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Date: 06-21-2021
Case Style:
STATE OF OHIO v. DERREK ANDREWS
Case Number: 20CA0059-M
Judge: Lynne S. Callahan
Court: IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney
Defendant's Attorney:
Description:
Akron, Ohio - Criminal defense attorney represented Defendant charged with a domestic violence.
Mr. Andrews pleaded no contest to a charge of domestic violence. On May 6, 2020,
the trial court sentenced him to community control, required him 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 sentence. With respect to the terms of his community control sanction,
the trial court’s order described residential and non-residential components:
If accepted into CBCF, [Mr. Andrews] shall complete treatment and is to be
transported to CBCF when a bed becomes available. If [Mr. Andrews] successfully
completes CBCF then supervision will terminate.
* * *
[Mr. Andrews] is placed under the supervision of the Medina County Adult
Probation Department for three (3) years, under general supervision. While under 2
supervision [Mr. Andrews] shall obey all conditions and terms of 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 Correctional Facility and provided
that he was “ordered to successfully complete the [CBCF] program as a condition of [his]
community sanctions.” The second reiterated this requirement and stated that “[Mr. Andrews] will
continue to be under supervision following discharge from the Lorain/Medina County [CBCF].”
{¶3} On August 19, 2020, Mr. Andrews’ probation officer filed a statement 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 admitted the violation, and the trial
court imposed the eighteen-month prison sentence for the domestic violence conviction. The next
day, Mr. Andrews moved the trial court to reconsider its sentence, arguing that because he had
successfully completed CBCF before the community control violation 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 authority to entertain the motion to reconsider his sentence because
this error rendered the sentence on his community control violation 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 trial court erred by
imposing the eighteen-month prison sentence because, according to the terms of the May 6, 2020, 3
order, his period of supervision ended before notice of the community control violation was filed.
Mr. Andrews has not argued that his sentence is otherwise inappropriate.
{¶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 pursuant to the sentencing order,
successful completion of the residential portion of his community control sentence eliminated the
nonresidential component, supervision by the probation department. 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 control violation. Consequently, this matter did not proceed to
a hearing during which evidence was presented to substantiate the violation, nor did the parties
present evidence regarding whether Mr. Andrews successfully completed CBCF. The record is
silent on that point apart from the representation of Mr. Andrews’ attorney that it was counsel’s
“understanding” that he “did successfully complete Lorain/Medina CBCF [and] that he was
discharged[.]” Counsel’s statements 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. Moreover, the trial court’s statements during sentencing call the
accuracy of counsel’s “understanding” into question:
Well, Mr. Andrews, one of the conditions of your supervision while 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 probation violation for
which I’m going to impose the original prison term of 18 months[.]
{¶7} This Court’s review is necessarily constrained by the evidence that is in the record.
Thus, even assuming Mr. Andrews’ interpretation of the trial court’s sentencing entry is correct,
this Court cannot conclude that the trial court lacked authority to proceed on the community control
violation. Mr. Andrews’ assignment of error is overruled on that basis.
Outcome: Mr. Andrews’ assignment of error is overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: