[Cite as State v. Montez , 2022-Ohio-640.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-21-1086 Appellee Trial Court No. CR202001414

v. Nathan Montez DECISION AND JUDGMENT Appellant Decided: March 4, 2022

* * * * * 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

* * * * * MAYLE, J. {¶ 1} Defendant-appellant, Nathan Montez, appeals the April 16, 2021 judgment of the Lucas County Court of Common Pleas, imposing a prison se ntence of 30 months2. following his conviction of gross sexual imposition of a person less than 13 years of age. For the following reasons, we affirm the trial court judgment. I. Background {¶ 2} Nathan Montez was indicted on two counts of gross sexual imposi tion of a person less than 13 years of age, violations of R.C. 2907.05(A) (4) and (C), third-degree felonies. These charges stemmed from allegations that Montez e ngaged in sexual contact with his then five- and six-year-old nieces while he was babysi tting them. On March 2, 2021, as part of a plea agreement, he entered a plea of no cont est to one count and the

other count was dismissed. The trial court sentenced Montez to 30 months in prison, five years’ mandatory post-release control, and various costs, and M ontez was classified a Tier II child victim offender subject to registration requireme nts. His conviction and sentence were memorialized in a judgment journalized on April 1 6, 2021. {¶ 3} Montez appealed. He assigns the following errors for our revie w: 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 OF R.C. 2907.05(A)(4) IS

UNCONSTITUTIONAL.3. II. Law and Analysis {¶ 4} In this appeal, Montez challenges his 30-month prison sentence and the constitutionality of R.C. 2929.13(D)(1) as applied to R.C. 2907 .05(A)(4). We consider each of his assignments in turn.

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 co mmunity control. He acknowledges that under R.C. 2907.05(C)(2), a conviction under R.C. 2907.05(A)(4) carries with it a presumption of prison, but he insists that it is a rebuttable presumption that still requires consideration of R.C. 2929.11 and 2929.12. He contends that the trial court considered only factors “counting against” him and failed to consider mitigating circumstances. Montez suggests that the factors in R.C. 2929.1 3(D)(2)—which he acknowledges do not apply here—weighed against a prison sentenc e. He claims that he sufficiently rebutted the presumption in favor of prison, there fore, the imposition of a 30- month sentence was improper. {¶ 6} The state responds that the court was not required to make any particular findings in order to impose a prison sentence. It explains tha t because R.C. 2929.13(D)(2) is inapplicable to convictions under R.C. 2907.05 (A)(4), courts have generally reviewed the considerations in R.C. 2929.11 and 2929. 12 to determine whether the imposition of a prison sentence is supported by the record. But it emphasizes that under recent Ohio Supreme Court case law, appellate courts cann ot conduct an4. independent review of the record to determine whether the consi derations in R.C. 2929.11 and 2929.12 support the trial court’s sentence. Rather , an appellate court can consider only whether a sentence imposed is clearly and convinc ingly contrary to law. Here, the state maintains, the sentence imposed is not clearly and convincingly contrary to law. Finally, the state insists that even if we could condu ct an independent review of the R.C. 2929.11 and 2929.12 considerations, Montez has failed to demonstrate that those considerations support community control rather than a prison t erm. {¶ 7} We review a challenge to a felony sentence under R.C. 2953.08(G )(2). R.C. 2953.08(G)(2) provides that an appellate court may increase, re duce, or otherwise modify a sentence or may vacate the sentence and remand the matter to the sentencing court for resentencing if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s fin dings under division (B) or (D) of section 2929.13, division (B)(2)(e ) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revi sed 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 convincing ly contrary to law for purposes of R.C. 2953.08(G)(2)(b) where the trial court has con sidered the purposes and principles of sentencing in R.C. 2929.11 and the seriousness an d recidivism factors listed5. in R.C. 2929.12, properly applied post-release control, and sen tenced the defendant within the statutorily-permissible range. {¶ 9} Importantly, however, the Ohio Supreme Court has made clear tha t “neither R.C. 2929.11 nor 2929.12 requires a trial court to make any spe cific factual findings on

the record.” State v. Jones , 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 20. In fact, the trial court’s consideration of the factors set for th in R.C. 2929.11 and R.C. 2929.12 is presumed even on a silent record. State v. Clinton , 153 Ohio St.3d 422, 2017- Ohio-9423, 108 N.E.3d 1; State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94, 95 (1992). And an appellate court may not independently weigh the evidence and substitute its judgment for that of the trial court regarding the appropri ate sentence under R.C. 2929.11 and 2929.12, nor may it modify or vacate a sentence und er R.C. 2953.08(G)(2)(b) based on the lack of support in the record for the trial court’s findings

under those statutes. Jones at ¶ 39, 41-42. {¶ 10} Montez was convicted of gross sexual imposition under R.C. 2907.05(A)(4). Under R.C. 2907.05(A)(4), “[n]o person shall ha ve sexual contact with another, not the spouse of the offender * * * when * * * [t]he other person, or one of the other persons, is less than thirteen years of age, whether or n ot the offender knows the age of that person.” “Gross sexual imposition committed in vio lation of division [R.C. 2907.05](A)(4) * * * is a felony of the third degree.” R.C. 29 07.05(C)(2). “* * * [F]or gross sexual imposition committed in violation of division (A)( 4) * * * there is a presumption that a prison term shall be imposed for the offense * * *.” Id. See also R.C.6. 2929.13(D)(1) (“* * * [F]or a violation of division (A)(4) * * * of section 2907.05 of the Revised Code for which a presumption in favor of a prison term is specified as being applicable, it is presumed that a prison term is necessary in o rder to comply with the purposes and principles of sentencing under section 2929.11 of the Revised Code.”). {¶ 11} R.C. 2929.13(D)(2) sets forth circumstances under which the sen tencing court may impose a community control sanction instead of a pris on term on an offender for a first or second degree felony or for certain felony drug offenses for which a presumption in favor of a prison term is specified as being app licable. It identifies certain factors, the existence of which may overcome the presumption in favor of a prison sentence. But R.C. 2929.13(D)(2) is expressly not applicable to a conviction under R.C. 2907.05(A)(4). See R.C. 2929.13(D)(1) (“Division (D)(2) of this section does not a pply to a presumption established under this division for a violatio n of division (A)(4) of section 2907.05 of the Revised Code.”). {¶ 12} Because R.C. 2929.13(D) is inapplicable, and Montez does not ch allenge his sentence on the basis of R.C. 2929.13(B), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), there is no basis for vacating or modifying his sentence under R.C. 2953.08(G)(2)(a). That leaves only R.C. 2953.08(G)(2)(b)—whether Montez’s sentenc e is otherwise clearly and convincingly contrary to law. {¶ 13} Again, we have recognized that a sentence is not clearly and co nvincingly contrary to law for purposes of R.C. 2953.08(G)(2)(b) where the trial court has considered the purposes and principles of sentencing in R.C. 29 29.11 and the seriousness7. and recidivism factors listed in R.C. 2929.12, properly applied post-release control, and sentenced the defendant within the statutorily-permissible rang e. Here, the trial court expressly stated that it considered the purposes and principles of sentencing in R.C.

2929.11 and the seriousness and recidivism factors listed in R. C. 2929.12. Under R.C. 2929.14(A)(3)(a), the court was permitted to impose a definite prison term of 12, 18, 24, 30, 36, 42, 48, 54, or 60 months; here, the court imposed 30 mo nths—within the statutorily-permissible range. And the court imposed a mandatory five-year period of post-release control. This was appropriate under R.C. 2967.28( B)(1). {¶ 14} At its heart, Montez’s challenge is to the trial court’s weighi ng of R.C.

2929.11 and 2929.12. Under Jones , 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, we may not independently weigh the evidence and substitute our judgment for that of the trial court regarding the appropriate sentence under R.C . 2929.11 and 2929.12, nor may we modify or vacate a sentence under R.C. 2953.08(G)(2)(b) based on the lack of support in the record for the trial court’s findings under thos e statutes. Id. at ¶ 39, 41-42. Accordingly, we cannot conclude that the trial court erred in s entencing Montez to a term of 30 months in prison. {¶ 15} We find Montez’s first assignment of error not well-taken. B. Constitutionality of R.C. 2923.13(D)(1) {¶ 16} In his second assignment of error, Montez argues that R.C. 2929 .13(D)(1) is unconstitutional as applied to violations of R.C. 2907.05(A) (4). He maintains that offenders convicted under R.C. 2907.05(A)(4) are arbitrarily de prived a meaningful8. avenue to seek the imposition of a community-control sentence, effectively transforming the presumption of prison into an unwritten mandatory term. He insists that “the legislature created a system by which the right to due process is systematically denied to only a certain subset of presumptive-prison offenses.” {¶ 17} The state responds that Montez failed to raise his challenge to the constitutionality of R.C. 2929.13(D)(1) in the trial court, the refore, he has forfeited all but a plain-error review. It also contends that despite the inappl icability of R.C. 2929.13(D)(1) to convictions under R.C. 2907.05(A)(4), a trial court maintains the discretion to impose a community-control sanction if a defendan t demonstrates that imposition of a prison term is not necessary to comply with R.C . 2929.11 and 2929.12. The state insists that Montez was provided the opportunity to b e heard at a meaningful time and in a meaningful manner, thus he was not deprived of hi s procedural due process rights. {¶ 18} The state correctly observes that Montez did not raise this arg ument 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 forfeit ed 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 require9. a showing that there was an error, that the error was plain or obvious, that but for the error the outcome of the proceeding would have been otherwise, and that reversal must be necessary to correct a manifest miscarriage of justice.” Id. {¶ 19} Montez challenges the constitutionality of R.C. 2929.13(D) on t he basis that it violates due process. He also claims that “the legisla ture created a system by which the right to due process is systematically denied to only a certain subset of presumptive-prison offenses.” {¶ 20} First, Ohio courts have recognized that “Ohio’s General Assembl y certainly may differentiate between criminal offenders on the b asis 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 R.C. 2907.05(C) and R .C. 2929.13(D) to include a presumption of prison for offenders convicted of gross sexual imposition against a victim under 13 years of age, thereby making clear that it perc eives gross sexual imposition to be more serious when that crime is committed agai nst a young child. See 2006 Am.Sub.H.B. No. 95; State v. DiMichele , 7th Dist. Jefferson No. 09-JE-31, 2010- Ohio-3169, ¶ 19, 22. We see no constitutional violation associ ated with the policy decision reflected—and how it is carried out—in R.C. 2907.05(C) and 2929.13(D). {¶ 21} Second, “[t]he Due Process Clause of the Fifth Amendment to the United States Constitution, as applicable to the states through the Fo urteenth 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. “Due10. process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest.” (Citations omitted.) State v. Hochhausler , 76 Ohio St.3d 455, 459, 668 N.E.2d 457 (1996). {¶ 22} Under R.C. 2929.15(A)(1), “[i]f in sentencing an offender for a felony the court is not required to impose a prison term, a mandatory pris on term, or a term of life imprisonment upon the offender, the court may directly impose a sentence that consists of one or more community control sanctions * * *.” There is no ma ndatory prison term for gross sexual imposition under the circumstances here—only a pre sumption. See State v. Stephens , 11th Dist. Portage No. 2018-P-0090, 2019-Ohio-3150, ¶ 15. “W hen there is a presumption of prison that may allow for a court to order commu nity control, there is no requirement that the court do so.” Id. at ¶ 21, citing State v. Fetterolf , 11th Dist. Trumbull No. 2017-T-0109, 2018-Ohio-2454, ¶ 24. {¶ 23} Despite courts’ clear recognition that prison is not mandatory under the circumstances here, 1 Montez claims that by excluding convictions under R.C.

1 Under R.C. 2907.05(C)(2), however, prison is mandatory for a c onviction under R.C. 2907.05(A)(4) or (B) if “(a) Evidence other than the testi mony of the victim was admitted in the case corroborating the violation; [or] (b) The offender previously was convicted of or pleaded guilty to a violation of this section, rape, the former offense of felonious sexual penetration, or sexual battery, and the victim of the previous offense was less than thirteen years of age.” Notably, in State v. Bevly , 142 Ohio St.3d 41, 2015- Ohio-475, 27 N.E.3d 516, the Ohio Supreme Court held that “[b]e cause there is no rational basis for the provision in R.C. 2907.05(C)(2)(a) that requires a mandatory prison term for a defendant convicted of gross sexual imposition when the state has produced11. 2907.05(A)(4) from R.C. 2929.13(D), the legislature has effecti vely transformed the presumption of prison into an unwritten mandatory term. But it is clear that the trial court did not believe that it was required to impose a mandator y prison term here. To the contrary, at the plea hearing, it noted that community control was among the potential sanctions that could be imposed, and at the sentencing hearing, it specifically found that Montez was not amenable to community control. {¶ 24} The Second District observed in State v. Jordan , 2d Dist. Champaign No. 2016-CA-17, 2017-Ohio-5827, that given that the R.C. 2929.13(D) (2) factors are inapplicable in overcoming the presumption of prison for offend ers convicted under R.C. 2907.05(A)(4), it is not entirely clear how the presumption of prison can be overcome for violations of R.C. 2907.05(A)(4). We, too, acknowledge this an d note that it would be helpful if the legislature provided guidance on this point. Bu t its failure to do so does not

render the statutes unconstitutional. And our review of the ca se law indicates that courts simply consider R.C. 2929.11 and 2929.12 in determining whether to impose the presumptive prison sentence or to impose a term of community co ntrol. See, e.g., State v.

Tillett , 12th Dist. Butler No. CA2019-11-192, 2020-Ohio-3836, ¶ 13; State v. Kent , 7th

evidence corroborating the crime, the statute violates the due- process protections of the Fifth and Fourteenth Amendments to the United States Constituti on.” Id. at paragraph one of the syllabus. Moreover, the court held, “[i]n cases in which a defendant has pled guilty, imposing a mandatory prison term pursuant to R.C. 2907. 05(C)(2)(a) when corroborating evidence of the charge of gross sexual imposition is produced violates the defendant’s right to a jury trial as guaranteed by the Sixth an d Fourteenth Amendments to the United States Constitution. Id. at paragraph two of the syllabus.12. Dist. Mahoning No. 21 MA 0049, 2021-Ohio-4593, ¶ 1-20; State v. Bennett , 2019-Ohio4937, 149 N.E.3d 1045, ¶ 63-70 (3d Dist.). {¶ 25} In order to declare a statute unconstitutional, the court must be convinced that the legislation and constitutional provisions are incompat ible. (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 R.C. 2929.13(D) (as applied to R.C. 2907.05(A)(4)) is incompatible with the due-pro cess protections afforded

under the U.S. and Ohio constitutions. {¶ 26} Accordingly, we find Montez’s second assignment of error not we ll-taken.

III. Conclusion {¶ 27} We find Montez’s first assignment of error not well-taken. In reviewing a felony sentence under R.C. 2953.08(G)(2)(b), we may not indepen dently weigh the evidence and substitute our judgment for that of the trial cour t regarding the appropriate sentence under R.C. 2929.11 and 2929.12, nor may we modify or v acate a sentence based on the lack of support in the record for the trial court’s find ings under those statutes. Montez’s sentence is not subject to review under R.C. 2953.08(G )(2)(a) because none of the statutes identified in that section—R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I)—are applicable here. {¶ 28} We find Montez’s second assignment of error not well-taken. He has failed to demonstrate that as applied to R.C. 2907.05(A)(4), R.C. 2929 .13(D) is incompatible with the due-process protections afforded under the U.S. and Oh io constitutions.13. {¶ 29} We affirm the April 16, 2021 judgment of the Lucas County Court of Common Pleas. Montez is ordered to pay the costs of this appea l under App.R. 24. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ___________________________

_ JUDGE Christine E. Mayle, J.

____________________________ Gene A. Zmuda, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.