Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Court of Common
Pleas, Case No. 2017 CR 01095. Judgment: Affirmed.
V. Vigluicci, Portage County Prosecutor, and Pamela J.
Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
C. Buchanan, Buchanan Law, Inc., (For Defendant-Appellant).
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.
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.
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.
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.
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.
Cleavenger timely appeals and raises the following
assignments of error:
" The trial court committed structural error by
permitting Carol to change her plea to guilty.
"[2.] Carol's plea was not knowingly, voluntarily,
or intelligently made.
"[3.] The trial court engaged in judicial fact finding,
which is unconstitutional.
"[4.] Carol received ineffective assistance of
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.
"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 ...