Kiet Hoang Nguyen v. State

• Decision Date: 30 April 2013
• Docket Number: No. S–12–0173.,S–12–0173.
• Citation: 299 P.3d 683
• Parties: KIET HOANG NGUYEN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

299 P.3d 683

KIET HOANG NGUYEN, Appellant (Defendant),

v.STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0173.

Supreme Court of Wyoming.

April 30, 2013.

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

KITE, Chief Justice.

[¶ 1] Kiet Hoang Nguyen challenges the judgment and sentence entered after he pleaded guilty to one count of larceny. He claims that the factual basis provided by the State for his guilty plea did not meet the elements of larceny, specifically the “taking” requirement. Apparently recognizing the factual basis did not establish the crime of larceny, the State argues that his conviction should, nevertheless, be affirmed because Mr. Nguyen understood his conduct was criminal and he waived any challenge to the sufficiency of the evidence when he pleaded guilty.

[¶ 2] We conclude the district court committed plain error by entering judgment on Mr. Nguyen's guilty plea when it was not supported by a sufficient factual basis. Consequently, we reverse.

ISSUE

[¶ 3] Mr. Nguyen presents the following issue on appeal:

Did the trial court err when it accepted Mr. Nguyen's guilty plea without obtaining a sufficient factual basis to support the offense of larceny?

The State phrases the issue differently:

Requiring a district court to accept a factual basis for a guilty plea ensures a defendant understands his conduct was criminal and is not misled into waiving substantial rights. The factual basis for Kiet Nguyen's guilty plea showed he deposited potentially forged checks from accounts with insufficient funds and then withdrew some of the money before the bank knew. Was there a sufficient factual basis for Nguyen to understand his conduct was criminal?

FACTS

[¶ 4] Mr. Nguyen was charged with one count of larceny in violation of Wyo. Stat. Ann. § 6–3–402(a) (LexisNexis 2011). He and the State negotiated a plea agreement in which the State agreed to dismiss three forgery charges in a different case and recommend probation at the sentencing hearing in exchange for Nguyen's guilty plea to the larceny charge.

[¶ 5] At his arraignment, the district court advised Mr. Nguyen of his rights and the rights he would be waiving should he plead guilty. It also went over the charge and the potential penalties with him and informed him that it did not have to accept the recommended sentence and could sentence him in accordance with the maximum penalties under the statute. Mr. Nguyen expressed his approval of the plea agreement, stated he understood his rights and the rights he would be waiving, and pleaded guilty to the larceny charge. The State provided a factual basis for the guilty plea, Mr. Nguyen and defense counsel agreed the factual basis correctly stated their understanding of the State's evidence, and the district court accepted the factual basis for Mr. Nguyen's guilty plea.

[¶ 6] The district court ordered a presentence investigation report (PSI) and substance abuse evaluation. At the sentencing hearing, the district court determined probation was not appropriate in light of the PSI which showed Mr. Nguyen had an extensive history of criminal convictions for various types of thefts and planned to leave Wyoming if granted probation. The court sentenced him to serve a term of incarceration of four to nine years and to pay a $5,000 fine, together with restitution and other assessments. Mr. Nguyen then appealed to this Court.

DISCUSSION

[¶ 7] Mr. Nguyen claims the district court did not have a sufficient factual basis to justify accepting his guilty plea under W.R.Cr.P. 11. As a preliminary matter, we must determine the appropriate standard of review. Mr. Nguyen insists the standard of review is de novo, while the State argues the standard of review is plain error. This Court has said that the standard of review for determining whether a defendant's guilty plea was truly voluntary is de novo. See, e.g., Maes v. State, 2005 WY 70, ¶ 9, 114 P.3d 708, 710–11 (Wyo.2005); Van Haele v. State, 2004 WY 59, ¶ 12, 90 P.3d 708, 711 (Wyo.2004). This is consistent with United States Supreme Court precedent. See Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983) (stating “the governing standard as to whether a plea of guilty is voluntary for purposes of the federal Constitution is a question of federal law,” making the standard of review de novo ).

[¶ 8] However, the United States Supreme Court has also stated that Rule 11 violations are governed by the harmless error standard when an objection was made in the trial court or the plain error standard when no objection was made. United States v. Vonn, 535 U.S. 55, 73–74, 122 S.Ct. 1043, 1054, 152 L.Ed.2d 90 (2002). The Vonn ruling was based upon the fact that Federal Rule of Criminal Procedure 11(h) states “[a] variance from the requirements of this rule is harmless error if it does not affect substantial rights.” W.R.Cr.P. 11(h) incorporates the same harmless error concept. The United States Supreme Court explained that, although Rule 11 does not specifically address the plain error rule, Rule 52 does and it is of equal dignity to Rule 11. Vonn, 535 U.S. at 65, 122 S.Ct. at 1049–50.See also, United States v. Edgar, 348 F.3d 867, 870–71 (10th Cir.2003) (recognizing standard of review for Rule 11 violations is the harmless error standard with an objection or the plain error standard without an objection).

[¶ 9] Several federal circuit courts have specifically stated that the plain error standard applies when a defendant challenges the factual basis for his guilty plea on appeal but did not move to withdraw his guilty plea or otherwise object in the court below. See, e.g., United States v. Parra, 414 Fed.Appx. 167, 171 (10th Cir.2011) (unpublished decision); United States v. Taylor, 627 F.3d 1012, 1017 (6th Cir.2010); United States v. Orozco–Osbaldo, 615 F.3d 955, 958 (8th Cir.2010); United States v. Smith, 511 F.3d 77, 85 (1st Cir.2007). In Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo.2012), we concluded the determination of whether a defendant was properly advised under Wyo. Stat. Ann. § 7–11–507 (LexisNexis 2011) that he may lose the right to possess firearms as a result of his conviction was subject to de novo review because it involved the interpretation and application of a mandatory statute. We recognized, however, that a claimed violation of Rule 11 would be reviewed for plain error if there was no objection below. Id., ¶ 8, 286 P.3d at 1036.

[¶ 10] Considering this authority, we conclude the plain error standard applies to Mr. Nguyen's claim because he did not move to withdraw his guilty plea or otherwise object to the sufficiency of the factual basis in the district court. “ ‘Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him.’ ” Kidwell v. State, 2012 WY 91, ¶ 10, 279 P.3d 540, 543 (Wyo.2012), quoting Talley v. State, 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo.2007).

[¶ 11] W.R.Cr.P. 11(f) addresses the factual basis requirement and states:

(f) Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

In Maes, ¶ 21, 114 P.3d at 714, this Court explained:

The intent of the procedural requirement of a factual basis is to prevent the individual charged with a crime from being misled into a waiver of substantial rights. Sami v. State, 2004 WY 23, ¶ 9, 85 P.3d 1014, ¶ 9 (Wyo.2004). A sufficient inquiry to obtain a factual basis includes a determination that the defendant understood his conduct, in light of the law, to be criminal. Id. However, the factual basis for accepting a plea may be inferred from circumstances surrounding the crime and need not be established only from the defendant's statements. Id.W.R.Cr.P. 11 does not require proof beyond a reasonable doubt that a defendant who pleads guilty is actually guilty nor does it require complete descriptions of the elements. Id.

See also, Hirsch v. State, 2006 WY 66, ¶ 9, 135 P.3d 586, 590 (Wyo.2006); Sami v. State, 2004 WY 23, ¶¶ 9–10, 85 P.3d 1014, 1017–18 (Wyo.2004). The purposes of the factual basis inquiry include:

“it should protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.... In addition, the inquiry into the factual basis of the plea provides the court with a better assessment of defendant's competency and willingness to plead guilty and his understanding of the charges, increases the visibility of charge reduction practices, provides a more adequate record and thus minimizes the likelihood of the plea being successfully challenged later, and aids correctional agencies in the performance of their functions.”

Van Haele, ¶ 13, 90 P.3d at 712, quoting Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 938 (2d ed.1992).

[¶ 12] The first element of the plain error analysis is satisfied in this case because the charged offense and the factual basis clearly appear in the record. Mr. Nguyen was charged and convicted of larceny under § 6–3–402(a): “A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.” The State provided the following factual basis for the guilty plea:

If this matter went...