Court of Appeals of Ohio, Seventh District, Belmont
Appeal from the Court of Common Pleas of Belmont County, Ohio
Case No. 13 CR 26
Plaintiff-Appellee: No Brief Filed.
Defendant-Appellant: Atty. Terrence K. Scott Asst. State
JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L.
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.
of the Case
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.
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
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.
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.
Appellant filed a timely appeal from the convictions and
Assignment of Error
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 ...