State v. Montanaro

2022 Ohio 4343

• Court: Ohio Court of Appeals
• Decided: December 2, 2022
• Docket: 21CA49
• Status: Published

Opinion

[Cite as State v. Montanaro, 2022-Ohio-4343.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 21CA49 : PAUL MONTANARO : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2020CR502N

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 2, 2022

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

GARY BISHOP DARIN AVERY RICHLAND CO. PROSECUTOR 105 Sturges Ave. VICTORIA MUNSON Mansfield, OH 44903 38 South Park St., Second Floor Mansfield, OH 44902 Richland County, Case No. 21CA49 2

Delaney, J.

{¶1} Appellant Paul Montanaro appeals from the June 21, 2021 Sentencing

Entry of the Richland County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the record of appellant’s jury trial. The

instant case arose on November 17, 2019, at Mansfield Correctional Institution, where

appellant was serving a prison term of 15 years for aggravated robbery, a first-degree

felony.

{¶3} C.O. Brooks testified that a homemade weapon in prison is called a “shank”

and is generally an item that is unremarkable in its original condition but is altered in some

way by the prisoner to enable the item to “cause damage” to other people, including other

inmates and corrections officers. Brooks cited metal drawer fronts, tweezers, and

scissors as examples of items which might be sharpened or altered in some way for use

as a weapon. If an item is altered, it becomes contraband and possession of such is

prohibited for inmate and officer safety.

{¶4} On November 17, 2019, Brooks met with appellant because appellant had

complained his JP5 player was missing. A JP5 player is a media device inmates can

purchase through the state and use to listen to music and to make phone calls. When an

item is reported lost or stolen, an officer must create a “theft-loss report” and shake the

cell down, which means searching all of the inmate’s belongings. The shakedown is

intended to prevent inmates from selling an item and then reporting it lost or stolen.

{¶5} Brooks went to appellant’s cell and looked in; appellant was alone, sitting

on the bottom bunk with an object in his right hand. Brooks breached the door of the cell Richland County, Case No. 21CA49 3

and told appellant to drop the item in his hand. Brooks testified appellant stood up, and

he repeated, “Drop it.” Appellant “attempted to, what appeared to be attempted to throw

it in the toilet” but missed. T. 244. Brooks told appellant to “cuff up” and appellant

immediately turned around and placed his hands behind his back. Brooks testified that

appellant did not seem agitated “or like he was going to attack [Brooks] or anything.” T.

244. Brooks cuffed appellant, led him to the day room, and secured the cell door.

{¶6} Appellee’s Exhibit 1 was shown to Brooks at trial and he identified it as the

homemade weapon he retrieved from appellant’s cell beside the toilet. Brooks testified

the item appeared to have originally been a pair of tweezers, which are available to

inmates through the commissary. Appellee’s Exhibit 1, however, has one side of the

tweezers broken off and the remaining piece is sharpened into a point. Brooks testified

inmates have no means of grinding metal so someone would have sharpened the point

on concrete for a very long time. The sharpened piece of tweezer also has a portion

wrapped with a shoelace which functions as a handle or grip and, Brooks speculated,

would allow appellant to hold it without slipping.

{¶7} Brooks testified that the size of a weapon does not dictate whether it is

perceived to be a deadly weapon; even a small sharpened object such as this could be

used to attack vital organs and could be deadly. In Brooks’ opinion, the sharpened

tweezer found in appellant’s possession is a weapon capable of inflicting death.

{¶8} Brooks’ first priority was securing appellant. After that was accomplished,

the cell was searched and the contraband weapon was seized and secured in an

evidence vault. Appellant’s missing JP5 was found during the cell search. Brooks

testified he also found a contraband light bulb with a hole drilled into it that may have been Richland County, Case No. 21CA49 4

used as a pipe. He did not find any homemade tattoo gun, contrary to appellant’s

assertions later in the trial.

{¶9} Upon cross-examination, Brooks testified that appellant has been ticketed,

or disciplined, in the past for tattooing, and that some officers overlook petty rule violations

in the facility but possession of this weapon is not a petty violation. Brooks speculated

the tweezers were separated and broken in half for the express purpose of rendering the

weapon easier to sharpen.

{¶10} Uriah Melton is an investigator at Mansfield Correctional Institution and has

reviewed many weapons confiscated from inmates, commonly referred to as “shanks” or

“hawks.” Melton such weapons are usually common items sharpened into a point to be

used as a poker-style weapon to cause injury. In the instant case, Melton described

appellee’s Exhibit 1 as a deadly weapon because it has a wrapped handle to allow

someone to keep a better grip and protect the hand as the weapon is used to stab. Melton

testified that the small size of the item does not invalidate its use as a deadly weapon

because it is easy to conceal and inflict poking-type injuries to vital organs.

{¶11} Melton characterized appellee’s Exhibit 1 as a weapon, not a tool. He

pointed out that the item is sharpened to a point which means it is unlikely to be intended

for use as a tool. Sometimes inmates fashion homemade tools to work on electronics,

which is also prohibited, but a tool would typically have a flat or Phillips-type head, akin

to a screwdriver, rather than a sharp point. The consequence for having a homemade

tool in prison would be relatively minor, likely an administrative sanction.

{¶12} Trooper Tyler Carr of the Ohio State Highway Patrol Office of Investigative

Services is tasked with investigating crimes on state-owned properties, including prisons. Richland County, Case No. 21CA49 5

Many of the crimes Carr investigates involve “shanks,” and he explained that the first step

in his investigation is to obtain the alleged shank from the evidence locker and to examine

it; if the item doesn’t qualify as a weapon, no criminal action is taken and the prison deals

with the matter administratively.

{¶13} In the instant case, Carr testified that appellee’s Exhibit 1 is a deadly

weapon. Carr offered for comparison the example of a sharpened toothbrush, an item he

has seen several times in his career. A sharpened toothbrush is generally flimsy and

blunt because grinding plastic against a cinder block or the floor will not produce a sharp

point. He has therefore declined to prosecute such items as “shanks.” In comparison,

appellee’s Exhibit 1 is steel, is very sharp, and can cause death. The purpose of the

shoelace wrapped around the sharpened tweezer is to form a grip so it stays in the

inmate’s hand and doesn’t slide out. Carr has seen similar grips on other shanks.

{¶14} Carr questioned appellant in the course of his investigation. Appellant said

he was seated on his bunk when the C.O. came in and told him to put down whatever he

had in his hands, which appellant claimed was a tattoo gun and a screwdriver. Appellant

told Carr he threw the items toward the corner of the cell and the C.O. collected the items.

{¶15} Appellee also introduced evidence that appellant went before the facility’s

Rules Infraction Board for prosecution of the offense of possession of a shank and

pleaded guilty. Appellant’s explanation to the Board was that he was sorry and it wouldn’t

happen again; he did not claim that the item was a tool.

{¶16} Appellant was the sole defense witness at trial. Appellant testified he has

served about half of his fifteen-year sentence for aggravated robbery, an offense to which

he pled guilty. He testified that prison life is difficult for him because he isn’t in a gang Richland County, Case No. 21CA49 6

and the gangs “control” the prison, meaning gang members dictate what others do.

Appellant said he is accepted because he “shoots tattoos” and fixes things such as

electronics, including TVs, headphones, and JP5 players. Inmates save money from

prison jobs to pay for the items, or get money from home.

{¶17} Appellant testified that this incident began when he reported his own JP5

player lost or stolen during a shakedown, several days before Brooks arrived at his cell

to take the report. When asked whether his JP5 was ever recovered, appellant said yes,

his cellmate had it all along, and the cellmate later gave it directly to Brooks. Appellant

testified that he knew Brooks would search the cell and he was aware that morning that

Brooks was on his way; appellant heard Brooks coming and did not attempt to get rid of

anything he was holding. Appellant claimed he was “working on his tattoo gun at the

time.” T. 372. Appellant testified that Brooks allows him to “shoot tattoos.” He has been

administratively sanctioned for tattooing a few times, but many more times the C.O.s have

simply taken his tattoo gun and thrown it away. On the 17th, he was attempting to open

the motor of the tattoo gun with a homemade screwdriver.

{¶18} Appellant testified that Brooks entered the cell and told him to “drop it,”

confusing him. He threw the item into the corner of the cell and “cuffed up” pursuant to

Brooks’ command. Appellant maintained that appellee’s Exhibit 1 is the screwdriver he

was using as a tool and he has never thought of it as a weapon or used it as a weapon.

{¶19} Upon cross-examination, appellant acknowledged he bought the tweezers,

the shoelace, and a pen from the commissary and sharpened the tweezers on the ground.

He pulled off one side of the tweezers because it made them easier to sharpen. He also

acknowledged no tattoo gun was found during this incident or the ensuing shakedown. Richland County, Case No. 21CA49 7

{¶20} Appellant was charged by indictment with one count of possession of a

deadly weapon while under detention in violation of R.C. 2923.131(B) and R.C.

2923.131(C)(2)(b)(i), a felony of the second degree.

{¶21} Appellant entered a plea of not guilty and the matter proceeded to trial by

jury. Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close

of appellee’s evidence and at the close of all of the evidence; the motions were overruled.

Appellant was found guilty as charged and the trial court sentenced him to an indefinite

prison term of four to six years.

{¶22} Appellant now appeals from the trial court’s Sentencing Entry of June 21,

2021.

{¶23} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶24} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIM.R. 29

MOTION.”

{¶25} “II. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL.”

{¶26} “III. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO AN

INDEFINITE NON-LIFE PRISON TERM.”

ANALYSIS

I.

{¶27} In his first assignment of error, appellant argues the trial court should have

granted his motion for acquittal on the basis of insufficient evidence. We disagree. Richland County, Case No. 21CA49 8

{¶28} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence

presented at trial. State v. Blue, 5th Dist. Stark No. 2001CA00250, 2002-Ohio-351, citing

State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724. Crim.R. 29(A) allows a trial

court to enter a judgment of acquittal if the state's evidence is insufficient to sustain a

conviction. A trial court should not sustain a Crim.R. 29 motion for acquittal unless, after

viewing the evidence in a light most favorable to the state, the court finds no rational finder

of fact could find the essential elements of the charge proven beyond a reasonable doubt.

State v. Franklin, 5th Dist. Stark No. 2007-CA-00022, 2007-Ohio-4649, ¶ 12, citing State

v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096.

{¶29} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

Id. at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

{¶30} Appellant was found guilty upon one count of possession of a deadly

weapon while under detention pursuant to R.C. 2923.131(B), which states, “No person

under detention at a detention facility shall possess a deadly weapon.” R.C. 2923.11(A)

defines “deadly weapon” as “any instrument, device, or thing capable of inflicting death,

and designed or specially adapted for use as a weapon, or possessed, carried, or used

as a weapon.” Appellant argues appellee failed to present any evidence that the object

was capable of inflicting death, i.e., that the metal of which it is made is capable of Richland County, Case No. 21CA49 9

penetrating the skin deeply enough to cause a fatal injury. We are unaware of any

requirement that appellee establish that a deadly weapon has been “tested” for

deadliness, and appellant points to no such requirement.

{¶31} Appellant also argues there is no evidence he used the item as a weapon,

brandished it, or threatened anyone with it, and therefore the evidence was insufficient to

prove the item was a deadly weapon. The fact appellant did not actually use the item as

a weapon does not negate its nature as a deadly weapon. See, State v. Samples, 5th

Dist. Stark No. 2004CA00088, 2005-Ohio-86, ¶ 17.

{¶32} Brooks and Carr testified ordinary items found in the commissary can be

fashioned into deadly weapons, and that appellee’s Exhibit 1 is a sharp object,

deliberately altered, capable of use in a “poker” fashion to stab at someone’s vital organs.

The item was sharpened, which appellant admitted to, and included a “grip” fashioned

from a shoelace that would prevent slipping if used as a weapon. Viewing the evidence

in the light most favorable to appellee, we find the jury could easily find appellant guilty

beyond a reasonable doubt. At trial, appellant claimed the item was a tool that he was

using to work on a tattoo gun, but this story is unlikely due to his admission no tattoo gun

was found in his cell.

{¶33} We find appellee presented sufficient evidence to prove appellant was in

possession of a deadly weapon. See, State v. Coats, 5th Dist. Richland No. 15CA94,

2016-Ohio-3160, ¶ 22 [can lids tucked in inmate’s waistband could be used as deadly

weapons]. Appellant’s first assignment of error is overruled. Richland County, Case No. 21CA49 10

II., III.

{¶34} Appellant’s second and third assignments of error are related and will be

considered together. Appellant challenges the application of Ohio’s indefinite-sentencing

scheme in the instant case, and argues defense trial counsel was ineffective in failing to

raise the argument before the trial court. We disagree.

{¶35} Appellant’s summary challenge to the trial court’s sentencing cites State v.

Maddox, 2022-Ohio-764, in which the Ohio Supreme Court found that the constitutionality

of an indeterminate sentence imposed under R.C. 2967.271 ripens at the time of

sentencing, and the law may be challenged on direct appeal. We note appellant sets

forth no specific constitutional argument in the instant case other than general allegations

of violation of due process and separation of powers.

{¶36} This Court has examined the constitutionality of indeterminate sentences

pursuant to the Reagan Tokes Act as follows. In State v. Householder, 5th Dist.

Muskingum No. CT2021-0026, 2022-Ohio-1542, we set forth this Court's position on

appellant’s arguments:

For the reasons stated in the dissenting opinion of The

Honorable W. Scott Gwin in State v. Wolfe, 5th Dist. Licking No.

2020CA00021, 2020-Ohio-5501, we find the Reagan Tokes Law

does not violate Appellant's constitutional rights to trial by jury and

due process of law, and does not violate the constitutional

requirement of separation of powers. We hereby adopt the

dissenting opinion in Wolfe as the opinion of this Court. In so holding,

we also note the sentencing law has been found constitutional by the Richland County, Case No. 21CA49 11

Second, Third, Sixth, and Twelfth Districts, and also by the Eighth

District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist.

Montgomery No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist.

Logan No. 8-20-01, 2020-Ohio-5048; State v. Maddox, 6th Dist.

Lucas No. L-19-1253, 2022-Ohio-1350; State v. Guyton, 12th Dist.

Butler No. CA2019-12-203, 2020-Ohio-3837; State v. Delvallie, 8th

Dist. Cuyahoga No. 109315, 2022-Ohio-470. Further, we reject

Appellant's claim the Reagan Tokes Act violates equal protection for

the reasons stated in State v. Hodgkin, 12th Dist. Warren No.

CA2020-08-048, 2021-Ohio-1353.

{¶37} Based on the forgoing authority, the trial court did not err in sentencing

appellant to an indefinite non-life term.

{¶38} Appellant further argues defense trial counsel rendered ineffective

assistance by failing to challenge the constitutionality of the Reagan Tokes Act. We

disagree.

{¶39} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable Richland County, Case No. 21CA49 12

probability” is “probability sufficient to undermine confidence in the outcome.” Strickland

at 694, 104 S.Ct. 2052.

{¶40} Because we have found the Reagan Tokes Act is constitutional, appellant

cannot demonstrate prejudice from counsel's failure to raise the claim in the trial court.

State v. Stevens, 5th Dist. Muskingum No. CT2020-0010, 2022-Ohio-2474, ¶ 19.

{¶41} Appellant’s second and third assignments of error are overruled.

CONCLUSION

{¶42} Appellant’s three assignments of error are overruled and the judgment of

the Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, Earle, P.J. and

Hoffman, J., concur.