Opinion
No. 1-780 / 00-1811.
Filed March 13, 2002.
Appeal from the Iowa District Court for Muscatine County, MARK D. CLEVE, Judge.
Ty Van Nguyen appeals the district court's denial of his application for postconviction relief. AFFIRMED.
Michael H. Said and Matthew Donley of Law Offices of Michael H. Said, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Richard R. Phillips, County Attorney, and Alan Ostergren, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Ty Van Nguyen appeals a district court ruling denying his application for postconviction relief. Nguyen argues (1) the failure to have a competent interpreter during his arrest, plea, and sentencing proceedings violated his due process rights, and (2) trial counsel was ineffective in failing to inform him of the possible immigration consequences of his guilty plea. We affirm.
I. Background Facts and Proceedings . On July 27, 1997, the West Liberty police detained Nguyen after it was reported he and another man were involved in an altercation. Because Nguyen was Vietnamese and did not speak English well, the police obtained the services of thirteen-year-old Chou Nguyen (Chou) to act as interpreter. Chou, however, was not fluent in Vietnamese and not totally proficient in English. Upon Nguyen's arrest, Chou translated his Mirandarights in Vietnamese, and Nugyen signed a written waiver of those rights.
Nguyen was charged with attempted murder and willful injury. On September 19, 2000, Nguyen and his attorney appeared at a plea hearing. Mai Anh Nguyen was ordered by the court to interpret the proceedings. Nguyen pleaded guilty to the charge of willful injury in return for a dismissal of the attempted murder charge. Throughout the proceedings, the district court informed Nguyen that if he did not understand any part of the plea process, he was to inform the court. At no time, however, did Nguyen complain he did not understand the proceedings. The district court concluded there was a factual basis for the plea and informed Nguyen of his right to file a motion in arrest of judgment. No such motion was filed.
At sentencing, Tu Cao, fluent in Vietnamese and English, was sworn in as Nguyen's interpreter, and advised Nguyen throughout the proceedings. When asked by the court if he had anything to say before sentence was imposed, Nguyen responded several times in English, "No thanks." Nguyen was sentenced to an indeterminate term of imprisonment not to exceed ten years. He did not file a direct appeal.
On July 14, 2000, Nguyen filed a postconviction relief action. The district court dismissed the application, concluding that Nguyen failed to properly preserve any challenge to his Miranda waiver by failing to raise any objections at trial, at sentencing, or in a direct appeal. The court further ruled that even if the issue had been preserved, it had no merit, since Nguyen failed to call trial counsel to testify and failed to offer any evidence that he did not understand his Miranda rights. The court also rejected Nguyen's claim that his trial counsel was ineffective in failing to inform him of the immigration consequences of his guilty plea, concluding there was no duty to inform him of the collateral consequences of his plea. Nguyen has appealed.
II. Due Process Issues . Nguyen's main argument on appeal is that his constitutional rights to due process were violated during his arrest, his guilty plea, and at sentencing because he was unable to understand his rights and the proceedings in general. He asserts he did not knowingly waive his Miranda rights at the time of his arrest because the interpreter was unable to properly translate them. The State contends Nguyen failed to properly preserve these issues because he failed to raise any of them on direct appeal and has offered no sufficient reason why they were not. The State further argues that even if error was preserved, Nguyen has offered no evidence in the record indicating he actually needed an interpreter or that he did not understand his rights.
A. Miranda Proceedings . Our courts have long held that postconviction relief is not a means for relitigating claims that were or should have been properly presented on direct appeal. State v. Osborne, 573 N.W.2d 917, 921 (Iowa 1998). Any claim not presented on direct appeal may therefore not be raised in a postconviction relief action unless the defendant shows sufficient reason for not properly raising it. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). One of the recognized exceptions to this rule is an ineffective assistance of counsel claim. State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000). The postconviction applicant, however, must show that his counsel failed to perform an essential duty and that prejudice resulted therefrom. Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
In the present case, outside of his bald assertion that he did not understand his Miranda rights, Nguyen has failed to indicate any evidence in the record supporting his assertion that his waiver was not voluntary. Nguyen did not testify at his own postconviction hearing. Although he contends his Miranda rights interpreter was inadequate, he at no time maintained he did not understand those rights or point to any inaccuracies in the translation. Nguyen initialed and signed a document outlining his rights and indicated his willingness to speak with the police. He filed no motion to suppress any statements to the police. He does not point to any particular part of the Miranda process that he did not understand. We find no error here.
B. Guilty Plea . We likewise reject any challenge to Nguyen's guilty plea. Once a defendant has waived his right to a jury trial by pleading guilty, the State is entitled to expect finality in the conviction. LaRue, 619 N.W.2d at 397. Accordingly, any constitutional challenge that would undermine the defendant's conviction is waived, with certain exceptions. State v. Mann, 602 N.W.2d 785, 789 (Iowa 1999). Several recognized exceptions to that rule include (1) a claim that a plea was not knowingly and voluntarily made, and (2) ineffective assistance of counsel. See State v. Nikkel, 597 N.W.2d 486, 487-88 (Iowa 1999); Mott v. State, 407 N.W.2d 581, 582-83 (Iowa 1987).
Iowa Code section 622A.2 (2001) provides that "[e]very person who cannot speak or understand the English language and who is a party to any legal proceeding or a witness therein, shall be entitled to an interpreter to assist such person throughout the proceeding." Our courts have recognized that a defendant is entitled to an adequate translation of the legal proceedings so that he may fairly participate in his defense. Thongvanh v. State, 494 N.W.2d 679, 681-82 (Iowa 1993). Minor deviations, however, will not necessarily contravene a defendant's constitutional rights. Id.
Nguyen maintains he was unable to enter a knowing and voluntary plea because he did not have a competent interpreter. However, "[a] reviewing court is unlikely to find that a defendant received a fundamentally unfair trial due to an inadequate translation in the absence of contemporaneous objections to the quality of the interpretation." Thongvanh, 494 N.W.2d at 682 (quoting United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990)). Our courts have further recognized that:
Only if the defendant makes any difficulty with the interpreter known to the court can the judge take corrective measures. To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse.Id.(quoting Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989)).
The record is void of any indication that Nguyen expressed any objections to the offered translations to either the court or trial counsel at any point in the plea proceedings. The court specifically informed Nguyen that if he did not understand any part of the plea proceeding, it would repeat it and afford him time to consult with his counsel and interpreter. The court fully advised Nguyen of the nature of the charges against him, his trial-related rights, and the consequences of waiving them. The court found a factual basis for the plea, and informed Nguyen of his right to file a motion in arrest of judgment and the consequences of failing to do so. No such motion was filed. Nguyen failed to call his trial counsel to testify at the postconviction hearing. Because he failed to file any objections to his interpreter's competency at any time during the plea proceedings, and because he failed to challenge his plea by filing a motion in arrest of judgment, Nguyen has waived any challenge to his guilty plea.
C. Sentencing . We also reject Nguyen's challenge to his sentence. Nguyen points to Cao's testimony at the postconviction hearing that although he did not totally understand all the English definitions of the legal terms involved, he "could guess by the look of the whole sentence" and interpret them. Nowhere in the record, however, did Nguyen make an objection to his interpreter's skills or claim that he was unable to understand the sentencing proceedings. He has not pointed to any inaccuracies in Cao's translation. Each time the court inquired as to whether he understood the proceedings, Nguyen responded in English, "Yes." With the aid of Cao, Nguyen was able to find a mistake in his presentence investigation report and correct it. We find no error here.
Because we find that Nguyen has failed to show sufficient reason why he did not raise his due process issues on direct appeal, we conclude that trial counsel was not ineffective in failing to challenge the proceedings on these grounds. Nguyen suffered no prejudice from his counsel's failure to raise meritless claims. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
III. Ineffective Assistance of Counsel . Nguyen lastly contends his trial counsel was ineffective in failing to inform him that his guilty plea could expose him to deportation. In State v. Ramirez, 636 N.W.2d 740, 746 (Iowa 2001) our supreme court recently reaffirmed its previous ruling in Mott v. State, 407 N.W.2d 581 (Iowa 1987), concluding that counsel's failure to advise a defendant concerning collateral consequences of a guilty plea, including the possibility of deportation, cannot provide a basis for a claim of ineffective assistance of counsel. The court's ruling in Ramirez is applicable here.
We therefore affirm the district court's denial of Nguyen's postconviction relief application.
AFFIRMED.