Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: McCormack, P.J., E.T. Gallagher, J., and Stewart, J.
JOURNAL ENTRY AND OPINION
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,
and Substantive History
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.
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.
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.
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.
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.
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.
Fontanez appealed from the August 25 journal entry, which
imposed the nine year sentence, presenting one ...