[Cite as State v. Wilcox, 2014-Ohio-1068.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                        No. 13AP-477
v.                                                  :              (C.P.C. No. 04CR-03-1872)

Toby D. Wilcox,                                     :             (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                     Rendered on March 20, 2014


                 Ron O'Brien, Prosecuting Attorney, and Barbara A.
                 Farnbacher, for appellee.

                 Toby D. Wilcox, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Toby D. Wilcox, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion to vacate his sentence and
convictions for lack of subject-matter jurisdiction. For the following reasons, we affirm
that judgment.
I. Factual and Procedural Background
        {¶ 2} On March 22, 2004, a Franklin County Grand Jury indicted appellant with
six counts of aggravated murder with death penalty specifications, and counts of
attempted aggravated murder, kidnapping, aggravated burglary and aggravated robbery.
Appellant entered a not guilty plea to the charges and proceeded to trial. After a jury trial,
appellant was found guilty of all counts and received a sentence of, in essence, life without
No. 13AP-477                                                                                 2

parole. This court affirmed his convictions. State v. Wilcox, 10th Dist. No. 05AP-972,
2006-Ohio-6777.
       {¶ 3} On February 27, 2013, appellant filed his motion to vacate sentence and
conviction for lack of subject-matter jurisdiction. In it, he argued that the trial court never
possessed subject-matter jurisdiction because the indictment issued by the grand jury in
his case did not comply with the requirement found in Crim.R. 6(G) that a grand jury may
not serve for more than nine months. Appellant claimed that the grand jury that indicted
him began its term on May 9, 2003 but did not return his indictment until March 22,
2004, a span of time more than nine months long. He also claimed that the indictment
failed to allege the underlying or predicate offense of kidnapping that he was to have
committed for one of his counts of aggravated murder.
       {¶ 4} The trial court denied appellant's motion, concluding that the May 9, 2003
date on his indictment was a clerical error, and that the grand jury term actually began on
January 9, 2004, less than nine months before the filing of his indictment. The trial court
also concluded that the indictment did allege the underlying or predicate offense of
kidnapping for the one count of aggravated murder.
II. The Appeal
       {¶ 5} Appellant appeals and assigns the following error:
               Defendant['s] conviction and or sentence should be vacated
               for lack of subject matter jurisdiction.

       A. Municipal Court Procedures
       {¶ 6}   Appellant first argues that his case was mishandled in the municipal court
before his indictment in the common pleas court.            Appellant did not present this
argument to the trial court. An appellant's failure to raise an issue before the trial court
forfeits the right to raise that issue on appeal. State v. Westerfield, 10th Dist. No. 13AP-
286, 2013-Ohio-4216, ¶ 7, citing State v. VanHoose, 4th Dist. No. 07CA765, 2008-Ohio-
1122, ¶ 18. Because appellant failed to present this argument in support of his motion to
vacate, he has forfeited it, and we need not consider it here for the first time. State v.
Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-1689, ¶ 18.
No. 13AP-477                                                                             3

       B. Appellant's Indictment
       {¶ 7} Appellant also argues that the trial court lacked subject-matter jurisdiction
because his indictment did not comply with Crim.R. 6(G) and because it failed to allege
the underlying or predicate offense for one of his counts of aggravated murder. We
disagree.
       {¶ 8} Crim.R. 6(G) provides that:

              A grand jury shall serve until discharged by the court. A grand
              jury may serve for four months, but the court upon a showing
              of good cause by the prosecuting attorney may order a grand
              jury to serve more than four months but not more than nine
              months. The tenure and powers of a grand jury are not
              affected by the beginning or expiration of a term of court.

       {¶ 9} The rule does provide for a nine-month limit on grand jury service. See
State ex rel. Scott v. Wilson, 11th Dist. No. 2003-T-0054, 2003-Ohio-4105, ¶ 11.
Appellant, however, does not provide any support for the proposition that an indictment
returned by a grand jury whose term lasts longer than that deprives the trial court of
subject-matter jurisdiction over the indictment.
       {¶ 10} Nevertheless, it appears that appellant's grand jury did serve less than nine
months. On its face, appellant's indictment was filed more than nine months after the
indictment's stated grand jury term began on May 9, 2003. However, the state presented
compelling evidence to the trial court which demonstrates that the stated grand jury term
in appellant's indictment was an error. The grand jury that indicted appellant did not
begin its term on May 9, 2003 but, instead, began its term on January 9, 2004. This date
is within nine months of the filing of appellant's indictment.
       {¶ 11} Appellant's indictment was filed under case No. 04CR-03-1872. The state
submitted the indictments filed just before and after his indictment in case Nos. 04CR-
03-1871 and 04CR-03-1873. These indictments, as well as appellant's, were all filed on
the same day and appear to be signed by the same foreperson.           Both of the other
indictments state that the grand jury term began on January 9, 2004. Additionally, the
state presented a copy of the indictment filed against appellant's accomplice almost a year
earlier. The grand jury that returned that indictment began its term on May 9, 2003, the
No. 13AP-477                                                                                             4

date on appellant's indictment. The foreperson that signed the accomplice's indictment is
not the same as the one that signed appellant's indictment.
        {¶ 12} Based on this evidence, it appears that the substance of appellant's
indictment was copied from his accomplice's indictment and that the beginning date of
the grand jury term for appellant's indictment was not changed to indicate the new grand
jury term. In light of this clerical error,1 we conclude that appellant's indictment was
returned by a grand jury that had not served longer than nine months and in compliance
with Crim.R. 6(G). Therefore, the trial court properly rejected this argument.
        {¶ 13} Lastly, appellant's indictment clearly sets forth the underlying or predicate
offense of kidnapping for one of the counts of aggravated murder. Thus, this argument is
not well-taken.
III. Conclusion
        {¶ 14} Having found no error in the trial court's decision to deny appellant's
motion, we affirm the judgment of the Franklin County Court of Common Pleas.
                                                                                  Judgment affirmed.

                                 TYACK and BROWN, JJ., concur.




1 Such a clerical error, had it been properly and timely brought to the trial court's attention, could have

simply been fixed by an amendment to the indictment because it would not have impacted the name,
identity, or nature of the offenses charged. Crim.R. 7(D); Columbus v. Cordova, 10th Dist. No. 11AP-602,
2012-Ohio-1812, ¶ 10; State v. Williams, 10th Dist. No. 08AP-719, 2009-Ohio-3237, ¶ 12.
