[Cite as State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286.]




          THE STATE OF OHIO, APPELLANT, v. ROHRBAUGH, APPELLEE.
       [Cite as State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286.]
Criminal procedure — Crim.R. 7 — Amendments to indictments.
  (Nos. 2008-2127 and 2008-2249 — Submitted November 3, 2009 — Decided
                                     July 20, 2010.)
     APPEAL from and CERTIFIED by the Court of Appeals for Logan County,
                            No. 8-07-28, 2008-Ohio-4781.
                                 __________________
                               SYLLABUS OF THE COURT
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.
                                 __________________
        PFEIFER, J.
        {¶ 1} The issue in this case is whether plain error exists when a
defendant pleads guilty to a charge in an indictment that has been amended as a
result of a plea bargain to charge a crime not originally charged in the indictment.
We hold 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.
                           Factual and Procedural History
        {¶ 2} Appellee, John Rohrbaugh, was indicted on eight counts by a
grand jury. Count one of the indictment charged Rohrbaugh with breaking and
entering under R.C. 2911.13(A). After plea negotiations, the state sought to
                             SUPREME COURT OF OHIO




amend the indictment, changing the charge of breaking and entering to a charge of
receiving stolen property in violation of R.C. 2913.51. The trial court allowed the
amendment. Rohrbaugh, who was represented by an attorney, pleaded guilty to
count one and to count eight (possession of drugs in violation of R.C.
2925.11(A)). In return, the state agreed to dismiss the remaining six counts from
the indictment. The court imposed a sentence of 11 months on both counts to be
served concurrently and ordered Rohrbaugh to pay restitution.
       {¶ 3} Rohrbaugh appealed, alleging that the trial court erred in ordering
restitution. The court of appeals did not reach the alleged error. Instead, the court
held that the trial court had committed plain error when it amended the
indictment. Accordingly, the court of appeals ordered that the defendant’s guilty
plea be vacated.
       {¶ 4} We accepted the state’s discretionary appeal. We also determined
that a conflict exists between the judgment rendered by the court of appeals and
the judgment rendered in State v. Robinson, 8th Dist. No. 90411, 2008-Ohio-
3972. We ordered briefing on the following certified question: “May a defendant
consent to a negotiated plea to an offense that was neither indicted, nor a lesser
included offense of the indicted offense, without a waiver of indictment pursuant
to Criminal Rule 7(A) and Section 10, Article I of the Ohio Constitution?”
                                     Analysis
       {¶ 5} The Ohio Constitution provides that “no person shall be held to
answer for a capital, or otherwise infamous, crime, unless on presentment or
indictment of a grand jury.” Section 10, Article I. Crim.R. 7(A) mirrors the
constitutional provision by requiring that all felonies, absent proper waiver, be
prosecuted by indictment. Indictments may be amended “before, during, or after
a trial * * *, provided no change is made in the name or identity of the crime
charged.” Crim.R. 7(D).




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                               January Term, 2010




       {¶ 6} Rohrbaugh did not object to the indictment before trial, so he has
waived all but plain error. See Crim.R. 12(C)(2). To reverse a decision based on
plain error, a reviewing court must determine that a plain (or obvious) error
occurred that affected the outcome of the trial. State v. Barnes (2002), 94 Ohio
St.3d 21, 27, 759 N.E.2d 1240. See Crim.R. 52(B). Additionally, we have
admonished courts that plain-error review must be undertaken “ ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’ ” Id., quoting State v. Long (1978), 53 Ohio St.2d 91, 7
O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.
       {¶ 7} 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.
       {¶ 8} The trial court erred because the amendment to the indictment
changed the name or identity of the crime charged in count one. See Crim.R.
7(D). 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. See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240.
       {¶ 9} In State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903
N.E.2d 609, ¶12, 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. Id. 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. Id. at ¶ 2–3. In this case, the amended charge of



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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.
        {¶ 10} 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.” State ex rel. Kline v. Carroll, 96
Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27. In Davis, there was no
invited-error issue because the prosecution acted unilaterally during trial. Id. at ¶
3–4. 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.
        {¶ 11} 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. See State v. Childs (2000),
88 Ohio St.3d 558, 565–566, 728 N.E.2d 379 (an offense is adequately charged
when an indictment contains all elements of the offense and informs defendant of
the charge). Because Rohrbaugh was prosecuted by indictment, Crim.R. 7(A) and
its waiver requirements are not applicable to this case.
                                    Conclusion
        {¶ 12} Based on the foregoing analysis, we answer the certified question
in the affirmative. 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.
                                                                 Judgment reversed
                                                               and cause remanded.




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                               January Term, 2010




       LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and CUPP,
JJ., concur.
       BROWN, C.J., not participating.
                              __________________
       Gerald L. Heaton, Logan County Prosecuting Attorney, and Eric C.
Stewart, Chief Assistant Prosecuting Attorney, for appellant.
       Marc S. Triplett, for appellee.
                           ______________________




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