STATE OF NEW JERSEY v. HOANG VAN NGUYEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0610-07T40610-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HOANG VAN NGUYEN a/k/a

HOANG VON NGUYEN,

HOANG V. NGUYEN,

HOANG VANGUYEN

and HOANG MGUYEN,

Defendant-Appellant.

______________________________________

 

Submitted December 8, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-07-1183.

Yvonne Smith Segars, Public Defender, attorney for appellant (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Jordan S. Goldsmith, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Hoang Van Nguyen appeals from an order denying his motion to withdraw a guilty plea, entered in connection with a plea agreement, prior to sentencing. Defendant and co-defendants Biens Vu and Hoa Tran, all Vietnamese nationals, were arrested in connection with robberies of Jersey City Health and Diet Clinic customers. Defendants were indicted and charged with three counts of armed robbery, N.J.S.A. 2C:15-1 (counts one, two and three); three counts of kidnapping, N.J.S.A. 2C:13-1(b) (counts four, five and six); one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven); one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eight); and one count of terroristic threats, N.J.S.A. 2C:12-3(b) (count nine).

Defendants and the State negotiated a plea agreement. Pursuant to the terms of the agreements, defendants would plead guilty to one count of armed robbery, and the State would dismiss all remaining charges and recommend sentencing in the range for an offense one degree lower than that charged. During a December 16, 2004 hearing, with the assistance of a Vietnamese interpreter, the trial judge advised defendants of their rights by questioning the three simultaneously regarding their understanding of those rights and the consequences of entering a guilty plea.

Prior to sentencing, defendant, accompanied by different counsel, moved to vacate his plea, asserting he misunderstood the translator and pleaded guilty under pressure from counsel. Co-defendants filed similar motions. Following a plenary review of the combined motions, the trial judge considered the testimony of the interpreter and Tran. The court denied the motions and sentenced defendants pursuant to the terms of the plea agreement. Accordingly, defendant was sentenced within the second-degree range to a five-year term of incarceration subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).

On appeal, defendant presents these arguments for consideration:

POINT I

BY SIMULTANEOUSLY ADVISING MR. NGUYEN AND HIS TWO CODEFENDANTS OF THEIR RIGHTS AND ASCERTAINING THE VOLUNTARINESS OF THEIR GUILTY PLEAS THROUGH A LANGUAGE INTERPRETER, THE TRIAL COURT BREACHED THE DICTATES OF R[ULE] 3:9-2, THEREBY DENYING MR. NGUYEN DUE PROCESS, AND PRECLUDING A FINDING THAT HIS PLEA HAD BEEN ENTERED VOLUNTARILY AND KNOWINGLY. (Not Raised Below).

POINT II

MR. NGUYEN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA. U.S. CONST., AMEND. VI; N.J. CONST. (1947), ART. I 10 (Not Raised Below).

Following our review, we conclude the failure to make an individual inquiry of each defendant's knowing and voluntary waiver of his rights upon entry of the guilty plea violates procedural due process. We reverse defendant's conviction and vacate his guilty plea, remanding the matter for a new trial.

These are the facts surrounding the plea colloquy. Defendant was born in Vietnam in 1968 and attended only two years of school. He emigrated to the United States in 1989 and, at the time of his plea, was not proficient in reading or writing in either Vietnamese or English. Accordingly, a Vietnamese interpreter, Quock Duong, was retained for all court proceedings. During the plea hearing under review, all three co-defendants appeared and Duong was the sole interpreter.

On December 16, 2004, counsel represented defendants would accept a plea offer: in exchange for pleading guilty to one count of armed robbery, defendants would be sentenced to a term of incarceration in the second-degree range, between five and seven years, subject to NERA.

The plea agreement form was reviewed by defendant and his assigned counsel, who later explained to the court that when the proposed plea agreement was reviewed, the questions were recited by the interpreter "once to everybody."

With respect to the defendants' pleas, the court suggested a similar procedure be used, stating "we can do all three at once," then proceeded to ask questions "one time[.]" Thus, "[o]ne yes" by the interpreter "would indicate all three" defendants responded "yes." Reaffirming this procedure, the court instructed the interpreter as follows:

THE COURT: Interpreter, when you're saying yes, you're saying yes for the three gentlemen; correct?

THE INTERPRETER: Yes for three gentlemen.

THE COURT: Okay. In other words instead of saying yes three times.

THE INTERPRETER: Your honor, after does the Court want the Interpreter say yes three times or -

THE COURT: No. Just yes once for the three of them.

THE INTERPRETER: Yes.

The court then began its colloquy with the defendants stating:

Now, if I don't accept the plea from each of you, if you each don't plead guilty now, if I don't sentence you within the plea as I explain it, it will go back to not guilty, nothing you say will be used against you today, and we'll have a trial next -- in the next month or two.

Do you all understand that?

The court explained that once a guilty plea was accepted, and the court determined it was voluntarily made, a later attempt to withdraw the plea would likely be unsuccessful and conviction after the plea could result in deportation, a denial of naturalization or adversely affect a residency visa.

The court individually inquired whether each defendant was satisfied with his counsel's representation. Although the interpreter expressed one "yes," defendant's attorney interjected that his client had stated he did not want him to continue representing him. The trial judge again asked defendant whether he was satisfied with counsel's services, and defendant responded affirmatively.

The court continued its simultaneous inquiry procedure questioning the voluntariness of defendants' pleas. After the State recited the terms of the proposed plea agreement, defendants were collectively examined by the court, which asked, among other questions: whether defendants understood the possible sentence to be imposed under the offense as charged and as negotiated in the plea agreement; the period of parole ineligibility; the right to a jury trial; the presumption of innocence; the right to remain silent; the right to confront witnesses; and that entry of a plea was a waiver of these rights. After again asking the group whether they understood the plea agreement, the court asked whether any additional promises were made to defendants to enter the pleas.

Thereafter, each defendant was examined by respective counsel as to the factual basis for the plea. Going first, Tran responded affirmatively to the question of whether on February 27, 2004, he took property owned by the victim while armed with a knife. Next, Vu responded to similar questions. Finally, defendant was questioned, responding "yes" when asked whether he, with the consent and help of his co-defendants, confronted the victim inside her business, took money from her while he was in possession of a knife and whether he knew his conduct was illegal. The court specifically asked defendant whether he desired to plead guilty, to which he said, "yes." None of the defendants provided a narrative statement of their actions.

Thereafter, each defendant moved to vacate his plea. The motion papers are not included in the record, but the court's statements reflect defendant alleged he did not understand the interpreter, the court or his attorney and that counsel had not effectively represented him. New counsel was appointed for defendant, and a hearing on the consolidated motions was held.

Defendant's newly assigned attorney was not present at the commencement of the hearing. Initially, the court stated it would schedule a separate hearing for defendant. However, counsel arrived sometime during Duong's examination and participated in cross-examination. Tran also testified but was not asked questions by defendant's counsel. Defendant did not testify.

The motion was adjourned to allow counsel to interview and, as necessary, call prior counsel as witnesses. Upon resumption of the hearing, defendant's counsel stated:

There's nothing that I could advance, and no benefit to having [prior counsel] testify that he coerced or forced [defendant] to enter into these pleas . . . you can see from the transcript . . . and the length of the time that we spent with the interpreter that originally did the interpretation, there's really no basis for us to go forward, so I'm going to ask that you sentence my client forthwith.

No further argument was offered and defendant submitted to the determination of the court.

The court found Duong "very credible." As to Tran, the judge stated he was "[o]ne of the most incredible witnesses I've seen in many years. I don't believe a thing he said on this record under oath. Not a thing. He understood everything completely." Additionally, the court determined co-defendants were "simply going along with anything that Mr. Tran brings forward" and concluded, "[i]f there was ever a plea that withstands scrutiny, it's this one." The motions to vacate the guilty pleas were denied and sentence imposed.

Defendant argues "the highly irregular procedure" employed during the plea hearing violated the requirements of Rule 3:9-2 and impaired his due process rights. The State decries any purported procedural flaws and argues that in light of the record showing he entered into his plea knowingly and voluntarily and offered an adequate factual basis admitting guilt, the trial court did not abuse its discretion by refusing to allow withdrawal.

When examining a trial court's denial of a defendant's request to withdraw a guilty plea, we reverse "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999) (citing State v. Smullen, 118 N.J. 408, 416 (1990)).

"[I]t is clear that the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion. Any other approach would automatically require a trial judge to grant such motions, and strip him of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion."

[State v. Luckey, 366 N.J. Super. 79, 86-87 (App. Div. 2004) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)).]

Although a motion to withdraw a plea before sentencing should be liberally granted, State v. Deutsch, 34 N.J. 190, 198 (1961), when the plea is part of a plea agreement, the defendant's "'burden of presenting a plausible basis for his request to withdraw . . . is heavier.'" Smullen, supra, 118 N.J. at 416 (quoting Huntley, supra, 129 N.J. Super. at 18). A defendant who voluntarily and knowingly enters into a plea agreement "will not be permitted to withdraw his plea of guilty simply because of a 'whimsical change of mind' or a 'belated assertion of innocence.'" State v. Bilse, 244 N.J. Super. 20, 29 (Law Div. 1990) (quoting Huntley, supra, 129 N.J. Super. at 18); State v. Rodriquez, 179 N.J. Super. 129, 136 (App. Div. 1981).

"To vacate the plea, [a] defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement." State v. Howard, 110 N.J. 113, 123 (1988). A voluntary plea should not generally be vacated absent "some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992).

Defendants who plead guilty waive constitutional guarantees including the right to a jury trial, the right against self-incrimination, and the right to confront one's accusers. State v. Slater, 198 N.J. 145, 154 (2009). "Because of the overriding importance of those protections, the court rules are designed to ensure that pleas are supported by a factual basis and are entered voluntarily and knowingly, that is, with a full understanding of the charge and the consequences of the plea." Id. at 154-55; State v. Johnson, 182 N.J. 232, 236 (2005); State v. Barboza, 115 N.J. 415, 420-21 (1989). "A guilty plea that is not voluntary and knowing violates due process and thus is constitutionally defective." State ex rel. T.M., 166 N.J. 319, 327 (2001) (citing McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418, 425 (1969)); Barboza, supra, 115 N.J. at 421 n.1; State v. Warren, 115 N.J. 433, 445-46 (1989). It is against these standards that we review defendant's arguments.

In Slater, supra, 198 N.J. at 150, the Supreme Court synthesized our case law, setting forth a concise four-pronged analysis for evaluating motions to withdraw guilty pleas. The following factors must be considered: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. Ibid.

As the Court stated, "[c]onsideration of a plea withdrawal request can and should begin with proof that before accepting the plea, the trial court followed the dictates of Rule 3:9-2." Slater, supra, 198 N.J. at 155. The Rule provides in relevant part:

The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such a plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

[R. 3:9-2 (emphasis added).]

The procedural prerequisites of the Rule are not perfunctory; "different defendants require courts to act flexibly to achieve constitutional ends[.]" T.M., supra, 166 N.J. at 327. Although counsel advises a defendant of his rights and the consequences of a plea, it is the trial judge who retains the affirmative obligation to safeguard every defendant's constitutional rights and assure these protections are waived with a complete understanding of the consequences. See Id. at 326 (stating "[t]he specificity and rigor embodied in Rule 3:9-2 manifest a systemic awareness that a defendant waives significant constitutional rights when pleading guilty"). In order that a judge be "'satisfied from the lips of the defendant,'" Slater, supra, 198 N.J. at 155 (quoting Smullen, supra, 118 N.J. at 415) that he fully understands his rights and the results of their waiver, we conclude a court must examine a defendant individually before accepting a guilty plea.

In this matter, several problems are presented by the court's simultaneous inquiry of all defendants. Consequently, we conclude the plea procedure employed by the trial court did not ensure defendant made an informed and voluntary decision to plead guilty. Warren, supra, 115 N.J. at 445.

First, the court's statements strongly suggested all three defendants must act in unison. For example, when explaining the procedures the judge stated:

If you tell me something that's not true the plea could be set aside and . . . we go to trial on the case.

. . . .

Now, if I don't accept the plea from each of you, if you each don't plead guilty now, if I don't sentence you within the plea as I explain it, it will go back to not guilty, nothing you say will be used against you today, and we'll have a trial next -- in the next month or two.

[Emphasis added.]

Second, the questioning procedure eliciting one group response, that is, one "yes" was for all three defendants, makes it impossible to satisfactorily confirm defendant's responses were independent of the responses of his co-defendants. It seems clear from the motion record that Tran took the lead. The unanswerable question is whether the other defendants merely followed that lead or acted intelligently and voluntarily. Finally, because defendant is foreign-born and not proficient in English, the court's obligation to fully explore his understanding of his rights, the nature of the charges and consequences of entering a guilty plea, and to be certain defendant's waiver was voluntary, is heightened. The use of an interpreter ensures that all have equal access to court proceedings and that language is not a barrier to a litigant's full understanding thereof. N.J.S.A. 2B:8-1. This is especially true of criminal defendants. See State v. Rodriguez, 294 N.J. Super. 129, 143-45 (Law Div. 1996) (finding the constitutional rights to counsel and to confront witnesses were violated where a Spanish-speaking court-approved interpreter was not present for all hearings in municipal court on a drunk driving charge). Unfortunately, by allowing the interpreter to respond once for all defendants, due process protections for each defendant were impaired.

Even when the court specifically addressed defendant, it neglected to explore the incongruity of his answers. Illustrative of this point are defendant's responses when asked whether he was "satisfied with his lawyer's advice." During the hearing, defendant responded affirmatively, as did the others. However, defendant's counsel immediately interjected, stating defendant had expressed he "was not satisfied with my advice. Indeed, at all times he's asked me not to be his attorney." A review of question twenty-three of defendant's plea form, which had been completed immediately before the hearing, reveals defendant answered "no" to the question: "Are you satisfied with the advice you have received from your lawyer?" Defendant was not offered the chance to explain. Rather than probing these divergent responses to uncover the basis of defendant's dissatisfaction or a possible misunderstanding, the court stated:

THE COURT: Mr. Von Nguyen, we have to deal with this now. If you're going to plead guilty, then you must plead guilty now.

If not, we go to trial, that's fine.

Do you understand that?

DEFENDANT []: Yes.

THE COURT: Are you satisfied with your lawyer's advice after speaking to him, co-defendants, and everybody in the jury room together including . . . the social worker that's been here in support of you?

Are you satisfied with the advice of your lawyer[?]

DEFENDANT []: Yes.

We conclude the court insufficiently discerned whether defendant understood the nature of the inquiry and its effect. Moreover, by suggesting defendant talk with his co-defendants, the court inadvertently reinforced the possible perception of a need for group consensus.

We reject the State's argument suggesting the court's individual examination of defendant when accepting the factual basis for his guilty plea sufficiently satisfied Rule 3:9-2. We conclude this examination did not save the otherwise defective procedure, which fell short of affording defendant adequate notice of his rights and discerning his voluntary waiver.

We recognize that the terms of the plea agreement appear favorable to defendant, particularly in light of the eyewitness testimony and the evidence seized from defendants. Nevertheless, defendant has presented a persuasive challenge showing his due process rights were infringed, which compels that we vacate his plea.

 
Based upon our decision, we need not address defendant's claims of ineffective assistance of counsel. We remand the matter to the trial court for a proceeding at which defendant is individually examined pursuant to Rule 3:9-2 or allowed to withdraw his plea and proceed to trial on the charges. Reversed and remanded.

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A-0610-07T4

May 14, 2010