81 Hawai'i 279, State v. Nguyen

• Decision Date: 07 May 1996
• Docket Number: No. 17535,17535
• Citation: 916 P.2d 689
• Parties: 81 Hawai'i 279 STATE of Hawai'i, Plaintiff-Appellee, v. Tuan Quoc NGUYEN, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 689

916 P.2d 689

81 Hawai'i 279

STATE of Hawai'i, Plaintiff-Appellee, v. Tuan Quoc NGUYEN, Defendant-Appellant.

No. 17535.

Supreme Court of Hawai'i.

May 7, 1996.

James S. Tabe, Deputy Public Defender, on the briefs, Honolulu, for defendant-appellant.

Mark R. Simonds, Deputy Prosecuting Atty., County of Maui, on the briefs, Wailuku, for plaintiff-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

NAKAYAMA, Justice.

Defendant-appellant Tuan Quoc Nguyen, a resident alien, appeals from the denial of his Hawai'i Rules of Penal Procedure (HRPP) Rule 32(d) motion to withdraw his 1985 "no contest" plea to Promoting a Dangerous Drug in the Third Degree. Based on our review of the record, we affirm.

I. BACKGROUND

On November 18, 1975, Nguyen immigrated from Vietnam to the United States. Since his immigration, Nguyen has lived in the United States as a resident alien and has continued to retain his Vietnamese citizenship.

On November 16, 1984, Police Officers David Shishido and Carl Washington observed Nguyen driving his automobile erratically on Honoapiilani Highway, Lahaina, Maui. Believing that Nguyen was driving under the influence of an intoxicant, Officer Shishido and Officer Washington had Nguyen pull over to the side of the highway. When Officer Shishido and Officer Washington asked Nguyen to produce his license, automobile registration, and proof of insurance, they detected an odor of alcohol emanating from Nguyen's breath, and they noticed that Nguyen was trying to push a plastic packet containing a white substance under the floor-carpet with his foot. During the ensuing investigation, Officer Shishido and Officer Washington discovered that the white substance in the plastic packet was cocaine, and they also found marijuana inside of Nguyen's automobile. Nguyen was arrested for Driving Under the Influence of Drugs, Hawai'i Revised Statutes (HRS) § 291-7 (1985), Promoting a Dangerous Drug in the Third Degree, HRS § 712-1243 (1985), and Promoting a Detrimental Drug in the Third Degree, HRS § 712-1249 (1985). On April 15, 1985, a grand jury indicted Nguyen for Promoting a Dangerous Drug in the Third Degree and Promoting a Detrimental Drug in the Third Degree.

On November 14, 1985, Nguyen entered a plea of "no contest" ¹ in the Circuit Court of the Second Circuit (circuit court) with respect to the cocaine-related charge of Promoting a Dangerous Drug in the Third Degree in exchange for the State of Hawai'i's (prosecution) promise to dismiss the marijuana-related charge of Promoting a Detrimental Drug in the Third Degree. Nguyen signed a "No Contest" plea form indicating that he was pleading "no contest" to Promoting a Dangerous Drug in the Third Degree, and stating that he "will stipulate to the factual basis for the one charge listed in this document." Nguyen's "No Contest" plea form stated, in pertinent part, the following:

I have received a written copy of the original charge in this case. My lawyer has explained the charges to me. I understand the original charge against me. I told my lawyer all the facts I know about the case. He discussed with me the government's evidence against me, and advised me of the facts which the government must prove in order to convict me and of the possible defenses which I might have.

....

I plead no contest because, after discussing all the evidence and receiving advice on the law from my lawyer, I believe that it is better to put myself at the mercy of the court.

I know that I still have the right to plead not guilty and have a trial by jury or by the court in which the government will be required to prove me guilty beyond a reasonable doubt. I know that in a trial, I can see, hear and question the witnesses who may testify against me, I can call my own witnesses to testify for me, and I do not have to take the stand and testify if I do not wish to do so. I know that I have a right to a speedy and public trial. I know that by pleading in this matter, I am giving up my right to a trial and may be found guilty and sentenced without a trial of any kind. I plead in this manner because (give brief factual statement of what defendant did):

N/A. Defendant will stipulate to the factual basis for the one charge listed in this document.

My lawyer has told me about the possible maximum indeterminate sentence indicated above for my offense. He also explained to me the possibility of my indeterminate maximum term of imprisonment being extended and explained that I may have to serve a mandatory minimum term of imprisonment without possibility of parole.

I am pleading of my own free will. No one is putting any kind of pressure on me or threatening me or anyone close to me to force me to plead. I am not taking the rap or pleading to protect someone else from prosecution.

I have not been promised any kind of deal or favor or leniency by anyone for my plea, except that I have been told that the government has agreed as follows: (If None Write None [sic] )

The State will dismiss Promoting a Detrimental Drug in the Third Degree.

I know that the court is not a party to, so that it does not have to recognize, any deal or agreement between the prosecutor and my lawyer or me. I know that the court has not promised me leniency.

....

I am signing this paper after I have gone over all of it together with my lawyer, and I am signing it in the presence of my lawyer. I have no complaints about my lawyer and I am satisfied with what he/she has done for me.

Nguyen's attorney also signed the "No Contest" plea form, which contained a "Certificate of Counsel" section that stated the following:

As counsel for defendant and as an officer of the Court, I certify that I have read and explained fully the foregoing, that I believe that the defendant understands the document in its entirety, that the statements contained herein are in conformity with my understanding of the defendant's position, that I believe that the defendant's plea is made voluntarily and with intelligent understanding of the nature of the charge and possible consequences, and that the defendant signed the foregoing in my presence.

Although Nguyen made his "no contest" plea at the court hearing on November 14, 1985, with the assistance of a Vietnamese interpreter, Nguyen had some command of the English language. At Nguyen's hearing, the following dialogue took place between Judge E. John McConnell, Nguyen, Nguyen's attorney, Deputy Public Defender Tom Griswold, Nguyen's interpreter, An Nguyen, and Deputy Prosecuting Attorney Ruby Hamili:

MR. GRISWOLD: Tom Griswold appearing with Tuan Quoc Nguyen and we do have Mrs. Nguyen who is the interpreter who may need to be sworn.

THE COURT: Yes, I'll ask that the interpreter be sworn.

(At which time the interpreter was sworn to interpret from Vietnamese into English and English into Vietnamese to the best of her ability.)

MR. GRISWOLD: Your, Honor, we have reached an agreement with the State which has necessitated a little bit of a pen job in the plea of no contest, but it was corrected before I went over it with the defendant.

Essentially he's pleading to one of the offenses, promoting a dangerous drug in the third, in exchange for a promoting a detrimental drug in the third degree as stated and there are no other agreements.

THE COURT: I think we should have the interpreter's name for the record.

THE INTERPRETER: A-n, my last, N-g-u-y-e-n.

THE COURT: Thank you. I'm going to be asking the defendant a long series of questions so after I ask each question I will give you a chance to interpret and then to give his response.

THE INTERPRETER: Okay.

THE COURT: I would ask Mr.--how do you pronounce your name? Nguyen? I'd ask you to state his name for the record.

THE DEFENDANT: Tuan Quoc Nguyen.

THE COURT: How old are you?

THE DEFENDANT: I am 31.

THE COURT: Apparently you can speak some English?

THE DEFENDANT: Yes, sir.

THE COURT: If you are able to answer the questions then you can answer in English, but if you don't understand the question then use the interpreter.

THE DEFENDANT: Yes.

THE COURT: How much education have you had?

THE DEFENDANT: 12 [sic] grade.

THE COURT: Are you under the influence of alcohol or any drugs at the present time?

THE INTERPRETER: No, sir.

THE COURT: Are you under treatment for any mental illness?

THE INTERPRETER: No, sir.

THE COURT: Is your mind clear?

THE INTERPRETER: Yes, sir.

THE COURT: Your lawyer, Mr. Griswold, says you will plead no contest to the charge of promoting a dangerous drug in the third degree; is that correct?

THE INTERPRETER: Yes, sir.

THE COURT: And he has given me this written no contest plea which appears to have your signature on the second page. Is this your signature?

THE DEFENDANT: Yes.

THE COURT: Did you read this form and did your lawyer go over it fully and explain it to you before you signed it?

THE INTERPRETER: Yes.

THE COURT: The charge against you is promoting a dangerous drug in the third degree. Actually there were two charges originally, promoting a dangerous drug in the third degree and promoting a detrimental drug in the third degree. Have these charges been explained to you by your lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand the charges?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions about the charges?

THE DEFENDANT: I have no question.

THE COURT: You have no question about the charge itself?

THE INTERPRETER: But I would like to have some explanation later.

THE COURT: He wants to make an explanation?

THE INTERPRETER: I don't have question [sic], but I would like to have explanation [sic] later.

THE COURT: Does he want to make an explanation or does he want the Court to make some kind of explanation?

THE INTERPRETER: He wants to make his explanation.

THE COURT: All right, we'll get to that. Do you understand that the maximum penalty provided by law for this offense is five years in prison and a $5,000.00 fine?

THE DEFENDANT:...