State v. Neubig

[Cite as State v. Neubig, 2021-Ohio-4375.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2021-P-0002
2021-P-0003
Plaintiff-Appellee,
-v- Criminal Appeals from the
Court of Common Pleas
KYLE B. NEUBIG,
Defendant-Appellant. Trial Court Nos. 2018 CR 01058
2020 CR 00178
OPINION
Decided: December 13, 2021
Judgment: 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 Common 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 domestic
violence, a felony of the fourth degree, in violation of R.C. 2919.25(A), and one count of
domestic violence, a misdemeanor of the first degree, in violation of R.C. 2919.25(A) in
case number 2018CR01058. The court sentenced appellant to a five-year community
control sanction, including twelve months of the Intensive Supervision Program and 48
additional months monitored under the General Division of the Adult 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 positive for
methamphetamines and marijuana. The trial court modified the terms of his community
control to include daily reporting with the Trumbull County Probation Department until a
bed became available at the Northeast Ohio Community Alternative 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 assault in violation of R.C.
2903.11(A) in case number 2020CR00178. Appellant pled to a reduced charge of
attempted felonious assault, a felony of the third degree in violation of R.C. 2923.01 and
2903.11. The trial court sentenced appellant on June 8, 2020, and imposed a community
control sanction which included random substance abuse testing. The court advised
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appellant that violation of the terms of his probation could result in a prison term of 36
months.
{¶6} Third violation: On September 17, 2020, appellant met his probation
officer Erica Dillon for a regularly scheduled appointment. Appellant had been attending
counseling sessions less frequently and had recently been arrested for an OVI offense in
which he refused to submit to the breathalyzer test. Dillon requested 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 positive for
methamphetamines. Appellant initially denied using methamphetamines and Todd
conducted a second test with a 13-panel drug screen. Appellant again tested positive for
methamphetamines. After the second positive test, appellant admitted to
methamphetamine use two days prior, September 15, 2020, and signed a voluntary
admission form. Based on this evidence, Dillon filed a motion to 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 he had felt pressured to admit
to drug use.
{¶8} On October 30, 2020, the court held the revocation hearing. Appellant
testified at the hearing and disputed the accuracy of his positive drug test. Appellant
thought the test would be automatically sent to a lab and did not know he would have to
request and pay for independent testing. He said that he regretted signing the admission
and only signed it because he thought there would be independent lab testing to confirm
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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 discussing the
results and that he heard Todd say that the first test “could be a clean test.” The court
interjected and said “[i]f we bring Mr. Todd over here and he says you’re lying - - * * * if
he contradicts you - - * * * then you’re going to prison.” After this, Todd testified and stated
that appellant tested positive on both tests for methamphetamines. Todd denied either of
the tests being negative or being faint positive tests. Todd said 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 methamphetamines and that he
signed the admission form.
{¶10} The court found appellant guilty of the community control violation 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 that if the appellant “would
not have gotten on the stand and lied – he lied. He lied regarding the confession. He lied
about what Mr. Todd was going to say. I mean, I was going to give him another chance,
but he lied, completely lied.” Even after this exchange, appellant again said “for a fact”
that Todd lied to the court.
{¶11} In its judgment entry, the court found that appellant’s violation was not a
technical violation and that he was no longer amenable to a community control sanction
under R.C. 2929.19. The court terminated appellant’s probation and sentenced him to
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concurrent terms of 36 months in prison for his third-degree felony, 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 delayed 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 DISCRETION 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 evaluated 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 art, connoting judgment
exercised by a court which neither comports with reason, nor the record.” State v.
Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089 [2009 WL 1177050], ¶ 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 2881994, ¶ 9. Stated
differently, an abuse of discretion is “the trial court’s ‘failure 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 11
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(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 differently 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 reached 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). Because 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 minor violations is not an
abuse of discretion. State v. Solomon, 11th Dist. Portage No. 2017-P-0078, 2019-Ohio-
1841, ¶ 21.
{¶16} Appellant did not object to the revocation of community control or to the
sentence imposed by the court. “Therefore, under the circumstances 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 appellate courts discretion
to correct ‘[p]lain errors or defects affecting substantial rights’ 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 proving that the outcome
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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 affected 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 assistance of counsel claims.”
Id. Indeed, “even if an accused shows that the trial court committed plain error affecting
the outcome of the proceeding, an appellate court is not required 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 justice.’” Barnes, at 27,
quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus.
{¶18} The facts before the Court do not support a finding of plain error. First, the
court did not abuse its discretion when it determined that appellant 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 drugs on September 15
– two days before the drug screen. Appellant later recanted those statements and claimed
that Todd told Dillon the first test could be a clean test. However, appellant’s testimony
was contradicted by Dillon and Todd. The evidence before the court reflected two positive
drug tests, verbal admissions of drug use, and a written admission of drug use. As the
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trial court noted, with appellant’s admissions of drug use, there 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 appellant 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 unserved prison time for his
underlying offenses and the circumstances of appellant’s community control violation
support such a sentence. Appellant had violated the terms of his 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 control sanctions. For the
second violation, appellant served 180 days in jail before being released to continue his
community control. After the second violation, appellant was convicted of a felony offense
of violence and the court still afforded him a community control sanction. After the third
violation under review here, the court terminated his community control.
{¶20} The court had previously imposed more and more restrictive terms of
community control upon appellant and had imposed 180 days of jail for a prior violation.
Appellant contends that the trial court abused its discretion when 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 lying and not for the positive
drug test. However, the court’s remarks reflect that evidence of 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 community
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control for even a minor violation. Solomon, supra, at ¶ 21. Here, appellant failed to take
responsibility for his positive drug test and third overall community control violation. This
was not a minor violation.
{¶21} Accordingly, appellant’s first assignment of error is without merit.
{¶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 counsel was
ineffective at the revocation hearing because counsel did not object 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 for all but plain error upon
appeal.
{¶25} In reviewing an ineffective assistance of counsel claim, the standard we
apply is “‘whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having 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 deficient in some aspect of
his representation, and (2) there is a reasonable 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 probability sufficient to undermine confidence in the
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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 made errors so
serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth
Amendment, and that he was prejudiced by the deficient performance.” 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 competent, 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 ineffective unless and until
counsel’s performance is proved to have fallen below an objective 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 trial 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 be 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 hearing.
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.
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Counsel was not obligated to make futile objections merely to preserve 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 of 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 trial 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.
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