A Sierra Vista man found guilty by a Greenlee County jury last year for multiple drug offenses in 2018 has had one of the convictions vacated by the Arizona Court of Appeals, but it’s a hallow victory because the July 16 decision does not change the overall length of his prison time.
Public records show Jess A. Montoy was sentenced by a Graham County judge in November 2019 on six new felonies, including possession of drug paraphernalia, possession of methamphetamine, and three counts of possession of narcotic drugs involving heroin, cocaine, and oxycodone. The longest of the six sentences is 12 years for possession of meth for sale, an offense not eligible for early release.
Montoy, 41, appealed the possession for sale verdict, arguing that the jury was presented insufficient evidence to support the charge. Last week’s unanimous decision by the court of appeals upheld the conviction, noting “the state presented sufficient evidence from which reasonable persons could find Montoy guilty beyond a reasonable doubt of possession of a dangerous drug for sale.”
However, the judges then went on to overturn another of the jury’s six guilty verdicts even though neither Montoy nor the State had challenged that charge.
According to court records, Montoy came into contact with a Greenlee County Sheriff’s deputy in December 2018 after the patrol deputy noticed a vehicle driving in a manner which indicated the driver was lost. The deputy testified Montoy, the driver, appeared “extremely nervous” as well as “shaky” and “fidgety.”
Montoy admitted having heroin and pills in the vehicle, but the deputy reported also finding “a large rock” of meth, several unused baggies, and a scale. An investigation later revealed text messages on Montoy’s phone that related to drug sales.
Among the evidence presented at Montoy’s trial was the 27.4 grams of meth found in the vehicle. The jury relied on the same drugs to return guilty verdicts for possession of meth and for possession of meth for sale.
And that constituted a fundamental error of double jeopardy “we cannot ignore,” the judges noted in their decision.
“When multiple convictions are improperly based on a single act, the lesser-included conviction cannot stand,” the decision states. “And when the charged possession of a dangerous drug is incidental to the charged possession of a dangerous drug for sale, it is a lesser-included offense because a person cannot commit the possession for sale without also necessarily committing the possession.”
As a result Montoy’s conviction on the possession charge and its 2.5-year prison sentence are vacated.
The ruling, however, has no impact on Montoy’s scheduled release date in October 2031 because the 2.5-year sentence was being served concurrently with his 12-year sentence on the possession for sale charge.
ADC records show Montoy is currently housed at the Arizona State Prison Complex in Douglas. He has served time with ADC for several felony drug offenses out of Cochise and Graham counties dating back to 2000, most recently being released in May 2014.