State of Iowa v. Thanh Van Nguyen

• Court: Court of Appeals of Iowa
• Decided: October 5, 2022
• Docket: 22-0474
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0474 Filed October 5, 2022

STATE OF IOWA, Plaintiff-Appellee,

vs.

THANH VAN NGUYEN, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.

A defendant appeals the district court’s denial of his motion in arrest of

judgment. AFFIRMED.

Eric D. Puryear and Eric S. Mail of Puryear Law P.C., Davenport, for

appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ. 2

CHICCHELLY, Judge.

Thanh Van Nguyen appeals the district court’s denial of his motion in arrest

of judgment. He alleges his guilty plea was not entered knowingly and voluntarily

because his written guilty plea was not translated into Vietnamese for him. Upon

our review, we find no abuse of discretion and affirm the district court’s decision.

On October 15, 2021, Nguyen entered a written guilty plea to two class “C”

felonies and one class “D” felony. Thereafter, Nguyen hired new counsel and filed

a motion in arrest of judgment on November 24. On February 9, 2022, the district

court held an in-person hearing on Nguyen’s motion and sentencing. The court

denied Nguyen’s motion in arrest of judgment and his subsequent request for a

continuation of sentencing. Pursuant to the plea agreement, the court sentenced

Nguyen to supervised probation and a suspended sentence.

Nguyen filed a timely notice of appeal in the form of an application for

permission to appeal under Iowa Code section 814.6(1)(a)(3) (2021) (granting

right of appeal after a guilty plea where the defendant establishes good cause).

Although Nguyen contends that his plea was not made knowingly and intelligently,

our supreme court in State v. Tucker, 959 N.W.2d 140, 153 (Iowa 2021), expressly

declined to “expand the concept of good cause and hold that a claim that a plea is

not intelligently or voluntarily made constitutes good cause to appeal as a matter

of right.” However, Tucker’s failure to file a motion in arrest of judgment presents

a key distinction from Nguyen’s case. See Tucker, 959 N.W.2d at 154. For this

reason, the proper vehicle for Nguyen’s challenge lies under Iowa Code

section 814.6(2)(f), which permits discretionary review from an order denying a

motion in arrest of judgment on grounds other than an ineffective-assistance-of- 3

counsel claim. See State v. Scott, No. 20-1453, 2022 WL 610570, at *3–5 (Iowa

Ct. App. Mar. 2, 2022) (bypassing defendant’s good-cause argument to appeal

from a guilty plea and granting discretionary review of an order denying his motion

in arrest of judgment). Iowa Rule of Appellate Procedure 6.108 allows us to

proceed as though Nguyen requested the proper form of review.

Discretionary review is available when “the grounds set forth in any statute

allowing discretionary review exist.” Iowa R. App. P. 6.106(2). Because Nguyen

seeks review of an order denying a motion in arrest of judgment on grounds other

than an ineffective-assistance-of-counsel claim, we find the grounds set forth in

Iowa Code section 814.6(2)(f) satisfied and elect to grant discretionary review.

“We review a denial of a motion in arrest of judgment for abuse of discretion

and will reverse only if the ruling was based on reasons that are clearly

unreasonable or untenable.” State v. Myers, 653 N.W.2d 574, 581 (Iowa 2002).

Nguyen alleges the district court abused its discretion by denying his motion in

arrest of judgment because he lacks comprehension of the English language.

Over the course of the plea negotiation and execution, Nguyen worked with

two different criminal defense attorneys. Both testified at the hearing on his motion

in arrest of judgment. Nguyen’s first attorney recounted that they conversed in

English during initial meetings, and he did not find any difficulty communicating.

However, a friend or family member contacted the attorney and informed him to

request a Vietnamese interpreter for Nguyen. In May 2021, an interpreter read

through a prepared plea agreement and guilty plea with Nguyen and his attorney.

Nguyen signed the written plea agreement at that time. However, at Nguyen’s 4

direction, the attorney filed a motion to continue and waiver of speedy trial one

week later and withdrew from the case.

Nguyen’s second attorney practices immigration law in addition to criminal

defense and has experience working with individuals whose first language is not

English. He testified to meeting with Nguyen at least a half dozen times without

the aid of an interpreter, recounting that he needed to repeat himself at times but

believed they were able to communicate. In fact, Nguyen was able to ask him fact-

based questions regarding the police reports and raised concerns about the

signature on the search warrant. The pair developed a counteroffer to the original

plea agreement, to which the State agreed. On September 28, an interpreter

attended a status conference via video hearing. Nguyen signed the written plea

agreement on October 15. While the final versions of the guilty plea and

memorandum of the plea agreement were not interpreted for Nguyen, these

documents appear nearly identical to those interpreted in May, except for the

negotiated sentence and a paragraph discussing restitution. The attorney testified

that Nguyen never expressed uncertainty as to what the documents meant.

Nguyen participated in the hearing on his motion in arrest of judgment via

an interpreter. He testified that he was not able to understand the written plea of

guilty and wished to take back the plea in order to fight his case. Ultimately, the

court found that Nguyen’s plea was made voluntarily, intelligently and knowingly,

and it had a factual basis.

“We will uphold a refusal of permission to withdraw a plea of guilty ‘where a

defendant, with full knowledge of the charge against him and of his rights and the

consequences of a plea of guilty, enters such a plea understandably and without 5

fear or persuasion . . . .’” State v. Ramirez, 400 N.W.2d 586, 588 (Iowa 1987)

(citation omitted). We are unable to fully assess Nguyen’s level of English

proficiency on this record. See State v. Alagic, No. 14–2142, 2016 WL 1678314,

at *2 (Iowa Ct. App. Apr. 27, 2016) (finding record inadequate to determine

defendant’s level of English proficiency amidst inconsistent use of an interpreter

and ability to converse with district court and counsel, and therefore, affirming his

sentence). In light of the prior interpretation and counsel’s testimony regarding his

comprehension, we find Nguyen’s self-serving testimony insufficient to reverse the

district court’s finding. See State v. Frederick, No. 05-2055, 2006 WL 2873303,

at *2 (Iowa Ct. App. Oct. 11, 2006) (“The only evidence of misinformation comes

from Frederick’s self-serving testimony at the hearing on the motion in arrest of

judgment. We conclude Frederick’s testimony, without more, was insufficient to

prove the plea was involuntary, unknowing, or unintelligent.”). Accordingly, we find

no abuse of discretion and affirm the court’s decision to deny the motion in arrest

of judgment.

AFFIRMED.