State v. MontezState v. Montez
State of Ohio Appellee v. Nathan Montez Appellant
DECISION AND JUDGMENT
Decided: March 4, 2022
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Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Joseph C. Patituce, Megan Patituce, and Aaron A. Schwartz, for appellant
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MAYLE, J.
{¶ 1} Defendant-appellant, Nathan Montez, appeals the April 16, 2021 judgment of the Lucas County Court of Common Pleas, imposing a prison sentence of 30 months
I. Background
{¶ 2} Nathan Montez was indicted on two counts of gross sexual imposition of a person less than 13 years of age, violations of
{¶ 3} Montez appealed. He assigns the following errors for our review:
ASSIGNMENT OF ERROR [I]: THE TRIAL COURT ERRED IN SENTENCING MR. MONTEZ TO A TERM OF THIRTY (30) MONTHS IN PRISON.
ASSIGNMENT OF ERROR II: THE APPLICATION OF
R.C. 2929.13(D)(1) TO VIOLATIONS OFR.C. 2907.05(A)(4) IS UNCONSTITUTIONAL.
{¶ 4} In this appeal, Montez challenges his 30-month prison sentence and the constitutionality of
A. Montez‘s Prison Sentence
{¶ 5} In his first assignment of error, Montez argues that the trial court erred when it sentenced him to 30 months in prison rather than imposing community control. He acknowledges that under
{¶ 6} The state responds that the court was not required to make any particular findings in order to impose a prison sentence. It explains that because
{¶ 7} We review a challenge to a felony sentence under
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
2929.13 , division (B)(2)(e) or (C)(4) of section2929.14 , or division (I) of section2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶ 8} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15, we recognized that a sentence is not clearly and convincingly contrary to law for purposes of
{¶ 9} Importantly, however, the Ohio Supreme Court has made clear that “neither
{¶ 10} Montez was convicted of gross sexual imposition under
{¶ 11}
{¶ 12} Because
{¶ 13} Again, we have recognized that a sentence is not clearly and convincingly contrary to law for purposes of
{¶ 14} At its heart, Montez‘s challenge is to the trial court‘s weighing of
{¶ 15} We find Montez‘s first assignment of error not well-taken.
B. Constitutionality of R.C. 2929.13(D)(1)
{¶ 16} In his second assignment of error, Montez argues that
{¶ 17} The state responds that Montez failed to raise his challenge to the constitutionality of
{¶ 18} The state correctly observes that Montez did not raise this argument in the trial court. The Ohio Supreme Court has recognized that “‘the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.‘” State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986). Nevertheless, we may consider a forfeited constitutional challenge to a statute for plain error. Id., citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. “To establish that plain error occurred, we require
{¶ 19} Montez challenges the constitutionality of
{¶ 20} First, Ohio courts have recognized that “Ohio‘s General Assembly certainly may differentiate between criminal offenders on the basis of the perceived seriousness of their crimes.” State v. Skapik, 2015-Ohio-4404, 42 N.E.3d 790, ¶ 24 (2d Dist.). In 2006, the legislature amended
{¶ 21} Second, “[t]he Due Process Clause of the Fifth Amendment to the United States Constitution, as applicable to the states through the Fourteenth Amendment, provides: ‘No person shall * * * be deprived of life, liberty, or property, without due process of law.‘” In re A.G., 4th Dist. Athens No. 14CA28, 2014-Ohio-5014, ¶ 12. “Due
{¶ 22} Under
{¶ 23} Despite courts’ clear recognition that prison is not mandatory under the circumstances here,1 Montez claims that by excluding convictions under
{¶ 24} The Second District observed in State v. Jordan, 2d Dist. Champaign No. 2016-CA-17, 2017-Ohio-5827, that given that the
{¶ 25} In order to declare a statute unconstitutional, the court must be convinced that the legislation and constitutional provisions are incompatible. (Citations omitted.) Burnett v. Motorists Mut. Ins. Co., 118 Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 28. Here, we find that Montez has failed to demonstrate that
{¶ 26} Accordingly, we find Montez‘s second assignment of error not well-taken.
III. Conclusion
{¶ 27} We find Montez‘s first assignment of error not well-taken. In reviewing a felony sentence under
{¶ 28} We find Montez‘s second assignment of error not well-taken. He has failed to demonstrate that as applied to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. JUDGE
Christine E. Mayle, J. JUDGE
Gene A. Zmuda, J. CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.