[Cite as State v. Neubig , 2021-Ohio-4375.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

- v - KYLE B. NEUBIG, Defendant-Appellant. CASE NOS. 2021-P-0002 2021-P-0003

Criminal Appeals from the Court of Common Pleas

Trial Court Nos. 2018 CR 01058 2020 CR 00178

O P I N I O N Decided: December 13, 2021 Jud g ment: Affirmed

Victor V. Vigluicci , Portage County Prosecutor, and Pamela J. Holder , Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 ( For Plaintiff-Appellee )

. Paul M. Grant , 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For Defendant-Appellant )

. JOHN J. EKLUND, J. {¶1} Appellant Kyle Neubig appeals the Portage County Court of Commo n Pleas’ November 2, 2020, revocation of community control sanctions and imposition of a 36- month prison sentence. Finding no reversable error, we affirm. {¶2} On November 30, 2018, appellant pled guilty to one count of dom estic violence, a felony of the fourth degree, in violation of R.C. 2 919.25(A), and one count of domestic violence, a misdemeanor of the first degree, in violat ion of R.C. 2919.25(A) in2 Case Nos. 2021-P-0002, 2021-P-0003 case number 2018CR01058. The court sentenced appellant to a fiv e-year community control sanction, including twelve months of the Intensive Supe rvision Program and 48 additional months monitored under the General Division of the A dult Probation Department. The court advised appellant that a violation of the terms of community control may result in the imposition of an 18-month prison sentence for the felony offense and a 180-day jail term for the misdemeanor offense. {¶3} First violation: On May 24, 2019, the trial court found appellant guilty of violating the terms of his community control after he tested po sitive for methamphetamines and marijuana. The trial court modified the te rms of his community control to include daily reporting with the Trumbull County Pro bation Department until a bed became available at the Northeast Ohio Community Alternativ e Program (“NEOCAP”), as well as other terms. {¶4} Second violation: On August 14, 2019, the trial court found appellant guilty of violating the terms of his community control after he failed to complete the NEOCAP program. He was sentenced to 180 days in jail and his community control was extended an additional year. {¶5} Felonious assault conviction: On February 20, 2020, the Portage County Grand Jury indicted appellant with one count of felonious assau lt in violation of R.C. 2903.11(A) in case number 2020CR00178. Appellant pled to a redu ced charge of attempted felonious assault, a felony of the third degree in vi olation of R.C. 2923.01 and 2903.11. The trial court sentenced appellant on June 8, 2020, a nd imposed a community control sanction which included random substance abuse testing. The court advised3 Case Nos. 2021-P-0002, 2021-P-0003 appellant that violation of the terms of his probation could re sult in a prison term of 36 months. {¶6} Third violation: On September 17, 2020, appellant met his probation officer Erica Dillon for a regular ly scheduled appointment. App ellant had been attending counseling sessions less frequently and had recently been arres ted for an OVI offense in which he refused to submit to the breathalyzer test. Dillon req uested that appellant submit to a drug screen. {¶7} Probation Officer Dalton Todd conducted appellant’s test using a 6-panel drug screen. Todd and Dillon reviewed the results which were po sitive for methamphetamines. Appellant initially denied using methamphetam ines and Todd conducted a second test with a 13-panel drug screen. Appellant again tested positive for methamphetamines. After the second positive test, appellant adm itted to methamphetamine use two days prior, September 15, 2020, and sig ned a voluntary admission form. Based on this evidence, Dillon filed a motion t o revoke or modify appellant’s probation. After Dillon filed the motion to revoke or modify, appellant sent a letter to the court denying his use of drugs and stating that h e had felt pressured to admit to drug use. {¶8} On October 30, 2020, the court held the revocation hearing. App ellant testified at the hearing and disputed the accuracy of his posit ive drug test. Appellant thought the test would be automatically sent to a lab and did n ot know he would have to request and pay for independent testing. He said that he regret ted signing the admission and only signed it because he thought there would be independen t lab testing to confirm4 Case Nos. 2021-P-0002, 2021-P-0003 the results. He said that he signed the admission to prior drug use after denying drug use five times and said that the probation officers “weren’t taking no for an answer.” {¶9} Appellant also testified that he overheard Todd and Dillon disc ussing the results and that he heard Todd say that the first test “could b e a clean test.” The court interjected and said “[i]f we bring Mr. Todd over here and he s ays you’re lying - - * * * if he contradicts you - - * * * then you’re going to prison.” Afte r this, Todd testified and stated that appellant tested positive on both tests for methamphetamin es. Todd denied either of the tests being negative or being faint positive tests. Todd sa id appellant would be lying to say that the first test was negative and that he never told Dillon that the first test could be a clean urine screen. In addition, Todd testified that after administering the second drug screen in the bathroom, appellant admitted to using metham phetamines and that he signed the admission form. {¶10} The court found appellant guilty of the community control viola tion and said that there was no way for appellant to get around his admission to drug use. The court noted that with an admission, there would be no reason to send a test to a lab. The court discussed appropriate sentencing for the violation and said tha t if the appellant “would not have gotten on the stand and lied – he lied. He lied regard ing the confession. He lied about what Mr. Todd was going to say. I mean, I was going to gi ve him another chance, but he lied, completely lied.” Even after this exchange, appell ant again said “for a fact” that Todd lied to the court. {¶11} In its judgment entry, the court found that appellant’s violati on was not a technical violation and that he was no longer amenable to a com munity control sanction under R.C. 2929.19. The court terminated appellant’s probation and sentenced him to5 Case Nos. 2021-P-0002, 2021-P-0003 concurrent terms of 36 months in prison for his third-degree fe lony, twelve months in prison for his fourth-degree felony, and 180 days jail for his first-degree misdemeanor. The court granted the appellant 342 days credit for time served in jail and in NEOCAP. Appellant initially filed an untimely notice of appeal, and his appeals were dismissed. Subsequently, his appellate counsel sought leave to file a dela yed appeal and this Court granted an unopposed leave. This court sua sponte consolidated the appeals stemming from appellant’s convictions in 2018CV0158 and 2020CR00178. Assignments of Error and Analysis {¶12} Appellant’s first assignment of error states: {¶13} “[1.] TRIAL COURT ABUSED ITS DIS CRETION WHEN IT REVOKED MR. NEUBIG’S COMMUNITY CONTROL AND IMPOSED A PRISON SENTENCE ON MR. NEUBIG.” {¶14} Generally, the decision to revoke community control is evaluate d under an abuse of discretion standard. State v. Russell, 11th Dist. Lake No. 2008–L– 142, 2009–Ohio–3147, ¶ 6, citing State v. McKnight , 10 Ohio App.3d 312, 313, 462 N.E.2d 441 (1983). “The term ‘abuse of discretion’ is one of ar t, connoting judgment exercised by a court which neither comports with reason, nor th e record.” State v. Underwood , 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089 [2009 WL 11770 50], ¶ 30, citing State v. Ferranto , 112 Ohio St. 667, 676-678 [148 N.E. 362] (1925).” State v. Raia , 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, 2014 WL 288 1994, ¶ 9. Stated differently, an abuse of discretion is “the trial court’s ‘fail ure to exercise sound, reasonable, and legal decision-making.’” Id. , quoting State v. Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black’s Law Dictionary 116 Case Nos. 2021-P-0002, 2021-P-0003 (8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere fact that the reviewing court would decide the issue differentl y is enough to find error[.] * * * By contrast, where the issue on review has been confined to the discretion of the trial court, the mere fact that the reviewing court would have reache d a different result is not enough, without more, to find error.’” Id. , quoting Beechler at ¶ 67. {¶15} “‘The privilege of probation [or community control] rests upon the probationer’s compliance with the probation conditions and any violation of those conditions may properly be used to revoke the privilege.’” Russell, at ¶ 7, quoting State v. Bell , 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th Dist.1990). Becaus e a revocation hearing is not a criminal trial, the State is only required to introduce evidence showing it was more probable than not that the person on community control violated its terms or conditions. Id. , citing State v. Willis, 5th Dist. Fairfield No. 05 CA 42, 2005-Ohio-6947, at ¶ 9. A court’s decision to revoke community control for even mi nor violations is not an abuse of discretion. State v. Solomon , 11th Dist. Portage No. 2017-P-0078, 2019-Ohio1841, ¶ 21. {¶16} Appellant did not object to the revocation of community control or to the sentence imposed by the court. “Therefore, under the circumstan ces of this case, appellant has forfeited all but plain error on review.” State v. Carnes , 11th Dist. Trumbull No. 2014-T-0120, 2015-Ohio-4429, ¶ 8. “Crim.R. 52(B) affords ap pellate courts discretion to correct ‘[p]lain errors or defects affecting substantial rig hts’ notwithstanding the accused's failure to meet his obligation to bring those errors to the attention of the trial court.” State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. The appellant bears the burden of demonstrating plain error by prov ing that the outcome7 Case Nos. 2021-P-0002, 2021-P-0003 would have been different absent the plain error. State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–4642, ¶ 17. The plain error must be a deviation from a legal rule and an obvious defect in the proceedings. Rogers , at ¶ 22. {¶17} Further, even when the error is obvious, “it must have affected substantial rights,” meaning “‘that the trial court’s error must have affec ted the outcome of the trial.’” Id. , quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). This is the same deferential standard applied for “reviewing ineffective as sistance of counsel claims.” Id. Indeed, “even if an accused shows that the trial court committe d plain error affecting the outcome of the proceeding, an appellate court is not requir ed to correct it * * *.” Id. at ¶ 23. Courts are cautioned “to notice plain error ‘with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of jus tice.’” Barnes , at 27, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of th e syllabus. {¶18} The facts before the Court do not support a finding of plain er ror. First, the court did not abuse its discretion when it determined that appe llant had violated his community control. Appellant tested positive on both a 6-panel and 13-panel drug screen and admitted to recent drug use after the second positive test. According to Todd, after administering the second drug screen in the bathroom, appellant admitted to using methamphetamines and he signed a written admission of using dru gs on September 15 – two days before the drug screen. Appellant later recanted tho se statements and claimed that Todd told Dillon the first test could be a clean test. How ever, appellant’s testimony was contradicted by Dillon and Todd. The evidence before the co urt reflected two positive drug tests, verbal admissions of drug use, and a written admiss ion of drug use. As the8 Case Nos. 2021-P-0002, 2021-P-0003 trial court noted, with appellant’s admissions of drug use, the re would have been no purpose in sending appellant’s sample for independent testing. Thus, the court did not abuse its discretion in determining that appellant violated his community control. {¶19} Second, the court did not abuse its discretion in sentencing ap pellant to a 36-month concurrent prison sentence with 342 days jail time and NEOCAP credit. The court was within its discretion to sentence appellant to the un served prison time for his underlying offenses and the circumstances of appellant’s commun ity control violation support such a sentence. Appellant had violated the terms of hi s community control in two prior instances: once for testing positive for drugs and a second time for failing to complete the NEOCAP program as required by his community contro l sanctions. For the second violation, appellant served 180 days in jail before bein g released to continue his community control. After the second violation, appellant was co nvicted of a felony offense of violence and the court still afforded him a community contro l sanction. After the third violation under review here, the court terminated his community control. {¶20} The court had previously imposed more and more restrictive term s of community control upon appellant and had imposed 180 days of ja il for a prior violation. Appellant contends that the trial court abused its discretion w hen it said it was prepared to give appellant another chance but for his lies to the court. Appellant maintains that the true reason the trial court imposed a prison sentence was for l ying and not for the positive drug test. However, the court’s remarks reflect that evidence o f appellant’s drug use was the basis for violating his community control. Due to appellant ’s failure to accept responsibility for his actions, the court revoked his community control and sentenced him to prison. A trial court does not abuse its discretion when the court revokes community9 Case Nos. 2021-P-0002, 2021-P-0003 control for even a minor violation. Solomon , supra, at ¶ 21. Here, appellant failed to take responsibility for his positive drug test and third overall com munity control violation. This was not a minor violation. {¶21} Accordingly, appellant’s first assignment of error is without m erit. {¶22} The second assignment of error states: {¶23} “[2.] MR. NEUBIG WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.” {¶24} In his second assignment of error, appellant claims that counse l was ineffective at the revocation hearing because counsel did not o bject to the trial court’s revocation of community control and the imposition of a prison sentence. Appellant argues that the counsel’s failure to object foreclosed review f or all but plain error upon appeal. {¶25} In reviewing an ineffective assistance of counsel claim, the st andard we apply is “‘whether counsel's conduct so undermined the proper f unctioning of the adversarial process that the trial cannot be relied on as havin g produced a just result.’” State v. Story , 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant must demonstrate (1) his counsel was defic ient in some aspect of his representation, and (2) there is a reas onable probability, were it not for counsel's errors, the result of the proceedings would have been different

. Strickland , at 669. “A reasonable probability is a pro bability sufficient to undermine confidence in the10 Case Nos. 2021-P-0002, 2021-P-0003 outcome.” Id . A failure to “satisfy one prong of the Strickland test negates the need to consider the other.” State v. Madrigal , 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland , at 697. {¶26} An appellant “must be able to demonstrate that the attorney mad e errors so serious that he or she was not functioning as ‘counsel’ as guar anteed by the Sixth Amendment, and that he was prejudiced by the deficient performa nce.” Story, supra, quoting State v. Batich , 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42. Ohio courts presume that every properly licensed attorney is co mpetent, and therefore a defendant bears the burden of proof. State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). “Counsel’s performance will not be deemed ineffect ive unless and until counsel’s performance is proved to have fallen below an objecti ve standard of reasonable representation and, in addition, prejudice arises from counsel’ s performance.” State v. Bradley , 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable tri al tactics generally do not constitute ineffective assistance of counsel.” State v. Phillips , 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot b e the basis for claims of ineffective assistance of counsel, nor could such a failure be prejudicial.” State v. Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42. {¶27} Here, trial counsel performed competently at the revocation hea ring. Counsel cross-examined witnesses, called appellant to testify, introduced exhibits, and argued to the trial court to prevent revocation and to mitigate the sentence imposed. Trial counsel did not fall below an objective standard of reasonable representation by failing to object to the trial court’s revocation of community control and imposition of sentence.11 Case Nos. 2021-P-0002, 2021-P-0003 Counsel was not obligated to make futile objections merely to p reserve the record on appeal. See Id. {¶28} Furthermore, even if counsel’s representation had fallen below an objective standard of reasonable representation, appellant’s assignment o f error would still fail the second prong of the Strickland test. Appellant bears the burden of proving that he was prejudiced in some way by ineffective representation. Appellant has failed to do so and merely asserts that his arguments on appeal are limited by tria l counsel’s failure to object. Appellant points to no evidence, and we find none in the record , that this failure to object resulted in prejudice. {¶29} Accordingly, appellant’s second assignment of error is without merit. {¶30} For the foregoing reasons, the judgement of the Portage County Court of Common Pleas is affirmed.

MARY JANE TRAPP, P.J., CYNTHIA WESTCOTT RICE, J.,

concur.