STATE OF NEW JERSEY v. TIMOTHY T. NGUYEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY T. NGUYEN,

Defendant-Appellant.

July 26, 2016

Submitted July 12, 2016 Decided

Before Judges Carroll and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. 03-02-0589.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

MaryEva Colalillo,Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Timothy Nguyen appeals from a May 20, 2014 order denying his petition for post-conviction relief (PCR). We affirm.

On February 10, 2003, defendant was charged in Camden County Indictment No. 03-02-0589 with second-degree conspiracy, N.J.S.A. 2C:5-2 (count five)1; second-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10) (count six); third-degree distribution of marijuana within 1000 feet of a school, N.J.S.A. 2C:35-7 (count seven); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (count eight); third degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count nine); second-degree possession with intent to distribute marijuana within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count ten); and third-degree possession with intent to distribute marijuana within 1000 feet of a school, N.J.S.A. 2C:35-7 (count eleven).

On September 7, 2004, defendant pled guilty to count nine. In return for defendant's plea, the State agreed to dismiss the remaining six charges, and to recommend a sentence of non-custodial probation. During the plea colloquy, defendant testified that he: understood the terms of the plea agreement; went over the plea forms "item-by-item" with his attorney; supplied the answers to the questions on the plea forms to his attorney; reviewed the plea forms carefully after they were completed; was satisfied with counsel's advice; and was pleading guilty voluntarily. Notably, defendant also gave the following responses when questioned by his attorney and the court

Q. Mr. Nguyen, on November 7, 2002, were you in Pennsauken Township?

A. Yes.

Q. And did you have some type of C.D.S. with you?

A. Yes.

Q. What did you have?

A. Marijuana.

Q. And how much marijuana approximately?

A. Three pounds.

Q. Three pounds?

A. Yes.

Q. And what did you intend to do with that marijuana?

A. Sell it to Mr. Tol[].

. . . .

Q. You understand that there is also a waiver of appeal in regard to this matter?

A. Yes.

Q. Did you review that subject area with your attorney before you decided to waive your right to appeal?

A. Yes.

On October 29, 2004, Judge John T. McNeill, III, sentenced defendant to a three-year term of probation. As conditions of his probation, defendant was required to maintain verifiable full-time employment, perform 200 hours of community service, and submit to a substance abuse evaluation and comply with any recommended treatment. Defendant did not file an appeal from his conviction and sentence.

On December 14, 2009, defendant filed a pro se motion to vacate his conviction. In an attached "affidavit," defendant stated that: Vietnamese is his native language and his knowledge of English is limited; no interpreter was present to assist him during the plea colloquy; his attorney instructed him to answer "yes" to the questions he was asked; and his attorney failed to explain the consequences of his plea.

Thereafter, on June 4, 2010, defendant filed a pro se petition for PCR alleging: (1) the elements of the offense were never explained to him before he entered his guilty plea; (2) he never waived his right to have the identity of the controlled dangerous substance determined by a jury; and (3) his attorney never filed a timely appeal, as instructed. After counsel was appointed to represent defendant, the State responded with a certification of defendant's plea counsel attesting that he: (1) was always able to effectively communicate with defendant and there was never the need for an interpreter; (2) explained the nature of the charges and reviewed all discovery with defendant; (3) filed a suppression motion, which was denied; and (4) was never asked to file a direct appeal. Counsel further noted that non-custodial probation was a favorable sentence in light of the second-degree charges that defendant faced.

Judge Michele M. Fox heard oral argument on defendant's PCR petition on September 11, 2013. Because defendant's pro se motion to vacate his conviction, which was treated as a petition for PCR, was filed only approximately forty-six days beyond the five-year time limitation established in Rule 3:22-12, the judge declined to dismiss defendant's petition as time-barred. Addressing the merits, the judge noted that defendant and plea counsel had submitted conflicting certifications regarding defendant's ability to understand English and communicate in the absence of an interpreter. Consequently, the judge ordered an evidentiary hearing limited to "defendant's claim that his guilty plea was not knowing and voluntary because of language issues and a failure to be afforded an interpreter at the plea hearing." The judge reserved decision on defendant's remaining claims of ineffective assistance pending the conclusion of the evidentiary hearing.

On April 8, 2014, Judge Fox conducted an evidentiary hearing. Defendant's sister testified that in 2004, defendant was able to understand basic, but not complex, English. Two of defendant's school classmates confirmed that defendant's primary language was Vietnamese and that defendant lived within the Vietnamese community in 2004.

Defendant is a naturalized United States citizen who was born in Vietnam and came to the United States in 1989. He testified that he was unable to understand complex concepts in English. On cross-examination, he acknowledged that he attended high school and two years of college in the United States.

Defendant reported that his attorney signaled him how to respond to the questions posed to him during the plea colloquy. Specifically, plea counsel put a folder up on the table so the judge could not see his hand, and then slapped his hand on the table if defendant was to answer "yes," and waved his hand for defendant to answer "no." Defendant further stated that he was given a plea form and asked to sign it but he did not understand it. He contended he did not fully understand the charge that he pled guilty to or the consequences of his plea.

Defendant's plea counsel testified that he was licensed to practice law for thirty years and devoted about seventy-five percent of his practice to criminal matters. Counsel testified, consistent with his earlier certification, that: he met with defendant several times; all conversations were in English and an interpreter was never needed to communicate with defendant; defendant opted to plead guilty on the day of trial; there was no interpreter scheduled to be present during the trial, and none had been present at previous court proceedings, including a hearing on defendant's motion to suppress evidence; and he reviewed each question on the plea form with defendant and defendant appeared to understand the form. On cross-examination, counsel acknowledged that he subsequently represented defendant in a federal court matter at which an interpreter was present.

Judge Fox issued a detailed oral opinion spanning over sixty transcript pages, denying defendant's PCR petition. The judge rejected defendant's claim that the lack of a Vietnamese interpreter at the plea hearing resulted in a plea that was not knowing and intelligent. The judge reasoned

[D]efendant was aware on the date of the plea hearing that there was no interpreter and was aware of the fact that the court was going to proceed with the plea unless, according to [] defendant's attorney, as noted on the record, there was a problem. The transcript reflects that [] defendant made no response or objection to this procedure.

Although [] defendant initially contended in his PCR papers that his attorney simply told him to answer . . . yes to everything, it is clear from the transcript that [] defendant provided answers to questions that were responsive and not simply a yes or no response. For example, [] defendant responded, "No question[s]," when asked if there . . . were any questions, and also responded that "[e]verything is correct," when queried by the judge. When asked if he had signed and initialed the document, he replied, "Yes, I did." When asked by his attorney during the colloquy what drug he had on him at the time of his arrest, he responded, "Marijuana." And when queried as to the amount, [he] responded, "Three pounds." When asked what he intended to do with the marijuana, he responded at the plea hearing, "Sell [it] to Mr. Tol."

This [c]ourt is satisfied from a review of the plea transcript that there is nothing in that record to indicate that [] defendant did not understand the proceedings . . . and all the questions that were being asked. Further, with respect to defendant's late contention that his attorney was giving him hand signals as to how to respond during the course of the plea, this [c]ourt does not find this testimony or assertion credible. [] [D]efendant would have this [c]ourt believe that [plea counsel], during this plea hearing, hid his hand, so that he could gesture to [] defendant for a yes or no response, including tapping on the table. There is nothing in the plea transcript that would reflect the court or anyone else noting that [plea counsel] was tapping on the table every time a yes response was to be elicited or that there was something covering his hands. Further, in light of defendant's responses at the . . . plea hearing . . . the [c]ourt simply does not find this assertion credible.

[Plea counsel], whose testimony this [c]ourt does find credible, testified that he had met with [] defendant . . . by whom he had previously been retained, on various occasions and had not utilized an interpreter in order to communicate with his client. This was not disputed during the testimony. Nowhere does [] defendant ever contend that the advice that [plea counsel] gave him prior to the plea agreement was not understood by him because of any language barrier. . . . [A]nd by that I mean before the events leading directly up to the plea agreement.

In addition, the [c]ourt finds that based upon [plea counsel's] comments at the hearing, if [] defendant or defense counsel had felt there was a problem at the hearing, there would have been a request for an interpreter. Again, there appears to be no indication by [] defendant in the transcript that he did not understand what was being done or said, and [] defendant responded appropriately to each and every question.

The [c]ourt also notes that no interpreter was utilized at the sentencing hearing. In addition, the adult presentence report was attached to [] defense counsel's brief. In that document, [] defendant appears to have responded appropriately to the interview. There is no indication that an interpreter was needed or utilized for this interview, and he provided information concerning his date of birth, height, weight, place of birth, number of years in New Jersey [and] in the United States, his address, his marital status, contact person, and he denied the use or abuse of any controlled substance and/or having ever participated in any [] rehabilitation program. [] Defendant apparently provided information concerning his work history, the ages of his children, the high school he attended, and the fact that he attended Rowan College for two years. There is no indication, either in the adult presentence report or [in] the testimony taken during the evidentiary hearing that [] defendant required an interpreter to attend Rowan College for two years.

Accordingly, based upon all of the above findings of fact, the [c]ourt concludes that [] defendant understood . . . the terms of the plea agreement and the colloquy that took place, that he was represented by a competent attorney who was able to effectively communicate with him, and that he understood the terms of the plea agreement and that he understood what occurred at the plea hearing and the sentencing. The [c]ourt does not find credible [] defendant's contentions to the contrary and [] defendant has failed to sustain his burden of proof with respect to this contention.

Judge Fox next found that defendant failed to establish a prima facie case of ineffective assistance of counsel with respect to his remaining allegations. These included defendant's claims that the elements of the offense to which he pled guilty were not explained to him; that he never waived his constitutional right to have the identity of the controlled dangerous substance determined by the jury beyond a reasonable doubt; and that his attorney did not file a timely appeal despite being requested to do so.

Based on the detailed findings set forth in her opinion, Judge Fox concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. This appeal followed.

On appeal, defendant raises the following contentions

POINT ONE

DEFENDANT IS ENTITLED TO POST-CONVICTION RELIEF BASED UPON THE DENIAL OF HIS CONSTITUTIONAL RIGHT TO THE SERVICES OF AN INTERPRETER.

POINT TWO

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING ON THE REMAINING ISSUES.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We review the legal conclusions of a PCR court and mixed questions of fact and law under the de novo standard of review. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where an evidentiary hearing has been held, we accord deference "[i]n reviewing a PCR court's factual findings based on live testimony" and should not disturb "the PCR court's findings that are supported by sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting Nash, supra, 212 N.J. at 540).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Fox in her well-reasoned May 20, 2014 oral opinion. We add only the following limited comments.

As noted, our standard of review gives deference to the PCR judge's fact findings based on witness testimony. Nash, supra, 212 N.J. at 540. "In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid. Here, defendant has not shown that Judge Fox's credibility findings were "'so wide of the mark' as to result in a manifest injustice." State v. J.D., 211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Based on her credibility findings, Judge Fox properly determined that the lack of an interpreter at the plea hearing did not constitute ineffective assistance of counsel or affect defendant's ability to understand the terms and consequences of his guilty plea.

Judge Fox also appropriately determined that defendant's remaining ineffective assistance of counsel arguments were without sufficient merit under the Strickland standard to present a prima facie case. See Cummings, supra, 321 N.J. Super. at 170. While defendant contends that counsel was ineffective for failing to seek defendant's entry into PTI, defendant was charged with a number of second-degree drug offenses, as the State correctly points out. Persons charged with first- or second-degree crimes, which carry a presumption of incarceration, are presumed ineligible for PTI. See State v. Nwobu, 139 N.J. 236, 252 (1995) (stating that persons charged with second-degree crimes must demonstrate extraordinary or unusual facts to establish "'compelling reasons' for admission into PTI"); Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) at 1193 (2016) ("A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor."). See also State v. Frangione, 369 N.J. Super. 258, 260 (App. Div. 2004) (denying reconsideration of PTI denial where defendant pled guilty to a third-degree crime charged in the same indictment with higher-degree crimes that were dismissed as part of a plea bargain to that indictment).

Defendant also contends that plea counsel failed to file a direct appeal despite being requested to do so. We have recently held that prejudice is presumed where defendant's sworn statement that he directed his attorney to appeal is undisputed. State v. Jones, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 2). Here, however, defendant's claim is plainly belied by the record. Plea counsel certified that he was never asked to file an appeal. Importantly, also, as part of the plea agreement, defendant waived his right to appeal, and he specifically testified at the plea hearing that he discussed this waiver with plea counsel prior to entering his plea.

Affirmed.

1 Co-defendant Sokha Tol was also charged with the conspiracy. Additionally, Tol was charged separately with various drug offenses in the first four counts of the indictment.