[Cite as State v. McFarlane, 2019-Ohio-4869.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 No. 19AP-154 

 Plaintiff-Appellee, : (C.P.C. No. 12CR-3812) &

v. : No. 19AP-155 

 (C.P.C. No. 12CR-6122) 

Marcus A. McFarlane, : 

 (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on November 26, 2019 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. 

Walton, for appellant. 

On brief: Marcus A. McFarlane, pro se. 

 

APPEALS from the Franklin County Court of Common Pleas 

NELSON, J. 

{¶ 1} On March 4, 2014, Marcus A. McFarlane pleaded guilty to one count of 

aggravated robbery, with a gun specification, in Franklin County Common Pleas Court case 

number 12CR-6122. See March 4, 2017 Transcript of Proceedings at 49. During the same 

proceeding, he also pleaded guilty to felonious assault in case number 12CR-3812. Id. at 

48. The prosecutor recited at the time of the pleas that the crimes arose from Mr. 

McFarlane's efforts to reclaim $65 that he had paid for damage to a broken sink; when the 

victim would not accede to the $65 demand, the prosecutor said, "Mr. McFarlane shot him 

three times with a 10 millimeter handgun." Id. at 45-46. With Mr. McFarlane affirming 

that he understood the nature of the charges and the pleas he was making, id. at 48, 49, 51, 

the trial court accepted his pleas and sentenced him to concurrent prison terms of eight 

years for the felonious assault and seven years on the aggravated robbery, with a three-year 

consecutive gun specification attached to the aggravated robbery count. Id. at 52-53, 65-

66; see also Appellant's Brief at 1. 
Nos. 19AP-154 & 19AP-155 2 

{¶ 2} This appeal relates to Mr. McFarlane's apparent view that he is entitled, 

pursuant to a request made years after the proceeding, to a written copy of an oral 

amendment to the indictment in the aggravated robbery case correcting the first name of 

the victim as noted without objection on the court record before the plea agreement was 

submitted. Appealing from the trial court's February 20, 2019 denials of Motions to 

Provide Defendant a Copy of the Corrected Indictment, he posits a "Sole Assignment of 

Error" presented in the form of a question: "Does a trial court err[ ] when it denies a 

Defendant's request for a copy of a corrected indictment, pursuant to Criminal Rule 36, 

Clerical mistakes, and in accordance with Appellate Rule 9(E), preventing Defendant from 

obtaining a record to aid his efforts to have the journal entry speak the truth?" Appellant's 

Brief at 2. 

{¶ 3} Mr. McFarlane's brief here pretty much describes what happened: "the 

prosecuting attorney motioned the court for an amendment to the second indictment 

changing the [victim's given] name on the second indictment to match that of the name of 

the first complaint stating it to be a 'typo'. The motion was unobjectionably granted. 

McFarlane following the advice of his counsel * * * entered a plea of guilty * * *." Appellant's 

Brief at 1. Mr. McFarlane indeed attaches to his appeal brief part of the relevant transcript 

of the proceedings that led up to the plea and sentence. That transcript, both as of record 

and in the hands of Mr. McFarlane, records this courtroom discussion as conducted in the 

presence of Mr. McFarlane and his counsel: 

[PROSECUTOR]: Yes, Your Honor. 

First, with regard to 12CR-6122, there's actually a typo in that 

indictment. It lists the victim's name as Robert [last name 

redacted here]. His name is actually James [same last name 

redacted here]. And I'm moving to amend the indictment to 

reflect that correct name at this time. I did mention that to 

[defense counsel]. 

THE COURT: All right. [Defense counsel], do you have any 

objection? 

[DEFENSE COUNSEL]: No, Your Honor. 

THE COURT: All right. So the Court will go ahead and grant 

that motion and take note of that. 

So it goes from Robert, you're saying, to James? 
Nos. 19AP-154 & 19AP-155 3 

[PROSECUTOR]: Correct, Your Honor. 

THE COURT: Okay. 

March 4, 2014 Transcript of Proceedings at 2-3; see also attached "Exhibit A" to Appellant's 

Brief. 

{¶ 4} Mr. McFarlane says that in his 2019 motions, he "requested a copy of his 

corrected indictment for litigation clarity at a later date." Appellant's Brief at 3. But the 

transcript of proceedings reflecting that amendment already makes clear the correction of 

the victim's first name. And contrary, perhaps, to the implicit assumption of Mr. 

McFarlane's motions and appeal, "the language of Crim.R. 7(D) supports the notion that an 

indictment may be amended orally, as it permits amendments 'during trial,' " State v. 

Freeman, 11th Dist. No. 2004-T-0055, 2006-Ohio-492, ¶ 34, "provided no change is made 

in the name or identity of the crime charged," Crim.R. 7(D). 

{¶ 5} The first sentence of Criminal Rule 7(D) reads in full: "The court may at any 

time before, during, or after a trial amend the indictment, information, complaint, or bill of 

particulars, in respect to any defect, imperfection, or omission in form or substance, or of 

any variance with the evidence, provided no change is made in the name or identity of the 

crime charged." Here, the name and identity of the aggravated robbery charge remained 

constant; it was the first name of the victim that was corrected, with notice to (and no 

objection by) Mr. McFarlane and his counsel. And we note again that "[t]he standards in 

Crim.R. 7(D) satisfy the notice requirements of the Due Process Clause." Columbus v. 

Bishop, 10th Dist. No. 08AP-300, 2008-Ohio-6964, ¶ 24 (citations omitted). 

{¶ 6} So this was not a case like Middletown v. Blevins, 35 Ohio App.3d 65, 67 (12th 

Dist.1987), cited by Mr. McFarlane, where the government sought to change the name and 

identity of the charge, thereby necessitating by rule that, absent waiver, the person charged 

"must be served with a new charging instrument." Blevins in fact reiterates the rule that a 

trial court itself may correct defects in an indictment through "changes that do not go to the 

very essence of the offense charged." Id. at 66. See also, e.g., State v. Bell, 5th Dist. No. 05-

CA-67, 2006-Ohio-6560, ¶ 35 ("the amendment to the indictment did not change the name 

or identity of the offense appellant was charged with. Thus, the trial court did not err in 

having appellant stand trial without service of the amended indictment"). 
Nos. 19AP-154 & 19AP-155 4 

{¶ 7} Further, this court has held repeatedly that, once properly before the trial 

court, "[a] defendant may waive the right to indictment altogether, as by a guilty plea to an 

unindicted offense." State v. Long, 10th Dist. No. 83AP-999, 1984 Ohio App. Lexis 10927, 

*13 (citation omitted); see also, e.g., State v. Bruce, 10th Dist. No. 16AP-31, 2016-Ohio7132, ¶ 12; State v. Wooden, 10th Dist. No. 02AP-473, 2002-Ohio-7363, ¶ 15. 

{¶ 8} Mr. McFarlane invokes Criminal Rule 36, but that provision avails him not at 

all. It reads: "Clerical mistakes in judgments, orders, or other parts of the record, and 

errors in the record arising from oversight or omission, may be corrected by the court at 

any time." That rule does not alter the more specific dictates of Criminal Rule 7(D) relating 

to the amendment of indictments, and in any event would not have precluded the court in 

2014 from allowing oral amendment of the indictment or from denying in 2019 the motions 

at issue. 

{¶ 9} And Appellate Rule 9(E), also mentioned by Mr. McFarlane in his assignment 

of error, relates to the record presented on appeal—not to how the trial court was to dispose 

of the 2019 motions that preceded this appeal—and concerns disputes over "whether the 

record truly discloses what occurred in the trial court* * *." App.R. 9(E). The parties here 

are in full agreement that the partial transcript as appended by Mr. McFarlane to his appeal 

accurately sets out the trial court's 2014 grant of the oral amendment correcting the victim's 

first name in the indictment: Mr. McFarlane identifies no relevant Appellate Rule 9(E) 

issue. 

{¶ 10} Moreover, the time for Mr. McFarlane to have argued on some basis that the 

amendment to the indictment should have been reduced to writing has long passed. See, 

e.g., State v. Hatfield, 10th Dist. No. 19AP-5, 2019-Ohio-3909, ¶ 12 ("[a]n infirmity in the 

indictment does not deprive the trial court of subject-matter jurisdiction and such error is 

generally waived on appellate review when a timely objection before the trial court could 

have permitted its correction * * * * Because appellant could have raised his claim in his 

direct appeal but failed to do so, it is barred by the doctrine of res judicata") (citations 

omitted). Especially under these circumstances, it cannot be error for the trial court to fail 

to conjure up now a revised charging instrument that was not requested or generated at the 

time. 
Nos. 19AP-154 & 19AP-155 5 

{¶ 11} We overrule Mr. McFarlane's lone assignment of error, and we affirm the 

judgment of the Franklin County Court of Common Pleas that denied Mr. McFarlane's 

motions to provide (or perhaps more precisely, to generate) "a copy of the corrected 

indictment." 

Judgments affirmed. 

DORRIAN and BRUNNER, JJ., concur.