Nguyen v. State
| Decision Date | 13 May 2022 |
| Docket Number | 122,949,123,345 |
| Citation | 509 P.3d 598 (Table) |
| Parties | Giang T. NGUYEN, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Kristen B. Patty, of Wichita, for appellant.
Tyler B. Pettigrew, assistant county attorney, Susan H. Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Green, J., and Richard B. Walker, S.J.
In this consolidated appeal, Giang T. Nguyen appeals the district court's summary denial of his motion filed under K.S.A. 60-1507, claiming the district court's determination that he failed to show ineffective assistance of his 60-1507 appellate counsel was error. Nguyen also appeals the district court's denial of his motion to correct illegal sentence. After a careful review of the record, we affirm the district court.
In 2003, a jury convicted Nguyen of felony murder, aggravated kidnapping, five counts of kidnapping, aggravated burglary, conspiracy to commit kidnapping, and conspiracy to commit aggravated burglary. The sentencing court imposed a hard 20 life sentence and an additional 165 months in prison. On direct appeal to the Kansas Supreme Court, Nguyen raised several issues. Relevant to this appeal, Nguyen challenged the admission of his own statements to officers and the reading of the warnings under Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), based on the qualifications of his interpreter under K.S.A. 75-4351 et seq. Our Supreme Court determined that substantial competent evidence supported the findings that the interpreter was qualified; that Nguyen's convictions of felony murder and aggravated kidnapping were not multiplicitous; and that certain evidence, including Nguyen's own statements, was properly admitted. State v. Nguyen , 281 Kan. 702, 723-25, 133 P.3d 1259 (2006) (Nguyen I ). Thus, the court affirmed Nguyen's convictions and sentences. 281 Kan. at 731. The mandate was issued on May 30, 2006.
In January 2007, Nguyen timely filed his first motion under K.S.A. 60-1507. Unfortunately, that motion is not included in the record on appeal. The district court denied the motion; on appeal, a panel of our court denied Nguyen's motion to docket his appeal out of time. In 2009, Nguyen filed a second K.S.A. 60-1507 motion. The district court, after making findings of fact and conclusions of law for each claim, denied that motion as well. Nguyen appealed, and another panel of our court affirmed the district court's denial. Nguyen v. State , No. 104,057, 2011 WL 781525, at *2 (Kan. App. 2011) (unpublished opinion) (Nguyen II ). In March 2012, Nguyen then filed a third K.S.A. 60-1507 motion that the district court declined to file because it was successive and sought similar relief Nguyen had requested in his prior motions. No appeal followed.
Nguyen filed another K.S.A. 60-1507 motion in August 2012. The district court's order summarily denied Nguyen's claims. Nguyen appealed, and a panel of our court affirmed. Nguyen v. State , No. 112,581, 2016 WL 197745, at *6 (Kan. App. 2016) (unpublished opinion) (Nguyen III ). The Kansas Supreme Court granted review and reversed and remanded because the district court failed to make adequate findings of fact and conclusions of law. Nguyen v. State , 309 Kan. 96, 112, 431 P.3d 862 (2018) (Nguyen IV ). The Supreme Court also held that Nguyen had established exceptional circumstances to allow review of his successive motion. 309 Kan. at 111. The Supreme Court highlighted that Nguyen's appellate counsel on direct appeal failed to raise a multiplicity issue for Nguyen's conviction of conspiracy to commit kidnapping. His codefendants, however, were successful in vacating that conviction, so those cases presented an intervening change in the law. 309 Kan. at 110.
Also, in finding exceptional circumstances permitted review of his successive motion, the Supreme Court provided some perspective:
309 Kan. at 110-11.
The Supreme Court concluded Nguyen deserved "the same relief as his codefendants" and reversed his conviction for conspiracy to commit kidnapping, vacated the accompanying sentence, and remanded the case to the district court for resentencing. 309 Kan. at 111. Also on remand, the district court was instructed to address the remaining claims in Nguyen's 2012 K.S.A. 60-1507 motion. 309 Kan. at 111.
On remand the district court summarily denied each claim raised by Nguyen that the Kansas Supreme Court had not resolved. In an extensive 37-page written opinion, the district court examined each of Nguyen's claims and found them without merit. In particular, the district court declined to grant Nguyen relief on his demand that he be allowed to reactivate the appeal of his 2007 K.S.A. 60-1507 motion. Nguyen claimed his appellate counsel had been ineffective by failing to timely docket that appeal. The district court instead addressed each of Nguyen's claims from his 2007 K.S.A. 60-1507 motion and found them lacking merit as well. Ultimately, the district court held that the issue of whether Nguyen's appellate counsel in his 2007 habeas appeal was ineffective was moot because the claims in his 2007 K.S.A. 60-1507 motion lacked merit. After reviewing the entire record, the district court concluded Nguyen was provided a fair trial, afforded due process, and had competent counsel. The district court denied his motion.
Also in 2012, Nguyen filed a motion to correct illegal sentence in his criminal case. Nguyen attached the 60-1507 motion he had attempted to file in March 2012 but was rejected by the district court. He argued the issues raised in that 60-1507 motion were illegal actions by the original sentencing court. His pro se motion argued that his sentence was imposed without jurisdiction because he was not permitted to communicate with the Vietnamese consulate and he did not receive adequate interpretation throughout the proceeding, thereby preventing him from understanding his rights and the charges. He also appeared to argue that the sentences did not conform to the law for those same reasons. The relief that Nguyen sought in his motion to correct illegal sentence was to vacate his sentences because he contested his convictions.
The district court denied Nguyen's illegal sentence motion, concluding his motion did not demonstrate that his sentences were imposed under the circumstances articulated under K.S.A. 22-3504 : the sentencing court was without jurisdiction, the sentence did not conform to appliable statutes, or the sentence was ambiguous.
Nguyen timely appeals.
On appeal, Nguyen argues the district court erred in summarily denying his 2007 K.S.A. 60-1507 motion and he is entitled to an evidentiary hearing on his claims. Nguyen contends his motion provided a detailed basis for relief; specifically, his claim that appellate counsel was ineffective for failing to timely docket his 2007 K.S.A. 60-1507 appeal. He also contends prejudice resulted from appellate counsel's deficient performance because it resulted in dismissal of his first habeas appeal. Nguyen argues we should reverse the district court, remand for an evidentiary hearing to consider the merits of his 2007 K.S.A. 60-1507 claims, and appoint counsel.
A district court has three options when evaluating a 60-1507 motion; one of those options, as was done here, is for the district court to summarily deny the motion after having determined the motion, files, and case records conclusively show the movant is entitled to no relief. White v. State , 308 Kan. 491, 504, 421 P.3d 718 (2018). When a district court summarily denies a 60-1507 motion, our review on appeal is de novo. We make an independent judgment as to whether the movant is entitled to relief based on the same motion and records of the case. Beauclair v. State , 308 Kan. 284, 293, 419 P.3d 1180 (2018). To avoid the summary denial of a motion, a movant's contentions must be more than conclusory—either the movant must provide an evidentiary basis to support his or her claims or the basis must be evident from the record. Sola-Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014).
Both parties address at length the potential procedural bars possibly preventing our review of Nguyen's untimely and successive motion. But the district court reviewed the merits of Nguyen's claims contained in his 2012 K.S.A. 60-1507 motion as instructed by the Kansas Supreme Court in Nguyen IV , 309 Kan. at 111. See State v. Clark , 313 Kan. 556, 575, 486 P.3d 591 (2021) (). Given our Supreme Court's mandate, and for the purposes of our review, we assume Nguyen has sufficiently established both manifest injustice and exceptional circumstances to allow for the consideration of the merits of his claims. We do so because, ultimately, they lack merit.
To be entitled to relief under K.S.A. 2020 Supp. 60-1507, the movant must establish by a preponderance of the evidence "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." K.S.A. 2020 Supp. 60-1507(b) ; see Supreme Court Rule 183(g) (2022 Kan. S. Ct. R. at...
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