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State v. Fontanez

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 19, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DAVID FONTANEZ DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615220-A

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender Paul Kuzmins Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor John D.R. Kirkland Assistant County Prosecutor

          BEFORE: McCormack, P.J., E.T. Gallagher, J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, P.J.:

         {¶1} Defendant-appellant David Fontanez ("Fontanez") appeals his sentence, arguing that the trial court failed to adequately ensure that his sentence was proportionate to sentences being given to similarly situated offenders who have committed similar offenses. Because we find that Fontanez's sentence is not subject to appellate review, we affirm.

         Procedural and Substantive History

         {¶2} On March 13, 2017, Fontanez was indicted for events that took place on January 15 and 16, 2016. At the time, Fontanez and his girlfriend lived together. His girlfriend's sister and 14-year-old niece A.L. were staying with the couple temporarily. On the night of January 15 and into the early morning hours of January 16, Fontanez provided A.L. with alcohol and had sexual intercourse with her, despite her inability to consent.

         {¶3} Fontanez was indicted on two counts of rape, in violation of R.C. 2907.02(A)(2), with a notice of prior conviction and repeat violent offender specification; one count of gross sexual imposition, in violation of R.C. 2907.05(A)(1); one count of kidnapping, in violation of R.C. 2905.01(A)(4), with a sexual motivation specification, notice of prior conviction, and repeat violent offender specification; one count of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), with a furthermore specification; and one count of underage alcohol use in violation of R.C. 4301.69(A).

         {¶4} Fontanez initially pleaded not guilty to the indictment. On June 7, 2017, he pleaded guilty to one count of rape, one count of kidnapping, and one count of underage alcohol use. All specifications and remaining counts of the indictment were dismissed. The state conceded that the kidnapping would merge with the rape for sentencing purposes and informed the court that it would elect to sentence Fontanez for rape.

         {¶5} As part of the plea agreement, the state and Fontanez jointly recommended a sentence of between five and nine years to the trial court. The court indicated that it would retain discretion to accept the recommended sentencing range or select a sentence of either less than five years or greater than nine years and accepted Fontanez's plea.

         {¶6} On August 2, 2017, the court held a sentencing hearing. The prosecutor summarized the facts of the case, the court reviewed sexual offender registration requirements, and defense counsel, Fontanez, and the victim's mother all addressed the court. The court indicated its intention of sentencing Fontanez to ten years in prison.

         {¶7} Immediately following the sentencing hearing, defense counsel requested a consultation with the prosecutor and the court. The prosecutor was unavailable but consented to the consultation based on the representations that were made to him as to what was going to be discussed. At this consultation, defense counsel communicated to the court that he was concerned that he had not clearly articulated certain mitigating circumstances at the sentencing hearing. Following this consultation, the court held a second sentencing hearing on August 25, 2017. At this hearing, the court summarized defense counsel's concerns and explained its decision to reconvene the sentencing hearing. The prosecutor and defense counsel both emphasized the reasoning that had led them to reach an agreement to recommend a sentence between five and nine years. The court reconsidered Fontanez's sentence. Prior to finalizing the sentencing journal entry, the court sentenced Fontanez to nine years in prison.

         {¶8} Fontanez appealed from the August 25 journal entry, which imposed the nine year sentence, presenting one ...


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