State v. Fontanez
2018 Ohio 2843
Ohio Ct. App.2018Background
- On Jan. 15–16, 2016, David Fontanez provided alcohol to a 14‑year‑old (A.L.) and had sexual intercourse with her; she could not consent.
- Indicted on multiple counts including two counts of rape, kidnapping, gross sexual imposition, unlawful sexual conduct with a minor, and underage alcohol use; various specifications alleged prior convictions and sexual motivation.
- June 7, 2017: Fontanez pleaded guilty to one count of rape, one count of kidnapping (to merge with rape for sentencing), and one count of underage alcohol use; the state dismissed remaining counts and specifications and agreed to a joint recommended sentence range of 5–9 years.
- Aug. 2, 2017: initial sentencing hearing where the court announced intent to impose 10 years; defense sought to clarify mitigating evidence; the court reconvened Aug. 25, 2017 and imposed 9 years (within the joint range).
- Sept. 12, 2017: trial court issued a nunc pro tunc entry stating the sentence was 8 years; the court of appeals found that nunc pro tunc entry inaccurate and void and reinstated the Aug. 25, 9‑year sentence.
- Fontanez appealed, arguing the trial court failed to ensure his sentence was proportionate to sentences for similarly situated offenders under R.C. 2929.11(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred under R.C. 2929.11(B) by failing to ensure the sentence was proportionate to sentences for similar offenders | The state argued the sentence was jointly recommended and therefore not subject to appellate review | Fontanez argued the court failed to ensure his sentence was commensurate with offense seriousness and consistent with similar offenders | The court held the sentence was authorized by law, jointly recommended, and imposed by a judge, so it is not subject to appellate review; appelleate court affirmed the 9‑year sentence and voided the erroneous nunc pro tunc 8‑year entry |
Key Cases Cited
- State v. Underwood, 922 N.E.2d 923 (Ohio 2010) (holding a sentence is “authorized by law” if it complies with mandatory sentencing provisions and that Underwood does not undermine the preclusive effect of R.C. 2953.08(D)(1))
- State v. Jama, 939 N.E.2d 1309 (Ohio Ct. App. 2010) (explaining that a nunc pro tunc entry cannot be used to change an accurately pronounced sentence and that an inaccurate nunc pro tunc judgment may be void)