Opinion
DOCKET NO. A-5303-11T1
02-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAI KIM NGUYEN, Defendant-Appellant.
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief). William A. Guhl, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Guhl, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-04-248.
Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief).
William A. Guhl, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Guhl, of counsel and on the brief). PER CURIAM
Defendant Hai Kim Nguyen appeals from an order entered by the Law Division on May 30, 2012, denying his petition for post-conviction relief (PCR). We affirm.
On March 24, 2002, defendant and Tuan Thieu (Thieu) were guests at a wedding reception at the Dynasty Restaurant in Green Brook, New Jersey. They got into an argument, which escalated to a physical altercation. Defendant shot and killed Thieu. He also shot at a bystander and missed. Witnesses told the police that defendant fled the scene in a motor vehicle with Alabama license plates. They also provided the police with an address in Brooklyn, New York, where defendant had been living.
The day after the murder, detectives from the Somerset County Prosecutor's Office went to arrest defendant at the Brooklyn address, accompanied by officers of the New York City Police Department. When the officers knocked on the door to the apartment, defendant refused to come out. A female told the officers defendant was inside the apartment with her two-year-old son. Eventually, the standoff ended and defendant was arrested.
Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four). On August 20, 2003, the Governors of New Jersey and New York entered into an agreement for defendant's extradition to New Jersey. On November 17, 2003, defendant was brought from New York to New Jersey and incarcerated here.
Thereafter, defendant's attorney engaged in extensive pretrial motion practice. The case was eventually scheduled for trial on September 24, 2009, and defendant's attorney filed a motion to dismiss the indictment on the ground that the delay in bringing the matter to trial violated the Interstate Agreement on Detainers (IAD). The court denied the motion on September 23, 2009.
Defendant then pled guilty to count one of the indictment, which was amended to charge first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a)(1); and count two, which charged defendant with first-degree attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2). The State agreed to recommend a sentence of twenty years of incarceration on both counts, each with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea agreement provided that the sentences would be served concurrently with each other, and also concurrently with defendant's New York sentence and any sentence imposed in California. Among other things, the plea agreement stated that defendant reserved the right to seek all jail credits at the time of sentencing.
Defendant's attorney filed a motion in the trial court again seeking dismissal of the indictment on the basis of an alleged violation of the IAD and, alternatively sought jail credits for the time he was incarcerated in New Jersey awaiting disposition of the charges. The trial court denied the motion to dismiss the indictment, and ruled that defendant was not entitled to the jail credits.
The court sentenced defendant in accordance with the plea agreement to concurrent, twenty-year terms of incarceration, subject to NERA, and ordered that the sentence be served concurrently with defendant's sentence in New York and any California sentence. Defendant appealed from the judgment of conviction dated December 11, 2009.
In that appeal, appellate counsel argued that the trial court erred by: denying defendant's motion to dismiss the indictment because he had not been brought to trial within the time required by the IAD; denying defendant's motion to suppress evidence of the handgun; and refusing to award defendant jail credits for the time he was incarcerated in New Jersey awaiting trial. We rejected these arguments and affirmed defendant's conviction. State v. Nguyen, 419 N.J. Super. 413, 431 (App. Div. 2011). The Supreme Court thereafter denied defendant's petition for certification. State v. Nguyen, 208 N.J. 339 (2011).
On November 25, 2011, defendant's PCR counsel filed a petition in which he alleged that defendant had been denied the effective assistance of trial and appellate counsel. Defendant also sought jail credits for the time between his transfer to New Jersey and the date he was sentenced.
The PCR court heard argument on the petition on May 29, 2012, and thereafter filed a written opinion, in which it concluded that the petition should be denied. The court memorialized its decision in an order dated May 30, 2012. This appeal followed.
Defendant raises the following arguments for our consideration:
The Court should reverse the denial of defendant's petition for post-conviction relief and remand the matter for an evidentiary hearing on defendant's claims.We conclude that these arguments are without merit, and affirm the denial of PCR substantially for the reasons stated by the PCR court in its thorough and comprehensive opinion of May 30, 2012. We add the following.
1. Defendant established at least prima facie evidence of ineffective assistance of counsel.
2. Defendant established [a] right to modification of jail credits toward his sentence.
3. At the very least, defendant's claims warranted an evidentiary hearing in the court below.
A defendant's claim of ineffective assistance of counsel is considered under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which has been adopted by our Supreme Court for consideration of ineffective-assistance-of-counsel claims raised under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland test, a defendant must show that his attorney's performance was deficient and he was prejudiced by the attorney's errors. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
To establish that his attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In addition, to show that he was prejudiced by the deficient performance of his attorney, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant argues that he was denied the effective assistance of trial counsel because his attorney allegedly failed to pursue a speedy trial claim. As we stated previously, defense counsel sought dismissal of the indictment on the ground that defendant had not been brought to trial within the time required by the IAD. The trial court denied that motion and we affirmed the trial court's determination, concluding that the IAD did not apply in this matter. Nguyen, supra, 419 N.J. Super. at 420-26.
Defendant nevertheless contends that his attorney erred by failing to argue that his constitutional right to a speedy trial had been violated due to the lengthy delay between his indictment in March 2002 and September 23, 2009, when he pled guilty. It should be noted, however, that when the trial court addressed defendant's motion to dismiss the indictment for failing to resolve the charges in the time required by the IAD, the court also found that the delay in the matter did not violate defendant's constitutional right to a speedy trial.
In any event, the PCR court correctly found that defendant was not denied the effective assistance of counsel because his attorney did not seek dismissal of the indictment on the ground that the delay in resolving the charges violated his constitutional right to a speedy trial under the Sixth Amendment to the United States Constitution. The PCR court noted that, even if counsel erred in failing to raise this specific claim, defendant was not prejudiced by the error because any such motion would have been denied.
In assessing a Sixth Amendment speedy trial claim, the court must consider: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right, and (4) whether defendant was prejudiced by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972).
The PCR court noted that resolution of the matter had been delayed because defense counsel filed numerous pretrial motions. The PCR court found that defense counsel had acted appropriately in making those pretrial motions, and the resulting delay was not an unconstitutional denial of defendant's right to a speedy trial. The record supports that determination.
Defendant additionally contends that his trial attorney was ineffective because he failed to ensure that defendant would be granted credits for the time spent in jail in New Jersey awaiting disposition of the charges. Again, we disagree. The PCR court noted that under State v. Carreker, 172 N.J. 100, 115-16 (2002), defendant was not entitled to jail credits for the time he was incarcerated in New Jersey awaiting trial because he was receiving credit against the New York sentence he was then serving.
Thus, defendant did not qualify for the jail credits he was seeking. Indeed, as the State points out, if defendant were given such jail credits, he would effectively be serving concurrent sentences before he pled guilty to the New Jersey charges. Furthermore, the plea agreement stated that the New Jersey sentence would be "concurrent with the New York sentence, and any sentence imposed in California, "from the time of the entry of the plea."
Defendant additionally argues that his appellate counsel was deficient because counsel did not challenge the trial court's denial of his motion to suppress certain statements he made after his arrest. When defendant was arrested, he said to the officers, "[a]re you taking me back to New Jersey? Am I a witness or am I under arrest?" In addition, when defendant was taken to the hospital, he stated to a nurse, in the presence of the police, "I killed somebody. They said I killed somebody."
The PCR court correctly found that appellate counsel's failure to challenge the trial court's ruling on the suppression motion was not the ineffective assistance of counsel. The PCR court determined that, had this issue been raised, the appeal would not have been decided differently. As the PCR court pointed out, the trial court had correctly found that defendant's statements to the police were voluntary and Miranda warnings were not required. Moreover, defendant's other statements were made in response to questions posed by the nurse in a psychiatric interview. The questions were not designed to extract a confession and were not illegally obtained.
Defendant further contends that the PCR court erred by ruling on his petition without an evidentiary hearing. However, a hearing was not required in this matter because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).