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State v. Dukes

Court of Appeals of Ohio, Ninth District, Summit

July 17, 2019

STATE OF OHIO Appellee
v.
LAVONTE DUKES Appellant

          APPEAL 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.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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 six errors.

         II.

         ASSIGNMENT OF ERROR I

         THE 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.

         {¶4} 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.

         {¶5} 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.

         ASSIGNMENT OF ERROR II

         THE 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.

         {¶6} 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.

         {¶7} 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.

         ASSIGNMENT OF ERROR III

         THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY DENYING HIS MOTION TO DISMISS FOR [VIOLATION] OF APPELLANT[']S SPEEDY TRIAL RIGHTS.

         {¶8} 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." Id.

         {¶9} 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 ...


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