Opinion
Court of Appeals No. A-10869 Trial Court No. 3AN-07-4159 CR No. 5875
09-05-2012
RADENKO R. JOVANOV, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Jack
Smith and Patrick J. McKay, Judges.
Appearances: Dan S. Bair, Assistant Public Advocate, and
Richard Allen, Public Advocate, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and John J.
Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
Radenko R. Jovanov entered no contest pleas to two counts of sexual abuse of a minor in the second degree. A defendant who is convicted of sexual abuse of a minor in the second degree is required to register as a sex offender. When a defendant enters a plea to a charge which requires him to register as a sex offender, the court is required to inform the defendant in writing of the requirements of the sex offender registration statute. When Jovanov entered his plea, Superior Court Judge Patrick J. McKay did not inform him of his duty to register as a sex offender.
AS 12.63.010(a); AS 12.63.100(6)(B)(iv).
Following Jovanov's trial on related charges, in which the jury acquitted Jovanov of two charges and was unable to reach a verdict on two others, Jovanov moved to withdraw his earlier pleas on the ground that the trial court had not complied with Criminal Rule 11(c)(4) because it had not informed him of his duty to register as a sex offender. Jovanov claimed he would not have entered the pleas if he had been aware that he would be required to register as a sex offender. Superior Court Judge Jack Smith denied the motion, rejecting Jovanov's claim that, when he entered his pleas, he was unaware of his duty to register as a sex offender and would not have entered those pleas if he had been aware. We affirm.
Factual and procedural background
Radenko Jovanov was charged with four unclassified felonies — two counts of sexual assault in the first degree, and two counts of sexual abuse of a minor in the first degree. Jovanov was also charged with two class B felonies — two counts of sexual abuse of a minor in the second degree. All of these charges arose from allegations that Jovanov had digitally penetrated and had sexual intercourse with a 13-year-old girl.
AS 11.41.410(a)(1).
AS 11.41.434(a)(3)(B).
AS 11.41.436(a)(1).
On the eve of trial, and with the advice of his counsel, Jovanov decided, as a tactical matter, to enter no contest pleas to the two class B felonies. The strategy was for Jovanov to be able to argue to the jury that he entered these pleas because he accepted responsibility for his unlawful conduct, and that he only contested the charges that were unfounded.
This was the strategy that Jovanov employed, apparently successfully, at trial. The jury was specifically instructed that Jovanov pleaded no contest to the charges of sexual abuse of a minor in the second degree. Jovanov argued that he accepted responsibility for his acts and had entered pleas to the offenses he actually committed. The jury ultimately returned a verdict of not guilty on the charges of sexual assault in the first degree and was unable to reach a verdict on the charges of sexual abuse of a minor in the first degree. Thus Jovanov was able to avoid conviction on all four unclassified felonies.
The sentencing hearing on the two charges of sexual abuse of a minor in the second degree was continued several times. The State allowed the speedy trial rule to run on the two unclassified felonies on which the jury had been unable to reach a verdict. Then, the day before the sentencing hearing Jovanov filed the motion to withdraw his pleas.
Superior Court Judge Jack Smith conducted an evidentiary hearing on Jovanov's motion. Jovanov's trial attorney and Jovanov both testified at the hearing.
One week after the evidentiary hearing, Judge Smith entered his findings on the record. Judge Smith observed that Jovanov had tactically used the fact that he had entered his pleas to the lesser charges to successfully defend himself against the more serious charges. And he observed that Jovanov had not moved to withdraw his plea until Criminal Rule 45 had run on the two charges on which the jury was unable to reach a verdict.
Judge Smith ultimately concluded that Jovanov was aware of the requirement that he would be required to register as a sex offender when he entered his pleas to sexual abuse of a minor in the second degree. He also concluded that Jovanov had entered his plea solely for tactical considerations and that his later attempt to withdraw his plea was "an obvious manipulation of the court system." He concluded that Jovanov had not established grounds to withdraw his plea and denied Jovanov's motion.
Why we uphold Judge Smith's decision
When a defendant moves to withdraw his plea before sentencing, the trial court must allow the defendant to withdraw his plea if the defendant "proves that withdrawal is necessary to correct manifest injustice." In the event the defendant does not demonstrate manifest injustice, "the trial court may in its discretion allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea."
Id.
A court's failure to warn a defendant of the requirement of sex offender registration is potentially manifest injustice. But there is "no injustice if, for example, the defendant was otherwise aware of the registration requirement or if the defendant would have entered the plea anyway."
Peterson v. State, 988 P.2d 109, 119 (Alaska App. 1999).
Id.
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Judge Smith rejected Jovanov's testimony that, he would not have entered his no contest pleas if he had known he would be required to register as a sex offender. The record shows that Jovanov entered his pleas as part of a strategy, ultimately successful, to defend himself against much more serious charges. At the evidentiary hearing on the motion to withdraw his plea, Jovanov testified that he entered his pleas because, based upon the evidence against him, he did not believe that he could successfully defend against the more serious charges unless he conceded his guilt on the lesser charges. He stated that, later, after he got a better look at the evidence, he concluded that he had a better chance to prevail and wanted to withdraw his plea. This testimony, coupled with the other evidence of Jovanov's trial strategy, supports Judge Smith's conclusion that Jovanov's decision to enter his plea was dictated by his trial strategy and not by the fact that he would have to register as a sex offender. The same evidence supports Judge Smith's conclusion that Jovanov's later efforts to withdraw the pleas were "an obvious manipulation of the court system." It also supports Judge Smith's conclusion that the State would be substantially prejudiced by allowing Jovanov to withdraw his plea.
In a related argument, Jovanov points out that the sex offender registration statute, AS 12.63.010, "contain[s] much more than the mere fact that one must register upon conviction for a sexual offense." Jovanov argues that, even if he had been aware of his duty to register as a sex offender, the trial court was required to make sure he was informed of all of these requirements.
In the evidentiary hearing, Jovanov testified that he would not have entered his plea had he been aware that he would have to register as a sex offender. He never alleged that he would not have entered his plea had he been aware of the specific requirements of the sex offender statute. And Judge Smith's findings effectively dispose of Jovanov's contention: Judge Smith rejected Jovanov's testimony that he would not have entered his pleas had he been aware of his duty to register as a sex offender. Since Jovanov never testified that he did not enter his plea because of the specific requirements of the sex offender statute, Judge Smith was not required to directly address that contention.
We conclude that the superior court did not err in rejecting Jovanov's claim that he established either manifest injustice or a fair and just reason for withdrawing his pleas.
The judgment of the superior court is AFFIRMED.