2022 Ohio 640
Ohio Ct. App.2022Background
- Nathan Montez was indicted on two counts of gross sexual imposition of a person under 13; he pled no contest to one count and the other was dismissed.
- The trial court sentenced Montez to 30 months’ imprisonment, five years mandatory post-release control, costs, and Tier II sex-offender registration; judgment journalized April 16, 2021.
- Statutory framework: R.C. 2907.05(A)(4) (GSI against a child under 13) is a third-degree felony and R.C. 2929.13(D)(1) creates a presumption in favor of prison for that offense.
- Montez appealed, arguing (1) the trial court erred by imposing prison rather than community control and (2) R.C. 2929.13(D)(1) is unconstitutional as applied because it effectively forecloses meaningful access to community control.
- The trial court stated it considered R.C. 2929.11 and 2929.12; the appellate court reviewed under R.C. 2953.08(G)(2) standards and affirmed.
Issues
| Issue | Plaintiff's Argument (Montez) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether 30‑month prison sentence was improper because community control should have been imposed | Montez says presumption of prison is rebuttable and the court failed to give proper consideration to mitigating factors under R.C. 2929.11/2929.12 | State says court need not make specific findings; appellate review limited to whether sentence is clearly and convincingly contrary to law | Affirmed: sentence within statutory range; court expressly considered R.C. 2929.11/2929.12; appellate court may not reweigh factors under Jones |
| Whether R.C. 2929.13(D)(1) is unconstitutional as applied to R.C. 2907.05(A)(4) (deprives meaningful process) | Montez argues exclusion of R.C. 2929.13(D)(2) turns the presumption into an effective mandatory sentence and denies due process | State argues Montez forfeited the argument (not raised below) and courts retain discretion to impose community control if R.C. 2929.11/2929.12 support it; statute reflects legislative judgment on seriousness | Affirmed: no due‑process violation shown; differentiation among offenses permissible; Montez failed to meet plain‑error burden |
Key Cases Cited
- State v. Jones, 169 N.E.3d 649 (Ohio 2020) (trial courts need not make specific on‑the‑record findings under R.C. 2929.11/2929.12; appellate courts may not reweigh sentencing factors)
- State v. Clinton, 108 N.E.3d 1 (Ohio 2017) (consideration of R.C. 2929.11/2929.12 is presumed even on a silent record)
- State v. Cyrus, 586 N.E.2d 94 (Ohio 1992) (same principle regarding sentencing-factor consideration)
- State v. Bevly, 27 N.E.3d 516 (Ohio 2015) (statutory provision imposing mandatory prison when corroborating evidence exists can raise constitutional concerns)
- State v. Buttery, 164 N.E.3d 294 (Ohio 2020) (constitutional challenges generally must be raised in the trial court; appellate review limited to plain error if forfeited)
- State v. Awan, 489 N.E.2d 277 (Ohio 1986) (constitutional issues in criminal cases must be raised at first opportunity in trial court)
- Burnett v. Motorists Mut. Ins. Co., 890 N.E.2d 307 (Ohio 2008) (court must find a statute and constitutional provisions incompatible before declaring it unconstitutional)