Youngstown Daily Legal News

Man on parole who pulled knife in restaurant lands back in prison

ANNIE YAMSON
Special to the Legal News
Published: December 13, 2013

A three-judge appellate panel in the 9th District Court of Appeals recently affirmed the judgment of the Medina County Court of Common Pleas convicting Marc Dukles of felonious assault.

Dukles was arrested after he and another man, Anthony Diluzio, were involved in a fight at a restaurant in Brunswick, Ohio.

Witness accounts of the incident varied but the meeting between the two men resulted in Dukles pulling a knife from his pocket, punching Diluzio in the face and repeatedly stomping on Diluzio after he fell to the ground.

Dukles attempted to flee the scene but the restaurant’s security personnel stopped him. At the time, Dukles was on post-release control.

A grand jury issued an indictment charging him with felonious assault, felonious assault by means of a deadly weapon or dangerous ordnance and carrying a concealed weapon.

At the conclusion of evidence during his bench trial, the court ordered Dukles to file a Crim.R. 29 motion for acquittal.

The court’s journal entry indicated that it ordered a judgment of acquittal on count two, the felonious assault with a deadly weapon.

The court then reiterated its ruling in open court when the judge stated that he had “directed a verdict of acquittal on count number two” and had “not directed a verdict of acquittal on count number one or count number three.”

At the close of the trial, the court adjourned without announcing a verdict on the other two counts.

Approximately one month later, the trial court issued a written verdict in which it transposed its ruling on the two felonious assault counts.

The written verdict stated, “The court granted the motion for acquittal as to count one, but denied it as to counts two and three.”

The court then mistakenly found Dukles guilty of count two.

Another month went by before the court issued a nunc pro tunc entry correcting its error.

The entry found Dukles guilty of the first felonious assault count and carrying a concealed weapon.

Dukles was subsequently sentenced to a total of six years in prison with credit for 340 days of time served.

Upon appeal, Dukles argued that the trial court erred by not disposing of his case because he was subject to double jeopardy.

According to him, jeopardy attached when the Adult Parole Authority examined evidence pertaining to his fight with Diluzio and concluded that he did not violate the conditions of his post-release control.

At his arraignment, Dukles attempted to enter a plea of once in jeopardy. The trial court made note of his request to enter that plea and entered a plea of not guilty on his behalf.

The double jeopardy argument was not addressed until after the first day of trial and not rejected until after the state rested.

Dukles claimed that the court erred because it should have disposed of his plea prior to the beginning of the trial, but the appellate court disagreed.

“The only indication in the record that Dukles even raised the issue of double jeopardy before his trial is a single notation in the journal entry the court issued after Dukles’ arraignment,” wrote Judge Beth Whitmore for the court of appeals.

The notation read, “Also, plea of once in jeopardy.”

The appellate panel found that Dukles never attempted to raise the issue again before trial.

“He also never provided the court with any evidence before trial to substantiate his claim of double jeopardy,” wrote Judge Whitmore. “The trial court, therefore, did not commit reversible error when it failed to dispose of Dukles’ claim of double jeopardy before trial. Further, the trial court did not err by ultimately rejecting Dukles’ double jeopardy argument.”

The court of appeals also held that the state was not barred from prosecuting Dukles simply because the parole authority found that he did not violate the conditions of his post-release control.

The court then went on to overrule arguments from Dukles asserting that his convictions were against the manifest weight of the evidence.

Diluzio testified at trial along with several other witnesses.

He stated that he was sitting at a table with his girlfriend, her sister and another female when Dukles walked up and sat down next to them.

According to Diluzio and the women, Dukles was “hitting on them.”

He presented a prison ID card and told them that he “was not in prison for being a sexual predator.”

Diluzio approached Dukles after he left the table and asked him to stay away from his girlfriend’s sister.

As he was talking, Dukles pulled out a knife and held it by his side.

Diluzio said that “we was kind of shocked” and “said something along the lines of, ‘Oh, you’re going to pull a knife on me?’”

The next thing Diluzio said he remembered was being pushed into an ambulance on a stretcher.

He testified that, as a result of the injuries he received from Dukles, his face was swollen and he had a headache for more than a week.

The women at the table testified to similar events and several eyewitnesses stated that, though they did not see what led up to it, they saw Diluzio fall to the ground and Dukles proceed to kick him while he was not moving.

Ted Davis, a parole officer, also testified. He stated that he had Dukles arrested and incarcerated when he learned of the fight.

During an interview with Davis, Dukles admitted that he had punched and kicked Diluzio but he denied having a knife.

Despite his denial of having a weapon, Dukles ended the interview by stating, “If I had known I was going to end up in (prison) for doing what I did, I would have carved (Diluzio) up.”

In Dukles’ version of events, Diluzio approached him, accused him of disrespecting the women at the table and threatened to kill him, his “entire family” and “burn (his) house to the ground.”

“Even assuming that Dukles was not at fault in creating the situation with Diluzio, multiple eyewitnesses testified that Dukles repeatedly stomped on Diluzio after he fell to the ground,” wrote Judge Whitmore. “Those same witnesses testified that Diluzio never moved after he fell.”

The appellate panel found that Dukles exceeded the scope of any self-defense privilege he had when he kicked Diluzio while he was down and immobile.

“Having reviewed the record, we cannot conclude that this is the exceptional case where the trier of fact lost its way by convicting Dukles of felonious assault,” wrote Judge Whitmore.

The court made the same conclusion with regard to the concealed weapon charge and proceeded to overrule Dukles remaining assignments of error.

The judgment of the Medina County court was affirmed with Presiding Judge Donna Carr and Judge Eve Belfance concurring.

The case is cited State v. Dukles, 2013-Ohio-5263.

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