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State v. Fortner

Court of Appeals of Ohio, Seventh District, Belmont

May 24, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JOHN CHARLES FORTNER, DEFENDANT-APPELLANT.

         Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 13 CR 26

          For Plaintiff-Appellee: No Brief Filed.

          For Defendant-Appellant: Atty. Terrence K. Scott Asst. State Public Defender

          JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite

          OPINION

          ROBB, P.J.

         {¶1} Defendant-Appellant John Charles Fortner appeals from his convictions and sentences entered in Belmont County Common Pleas Court for Importuning and Attempted Unlawful Sexual Conduct with a Minor. The issue in this case is whether the convictions should have merged. For the reasons set forth below, the offenses, as committed, are not allied offenses of similar import; merger was not warranted. The convictions and sentences are affirmed.

         Statement of the Case

         {¶2} In April 2012, Appellant was in Belmont County working in the oil and gas industry for a Texas company. He posted an ad on Craigslist for "Young Hot Girls." Sentencing Tr. 3. The Belmont County SPIE Task Force saw the listing and responded by e-mail with a picture of a decoy stating it was a 14 year old girl. Sentencing Tr. 3. Appellant responded and offered money for sexual conduct. Sentencing Tr. 3. A meeting was arranged at the Dollar General in Morristown, and when Appellant arrived he was arrested.

         {¶3} As a result, on September 5, 2012 Appellant was indicted for Importuning, in violation of R.C. 2907.07(D)(2), a fifth-degree felony, and Attempted Unlawful Sexual Conduct with a Minor, in violation of R.C. 2923.02(A) and R.C. 2907.04(A)(B)(1), a fifth-degree felony. That indictment was later dismissed. Appellant was re-indicted on February 6, 2013 for Importuning, in violation of R.C. 2907.07(D)(2), a fifth-degree felony; Attempted Unlawful Sexual Conduct with a Minor, in violation of R.C. 2923.02(A) and R.C. 2907.04(A)(B)(1), a fifth-degree felony; and Compelling Prostitution in violation of R.C. 2907.21(A)(2)(b), a third-degree felony.

         {¶4} The state and Appellant entered into a plea agreement. 2/18/16 Plea Agreement. The Compelling Prostitution charge was dismissed. 2/18/16 J.E. Appellant pled guilty to Importuning and Attempted Unlawful Sexual Conduct with a Minor. 2/18/16 J.E.

         {¶5} A sentencing hearing was held on March 21, 2016. Appellant received 11 months for the Importuning conviction and 11 months for Attempted Unlawful Sexual Conduct with a Minor. 3/23/16 J.E. The trial court ordered the sentences to run consecutive to each other. 3/23/16 J.E.

         {¶6} Appellant filed a timely appeal from the convictions and sentences.

         First Assignment of Error

         "The trial court committed plain error in violation of Mr. Fortner's rights under the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, and R.C. 2941.25, when it failed to merge for sentencing offenses that had a similar import, arose ...


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