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State v. Radovanic

Court of Appeals of Ohio, Tenth District

September 24, 2013

State of Ohio, Plaintiff-Appellee,
v.
Rosemarie Radovanic, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 11CR-12-6609)

Michael DeWine, Attorney General, and Maritsa A. Flaherty, for appellee.

Richard H. Drucker, for appellant.

DECISION

BROWN, J.

(¶ 1} This is an appeal by defendant-appellant, Rosemarie Radovanic, from a judgment of the Franklin County Court of Common Pleas denying appellant's motion to vacate her guilty plea.

(¶ 2} On December 21, 2011, appellant was indicted for theft by deception, in violation of R.C. 2913.02(A)(3), a felony of the third degree. The indictment also named as defendants Carolyn Lane and a corporation, "A Caring Alternative." On May 21, 2012, appellant entered a guilty plea to one count of theft by deception, a felony of the fourth degree.

(¶ 3} By entry filed June 5, 2012, the trial court sentenced appellant to a five-year period of community control and ordered her to pay restitution in the amount of $261, 870.98. On November 15, 2012, a probation officer filed a request for revocation of probation alleging that appellant "has been working in the home health field as an owner of Evercare and Precious Gems Health Care, LLC contrary to the order of the Court."

(¶ 4} On January 11, 2013, appellant filed a motion to vacate her guilty plea pursuant to Crim.R. 32.1. In the accompanying memorandum in support, appellant asserted she had suffered manifest injustice resulting from her plea. More specifically, appellant argued she had been deprived of her means to earn a living because the United States Department of Health and Human Services ("DHHS") had imposed an expansive restriction upon her after she entered the plea. On January 16, 2013, the state filed a memorandum contra. By entry filed February 14, 2013, the trial court denied appellant's motion to vacate.

(¶ 5} On appeal, appellant sets forth the following assignment of error for this court's review:

The Trial Court erred, and abused its discretion and caused Ms. Radovanic a manifest injustice when it accepted [a] guilty plea, which plea has summarily barred her from employment, then denied Ms. Radovanic's Motion to Vacate Guilty Plea without granting an evidentiary hearing to consider the case's merits.

(¶ 6} Under her single assignment of error, appellant asserts the trial court erred in denying her motion to vacate. Appellant further argues that the court erred in not granting an evidentiary hearing on the motion.

(¶ 7} Crim.R. 32.1 states: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." The term "manifest injustice" "relates to some fundamental flaw in the proceedings which results in a miscarriage of justice or is inconsistent with the demands of due process." State v. Spivakov, 10th Dist. No. 13AP-32, 2013-Ohio-3343, ¶ 10, citing State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. A defendant "bears the burden of establishing a manifest injustice based on specific facts in the record or facts supplied through affidavits attached to the motion." State v. Sansone, 10th Dist. No. 11AP-799, 2012-Ohio-2736, ¶ 7, citing State v. Hagler, 10th Dist. No. 10AP-291, 2010-Ohio-6123, ¶ 7.

(¶ 8} A motion by a defendant seeking to withdraw a guilty plea after sentencing "is addressed to the sound discretion of the trial court." State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus Thus, an appellate court will not reverse a trial court's decision absent an abuse of discretion. State v. Ogle, 4th Dist. No. 11CA29, 2013-Ohio-3420, ¶ 81.

(¶ 9} Under Ohio law, "[a] trial court is not automatically required to hold a hearing on a post-sentence motion to withdraw a plea of guilty." State v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 9. Rather, "a trial court need only conduct an evidentiary hearing when the facts, as alleged by the defendant, indicate a manifest injustice would occur if the plea was allowed to stand." State v. Vincent, 4th Dist. No. 03CA2713, 2003-Ohio-3998, ¶ 10. See also State v. Buck, 9th Dist. No. 04CA008516, 2005-Ohio-2810, ¶ 14, quoting State v. Russ, 8th Dist. No. 81580, 2003-Ohio-1001, ΒΆ 12 ("An evidentiary hearing on a post-sentence motion to withdraw a guilty plea is not required if the 'record indicates that ...


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