[Cite as State v. Andreoli, 2016-Ohio-7167.]


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

STATE OF OHIO                                        C.A. No.      15CA0075-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MICHAEL V. ANDREOLI                                  COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   14-CR-0694

                                  DECISION AND JOURNAL ENTRY

Dated: October 3, 2016



        MOORE, Presiding Judge.

        {¶1}     Defendant, Michael V. Andreoli, appeals from the decision of the Medina County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     In 2014, Mr. Andreoli was charged with one count of possession of cocaine and

one count of possession of heroin. Mr. Andreoli ultimately pleaded guilty to those charges, and

the trial court accepted the pleas and referred Mr. Andreoli to the probation department for a

presentence investigation report (“PSI”) to be prepared. Thereafter, the trial court sentenced Mr.

Andreoli to five years of community control and imposed specific terms of community control.

The trial court further provided that the violation of community control would result in a twelve-

month sentence on each count, to run consecutively. In 2015, Mr. Andreoli’s probation officer

filed a complaint in the trial court alleging that Mr. Andreoli violated community control

conditions by being unsuccessfully discharged from a treatment program, and by admitting to
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using heroin. Mr. Andreoli admitted the violations, and, during the community control violation

hearing, the trial court again referenced the PSI. In a journal entry dated July 24, 2015, he was

sentenced to twelve months in prison on each of the two possession counts to run consecutively

to each other.

       {¶3}      Mr. Andreoli appealed from the July 24, 2015 entry, and he now presents one

assignment of error for our review.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING
       MAXIMUM CONSECUTIVE ONE-YEAR PRISON TERMS, TOTALING
       TWO YEARS IN PRISON, FOR [MR. ANDREOLI’S] FIRST AND ONLY
       COMMUNITY CONTROL/PROBATION VIOLATION, WHERE HE
       RELAPSED ON ONE OCCASION FOLLOWING MONTHS OF HIS
       SUCCESSFUL       COMPLIANCE       WITH        COMMUNITY
       CONTROL/PROBATION REQUIREMENTS AND DRUG TREATMENT FOR
       HIS HEROIN ADDICTION.

       {¶4}      In his sole assignment of error, Mr. Andreoli argues that the trial court erred in

sentencing him to two years in prison instead of continuing his community control.

       {¶5}      In State v. Marcum, Slip Opinion No. 2016-Ohio-1002, “the Ohio Supreme Court

revisited the law applicable to an appellate court’s review of felony sentences. The Supreme

Court held that, pursuant to R.C. 2953.08(G)(2), ‘an appellate court may vacate or modify a

felony sentence on appeal only if it determines by clear and convincing evidence that the record

does not support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.’” State v. Peterson, 9th Dist. Summit No. 27890, 2016-Ohio-1334, ¶ 5, quoting

Marcum at ¶ 1. “That is, an appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” Peterson at ¶ 5, quoting Marcum at ¶ 1.
                                                3


       {¶6}    With respect to imposing sentence where a defendant has violated the terms of

community control, former R.C. 2929.15(B) provides:

       (1) If the conditions of a community control sanction are violated or if the
       offender violates a law or leaves the state without the permission of the court or
       the offender’s probation officer, the sentencing court may impose upon the
       violator one or more of the following penalties:

       (a) A longer time under the same sanction if the total time under the sanctions
       does not exceed the five-year limit specified in division (A) of this section;

       (b) A more restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the
       Revised Code;

       (c) A prison term on the offender pursuant to section 2929.14 of the Revised
       Code.

       (2) The prison term, if any, imposed upon a violator pursuant to this division shall
       be within the range of prison terms available for the offense for which the
       sanction that was violated was imposed and shall not exceed the prison term
       specified in the notice provided to the offender at the sentencing hearing pursuant
       to division (B)(2) of section 2929.19 of the Revised Code. The Court may reduce
       the longer period of time that the offender is required to spend under the longer
       sanction, the more restrictive sanction, or a prison term imposed pursuant to this
       division by the time the offender successfully spent under the sanction that was
       initially imposed.

       {¶7}    Here, Mr. Andreoli’s argument in support of his assignment of error is limited to

his argument that the trial court erred in imposing a prison term under former R.C.

2929.15(B)(1)(c) instead of continuing his community control under former R.C.

2929.15(B)(1)(a) or (b) because of certain mitigating circumstances. We will likewise limit our

discussion.

       {¶8}    In support of his argument that the imposition of a prison sentence was in error,

Mr. Andreoli maintains that he suffered only one relapse while on community control for several

months. He argues that his otherwise compliant behavior and his admission to the relapse

mitigates against the imposition of a prison term. However, at the community control violation

hearing, the trial court referred to the PSI in reciting Mr. Andreoli’s prior convictions. The PSI
                                                 4


has not been made a part of this record on appeal. “It is the appellant’s responsibility to ensure

that the record on appeal contains all matters necessary to allow this Court to resolve the issues

on appeal.” Peterson, 2016-Ohio-1334, at ¶ 7, quoting State v. Yuncker, 9th Dist. Medina No.

14CA0068-M, 2015-Ohio-3933, ¶ 17, citing App.R. 9. “This Court has consistently held that,

where the appellant has failed to provide a complete record to facilitate appellate review, this

Court is compelled to presume regularity in the proceedings below and affirm the trial court’s

judgment.” Peterson at ¶ 7, quoting Yuncker at ¶ 17. “In cases such as this where the PSI is

necessary to enable an appropriate review of the propriety of the sentence, [Mr. Andreoli’s]

failure to ensure that the record includes the PSI requires a presumption of regularity in the

sentencing proceedings.” Peterson at ¶ 7, quoting Yuncker at ¶ 17. Accordingly, absent the PSI,

this Court cannot evaluate whether sentencing Mr. Andreoli to prison for the violation of

community control was in error. See State v. Berkenstock, 9th Dist. Summit Nos. 26721, 26815,

2013-Ohio-4576, ¶ 14. Therefore, Mr. Andreoli’s assignment of error is overruled.

                                                III.

       {¶9}    Mr. Andreoli’s assignment of error is overruled. The judgment of the trial court is

affirmed.

                                                                              Judgment affirmed.




       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 Medina, 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.
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       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 Appellant.




                                                    CARLA MOORE
                                                    FOR THE COURT



HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
