IN THE SUPREME COURT OF OHIO

ROSEMARIE RADC3VANIC

Appellain#,

vs.

STATE OF OHIO

Appelloe.

%. p

. ., -^J .r3,-, '"''^ .3.:.

ON APPEAL, FROM THEFRANKLIN COUNTY COURTOF APPEALS, TENTHAPPELLATE DISTRICT

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ROSEMARIE RADOVANIC

Richard f-l. Druc1<or (0002466) (Counsel of Record);700 tlVest St. Clair Ave., Suite 214Cleveland, Ohio 44113(216) 771-1900Fax No. (216) 566-0738

COUNSEL FOR.APPELLA ►VT, ROSEMARIE RADOVANIC

Mike DeWineOhio Aftorney GeneralMaritza A. Flaherty (0080903) (Ceunsel of Record)Assistant Attorhey General15:0 East Gay Street, 17t" FloorColumbus, Ohio 43215

CGUNSEL FOR APPELLEES, STATE OF OHIO

Court of AppealsCase No:

TABLE OF CONTENTS

P:age

EXPLaNATIQN OF WHY THIS CASE IS A CASE OFPUgLI-C OR GREAT C;ENERAL INTEREST AND INVOL11ES!A SUBSTANTIAL CONSTITUTIONAL Q,UESTlON . ...... ... ... ..... o ,.. ... ... .... 3

STATEMENT OF THE CASE AND FACTS......................................... :..,;.. 4

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW .. .........:............... 6

COIt1CL.USION-. ... ........ .......... ............. .... g

PROOF OF SERVICE ............ • _.....,.. , 9

APPENDIX..... ... ... . .. ... ... .. . ....... ........... 1(}

O:pinion>of the Franklin County Court of Appeals(Septernber 24, 2013)

2.

The Constitcations of the United States and Ohio requ9res that plea to a criminal

charge knowingly and intetligently rriade. Moreover, when that plea whose

consequencos the individual could neither have considered;, nor been aware, serves as

a summary bar to subsequent emplaymerit, that individuai suffers a manifest injustice.

Accordingly, these constitute adequate grounds to vacate the plea pursuant to Ohio

Criminaf Rule of Procedure 32.1.

V11hen the Tria{ Court summarily denies^ said indiwidiaa{'s motion without granting

'an evidentiary hearing, considering the case and individual's merits, the Trial Court

abuses its discretian. The aforemenfiioned facts are exactly what happened to the

Appellant. Tho trial court committed a reversible error when it summarily denied Ms.

Radovanic's Motion to Vacate Guilty Plea without granting an evidentiary hearing:

Accordingly, this abuse ofdiscretion warrants a reversal,

ln this case, The Appollarrt-Do€endant did not understand the consequences of

her plea as it relates: to lieensirig and ernp(oymanfi; This shcauldbe ccnstitutionally

mandated in that is impossible for a Defendant to knowingly and intelfigenfily enter a

guilty plea without kraowing these consequences:

3

STATEMENT OF THE CASE AND FACTS

Rosemarie R-adovanic is a 60 year-old resident af Lake Courity, Ohio, She has

uvorked in the home-health care<industry for the past 30 years. Ms. Radovanic has spent

her entire career working in the honze-healtii care industry. Specifically, she has

specialized in providing in-home health care services for geriatric patients, and ofiher

services cornparabl0- to what assisted living provides._ She has spent most of her career

on the administrafiive side of the horne-health. care industry. Ms. Radovonic's former

business, A Caring Alternative was convicted of Theft by Deception, a felony in the third

degree, after a.bench trial before Honorable Judge Mark A. Serrott. On May 21, 2012,

Ms. Radovanic pleaded guilty to the lessor offense°of Theft by Deception in violation of

4.R,C. 2913.13. She also agreed to pay restitution in the amount of $370,230.98. Ms.

Radavanic has at ap!'times stated that she had no oriminal intent to commit the crimes

aiteged in f ior case or haddirect knowledge of tho crimos comniitted by A Caring

Alternative. She states she is not guilty, despite her guift.y plea.

After entering her plea, Ms. Radovanic was sentenced to community control

sartctiansand ordered to pay restitution in. an ai'naunt of $200 per month:. However,

unforeseen to both the State of Ohio and Ms. Radovanic, entering her pleacaused the

U.S. Department.of Heaith & Human Services to deern her "exeluded" from participation

in the health care industry as of October 4, 2012. But for entering her plea, the U.S.

Departme'nt.of Health & Human Services would not have placed Ms. R.adovanic on the

"excluded" li'st. As an excluded individuaf, Ms. Radovanic'is barred from havi,ng any role

in a; company that derives economic benofit from federal programs, such as Medicare,

4

Medieaid,l/eteran's Assistance,: etc;: The ben has a wide scope, and applies to Ms.

Radovanic regarc7loss of her scope of empto.yrnent, or ststus as a contractor with a

company. Ms. Radovanic is prohibi,ted from performing even administrative ta.sks that

are un-related to caring for patients. This exclusion is codified in 42 CFR 10011901

(Scopeand Effect of Exciusion) and provides as follows:

."Speclal Advis,ory Bui(etin: U.S. Department of Health & Human ServicesThe prohibition against Federal program payment for items or services furnishedby excluded ihdividuals or entitios also extends to. payment for administrative andmanagement services not directly related to, patient care, but that are a.necessary component of providing items and services to Federal programbeneficiaries. This prohibition continues to apply to an individual even if he or shechanges from one health care proRession to another while excluded, 1n addition,no Federai program payment may be made to cover an excluded individual'ssalary, expenses orfringe benefits, regar.dless o# whether they prcvid.- directpatient care,,,

Atthe time Ms. Radovanic entered her plea she rr,ras unaware that it would

trigger repercussions: under Federal Administrative law. Nor was she aware the plea

wouid categarically bar her from working inthe only industry in which she has worked

fortYie past 30 years. By being deprived of her ortly means to'earri a liv.ing, she has

suffered,and wiEl continue to suffer a manifest anjustice,

On or about January 11, 2.013, fif(s, Radovanic filed a Motion to Vacate Plea

Pursuant to Criminal Rule 32.1 of tiie Ohio Rules of Criminal Proce.dtare. The State of

Ohio fited:a Contra Memorandum on or about January 16, 20 131. The Motion to Vacate

Guiity Piea was overru4ed on or about January 17, 2013 and journalized on February

14, 2p13:

Prior to a hearing that was hefd on January 117, 2013, counsel for Defendant

asked the Court, off the record for an opportunity to respond to the Contra

5

1Vl,emorandum of the State of Ohio and for a full hearing, which was denied by the Court.

The Court indicated to the parties that is was going to rule on the pleadings filed by the

parties only and nofi have a hearing with witness testimo ny.

Subsequently, Ms, Radovanic timely filed an appeal to the Franklin County court

of Appeals, Tenth Appellate District. The ruling of the trial court was affirnhed on

Septomber 24; 201 3.

AR,G UtIEtENT

Standard af Review

This Court reviews a trial courrt's denial ofa post"sentence motion to withdraw a

guilty plea under an abuse of discretion standard, See State v. Spivey, 692 N.E,2d 151

(Ohio '1998), State v. f°lameci, 577 N.E.2d I111 (8th Dist.. Ohio 1989) (holding defendant

entitled to hearing on post-sentence motion to withdraw plea where allegation of

inefFeetiv4 assistance of counsel would have entitled him to plea withdrawal if proven).

Abuse of discretion in this context is defined as the denial of a motion that is

unreasonable, arbitrary, or uneonscionable. AccordinglY, because Mr. Radovanic's

appeal is premised .on th.e deniai of a motion to vacate, this court employs the abuse of

discretion standard. 1Vloreover, because the Trial Court failed to hold a hearing, and

dismissed the motion without: considering the eq'uities or conducting an evidentiary

hearing the Trial Court acted arbitra,rily, and unreasonably. Therefore, under the abuse

of discretion stendard this Court should reverse Trial Court, or at the very.least, reverse

and remand so a proper hoaring can be held.

6

By denying Ms. Radovanic's motion to vacate without granting ahearing, the Tria1 Court abused its discretion and committed areversible error kaecause the motion articulated more than sufficientfacts to warr,ant relief.

This Courtshcuid reverse and r,emand hecausO a trial court abuses its discretion

ir+rhen it summarily denies a motion to vacate without considering a case's merits, which

if proven show an individual wouid. entitle the movant to relief. See State v. Spivey, 692

N:E.2d I51 (fJhio 1998); State v. Hamed; 577 N.E.2d 1111 (8th Dist, Ohio 1989) (A

defendant is entitled to an evidentiary hearing on his post-sentence motion to withdraw

his pfea if the facts alleged by defendant, if accepted as true, would require the courk.to

permit the piea to be withdrawn).

Ms, Radovanic entered a guilty plea and ascepted the consequenees of her

actions. However, because of her plea, the U.S. Department ef. Health & Human

Services then imposed asubsequent;penalty depriving Ms. Radovariic of her ability ta

work and support herself: This deprivation of one's: means to support herself constitutes

a°'fundamentai flaw in the proceedings which results in a miscarriage of justiceor is

inconsistent with the demands of due: process." See State v. Wooden, 2004-Ohio-588,

unreported, WL 239996 at *10 (Ohio Ct. App. 1011, Dist. 2004),

"Nlanifest injustice", is a vague term for which courts do not have a ciear

definitior► .See id., see also State v. Smith, 361 N.E::2d 1324 (Ohio 1977). A plea should

be vacated when a defendant is misled into thinking there wiil be no'additiona! penalty

imposed by a separate government agency that irripedes a defendant's ability to

support herself. See e.g., State v. Harack, 2011 -Ohio-6021, 966 N.E<2d 925 (12th Dist.

7

C:lermont County 20;1). !ri Harack, the court vacated the defendant's plea, holding that

he suffered a manifest injustice when he was misled into entering a plea not realizing it

carried a seac offender registration requirement which impacted his career and ability to

find work.

This cciurt should vacate Ms. Radovanic's plea, based on the reasoning

articulated in Herack. It is manifastly unjust for a defendant to suffer unforeseen

consequences c€ a plea that are so severe they impede that individual's only means to

suppnrt herself: See State v. Powel% 188 Ohio App.3d 232, 2010-Oh3o-3"247, 935:

N.E.2d 85 (2010) (finding manifest injustice where defendant^rvas not tt^fdthat reparting

time for sexualclassification was 15" years and when defendant should not have been

sentenced as a Tier 1 offender for msdemeanorvayeurisrn). The"se cases mirror Ms.

Radovanic's situatioh: Because of her plea, she has been placed eh an "excluded" list

registered with the Department of Health & Human Services. This consequence is

drastic, and was completely unforeseen to both Ms. Rad'ovanic and the Trial Court, Had

iVls: Ra,davani.c knewri her piea wou{d trigger the U.S. Department of Healfh & Human

Services' "scrutirly, she wauld not have entered into a d"ea[that would undermine her

ability to work in the onIy industryshe can. 1c1.

Ms: Radovanic does not contend that she lost employment because of her plea.

Rather, because of the "excluded" status the Department of Health & Hurnan Services

imputed to her because of the plea, siie has been deprive. d, of "her "ability to work in the

onlyindustry she has workad for the last 30 years.

8

cONCLlJSION

Accordingly, for the foregoing reasons this Courtshould eccept,jurisdiction of this

cas'e as Ms. Radovanic has suffered a manifest injustice in that she cannot gain

employment because the trial court accepted an invalid piea;

Respeetfully submitted,

^ ^ CSe-s IR /^"

Richarcl H. Drucicer (0602466)7Q0 W. St. Clair AvenueHoyt Btock:^S.uite 214Cleveland, Ohio 44113(216) 771 1900

CERTIFiC:A;TE OF SEfiVICE

Acapy of the foregoing brief on appeal has been served by fir•st class mil on

this 7t" day of November, 2013 by first^class mi{, at the below listed address.

Maritsa A. Flaherty, Esq.Ohio Attorney General150 East Gay Street; 17t" flaorColumbus, Ohio 43215

RiGhard N. Dcucker (OO02466)

9

IN TT-IE COURT OF A.PPEt\LS OF01I10

TENTH ,APPEi LF1TE DISI'RICT

State of (?hia,

Ylairrtiff-A,ppellee;

v.

Rosemarie Radovanic,

Defendant-Appellant;

No. 73<<1.P-193(C:P.C, NO. I iCR-zz-bb®g)

(REGULAR CALENDAR)

JUDCMENT ENTRY

For the reasons stated.. in the decisinn of this court rendered her,ein on

September 24, P-013, appellant's single assignment of error is overruled, and it is the

judginent and o.rder of this court tbat the judgment of the Franlclin Count-y Court of

Common Pleas is affirined. Costs are assessed against appellant.

BROWhT, J., KIATT, P.J,, & T. BRY.ANT, ,7,

/B/Judge Susan Brovni.

T. BRYA.N'I', J,, redrcd of the Third AppeIlateDistrict, assigned lo active duty under authorit-y of-the-Qhio Constitution, Article TG', 5eclion b(C).

^

,10

Tenth District Courf of Appeals

Date: 09-24-201:3

Case Title: STATE OF OIIIO -VS- ROSE RADOVANIC

C;ase Nuruber;: I 3 f1P000 i 93

Typc; JEJ - JUDGMENT ENTI'..Y

So Qrdered

._:

(s/ Judge Stisan Brown, P.J.

Eldc[ronically. s'sgned on 2013-Sop=N page 2 of2

11

IN TI lE'. COURT .®F APPEALS Or OHIO

TENTH APPELLATE DZSTP,.IC'I'

State of Ohio;

FlaintifE Appellee; N"o. 13AP-i93(C:P;C, No. iiCR-.i2-609)

V.

(REGULAR CALENDAR)Roseii'larie RcRCiovanic,

Defendant-Appell.a:nt.

D E C I S 1 0 N

Rendered on September.24, 2018

Pffclaael DeWine, Attorney General, and It2izritsa A. rtalaerty;for zp;p-ellee.

Richard H. Drucker, for appel7ant.

APPEAL from the FranTclin Cotinty Court of Common f'leas..

B!?-OYVN, J.

i} This is ai'z appeal by defendant-appellant, Rosemarie ftadovan.ic, from a

jtidgrzient of the rrazalcIin County Court of Coxnmon Plea.s denying appellant"s motion to

vacate 1-i er g,tiiJ:ty-bl ea,

{°( 2} On December -Dz;: 2ol1, appellant was ind;cfied for tl3eft; by deception, in

violation of R,C. 2918.o2(A) CA a felony of the third dc^ree. The indictment al-so named

as defendants Carolyn Lane and a corporation, "°A Caring Altei-native." On May 21, 2012,

appellant entered a> guilty plea to one count of theft by deception, a folony of the fourtll

degree;

12

No. x3Af'-193 2

{$3} By enfiry filed. June 5, 2012, the trial court sentenced appellant to a five-year

peziocl af community cor.tr.c,l and ordered her to pay restitution in tlie amount of

$261,870. j°. On November 15, 2or2,a probation officer filed a request for revocation of

probat:on alleging that appellant "ilas been working in the llome health field as an owner

of Evercare and Precious Gems Hea[tli Care, L:LC contrary to the order of tlic Court:"

{T 4} Cn January 11, 201;,, appellant filed a zl-,otion to vacate her guilty plea

pursuarit to Criin,.Iz. 32;7,. In tlie accompariying memorandum in support, appellant

<asserked slie had sufferedmanifest injustice. resulting from her plea. More::specifically,

appellan.t argued she had been.deprived of her inea:n:s to earn a living bec^iuse the United

States Departrnent of Health anct Human Services ;{"DIIk-IS") had imposed an expai7sive

restriction upon her after she entered the plea. fJn January 16, 2'013, the state filed a

iTienxoz-andum contra. By entry filed February 14,,2,013, the tria.l court denied appellant's

motyon to vacate:

{^( 5) On 6ppeal, appellant sets forth the following assignment of error for this

court'sreview:

The Trial Court erred, azid abused its discretion and causedMs. lZaclow-mic a mariifest inju;5tice M7en it accepted [a] guiltyplea, vAYiclr plea has sazniua:•il,,r ]),-Irred her frorn employrnent;then denied Ms. Radovanic's iylotion to j%'<icate Guiilty Pieawiti-aout grarkling an `vialezitiai7y hearing to consider the case'smerits.

{TG} Under her sirzgle assigziment of error, appellant asserts the trial Wurt erred

in denying her iriUtiorz to vacafe. Appellant further argues that the coart erred in not

gi;anting an evidentiary hearing on the motion.

iqf 7) Crim.R. 32:1 states: "A motion to witliciz•aw a plea of guilty oz• 1io contesti

may be made onlybefore sentence is imposed; but to correct inanifest inj-tistice the court

afCer sentenee may set aside the judgment of conviction and permit the defenc?ant ! a

withdraw his or her plea." The term "manifest injustice" "relates to s4me fundamertal

flaw in the proceedings which results in a miscarriage of justZce.or is rnconsistent withthe

demands of due proeess." State u. Spivalcov, loth Dist. No. 13E1P-32; 2oi3-0hio-;3q.3,

Io, Ci-bng StCC1"e v. Wi.lLtaflls, 1.ot11 Dist. I'1o. 03A17-1214 , 2004-4hio-6123, 11 3: A

defendant "bears flxe burden of establishing a r7.anifest injustice laasecl an specific facts in

'13

No. 13AP-193 3

the record oz- factssupplied througl7 affidavits attached ¢o the motion:" State u. Sansone,

loth D7st. No. I1A:E?-^99, 20i2-O11:0-2736,117, citang State v. _Tlagler, ioth Dist: No. ioAP=

291, 2o1o-.Ohio-61z3> f 7:

{I8} A ni c,tion by a defendant.seelcing to witlidraw a guilty, plea after sentencing

"2s.addressed to thesound discrction of the trial court." State v. Smith, 49 Ohio St.2d 261

(1977), paragraph two ofthe syllabus Thus, an appellate court will iiot reverse a trial

court's decision absent anabuse of discretion. State v. Ogle, 4th Dist. No. .tzCA.29, zox3-

CJhio-.34?0, 1181.

{13} Under Oluc? law; "[a] trial court is not automatically required to 17old, a

hearing on a post-sentence motion 'to withdraw a plea of guilty:" State v. Bari°ett; lotla

Dist. No. xa:AF'-375; 2m-Ohio-4986; 119. Rather, "a trial court need only conduct an

edridentiary hearing twien the facts, as alleged by the tlefeiadant, indicate a manifest

injustAce would occ.uz• if t)ie plea was.allowed to stanci." S'tate V. Vincent, 4th Dist: Ncr.

03CA2713, ': oo;-C?hio-3998, 91 io. See atso State v. .Buc7:, gtli Dist. No. 04CAoo85i6;

2oo5-c?hia-2810, C-1uoting State u> Russ, 8th Dist. No:. &5.8o, 2oag,-Ohio-looi; ¶ m

("Ym eviden:tiaiy, hearing on a post-sentence motion to tvitlldra'w a guilty plea is not

i^equired if the 'record iildicates that the movant is not entitled to reli^f <aTid thie rnovant

h,as failed to submit evidential-y documents suf:ticieirt to demorIskrate a manifest

injustice.'

{I 10} .Appellant argues t11at,,because of her guiltgj plea, DHHS placed her, on an

excluded list, effectively d.epriuing her of the ability to worlc and support herself.

Appellant maintains it is .n1anifestly unjust for a criininal. defendant to suffer unforeseen

consequences of a.plea that are so severe as to impede that indiuidual"s "only„ means of

support:

{lf 11}- In its entry denyAngg appellant°s motion to vacate, the trial court held in

rel'ev{:nt nart;

The Defendant entered her plea on May 5, 2012 and wassentenced on .7une ;,, 20.12- Some seven (;7) montlis later shefiled a hIIotitin tc,z Vacate her plea. :i'lie nefencant coanplainsrltLiL sl-ic- was uziaivare her convictims viould, of- cotild leacl, tticiic cc,2la.teral conscquences of iaer ueing unable to beerzl}3loyed in the riv.rsing cale or lioane liEalth care fieiclsp;xifically in cases which provide for 1VIedicaid and 1VMedzeare

14

rvo; 13:%2-193

s•eir!ib ir.senient. Tlie Defendant's clainis are w^thout, merit.T'Iie.I'rosec,ztiozi.produced e-n-iails estab Iisliizig Defenclant andlier coizzisel were aware of the collatetal consequences.

1\4oreover, the Court as a conditiorz of probation limited theDEfe.Idarit's aL:lity to be engaged in the hoyne health carefielc1. TI-L7as; the Defendaiit Icnew as c3rly 2s May that t.lleauilty: plea woald impact liel• potential fi7ture ein,ployrnent inthat l:eld. IIowever, despite this Ia7owledge she waited seven(7) months to raise tlze issue;

Ma?°eover, the .I)efendant's complairit is corasidered acollateral consequence of her plea and the Court t,vas notreqtiii.-ed to inform the; Defendant of all pnssible collatz;ralccins::cluerices. `1'la4 Court fully complied with Crizn.R, zz andt(;us the Defend-wit`s plea was a valid plea:

4

($12} `1'lle record supports the irial court's fizzding;that appellant and her counsel

were informed, prior to the plea, of the potential consequence of being. placed o1i the

federal exchrsion lisE. .tlttached to tlie state's memorandum contra the motion to vacate

was the: af6davit of,Maritsa A. Flaherty;. an attorney employed in the I-Iealth. Care Fraud

Seclion of the Ohio Attorney Genexal's Office. According to the affidavit, Flaherly served

as c;o-:counsel in the cbanirioii pleas case irivolving appellant, and Flaherty "had

conversationswith Ivls. Radovanic's defense counsel -, regarding the federal exclusion,"

and sent defezise counsel "two emails in regards to the federal exclusion,"

{¶ .13^ Flaherty frirther states in the affidavit that she discussed the federal

exclusiozi witli appellant prior tn appellant testifying against laet co-defendant; Carolyn_

Lane. 1Vlore specifica]ly, Flaherty ave:rs slie irzforzned appellant; I could riot ad-crise her

about. the ftitll extentof the federal exclusion," but "I suggested she coniact [tl,e t3fficE: of

Isispector Ge11 erall, in orcl:er to dctc.rzaiue the scope of the exclusion."

14} Also afitzched to the staLe°s aneinorandum contra were copies of two emails

from Flaherty to appellant's counsel. One of the .emails sets fortlz tlae text of 42 USC

i; _)oa-7; in that eznail, dated May 8, zox2, Flahert,y. states to counsel: "This is the federal

cc,dc section regardir ; exclusiozl from participating in any Federal health care pragrazn

(which obviously includes Medicaid) upon heing convicted of a program related offense.

The exclusion is -for iive-years regardless of whether the conviction is a misdemeanor or

15

No. 13Ai?-193 3

IE:lony. Tliere really is no way arouncl this froin inyend." In the otlTer email, dated May 9;

2oz2, Flal erty states to appellant's counsel: "Below, is tlie [Office of Inspector General]

website that t:iscusses federal excl,.rosions. ':[hei`e is a FAQ section tla,at irlay be helpful.

Miile.I cannot adviseyoux client tlze f-uIl extent of'sie exclusion; I can tell you that we are

mandated to report tlie con -vic.tion =rYiii6a will er.eate. a niazidatory 3-year ea_clusion."

{¶ 15} Y1-nd.sr Qllio law, in order for a guiityr plea to be valid it "must be inade

voluntarily aiid int.elligentljr." Stcrte u..Harris, 6;:h Dist..No. E-o6-1o15; 2007-0hio-6362,

1120. A, plea "must be made with knowledge oi the ^relevant circumstances and lilcely

consequences.' '° Id.; quoting Brady v. United States, 397 TJ.S. 742, 748 (I 970). Futther;

"in order for a plea to be luiowing, voluntaiy, and intelligent, a defendant must only be

made aware of the direct consequences of the plea, and the tzi-al couz-t is not required to

infoxm the defendant of all possible collateral consequences." State v. Duinas, ioth Dist.

No. o8AAf'-179, 2oo:8-Ohio-4896r ¶ 14, citing Harris, citing Kircg v. Dzit•ton 17 F.ScI 151

(6th Cir,a.99q^.). See also State u. 1)otsoii, 4th Dist. No. 99CA33 (Mar. 12, 2oox) (while a

court must inform a defondant of the direct consequences of a guiltyplea, such as the

nature of the charges, „i:hecourt is not required to inform the defendant of the collateral

consequences of his plea").. (Em.plaa.sis sic.) A clirect consequence. of a plea "is an

'in7mecliate arid automatic' consequence." Harris at 11 ^?o, cltioting: United States zi.

Jordan, $70 F>'d i.310,13r7 (7th Cir.ipSy)•

16; As ci'Ler:i above, the trial court held that possible a^-an-liflcatioas -,nRth respect

to exclusion from, federal MediesLid and Medicare programs were deemed collateral

consequences of tlae plea. While there appear to be no Ohio cases directly on point, courts;

in other jurisdictions have held that, exclusion from participation in federally funded

liealth care programs is a collateral consequence of a plea. See State v. Merten, 256

Wis.?`l 588, 597-9$ (2003) (tlie effect of 42 U.S.C. 132oa-7(a)(4) was a "collatekal

consequence" of defendant's plea, and thus the court was not required to inform him of

tlie statutn's effect prior to talzi,ng his plea); State v. Albiight; 1K9o-o5-ol13-Ri

(De1:Super. "Tan, ip; 1994) (defendant's "civil exclusion.from the Medicare an'd State

Health I'rograln for five years pursuant t0 42 U.S.C. § 73209-7(c)0) is a collateral civil

coias:e ;uesce of ^.vhieli he need not be inforriied for the criminal conviction to be valid'`.);

.UniteciStutles v. Alanocctz:io, S.D.Fla, No. gx-6778-(.;IV-Zf,UCH (Feb. xo, 1994) (exclusion

16

No. 13AP-x }3 6

from Medicare program "is a coIlateral coz7setltiencp of agualty plea").; We ^i ndp.ea•suasive

t.liose cases bolding thut a tfefer.ciant's exclusion from federal health cure programs is a

Ollateral (anO r,ot direct) c.onseu-Lle3lce of theplea>

{^f 17) As previously discussed, tlie record supports the trial court's deterrnination

that appeilant ariO her counsel were inade aware of her potentia.l exclusiori froin

participai:on zn ferlerallyr funcled:healffi.care programs praor to her plea. Further, the trial

courr was not reel9airerl to °inforin appellant of all collateral consetluences of her plea, and

ar:y, l;urported failure by the court to inform. appellant of these consequences did not

rcnder the plea invalid or create a manifest injustice.. Dumczs at ¶ 14; Accordingly, the

court did not 4bt.lse its Gdiscretiozi in denying appellant's motion to vacate her plea.

<tnallyr, because appellant cannot demonstrate that withdrawal of the plea is necessary to

correct a mallifest i3ljustiCe, tlZetrial coZ2rt did :nofi err in deciding the 1Tlotion without first

cor.ducting a hearing. Buck at T 14.

{l.18} Based upon the foregaing, appellant's single assignment, of e"rror is

overruled, and the judgmeia.t of the T'ranlrlinCounty Court of Comznon Fleas rs herehy

a^fF'irmed.

Judgment af,irmed.

KLATT, P.J., and'I': BRYANT, J., concur._

T., BR:YAN'JC, J., retired of fhe Third Appellate District,assigned to active duty under autiiority of the OhroConstitutioil; Artiele IV, Section 6(Q.

17