State v. Cleavenger
2020 Ohio 73
Ohio Ct. App.2020Background
- Cleavenger was indicted in December 2017 on two third-degree felonies: Endangering Children (R.C. 2919.22(A)(2)) and Obstructing Justice (charged under wrong statute but corrected to R.C. 2921.32).
- She filed a May 30, 2018 motion to dismiss arguing the Obstructing Justice charge was barred by the statute of limitations (alleged conduct occurred ~11 years earlier).
- At a June 5, 2018 plea hearing Cleavenger pled guilty to both counts and withdrew the motion to dismiss; plea colloquy and written plea were entered into the record.
- At sentencing (Feb. 15, 2019) the victim and PSI were considered; the court imposed consecutive three-year terms on each count and made the statutory findings for consecutive sentences.
- On appeal Cleavenger raised four assignments of error: (1) structural error in allowing plea when statute of limitations expired; (2) plea not knowing/voluntary; (3) unconstitutional judicial fact-finding for consecutive sentences; (4) ineffective assistance for failing to preserve statute-of-limitations/preindictment-delay defenses.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cleavenger) | Held |
|---|---|---|---|
| Whether permitting plea when statute of limitations may have expired is structural error | Waived by guilty plea; no structural error | Allowing plea despite expired limitations is structural error invalidating plea | Not structural error; plea withdrawal of motion and guilty plea forfeited the limitations defense; evaluated under plain-error/waiver principles |
| Whether guilty plea was knowingly, voluntarily, intelligently entered without advising waiver of statute of limitations | Plea colloquy satisfied Crim.R. 11; defendant understood and consented; motion to dismiss withdrawal shows awareness | Plea involuntary because court did not inform she was waiving statute-of-limitations defense | Plea was voluntary under Crim.R. 11 and substantial-compliance standard; record shows awareness of limitations issue and no confusion like Hollis |
| Whether judicial fact-finding to impose consecutive sentences violated Sixth Amendment (Apprendi) | Court properly considered record, PSI, victim statement; consecutive findings were supported and permissible under Ice/Bonnell | Judicial factfinding increased penalty unconstitutionally | Judicial factfinding for consecutive terms is permissible (Oregon v. Ice and Bonnell); court’s findings supported by record; no plain error |
| Whether counsel was ineffective for not preserving statute-of-limitations/preindictment-delay defenses | Counsel’s performance presumed reasonable; any claim beyond the record must be pursued postconviction | Counsel failed to advise about statute of limitations which rendered plea involuntary and prejudiced defendant | No ineffective assistance shown on direct appeal because record lacks evidence; defendant may pursue postconviction relief with affidavits/evidence to support claim |
Key Cases Cited
- Arizona v. Fulminante, 499 U.S. 279 (U.S. 1991) (defines structural error concept)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- Oregon v. Ice, 555 U.S. 160 (U.S. 2009) (permitting judicial fact-finding for consecutive sentences)
- State v. Bonnell, 140 Ohio St.3d 209 (Ohio 2014) (procedural and substantive guidance for consecutive-sentence findings)
- State v. Fisher, 99 Ohio St.3d 1 (Ohio 2003) (harmless/structural error discussion and limits)
- State v. Perry, 101 Ohio St.3d 118 (Ohio 2004) (forfeiture and plain-error considerations on appeal)
- State v. Cook, 128 Ohio St.3d 120 (Ohio 2010) (corpus delicti discovery tolling statute of limitations)
- State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., 85 Ohio St.3d 582 (Ohio 1999) (definition of corpus delicti)
- State v. Veney, 120 Ohio St.3d 176 (Ohio 2008) (Crim.R. 11 substantial-compliance/plea validity standard)