FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR 2015-04-1156
LAVONTE DUKES, pro se, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL JUDGE.
Lavonte Dukes appeals his convictions and sentence in the
Summit County Court of Common Pleas for felonious assault,
vandalism, and breaking and entering. For the following
reasons, this Court affirms in part and reverses in part.
On February 25, 2015, officers John Morgan and James Hadbavny
responded to a report of domestic violence at a residence in
Akron. They parked their cruiser a short distance from the
house and began walking in the street towards it. As they
did, they saw a dark van leaving the driveway of the house.
At first, the van stopped and went back into the driveway.
Moments later, however, it sped out of the driveway and
headed straight at them. The officers jumped out of the way
and identified Mr. Dukes as the driver of the van as it went
by them. After passing the officers, the van crashed into the
officers' cruiser and another vehicle before continuing
down the street. The officers attempted to pursue the van,
but there was too much damage to their cruiser. After
returning to the house, a woman also told the officers that
Mr. Dukes had been the person driving the van.
A few weeks later, someone broke into a storage facility
owned by the City of Akron. From evidence recovered at the
scene, the police determined that it was Mr. Dukes. The Grand
Jury indicted Mr. Dukes for two counts of felonious assault
and one count of vandalism arising out of the February 25
incident. It later issued a supplemental indictment charging
Mr. Dukes with breaking and entering at the storage facility.
Before trial, Mr. Dukes moved to dismiss the charges for
violation of his speedy trial rights. The trial court denied
his motion, and a jury found him guilty of the offenses. The
trial court sentenced Mr. Dukes to a total of seven and a
half years imprisonment. Mr. Dukes has appealed, assigning
OF ERROR I
TRIAL COURT LACKED JURISDICTION TO CONVICT APPELLANT ON NON
EXISTENT CHARGES UNDER OHIO LAW WHEN COUNT 1 & 2 OF THE
INDICTMENTS WERE VOID AB INITIO.
Mr. Dukes argues that his convictions for felonious assault
are invalid because the indictment provided that the offenses
were felonies of the second degree instead of felonies of the
first degree. He argues that, although felonious assault is
usually a felony of the second degree, because the alleged
victims were peace officers, it elevated the offenses to a
higher degree. R.C. 2903.11(D)(1). According to Mr. Dukes,
because the offense level of his convictions is inconsistent
with the officers' status, the convictions are void.
Before trial, the court explained to Mr. Dukes that the
indicting prosecutor likely made an error and could have
moved the charges up a degree. The fact that the felonious
assault charges could have been felonies of the first degree,
however, does not make them void. The counts in the
indictment charged all of the elements required for felonious
assault, and the jury found that all of those elements
existed beyond a reasonable doubt. Mr. Dukes's first
assignment of error is overruled.
OF ERROR II
TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
UPHOLDING THE JURY VERDICT, WHEN THE EVIDENCE PRESENTED AT
TRIAL WAS CONTRARY TO THE INDICTED OFFENSE OF VANDALISM.
Mr. Dukes next argues that the trial court incorrectly found
that his vandalism conviction was a felony of the fourth
degree. Revised Code Section 2909.05(E) provides that
vandalism is a felony of the fifth degree unless "the
value of the property or the amount of physical harm involved
is seven thousand five hundred dollars or more * * *."
The jury specifically found that the value of the property or
the amount of physical harm involved in this case was less
than $7, 500. The trial court, however, incorrectly wrote in
its sentencing entry that Mr. Dukes's vandalism
conviction was a felony of the fourth degree. It is not clear
from the sentencing transcript whether the court also thought
that Mr. Dukes's conviction was a felony of the fourth
degree at the time that it sentenced him for the offense.
Mr. Dukes also argues that the trial court incorrectly
allowed the State to amend the indictment. The indictment
initially charged Mr. Dukes with committing an act of
vandalism that was a felony of the fourth degree. At the
start of the trial, however, the State moved to amend the
count to a felony of the fifth degree. See Crim.R.
7(D). Mr. Dukes's counsel indicated that he had no
objection to the amendment, to which Mr. Dukes is bound.
State v. Pasqualone, 121 Ohio St.3d 186,
2009-Ohio-315, ¶ 24. Mr. Dukes, therefore, has forfeited
his right to challenge the amendment of the indictment unless
it was plain error. See State v. Chesler, 9th Dist.
Lorain No. 07CA009292, 2008-Ohio-4496, ¶ 11. Mr. Dukes
has not argued that it was plain error for the trial court to
allow the State to amend the indictment, and we decline to
develop an argument for him. Mr. Dukes's second
assignment of error is sustained to the extent that the trial
court mistakenly found that his vandalism conviction is a
felony of the fourth degree.
OF ERROR III
TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
DENYING HIS MOTION TO DISMISS FOR [VIOLATION] OF
APPELLANT[']S SPEEDY TRIAL RIGHTS.
Mr. Dukes next argues that the trial court should have
dismissed the action because the State violated his right to
a speedy trial. "When reviewing an assignment of error
raising a violation of a criminal defendant's right to a
speedy trial, this court reviews questions of law de
novo." State v. Bennett, 9th Dist. Summit No.
21121, 2003-Ohio-238, ¶ 5. We must accept the factual
findings of the trial court, however, "if they are
supported by some competent, credible evidence."
Section 2945.71(C)(2) provides that a person who is accused
of a felony shall be brought to trial within 270 days.
Because Mr. Dukes was held in jail during the pretrial
period, each day counted as three for speedy-trial purposes.
R.C. 2945.71(E). The time is tolled, however, during