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State v. Cleavenger

Court of Appeals of Ohio, Eleventh District, Portage

January 13, 2020

STATE OF OHIO, Plaintiff-Appellee,
CAROL CLEAVENGER, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 01095. Judgment: Affirmed.

          Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

          Wesley C. Buchanan, Buchanan Law, Inc., (For Defendant-Appellant).


          MATT LYNCH, J.

         {¶1} Defendant-appellant, Carol Cleavenger, appeals from the judgment of the Portage County Court of Common Pleas, convicting and sentencing her following the entry of a guilty plea for Endangering Children and Obstructing Justice. The issues to be determined in this case are whether the entry of a guilty plea waives a statute of limitations defense, whether a guilty plea can be voluntarily given when the statute of limitations may have expired, and whether judicial fact-finding is permitted when a court orders consecutive sentences. For the following reasons, we affirm the decision of the lower court.

         {¶2} On December 26, 2017, Cleavenger was indicted by the Portage County Grand Jury for Endangering Children, a felony of the third degree, in violation of R.C. 2919.22(A)(2), and Obstructing Justice, a felony of the third degree, stated in the indictment as a violation of R.C. 2919.22(A)(2) but properly characterized as a violation of R.C. 2921.32. No error has been assigned as to this issue.

         {¶3} Cleavenger filed a Motion to Dismiss on May 30, 2018, arguing that "the charge of communicating false information to a law enforcement officer" should be dismissed as barred by the statute of limitations, since she was charged 11 years after the conduct occurred.

         {¶4} A plea hearing was held on June 5, 2018, at which Cleavenger entered a guilty plea to the two counts charged in the indictment. A summary of the conduct constituting the offenses was not provided at the plea hearing but, pursuant to the PSI and victim statements made at the sentencing hearing, the charges relate to the victim, Cleavenger's daughter, being sexually abused by her stepfather and Cleavenger's failure to disclose the abuse to the police and/or cooperate in the investigation of this matter. Defense counsel indicated they were withdrawing the Motion to Dismiss. The judge reviewed the rights Cleavenger waived by entering the plea as well as potential penalties and accepted her plea. A Judgment Entry memorializing the plea and a Written Plea of Guilty were filed on June 6, 2018.

         {¶5} At the February 15, 2019 sentencing hearing, the State argued that the victim had suffered psychological harm and requested consecutive sentences. The victim stated that Cleavenger "chose to keep [her] rapist husband over [her] child" and that she covered up her abuse. Cleavenger's counsel emphasized her lack of a criminal record and argued that her husband had concealed the abuse from her. Cleavenger expressed that she was sorry for causing harm to her family. The court found that Cleavenger had "isolated [her] daughter," protected her husband, could have stopped the abuse, and lied to police. The judge stated that she had reviewed the record, including the victim's statements and PSI and ordered Cleavenger to serve a term of three years for each offense, to be served consecutively. The court memorialized the verdict and consecutive sentencing findings in a February 21, 2019 Order and Journal Entry.[1]

         {¶6} Cleavenger timely appeals and raises the following assignments of error:

         {¶7} "[1] The trial court committed structural error by permitting Carol to change her plea to guilty.

         {¶8} "[2.] Carol's plea was not knowingly, voluntarily, or intelligently[] made.

         {¶9} "[3.] The trial court engaged in judicial fact finding, which is unconstitutional.

         {¶10} "[4.] Carol received ineffective assistance of counsel."

         {¶11} In her first assignment of error, Cleavenger argues that the trial court committed "structural error" by permitting her to plead guilty to the offenses when the statute of limitations had expired for both.

         {¶12} "Structural errors" are those which "defy analysis by 'harmless error' standards" because they "'affect[] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.'" State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, citing Arizona v. Fulminante,499 U.S. 279, 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); State v. Drummond,111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 50. A structural error "permeate[s] '[t]he entire conduct of the trial from beginning to end.'" State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 17, quoting Fulminante at 309. Structural errors have been found "only in a very limited class of cases," such as where the trial judge was biased, there was a complete denial of counsel, or racial discrimination occurred in grand jury selection. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d ...

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