[Cite as State v. Andrews , 2021-Ohio-1445.]

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

STATE OF OHIO Appellee

v. DERREK ANDREWS Appellant C.A. No. 20CA0059-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 20CR0041

DECISION AND JOURNAL ENTRY Dated: April 26, 2021

CALLAHAN, Judge. {¶1} Appellant, Derrek Andrews, appeals an order that sentenced him for a violation of community control. This Court affirms.

I. {¶2} Mr. Andrews pleaded no contest to a charge of domestic violence . On May 6, 2020,

the trial court sentenced him to community control, required hi m to refrain from contact with the victim, and informed him that any violation of the terms of his community control would result in an eighteen-month prison sentenc e. With respect to the terms o f his community control sanction,

the trial court’s order descri bed residential and non-residenti al components: If accepted into CBCF, [Mr. Andrews] shall complete treatment a nd is to be transported to CBCF when a bed becomes available. If [Mr. Andr ews] successfully completes CBCF then sup ervision will terminate. * * * [Mr. Andrews] is placed under the supervision of the Medina Cou nty Adult Probation Department for three ( 3) years, under general supervi sion. While under2

supervision [Mr. Andrews] shall obey all conditions and terms o f supervision imposed by the Medina County Adult Probation Department. Two days later, the trial court journalized two further orders: The first ordered Mr. Andrews to be transported to the Lorain/Medina County Community Based Correct ional Facility and provided that he was “ordered to successfully complete the [CBCF] progra m as a condition of [his] community sanctions.” The sec ond reiterated this requirement a nd stated that “[Mr. Andrews] will continue to be under supervision f ollowing discharge from the L orain/Medina County [CBCF].” {¶3} On August 19, 2020, Mr. Andrews’ p robation officer filed a stat ement alleging that Mr. Andrews had violated the terms of his community control by having contact with the victim prior to and during his participation in CBCF. Mr. Andrews adm itted the violation, and the trial court imposed the eighteen-month prison sentence for the domest ic violence conviction. The next day, Mr. Andrews moved the trial court to reconsider its senten ce, arguing that because he had successfully completed CBCF befo re the community control violat ion was filed, he was no longer subject to supervision under the terms of the trial court’s May 6, 2020, order. According to Mr. Andrews, the trial court had aut hority to entertain the motion to reconsider his sentence because

this error rendered the sentence on his community control viola tion void. The trial court denied the motion to reconsider, and Mr . Andrews filed this appeal.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A PRISON SENTENCE FOR [MR. ANDREWS] ON [A] COMMUNITY CONTROL VIOLATION. {¶4} In his sole assignment of error, Mr. Andrews argues that the tr ial court erred by imposing the eighteen-month pris on sentence because, according to the terms of the May 6, 2020,3

order, his period of supervisi on ended before notic e of the com munity control violation was filed. Mr. Andrews has not argued that hi s sentence is otherwise inapp ropriate. {¶5} Mr. Andrews’ argument is premised on his interpretation of the order that sentenced him to community control and the assumption that his discharge from CBCF constituted successful completion of the program. Specifically he maintains that purs uant to the sentencing order, successful completion of the res idential portion of his communi ty control sentence eliminated the nonresidential component, supervis ion by the probation departme nt. His argument appears to be that the trial court lacked authority to consider the community control violation, as he argued in

his motion for reconsideration. {¶6} We need not consider these issues because Mr. Andrews’ argument fails for another reason: there is no evidence in the record that he did, in fact , successfully complete CBCF. Mr. Andrews admitted the community c ontrol violation. Consequently , this matter did not proceed to a hearing during which evidence was presented to substantiate t he violation, nor did the parties present evidence regarding whether Mr. Andrews successfully com pleted CBCF. The record is silent on that point apart from the representation of Mr. Andre ws’ attorney that it was counsel’s “understanding” that he “did su ccessfully complete Lorain/Medin a CBCF [and] that he was discharged[.]” Counsel’s stateme nts are not evidence, however. See State v. A.V. , 9th Dist. Lorain No. 18CA011315, 2019-Ohio-1037, ¶ 11, citing State v. Shaffer , 11th Dist. Geauga No. 2009-G2929, 2010-Ohio-6565, ¶ 19, 21. More over, the trial court’s st atements during sentencing call the accuracy of counsel’s “unde rstanding” into question: Well, Mr. Andrews, one of the conditions of your supervision wh ile you were at the CBCF is that you not have any contact with the victim, and it appears that a minimum of 14 letters were written during that time. You deliberately engaged in subterfuge so that you would not be caught, communicating when you were not supposed to. * * *4

So at this time, I’m going to find that while you were at CBCF, you violated the terms and conditions of your supervision resulting in this prob ation violation for which I’m going to impose the original prison term of 18 months [.] {¶7} This Court’s review is necessari ly constrained by the evidence that is in the record. Thus, even assuming Mr. Andrews’ interpretation of the trial co urt’s sentencing entry is correct,

this Court cannot conclude that th e trial court lacked authorit y to proceed on the community control violation. Mr. Andrews’ assign ment of error is overruled on th at basis.

III. {¶8} Mr. Andrews’ assignment of erro r is overruled. The judgment of the Medina County Court of Comm on Pleas is affirmed. Judgment affirmed.

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 Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.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. 30.5

Costs taxed to Appellant.

LYNNE S. CALL AHAN FOR THE COURT

TEODOSIO, P. J. SUTTON, J. CONCUR.

APPEARANCES: JOCELYN STEFANCIN and KIMBERLY STOUT-SHERRER, Attorneys at Law, for Appellant. S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLU ICCI, Assistant Prosecuting Attorney, for Appellee.