STATE OF OHIO, PLAINTIFF-APPELLEE vs. DAVID FONTANEZ, DEFENDANT-APPELLANT
No. 106226
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 19, 2018
[Cite as State v. Fontanez, 2018-Ohio-2843.]
McCormack, P.J., E.T. Gallagher, J., and Stewart, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED AS MODIFIED; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615220-A
Mark A. Stanton
Cuyahoga County Public Defender
Paul Kuzmins
Assistant Public Defender
310 Lakeside Ave., Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
John D.R. Kirkland
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
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
{¶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.
{¶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 assignment of error for our review.
Law and Analysis
{¶10} In his sole assignment of error, Fontanez argues that the trial court failed to adequately ensure that his sentence was proportionate to sentences dealt to similarly situated offenders who have committed similar offenses. Fontanez bases this argument on the statutory purposes of felony sentencing. Specifically,
A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.
{¶11}
{¶12} We initially note that Fontanez‘s sentence in this case is not subject to appellate review. Pursuant to
{¶14} Further, his sentence was jointly recommended. Fontanez and the state recommended that the court impose a sentence between five and nine years in prison. He received a sentence of nine years. Because his sentence was authorized by law, jointly recommended, and imposed by a sentencing judge, Fontanez has no grounds on which to appeal his sentence. Therefore, Fontanez‘s nine-year sentence is affirmed.
{¶15} “The function of nunc pro tunc is not to change, modify, or correct erroneous judgments, but merely to have the record speak the truth.” Pickett v. Rice-Roberts, 8th Dist. Cuyahoga No. 100881, 2014-Ohio-3329, ¶ 9, quoting Ruby v. Wolf, 39 Ohio App. 144, 147, 177 N.E. 240 (8th Dist.1931). Because the September 12 nunc pro tunc entry did not accurately reflect the sentence imposed by the court at the sentencing hearing, that sentencing order is erroneous and therefore void. State v. Jama, 189 Ohio App.3d 687, 2010-Ohio-4739, 939 N.E.2d 1309, ¶ 18 (10th Dist.) The August 25 sentencing order is reinstated.
{¶16} Judgment affirmed as modified.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
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TIM McCORMACK, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR