[Cite as State v. Cleavenger,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2019-P-0036 - vs - :

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, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Wesley C. Buchanan, Buchanan Law, Inc., 195 South Main Street, Suite 202, Akron, OH 44308 (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

2 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,

. A Nunc Pro Tunc Order was issued on March 12, 2019, correcting the statutory section under which Cleavenger was convicted for Obstructing Justice, from R.C. 2919.22 to R.C. 2921.32.

3 127,

,

, ¶ 9, citing Arizona v. Fulminante,

,

309 and 310,

,

(1991); State v. Drummond,

,

,

, ¶ 50. A structural error “permeate[s] ‘[t]he

entire conduct of the trial from beginning to end.’” State v. Perry,

,

,

, quoting

. 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,

,

,

, ¶ 133. Cleavenger cites to no authority for the proposition that the principle of

structural error applies in the case of a defendant entering a guilty plea when the statute

of limitations has expired.

{¶13} Furthermore, the Ohio Supreme Court and United States Supreme Court

“have cautioned against applying a structural-error analysis where, as here, the case

would be otherwise governed by Crim.R. 52(B) [plain error] because the defendant did

not raise the error in the trial court.” Perry at ¶ 23. Finding an error not brought to the

court’s attention to be structural “would * * * encourage defendants to remain silent at

trial only later to raise the error on appeal where the conviction would be automatically

reversed.” Id. While Cleavenger raised the statute of limitations issue in a motion to

dismiss, she agreed to withdraw the motion when entering the plea; therefore, it would

be more properly evaluated under a plain error standard. State v. McClurkin, 10th Dist.

Franklin No. 11AP-944,

, ¶ 31 (“[i]n light of that withdrawal [of

defendant’s motion to suppress], the issue was not brought to the trial court’s attention,

and appellant has forfeited the issue on appeal * * *”).

4 {¶14} Moreover, several appellate districts, including this one, have repeatedly

held that entering “a plea of guilty acts to waive the benefits of the application of

statutes of limitations” and thus, the merits of such arguments cannot be raised on

appeal. State v. Ware, 11th Dist. Lake No. 2007-L-154,

;

State v. Keinath, 6th Dist. Ottawa No. OT-11-032,

, ¶ 25 (“[b]ecause the

expiration of the statute of limitations is not a jurisdictional defect, we conclude that

appellant is precluded from raising this issue on appeal”); State v. Brown,

,

(1st Dist. 1988); see also Daniel v. State,

,

,

(“the expiration of a statute of

limitations is not a jurisdictional defect”) (citation omitted). However, to the extent that

the issue of the statute of limitations can be raised in relation to the voluntariness of a

guilty plea, particularly regarding ineffective assistance of counsel, we will address that

argument below. State v. Talley, 11th Dist. Lake Nos. 2017-L-143 and 2017-L-144,

.

{¶15} The first assignment of error is without merit.

{¶16} We will next address Cleavenger’s fourth assignment of error, wherein she

argues that she received ineffective assistance of counsel due to defense counsel’s

failure to raise the statute of limitations defense as well as the issue of preindictment

delay.

{¶17} To demonstrate ineffective assistance of counsel, a defendant must prove

“(1) that counsel’s performance fell below an objective standard of reasonableness, and

(2) that counsel’s deficient performance prejudiced the defendant resulting in an

unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87

, 388-389,

(2000), citing Strickland v. Washington,

,

,

(1984).

{¶18} It has been consistently held by this court that a plea of guilty waives

claims of ineffective assistance of counsel “except to the extent that the errors

precluded the defendant from knowingly, intelligently, and voluntarily entering his or

her guilty plea.” Talley,

; State v. Bregitzer, 11th Dist. Portage

No. 2012-P-0033,

, ¶ 17.

{¶19} As an initial matter, the State argues that Cleavenger waived this

argument by entering a guilty plea. It has been held, however, that trial counsel’s failure

to advise of the statute of limitations can avoid the application of the waiver requirement

as it impacts the voluntary nature of the plea. State v. Seeley, 7th Dist. Columbiana No.

,

, ¶ 32-35 (finding the defendant demonstrated that

counsel’s ineffectiveness in failing to raise a statute of limitations defense prevented him

from entering a knowing and voluntary plea). Thus, we will consider the merits of

Cleavenger’s arguments.

{¶20} First, as to the offense of Endangering Children, Cleavenger argues that

she was not advised that she could have asserted the statute of limitations defense nor

that she was waiving such defense by pleading guilty.

{¶21} We recognize that the statute of limitations for Endangering Children is six

years, R.C. 2901.13(A)(1)(a), and that more than six years had passed between the

time the acts constituting the offense occurred and the initiation of the charge against

Cleavenger. However, we must emphasize that the record in this matter is completely

devoid of any indication as to why the statute of limitations defense was not raised for

6 this offense in the present matter.

{¶22} The record does not indicate whether the statute of limitations for

Endangering Children was discussed between defense counsel and Cleavenger, why a

motion to dismiss due to the statute of limitations was filed for Obstructing Justice but

not Endangering Children, or, even, as the State suggested, whether Cleavenger might

have been aware of the statute of limitations but chose to enter a plea of guilty as a

means to reconcile with the victim and atone for her serious criminal acts. Cleavenger’s

contention that she involuntarily entered the guilty plea is premised upon an assumption

that trial counsel failed to advise her of the applicability of the statute of limitations, a

fact which by itself cannot be proven in the absence of an affidavit or other evidentiary

materials supporting such a claim. The record as presented to this court simply

contains nothing to assist this court in determining the propriety of defense counsel’s

actions and representation.

{¶23} While we recognize the possibility that the statute of limitations had

expired at the time Cleavenger entered her plea and that Cleavenger was unaware of

this fact, we do not find that justice is served by determining this issue in the absence of

a clear record and by pure speculation, especially given the “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

Strickland,

,

,

. “[I]t is almost always

difficult, if not impossible, to adjudicate a claim of ineffective assistance of trial counsel

with reference solely to matters contained in the record” of the original proceedings

since the record is based on the guilty plea of the defendant rather than “the issue of

trial counsel’s effectiveness.” State v. Hennis,

,

, 844

, ¶ 11 (2d Dist.). “Where a claim of ineffective assistance of counsel is

based on evidence that is outside of the record, it is more properly pursued in a petition

for post-conviction relief since such a claim is ‘impossible to resolve on direct appeal.’”

(Citation omitted.) State v. Hall, 11th Dist. Lake Nos. 2019-L-027 and 2019-L-031,

; State v. Moore, 11th Dist. Ashtabula No. 2018-A-0050, 2019-

Ohio-1597, ¶ 14 (“[w]hen affidavits or other proof outside the record are necessary to

support an ineffective assistance claim * * * it is not appropriate for consideration

on direct appeal”) (citation omitted). This allows for proper resolution of the disputed

issues and prevents prejudice against the State by “adjudicating the issue of trial

counsel’s ineffectiveness without having had an opportunity to explore the subjects of

the attorney’s advice to his client and the client’s instructions to his attorney.” Hennis at

¶ 11.

{¶24} Thus, while we cannot resolve this issue on direct appeal, Cleavenger has

available the more appropriate remedy of a postconviction petition where she can

introduce documentary evidence and an affidavit to support her alleged claim of

ineffective assistance of counsel pursuant to R.C. 2953.21.

{¶25} The record also fails to demonstrate ineffective assistance of counsel as

to the offense of Obstructing Justice. Counsel did raise, through the Motion to Dismiss,

the argument that the charge should be dismissed as being initiated outside of the

statute of limitations. This motion was withdrawn a few days later when the guilty plea

was entered. Although the reason for the withdrawal was not discussed at the change

of plea hearing, this does indicate at least a potential awareness of this issue by

Cleavenger.

8 {¶26} Further, it is at least arguable whether the statute of limitations on the

Obstructing Justice offense had expired. Pursuant to R.C. 2901.13(G), “[t]he period of

limitation shall not run during any time when the corpus delicti remains undiscovered.”

The corpus delicti is “the body or substance of the crime and is made up of two

elements: (1) the act itself and (2) the criminal agency of the act.” State v. Climaco,

Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A.,

,

(1999). “[A] criminal statute of limitations may be tolled when the corpus

delicti of the offense is not immediately discoverable.” State v. Cook,

,

,

, ¶ 23. “In cases other than those involving child

abuse, discovery of the corpus delicti occurs ‘when any competent person other than

the wrongdoer or someone * * * [equally at fault] with him has knowledge of both the act

and its criminal nature * * *.’” (Citation omitted.) State v. Beck,

,

, ¶ 13 (1st Dist.).

{¶27} This principle has been most commonly applied in cases where an act of

deception/perjury has occurred but the only person who knew of the criminality of the

conduct was the offender himself. See State v. Cleveland, 9th Dist. Lorain No.

08CA009406,

(“It is, at the least, arguable that if Avery testified

under oath at the January 2008 hearing differently than he did at the five previous trials

with regard to Blakely’s murder, he could be prosecuted for perjury because the

limitations period would have been tolled until the State ‘discovered’ the perjury.”); Cook

at ¶ 37 (although falsified deeds were created in 2001, “the corpus delicti of the offense

herein was not discovered until February 2004, the date that the church trustees

discovered the deeds,” at which time the statute of limitations began running). A

9 legitimate argument could be raised that the failure of police to discover the offense was

due to the deception by Cleavenger which then might extend the statute of limitations.

{¶28} Given this legitimate potential strategy by counsel, and the lack of

evidence to the contrary in the record as discussed above, we also find no ineffective

assistance of counsel was demonstrated as to the Obstructing Justice offense.

{¶29} The fourth assignment of error is without merit.

{¶30} In her second assignment of error, Cleavenger argues that her pleas to

Endangering Children and Obstructing Justice were not knowingly, voluntarily, and

intelligently given since “the trial court did not inform [her] that she was waiving her

claim that the statute of limitations had expired” and, thus, should not have been

accepted by the trial court.

{¶31} When “a criminal defendant admits his guilt in open court, he waives the

right to challenge the propriety of any action taken by the court or counsel prior to that

point in the proceeding unless it affected the knowing and voluntary character of the

plea.” (Citation omitted.) State v. Miller, 11th Dist. Geauga No. 2017-G-0136, 2018-

Ohio-4379, ¶ 15. To the extent that Cleavenger argues her pleas were involuntary, it is

appropriate to consider the merits of her argument.

{¶32} In a felony case, “the court * * * shall not accept a plea of guilty or no

contest without first addressing the defendant personally” and complying with

requirements to “[d]etermine that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved * * *”;

inform the defendant of the effect of his plea and that the court may proceed to

judgment and sentencing; and advise the defendant of the rights waived by entering the

10 plea. Crim.R. 11(C)(2)(a)-(c).

{¶33} Here, there is no question that the court advised Cleavenger of her

constitutional rights, the offenses to which she was pleading guilty, and the maximum

penalties faced, as well as inquired whether she had reviewed the plea and was

satisfied with her counsel. The issue is whether she needed to be advised of the statute

of limitations and expressly state that she was waiving her right to raise that defense for

the court to accept her plea.

{¶34} Since there is no right to be informed that one is waiving a defense

relating to the statute of limitations expressed in Crim.R. 11(C)(2)(c), the standard of

substantial compliance applies. State v. Veney,

,

,

. “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and

the rights he is waiving.” (Citation omitted.) Id. at ¶ 15.

{¶35} In support of the contention that Cleavenger’s plea was involuntary since

she was not informed by the court that she was waiving the statute of limitations

defense, she relies upon State v. Hollis,

,

(8th

Dist.). In Hollis, the Eighth District considered whether a plea was knowingly,

voluntarily, and intelligently entered where, during the plea colloquy, defense counsel,

the court, and the prosecutor all expressed that they were unsure whether the statute of

limitations had elapsed, but the court continued on with proceedings and accepted the

defendant’s guilty plea.

. In determining that the defendant should have

been allowed to withdraw her plea, the appellate court concluded that the “continuing

uncertainty regarding the applicable statute of limitations precluded appellant from

11 entering a knowing, voluntary and intelligent plea.”

.

{¶36} We do not find Hollis to be applicable to the present circumstances. The

Hollis court itself noted that the “reversal is limited to the unique facts of the instant case

and the state of its record.”

In fact, the Eighth District has distinguished subsequent

cases from its holding in Hollis, where there was not a demonstrated lack of confusion

over the statute of limitations: “there is no indication on the record that appellant or his

attorney was unaware of the statute of limitations, or that there was a possibility the

prosecution was untimely.” State v. Robinson, 8th Dist. Cuyahoga No. 75423,

, *2 (Feb. 17, 2000).

{¶37} Cleavenger’s counsel filed a motion to dismiss based on statute of

limitations issues for the offense of Obstructing Justice, indicating awareness that

statute of limitations issues were considered by counsel. At the plea hearing, the State

and defense counsel both stated that Cleavenger would be withdrawing her pending

motion and moving forward with a plea of guilty. Immediately after this discussion, the

court inquired whether counsel’s description was her “understanding of the plea

agreement,” to which she responded affirmatively. In other words, this is not the case

where the parties were entirely unaware a statute of limitations issue existed or where

the record demonstrates confusion existed over this issue. At the least, the record fails

to support Cleavenger’s assertion that her pleas were involuntary. Based upon the

record before this court, we find no grounds to determine that there was confusion

surrounding the circumstances of the pleas such that they were not voluntarily and

intelligently made.

{¶38} The second assignment of error is without merit.

12 {¶39} In her third assignment of error, Cleavenger argues that the trial court

erred in sentencing her by taking into consideration facts outside of the record when

sentencing her, constituting judicial factfinding “which is unconstitutional.” Apprendi v.

New Jersey,

,

,

(2000) (“Other than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.”).

{¶40} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing

court's findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence

is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b). However, since

Cleavenger failed to object to her sentence, “our review is limited to consideration of

whether the trial court committed plain error.” State v. Snyder, 11th Dist. Ashtabula

Nos. 2017-A-0041, et al.,

.

{¶41} While Cleavenger cites to Apprendi for the conclusion that trial courts

cannot make factual findings, this principle does not apply to judicial factfinding in

relation to consecutive sentences, which the court made here. As the Ohio Supreme

Court has recognized, its prior understanding that Apprendi stood for the proposition

that “requiring judicial fact-finding prior to imposing consecutive sentences violated the

13 Sixth Amendment guarantee of trial by jury,” was “dispelled in Oregon v. Ice.” State v.

Bonnell,

,

,

, ¶ 2 and 18, citing State

v. Foster,

,

,

. In Oregon v. Ice, the

United States Supreme Court held that judicial fact-finding before imposing consecutive

sentences is constitutionally permissible.

,

,

(2009). In fact, “judicial fact-finding is * * * required to overcome the

statutory presumption in favor of concurrent sentences.”

.

{¶42} In performing the factfinding necessary to order consecutive sentences, it

is proper to consider “the record, and information presented at the hearing, any

presentence investigation report, and any victim impact statement.” (Citation omitted.)

State v. Jirousek,

,

, ¶ 49 (11th Dist.) (relying upon such

information “does not run afoul of * * * Apprendi * * * because Ohio law does not

mandate the court to make findings based upon such information to increase an

otherwise maximum-authorized penalty”); State v. Kitts, 5th Dist. Knox No. 17 CA 09,

. To make its consecutive sentencing determinations, the trial

court had to consider available facts surrounding the child endangering offenses and

the false statements made to police, including the impact the offenses had. Contrary to

Cleavenger’s argument, there was nothing improper about the court’s statement that

“this was the worst form of the offense,” which played a part in the determination that a

consecutive sentence was warranted, supporting the finding that the harm was so great

that such a sentence was necessary to adequately reflect the seriousness of

Cleavenger’s conduct. R.C. 2929.14(C)(4)(b).

{¶43} While Cleavenger contends that the “trial court took into consideration

14 facts outside of the record,” it is not evident which facts she is referencing. The court’s

conclusions, as it stated, were based upon the PSI as well as the statements made at

the sentencing hearing, including the victim’s statement. Although Cleavenger takes

issue with the fact that the victim’s statements were read at sentencing in relation to

both the offenses committed by Cleavenger and her husband, who was sentenced

separately, she cites no law that this was improper. The facts of the husband’s case

were tied to the facts of the present matter and the statements were provided by the

same victim for conduct surrounding that activity.

{¶44} As an additional note, and although this is not specifically argued by

Cleavenger, the State asserts that the court made all of the necessary findings for

ordering consecutive sentences. We do not disagree, as the court found such

sentences were necessary to protect the public from future harm or to punish the

defendant, the sentences were not disproportionate to the seriousness of her conduct

and the danger she poses to the public, as well as made the additional finding that the

harm caused by the two offenses was so great or unusual that no single prison term

would adequately reflect the seriousness of her conduct. These findings satisfied the

requirements of R.C. 2929.14(C)(4).

{¶45} The third assignment of error is without merit.

{¶46} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed. Costs to be taxed against appellant.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.

15