[Cite as State v. Cartellone, 2013-Ohio-3429.]
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.