Mr. Castagnola’s first and second assignments of error in CA-29 250 are both

overruled. His conviction is affirmed. {¶29} Mr. Castagnola’s assignment of error in CA-29141 is sustained. The decision of the Summit County Court of Common Pleas denying Mr. Castagnola’ s motion for the return of14

seized property is reversed, and this matter is remanded for pr oceedings consistent with that

decision. Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting 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 consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed equall y to both parties.

JULIE A. SCHAFER FOR THE COURT

TEODOSIO, P. J. CARR, J. CONCUR.15

APPEARANCES: NICHOLAS J. CASTAGNOLA, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.