dissenting.
{¶ 9} I continue to adhere to my earlier dissent as I anticipate uncertainty among the members of the bench and bar as to the application of a structural-error analysis, as opposed to a plain-error analysis, following the court’s decision today.
{¶ 10} If I understand the majority, the error here is structural because it “permeate[d] the trial from beginning to end.” State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 23, citing State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17. But this occurred only because Colon never raised the matter at the trial level and raised it for the first time on appeal. Wouldn’t every error not raised by a defendant have the potential to become structural error?
{¶ 11} In State v. Hill (2001), 92 Ohio St.3d 191, 199, 749 N.E.2d 274, we explained that “the concept behind structural error is that certain errors are so fundamental that they obviate the necessity for a reviewing court to do a harmless-error analysis.” But application of the harmless-error standard assumes that the defendant preserved the error for review, and there is no similar “structural-error exception” to the plain-error doctrine under Crim.R. 52(B) when the defendant fails to object in the trial court. See id.; see also Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643; Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718.
{¶ 12} I agree that errors are “structural” when they “permeate the trial,” Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17, and infect the entire “ ‘framework within which the trial proceeds.’ ” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, quoting Arizona v. Fulminante (1991), 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. I fail to grasp, though, how structural error occurred in this case, but that a different defendant who faces a defective indictment and raises the matter as Colon did on appeal should not be treated in the same manner as Colon. As the court in Neder v. United States (1999), 527 U.S. 1, 14, 119 S.Ct. 1827, 144 L.Ed.2d 35, emphasized, “[A] constitutional error is either structural or it is not.” See also United States v. *207Stewart (CA.6, 2002), 306 F.3d 295, 322, citing Neder at 14, 119 S.Ct. 1827, 144 L.Ed.2d 35 (“After all, structural error is not to be determined on a case-by-case basis. * * * The Supreme Court’s approach to such errors has been categorical”).
{¶ 13} Structural-error analysis does not permit a court to determine that a particular error, e.g., omission of an essential element from an indictment, is structural error in one case but not structural error in another. Rather, structural-error analysis is applied when a particular error permeates the trial and renders it fundamentally unfair in every case, such that, when the error occurs, “no criminal punishment may be regarded as fundamentally fair.” Rose v. Clark (1986), 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460.
{¶ 14} The Supreme Court has identified the following as structural errors, and every case in which they occur is subject to immediate reversal on appeal: denial of counsel, Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; biased trial judge, Tumey v. Ohio (1927), 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; racial discrimination in the selection of a grand jury, Vasquez v. Hillery (1986), 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598; denial of self-representation at trial, McKaskle v. Wiggins (1984), 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122; denial of a public trial, Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31; and a jury instruction defining reasonable doubt as “grave uncertainty,” Sullivan v. Louisiana (1993), 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182.
{¶ 15} Omitting an essential element from an indictment does not rise to that level.
{¶ 16} Finally, the majority opinion appears to conflict with our holding in State v. O’Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, in which the indictment also failed to include a judicially interpreted mens rea element of recklessness, an essential element of the offense of child endangering. We rejected O’Brien’s constitutional argument that amendment of the indictment, pursuant to Crim.R. 7(D), by inserting the recklessness element allowed him to be convicted of an offense not charged by the grand jury. As we stated there, the “[fjailure to include the element of ‘recklessness’ in an indictment for endangering children in no way alters either the name, identity or severity of the offense charged.” Id. at 127, 30 OBR 436, 508 N.E.2d 144. Thus, we held, “[a]n indictment, which does not contain all the essential elements of an offense, may be amended to include the omitted element, if the name or the identity of the crime is not changed, and the accused has not been misled or prejudiced by the omission of such element from the indictment.” Id. at paragraph two of the syllabus.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Jon W. Oebker and Matthew E. Meyer, Assistant Prosecuting Attorneys, for appellee. Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellant. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, urging reconsideration for amicus curiae, Ohio Prosecuting Attorneys Association. Stephen A. Schumaker, Clark County Prosecuting Attorney, and Amy M. Smith, Assistant Prosecuting Attorney, urging reconsideration for amicus curiae, Clark County Prosecutor’s Office.{¶ 17} Based on our holding in O’Brien, it is my view that the defect in Colon’s indictment did not alter the name or identity of the offense of robbery charged by the grand jury and that the defect could have been cured by a motion filed pursuant to Crim.R. 7(D). Thus, I fail to see how the omission of recklessness from Colon’s indictment constitutes structural error or why it requires automatic reversal, particularly when Colon failed to object in the trial court.
{¶ 18} For these reasons, I continue to dissent.
Lundberg Stratton and Lanzinger, JJ., concur in the foregoing opinion.