STATE OF NEW JERSEY v. HAI KIM NGUYEN

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0343-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

HAI KIM NGUYEN, a/k/a
HAI HUYN, NAU V. HUYN,
MINN NGO, HAU H. NGUYEN,
DUC TRAN, NGUYEN
VINCENT, VINCENT NGUYEN,
and HAI UYEN,

Defendant-Appellant.
_____________________________

Argued October 6, 2020 – Decided October 20, 2020

Before Judges Yannotti, Mawla, and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 02-04-
0248.

John Vincent Saykanic argued the cause for appellant.

Paul H. Heinzel, Assistant Prosecutor, argued the cause
for respondent (Michael H. Robertson, Somerset
County Prosecutor, attorney; Paul H. Heinzel, of
counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered by the Law Division on August

30, 2018, which denied his motion to correct what he claims is an illegal

sentence. Defendant contends he was not awarded jail credits to which he was

entitled. We disagree and affirm.

On March 24, 2002, defendant and Tuan Thieu were guests at a wedding

reception in Green Brook. State v. Nguyen, 419 N.J. Super. 413, 417-18 (App.

Div.), certif. denied, 208 N.J. 339 (2011). Defendant and Thieu argued and

defendant shot Thieu eight times. Id. at 418. He also shot at a bystander, but

missed and fled the scene. Ibid. The police arrived shortly thereafter. Ibid.

Witnesses identified defendant as the shooter and provided the police with his

Brooklyn address. Ibid.

The following day, detectives from the Somerset County Prosecutor's

Office (SCPO), accompanied by officers from the New York City Police

Department (NYPD), went to the Brooklyn address. Ibid. When the officers

knocked on the door, defendant refused to come out. Ibid. Defendant was in

the apartment with his two-year-old son. Ibid. After about four hours of

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negotiations, defendant agreed to end the standoff. Ibid. That evening, the New

York authorities arrested defendant. Ibid.

On April 24, 2002, a Somerset County grand jury returned a four-count

indictment charging defendant with murder and other offenses. Id. at 419. On

August 20, 2003, the Governors of New Jersey and New York entered into an

agreement for defendant's extradition to New Jersey, and in November 2003,

defendant was brought to New Jersey and detained pretrial. Ibid.1

On September 23, 2009, defendant pled guilty to aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1), and attempted murder, N.J.S.A. 2C:5-1

and N.J.S.A. 2C:11-3(a)(1) or (2). The trial court sentenced defendant on

December 11, 2009, in accordance with the plea agreement, to an aggregate term

of twenty years of incarceration, with a seventeen-year period of parole

ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The

court ordered that the sentence would be served concurrent with defendant's

New York sentence.

1
In our opinion, we stated that defendant was extradited to New Jersey on
November 17, 2003. Ibid. In their briefs on this appeal, the parties state that
defendant was extradited on November 7, 2003. We will assume that is the date
defendant was brought to New Jersey.
A-0343-18T1
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In the plea agreement, defendant had reserved the right to seek jail credits.

At sentencing, defendant sought the award of jail credits from November 7, 2003

to December 11, 2009, the time he was incarcerated in New Jersey before

sentencing on the New Jersey charges. The trial court denied the application.

On direct appeal, defendant challenged the denial of the jail credits, but we

affirmed. Nguyen, 419 N.J. Super. at 431.

Over the next few years, defendant raised the same issue regarding jail

credits in the context of a claim of ineffective assistance of counsel. He raised

the issue in a petition for post-conviction relief (PCR), State v. Nguyen, No. A-

5303-11 (App. Div. Feb. 13, 2013) (slip op. at 8-9), certif. denied, 215 N.J. 486

(2013), and then in a federal petition for habeas corpus, Nguyen v. Attorney

General of N.J., 832 F.3d 455, 462-63, 467, cert. denied, ___ U.S. ___, 137 S. Ct. 2097 (2017). Defendant's claims were rejected.

In May 2017, defendant filed a second petition for PCR seeking the same

relief but abandoned the petition, apparently because he was not assigned

counsel. In June 2018, after he retained private counsel, defendant filed a notice

of motion to correct an illegal sentence.

A-0343-18T1
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Defendant again argued he had not been awarded jail credits to which he

was entitled. After hearing oral argument, Judge Kevin M. Shanahan filed an

opinion and order dated August 30, 2018, denying the motion.

This appeal followed. On appeal, defendant raises the following

arguments.

POINT I
DEFENDANT HAI KIM NGUYEN SHOULD BE
GIVEN CREDIT FOR HIS PRETRIAL
INCARCERATION IN NEW JERSEY ON THE NEW
JERSEY CHARGES FROM NOVEMBER 7, 2003
(THE DATE OF HIS NEW JERSEY
INCARCERATION), TO HIS SENTENCING ON
DECEMBER 11, 2009, PURSUANT TO [RULE] 3:21-
8 AS HIS SENTENCE IS ILLEGAL UNDER [RULE]
3:21-10(b)(5) AND [RULE] 3:22-2(c) AND
VIOLATES THE EIGHTH AMENDMENT CRUEL
AND UNUSUAL PUNISHMENT CLAUSE AND
FOURTEENTH AMENDMENT DUE PROCESS
CLAUSE OF THE UNITED STATES
CONSTITUTION, AND THE NEW JERSEY
CONSTITUTION'S CRUEL AND UNUSUAL
PUNISHMENT CLAUSE (N.J. CONST. ARTICLE I,
PARAGRAPH 12).

POINT II
DEFENDANT NGUYEN SHOULD, AT THE VERY
LEAST, BE GIVEN CREDIT FROM MAY 12, 2006
(THE END DATE OF HIS NEW YORK SENTENCE)
TO HIS NEW JERSEY SENTENCING DATE OF
DECEMBER 11, 2009.

A-0343-18T1
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POINT III
DEFENDANT NGUYEN, AT THE VERY LEAST,
MUST BE AWARDED JAIL CREDITS FROM THE
DATE OF HIS ARREST (MARCH 25, 2002) TO
IMPOSITON OF HIS NEW YORK SENTENCE
(MAY 14, 2003).

POINT IV
[STATE v. JOE, 228 N.J. 125 (2017)] CREATES A
NEW RULE OF LAW AND SHOULD NOT BE
APPLIED RETROACTIVELY.

POINT V
FUNDAMENTAL FAIRNESS REQUIRES THAT
DEFENDANT NGUYEN BE AWARDED ALL JAIL
CREDITS FROM NOVEMBER 7, 2003, UP TO HIS
SENTENCING ON DECEMBER 11, 2009.

POINT VI
THE PRIMARY CUSTODY DOCTRINE
MANDATES THAT THE DEFENDANT NGUYEN
SHOULD RECEIVE JAIL CREDITS FROM THE
TIME OF HIS ARREST (MARCH 25, 2002)
THROUGH HIS SENTENCING ON DECEMBER 11,
2009.
II.

We first consider defendant's contention that he should be given jail credit

for his pretrial incarceration in New Jersey from November 7, 2003, until

December 11, 2009. He contends such credits were required by Rule 3:21-8.

He argues that without such credits, his sentence is illegal and amounts to cruel

and unusual punishment in violation of the Eighth Amendment to the United

States Constitution and Article 1, paragraph 12, of the New Jersey Constitution.

A-0343-18T1
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Our court rules provide that a "defendant shall receive credit on the term

of a custodial sentence for any time served in custody in jail or in a state hospital

between arrest and the imposition of sentence." R. 3:21-8(a). When the rule

applies, the award of credits is mandatory and results in a day-for-day reduction

applied to the front end of a defendant's custodial sentence. State v. Hernandez,

208 N.J. 24, 37 (2011). The credits serve important policy goals of equal

protection and fundamental fairness by "preventing the 'double punishment' of

indigent defendants who cannot afford bail." State v. Joe, 228 N.J. 125, 131

(2017) (quoting State v. Rawls, 219 N.J. 185, 193 (2014)).

At the time defendant was sentenced, our courts had construed the Rule

to "require credit only for 'such confinement as is attributable to the arrest or

other detention resulting from the particular offense.'" State v. Black, 153 N.J.
438, 456 (1998) (quoting State v. Allen, 155 N.J. Super. 582, 585 (App. Div.

1978)). Moreover, our courts generally held a "negative view" of "giving an

inmate jail credit against more than one sentence." Id. at 456-57. Consequently,

"if a defendant [had been] detained pre-sentence for multiple offenses, he or she

would only be entitled to jail credit toward one of [the sentences], namely, the

offense to which his or her incarceration was 'directly attributable.'" Rawls, 219 N.J. at 193-94.

A-0343-18T1
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In State v. Council, we held the defendant was not entitled to jail credit

for the time spent confined in a federal prison in Indiana subject to a New Jersey

detainer because there was no indication the detainer "in any way lengthened his

stay in that institution." 137 N.J. Super. 306, 309 (App. Div. 1975). We also

held the defendant was not entitled to any credit for the time he spent in the

Salem County jail after his temporary transfer to stand trial for his New Jersey

offenses, because he continued to serve his federal sentence during that

incarceration. Ibid.

The Court reached the same result in State v. Carreker, 172 N.J. 100

(2002). There, the defendant sought gap time rather than jail credits. Id. at 111.

The Court noted, however, that the defendant would not have been entitled to

any jail credits for her temporary incarceration in Somerset County while

awaiting disposition of her New Jersey charge, because she was already serving

a New York sentence. Id. at 115.

Against that backdrop, defense counsel acknowledged at sentencing that

defendant was not legally entitled to jail credits pursuant to Rule 3:21-8, but

argued the court should grant them for the duration of his New Jersey

confinement on equitable grounds, in view of the delay in disposition of the

charges. As noted previously, the court declined to award any credits, noting

A-0343-18T1
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that defendant had been arrested in New York and charged with New York

offenses, was prosecuted there, and continued to serve the resulting sentence

while he was incarcerated here awaiting disposition of the charges.

The trial court determined that no jail credits were due because defendant's

incarceration in New Jersey was not attributable to the offenses for which he

was being sentenced and there was no evidence the confinement here had any

impact on the length of his New York incarceration. The court added that

awarding defendant credit in New Jersey would amount to double counting. On

direct appeal, we held that defendant's contention that he had been wrongly

denied jail credit was clearly without merit. Nguyen, 419 N.J. Super. at 431.

While defendant's petition for certification from our judgment was

pending, the Supreme Court issued its decision in Hernandez, 208 N.J. at 28,

where it adopted a new standard for awarding jail credits to defendants subject

to sentencing on multiple indictments. Hernandez required the award of credits

against all sentences for the time the defendant spent in custody between arrest

and imposition of the first sentence, irrespective of the offense to which that

custody was directly attributable. Id. at 28, 47.

Even so, the Court distinguished Council, 137 N.J. Super. at 307-08,

because Council dealt with time spent in federal, rather than New Jersey,

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custody. Hernandez, 208 N.J. at 49 n.22. Moreover, the Court distinguished

and reaffirmed Carreker, 172 N.J. at 111, noting that jail credits had been

appropriately denied there to a defendant who was already serving another

custodial sentence for the period for which credit was sought. Hernandez, 208 N.J. at 44-45 & 47 n.18.

Thereafter, the Court held that Hernandez did not abrogate any authority

dealing with jail credit for out-of-state custody on out-of-state charges,

notwithstanding its abandonment in Hernandez of the attribution requirement

for defendants subject to sentencing on multiple New Jersey indictments. Joe,

228 N.J. at 135-38. Consequently, the rule remains that, "if a defendant is

incarcerated out of state and the confinement is not due solely to New Jersey

charges, jail credit does not apply." Id. at 135 (emphasis added).

Here, Judge Shanahan rejected defendant's claim for the period covering

his New Jersey confinement prior to sentencing. The judge noted defendant had

challenged the denial of those credits on direct appeal and on a PCR, and this

court had rejected his arguments on the issue twice. The judge found defendant's

claim had been conclusively rejected.

On appeal, defendant argues that, because his New Jersey offenses were

the initial impetus for seeking his arrest, his entire custody should be deemed

A-0343-18T1
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directly attributable to those offenses. He therefore argues he should have been

awarded jail credit even under the legal framework that existed at the time of

his initial sentencing.

Defendant further argues he should have been given the benefit of pipeline

retroactive application of Hernandez, 208 N.J. at 28, which dispensed with the

attribution requirement. He acknowledges that Joe, 228 N.J. at 135-38, limited

the reach of Hernandez, but he contends Joe is distinguishable and, in any event,

established a new rule of law which should not be applied retroactively.

We are unpersuaded. Although the Somerset County detectives pursued

defendant in New York as a result of the offenses he committed in this State, he

was arrested in New York because he committed offenses in that State. Thus,

defendant's resulting confinement in New York was not lengthened by any

action by New Jersey's law enforcement officers.

An analogous situation was presented in Council, 137 N.J. Super. at 309.

There, jail credit was denied to a defendant both for his prior federal custody on

unrelated charges and for the New Jersey custody during which his federal

sentence continued to run. Ibid. Under Council, defendant was not entitled to

credit.

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Moreover, while the Court in Hernandez dispensed with the attribution

requirement, it explicitly distinguished or noted its continued adherence to the

precedent on which the Law Division and this court relied in rejecting his

repeated requests for the same credits. 208 N.J. at 42-45, 44 n.16, & 49 n.22.

In addition, Joe does not constitute a new rule of law, as defendant asserts, but

a clarification of that existing framework, pursuant to which he is not entitled to

the jail credit he seeks. 228 N.J. at 135-38.

We again conclude defendant was not entitled to jail credit for the period

from November 7, 2003, to December 11, 2009. Such credit was not warranted

under the legal framework in effect when defendant was sentenced, and it was

not warranted under Hernandez.

III.

Next, defendant argues that, at the very least, he should be awarded jail

credit for the period from May 12, 2006, until December 11, 2009, when he was

sentenced in New Jersey. Defendant contends his minimum mandatory term of

incarceration in New York ended on May 12, 2006, and he lost the opportunity

for parole at that time because he was incarcerated in New Jersey awaiting

disposition of the New Jersey charges.

A-0343-18T1
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Defendant asserts that the New York Department of Corrections has

issued a directive stating that an inmate "serving a sentence with a minimum of

not more than eight years who has been issued a Certificate of Earned Eligibility

[CEE] shall be granted parole release at the expiration of the minimum term."

Defendant contends he was not paroled in New York on May 12, 2006, solely

due to the delay in commencing his New Jersey trial. He notes he was returned

to New York in 2010 and the New York authorities issued a CEE on March 4,

2015, after he completed certain required programs.

Defendant therefore argues that he is entitled to jail credit from May 12,

2006, until December 11, 2009, when he was sentenced on the New Jersey

charges. Judge Shanahan rejected the contention that defendant should be

deemed to have completed his New York sentence on May 12, 2006. The judge

noted that defendant was still serving his New York sentence on that date.

The judge refused to speculate on whether the New York authorities

would have issued a CEE on May 12, 2006, as defendant claimed. The judge

noted that in March, April, and May 2010, defendant had been given "[n]on-

certifiable status," but this was neither a positive nor negative recommendation

for parole.

A-0343-18T1
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The judge observed that in June 2010, defendant's status remained "[n]on-

certifiable" because he had "insufficient time in programs for evaluation." The

judge pointed out that in March 2015, defendant obtained the CEE, but "[t]he

fact that defendant successfully received the certificate in 2015 [was]

insufficient to show that defendant would have done so in 2006." The judge

found there was nothing in the record to show that defendant would have

received the CEE on May 12, 2006, had he been incarcerated in New York,

rather than New Jersey.

Defendant argues he demonstrated he was performing satisfactorily in the

programs when he returned to New York. He asserts that on return to New York

after disposition of the New Jersey charges, he completed his mandatory

programs. According to defendant, this shows he would have earned the CEE

"sooner if given the opportunity." He contends this would have guaranteed

parole on May 12, 2006.

We are not persuaded by defendant's arguments. Here, Judge Shanahan

correctly found there was insufficient evidence to support the conclusion that

defendant would have been paroled in New York on May 12, 2006, had he not

been incarcerated in New Jersey. There is no evidence that defendant was likely

to have served any less time in New York absent his extradition to New Jersey.

A-0343-18T1
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Indeed, there is no evidence defendant had made any progress in earning

a CEE before his extradition, or that accomplishment was reasonably likely.

Although defendant eventually earned a CEE in March 2015, there was no basis

for concluding the New York authorities would have granted an earlier release.

IV.

Defendant also argues that, at a minimum, he is entitled to jail credit from

the date of his arrest in New York on March 25, 2002, to his New York

sentencing date, May 14, 2003. Judge Shanahan correctly noted that defendant

was not entitled to jail credit for time served in New York because his

incarceration was not due solely to a New Jersey charge. Joe, 228 N.J.at 135.

Defendant argues, however, that his arrest in New York was the result of

the ongoing investigation and pursuit by the SCPO detectives. We disagree.

As stated previously, the Somerset County detectives pursued defendant

into New York, but defendant's arrest and incarceration in New York also was

attributable to the offenses he committed in that State. Therefore, the judge

correctly found that defendant was not entitled to jail credit for his incarceration

in New York from March 25, 2002, and May 14, 2003.

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V.

Defendant further argues the primary custody doctrine requires that he be

awarded jail credits from the date of his arrest in New York on March 25, 2002,

to December 11, 2009, when he was sentenced in New Jersey.

The primary custody doctrine is a principle of comity intended to provide

an orderly method for prosecution of a criminal defendant who has violated the

laws of multiple sovereigns. Ponzi v. Fessenden, 258 U.S. 254, 259-61 (1922).

The general rule is that "the first sovereign to arrest the defendant is entitled to

have the defendant serve that sovereign's sentence before one imposed by

another . . . ." Taccetta v. Fed. Bureau of Prisons, 606 Fed. App'x 661, 663 (3d

Cir. 2015) (emphasis added).

The sovereign with primary custody has the discretion to waive custody

in favor of another sovereign, United States v. Warren, 610 F.2d 680, 684-85

(9th Cir.1980), but must do so expressly. Taccetta, 606 F. App'x at 664.

Generally, a sovereign only relinquishes custody when the defendant is released

on bail, the charges are dismissed, the defendant completes serving the sentence,

or the defendant is released on parole. Davis v. Sniezek, 403 Fed. App'x 738,

740 (3d Cir. 2010).

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On appeal, defendant argues that New Jersey, rather than New York, had

primary custody with regard to the prosecution of defendant's charges. In

support of this argument, defendant cites certain New York corrections records,

which identify his original arrest charge as "murder." He contends these records

establish the New Jersey homicide was the sole charge that led to the New York

arrest.

Defendant asserts that New Jersey never expressly relinquished its

primary custody of him and therefore New Jersey had the prerogative to have its

sentence served first. He therefore argues his sentence should be deemed to

have begun from his arrest, which requires an award of jail credits to effect that

result.

These arguments are patently without merit. The records upon which

defendant relies indicate that he was arrested in New York for offenses

committed in that jurisdiction. Defendant was arrested first in New York by

New York authorities at a time when he was already subject to liability for

crimes committed there. He was then held, prosecuted, and sentenced in New

York.

Furthermore, defendant was temporarily transferred to New Jersey

pursuant to an extradition agreement for disposition of his New Jersey charges .

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After he was sentenced here, he was returned to New York for completion of his

New York sentence. Therefore, the record does not support defendant's

contention that New Jersey had primary custody.

We have considered defendant's other arguments, including his contention

that he should have been awarded jail credit as a matter of fundamental fairness

and on equitable grounds. The arguments lack sufficient merit to warrant

discussion. R. 2:11-3(e)(2).

Affirmed.

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