Parma v. LemajicParma v. Lemajic
JUDGMENT: AFFIRMED
Philip A. Eichorn
Philip Eichorn Co., L.P.A.
812 Huron Road, Suite 290
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Timothy G. Dobeck
Parma Law Director
6611 Ridge Road
Parma, Ohio 44129
By: Thomas E. Conway
Assistant Prosecutor
55 Public Square, Suite 2100
Cleveland, Ohio 44113
{¶1} In this accelerated appeal, appellant Visnja Lemajic (Lemajic) appeals the Parma Municipal Court’s judgment denying her motion to vacate her guilty plea and assigns the following two errors for our review:
I. The Parma Municipal Court erred in denying Defendant-Appellant Visnja Lemajic’s motions to withdraw plea and vacate sentence in accordance with
Ohio Revised Code 2943.031 .II. The Parma Municipal Court erred in considering unsubstantiated extraneous information in its findings of facts and conclusions of law.
{¶2} After reviewing the record and relevant law, we affirm the trial court’s decision. The apposite facts follow.
{¶3} Lemajic is a citizen of Croatia, lawfully residing in the United States. She entered several pleas due to shoplifting from 2002 until 2006 in Parma Municipal Court. On October 23, 2002, Lemajic entered a plea of no contest and was found guilty of theft from Kohl’s Department Store. She served one day in jail and paid a fine of $150, plus costs. On December 15, 2004, Lemajic entered a guilty plea to a charge of theft from Kaufmann’s Department Store. She served three days in jail and paid a fine of $250, plus costs. On August 31, 2006, she entered a no contest plea and was found guilty
{¶4} On November 19, 2014, after entering a fourth plea to theft, Lemajic filed a motion pursuant to
{¶5} The trial court conducted a hearing on the motion. Subsequently, in a three-page opinion, the trial court denied Lemajic’s motion.1 The court, citing to the Ohio Supreme Court’s decision in State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, concluded that timeliness is a factor to be considered in deciding whether to vacate a guilty plea pursuant to
In the matter before this court, the defendant likewise gives no reason for the delay in filing her motion. The convictions range from eight to twelve years ago. Nothing in her Affidavit or other evidence indicates how long she has been aware of ICE’s [Immigration and Custom Enforcement] interest in her, to justify her tardiness. Moreover, the court must factor in the fact the defendant’s attorney in her 2006 conviction is well versed in immigration issues and also speaks her language. That might have been the time to address the issue.
Journal Entry, Jan. 15, 2015.
R.C. 2943.031 Advisement
{¶6} In her first assigned error, Lemajic argues the trial court erred by denying her motion to vacate her pleas because there is no record that she ever received the advisement required by
{¶7}
{¶8} Under
{¶9} Here, it is undisputed that the audio recordings of the plea hearings no longer exist. Thus, in considering Lemajic’s motion, the trial court was obliged to presume the advisement was not given. Preciado, 8th Dist. Cuyahoga No. 101257, 2015-Ohio-19, ¶ 21. However, the withdrawal of the plea is not automatic simply because the court failed to give the
{¶10} The concept of timeliness discussed in Francis involves more than just the numerical calculation of the number of years between entering the plea and the motion to withdraw the plea. As Francis noted, subsumed within timeliness is the prejudice to the state in terms of stale evidence and unavailability of witnesses. Lovano, 8th Dist. Cuyahoga No. 100578, 2014-Ohio-3418, ¶ 13.
{¶11} In the instant case, Lemajic waited 12 years from her first plea, with two more intervening pleas, and a new criminal case occurring, before deciding to withdraw her pleas. She provided no reason to explain the delay in filing her motion to withdraw and she did not state when she first became aware she was in danger of being deported. This is not a case where the defendant claimed to have just discovered the deportation consequences of her plea. Although she alleges in her brief that she is now on ICE’s radar due to her plea in 2014, she does not state when she became aware she may be in danger of being deported in relation to the first three pleas she entered
{¶12} In the instant case, as the result of the length of the delay, the audio recordings of the pleas are no longer available. Additionally, as the city argues, it would be difficult to locate witnesses from the three shoplifting cases. Thus, it is doubtful that the city would be able to proceed to trial on these old misdemeanor theft cases. Thus, the trial court did not abuse its discretion by denying Lemajic’s motion for being untimely filed.
{¶13} Lemajic argues that the trial court incorrectly applied Francis to the instant case, because in Francis, unlike the instant case, there was a transcript of the proceedings. However, this court adopted the reasoning in Francis in Preciado, and Preciado, like in the instant case, did not have a record of the plea hearings. In Preciado, we held that because the defendant’s motion to withdraw pursuant to
{¶14} We did hold in Grigoryan, which was decided a little over a month after Preciado, that Francis was distinguishable because the court in Francis had a transcript. However, we made this statement in discussing the state’s contention that the trial court substantially complied with the statute in
{¶15} Moreover, whether there was a record or not would not have an impact on the holding of Francis regarding the timeliness of a
Unsubstantiated Information
{¶16} In her second assigned error, Lemajic argues the trial court erred by considering unsubstantiated evidence in its Findings of Fact and Conclusions of Law. Specifically, she argues the trial court should not have considered that regarding the prior three pleas, Lemajic was represented by counsel fluent in defendant’s native language and is well-versed in representing persons who are permanent residents or otherwise not naturalized citizens and that her prior attorney was well versed in the ORC 2943.031 advisement.
{¶17} We agree that the trial court erred in making a presumption that Lemajic’s attorney would have so advised her.
{¶18} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, P.J., and SEAN C. GALLAGHER, J., CONCUR