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Defendant May Plead Guilty to Amended Indictment That Changes Identity of Crime

When Defendant Was Represented by Counsel and Bargained for Change

2008-2127 and 2008-2249.  State v. Rohrbaugh, Slip Opinion No. 2010-Ohio-3286.
Logan App. No. 8-07-28, 2008-Ohio-4781.  Certified question answered in the affirmative, judgment of the court of appeals reversed, and cause remanded to the court of appeals.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3286.pdf Adobe PDF Link opens new window.

(July 20, 2010) The Supreme Court of Ohio ruled today that a defendant may plead guilty to an indictment that was amended to change the name or identity of the charged crime when the defendant is represented by counsel, has bargained for the amendment, and is not prejudiced by the change.

The court’s 6-0 decision, authored by Justice Paul E. Pfeifer, reversed a ruling by the 3rd District Court of Appeals.

A Logan County grand jury indicted John Rohrbaugh on eight felony counts including breaking and entering, theft and drug possession.  As the result of a plea bargain, the prosecutor amended the first count of the indictment from breaking and entering to receiving stolen property, and dismissed all other counts in the indictment except the drug possession charge. The prosecutor did not seek a written or oral waiver of indictment from Rohrbaugh on the receiving stolen property charge. On the same day the indictment was amended, Rohrbaugh entered guilty pleas to both the receiving stolen property and drug possession charges. He was convicted and sentenced to eleven months in prison on each count, with those terms to be served concurrently, and ordered to pay restitution.

Rohrbaugh subsequently appealed the restitution portion of his sentence. On review, the 3rd District Court of Appeals ruled that, because Rohrbaugh had not been indicted by the grand jury for the crime of receiving stolen property, and had not formally waived his constitutional right to indictment before being charged with that felony offense, the trial court had committed plain error by accepting a guilty plea to an indictment that had been amended to change the name or identity of a charged crime. Based on that ruling, the court of appeals ordered that Rohrbaugh’s guilty plea be vacated and remanded the case to the trial court for further proceedings.

The state sought and was granted Supreme Court review of the 3rd District’s decision. The Court also determined that there was a conflict between the court of appeals’ ruling in this case and a 2008 decision of the 8th District Court of Appeals.

Writing for the majority in today’s decision, Justice Pfeifer acknowledged that Section 10, Article I of the Ohio Constitution and Rule 7(A) of the state’s rules of criminal procedure require that all felonies, absent proper waiver, must be prosecuted by indictment, and noted that Crim. R.7(D) permits the amendment of an indictment before, during or after trial ... provided no change is made in the name or identity of the crime charged.  He also noted, however, that because Rohrbaugh failed to object to the change in his indictment before or during his trial, he waived all but “plain error,” meaning error so serious that it affected the outcome of his trial and requires reversal “to prevent a manifest miscarriage of justice.”

Applying that standard to the facts of Rohrbaugh’s case, Justice Pfeifer wrote: “We conclude that although there was error in this case, it was not reversible plain error, because there was no miscarriage of justice. Furthermore, Rohrbaugh cannot take advantage of an error that he invited through the plea negotiations.” 

“The trial court erred because the amendment to the indictment changed the name or identity of the crime charged in count one. ... The error was plain because Crim.R. 7(D) clearly bans such amendments.  The error also ‘affected the outcome of the trial’ because if not for the amendment, Rohrbaugh could not have pleaded guilty to the crime of receiving stolen property.  In State v. Davis (2008) ... we found plain error when a trial court amended an indictment to allow a defendant to be prosecuted for a higher degree of a crime.  In that case, there was a miscarriage of justice because the prosecution was attempting to ‘increase the penalty or degree of the offense’ charged.  ...  Unlike the defendant in Davis, Rohrbaugh was not prejudiced by the amendment to the indictment; to the contrary, he gained a benefit when the prosecution dismissed six charges against him. In Davis, the crime was amended from a felony of the fourth degree to a felony of the second degree. ... In this case, the amended charge of receiving stolen property and the original charge of breaking and entering are both felonies of the fifth degree. Moreover, Rohrbaugh was represented by counsel and signed a statement that he had reviewed and understood the amended indictment. We conclude that there was no miscarriage of justice in this case.”

“This case also differs from Davis in that Rohrbaugh invited the alleged error. We have repeatedly held that a defendant may not ‘take advantage of an error that he himself invited or induced.’... In Davis, there was no invited-error issue because the prosecution acted unilaterally during trial. ... In this case, Rohrbaugh negotiated for the amended indictment and agreed to plead guilty to the amended charge. He cannot now argue that the amendment is plain error. Rohrbaugh argues that he was not indicted and did not properly waive the right to indictment under the rule, even though Crim.R. 7(A) requires that a crime be prosecuted by indictment unless the indictment is properly waived.  We conclude that Rohrbaugh was prosecuted by an indictment and that he was sufficiently informed of the charges in the indictment. ... Because Rohrbaugh was prosecuted by indictment, Crim.R. 7(A) and its waiver requirements are not applicable to this case.”

Based on that analysis, Justice Pfeifer concluded, “We reverse the judgment of the court of appeals and remand the cause to the court of appeals so that it may reach the error concerning restitution that Rohrbaugh alleged in his appeal.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.

Contacts
Eric C. Stewart, 937.599.7272, for the Logan County prosecutor’s office.

Marc S. Triplett, 937.593.6591, for John Rohrbaugh.

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