On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-07-1183.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Parrillo and Lihotz.
Defendant Hoang Van Nguyen appeals from an order denying his motion to withdraw a guilty plea, entered in connection with a plea agreement, prior to sentencing. Defendant and co-defendants Biens Vu and Hoa Tran, all Vietnamese nationals, were arrested in connection with robberies of Jersey City Health and Diet Clinic customers. Defendants were indicted and charged with three counts of armed robbery, N.J.S.A. 2C:15-1 (counts one, two and three); three counts of kidnapping, N.J.S.A. 2C:13-1(b) (counts four, five and six); one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven); one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eight); and one count of terroristic threats, N.J.S.A. 2C:12-3(b) (count nine).
Defendants and the State negotiated a plea agreement. Pursuant to the terms of the agreements, defendants would plead guilty to one count of armed robbery, and the State would dismiss all remaining charges and recommend sentencing in the range for an offense one degree lower than that charged. During a December 16, 2004 hearing, with the assistance of a Vietnamese interpreter, the trial judge advised defendants of their rights by questioning the three simultaneously regarding their understanding of those rights and the consequences of entering a guilty plea.
Prior to sentencing, defendant, accompanied by different counsel, moved to vacate his plea, asserting he misunderstood the translator and pleaded guilty under pressure from counsel. Co-defendants filed similar motions. Following a plenary review of the combined motions, the trial judge considered the testimony of the interpreter and Tran. The court denied the motions and sentenced defendants pursuant to the terms of the plea agreement. Accordingly, defendant was sentenced within the second-degree range to a five-year term of incarceration subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).
On appeal, defendant presents these arguments for consideration:
BY SIMULTANEOUSLY ADVISING MR. NGUYEN AND HIS TWO CO-DEFENDANTS OF THEIR RIGHTS AND ASCERTAINING THE VOLUNTARINESS OF THEIR GUILTY PLEAS THROUGH A LANGUAGE INTERPRETER, THE TRIAL COURT BREACHED THE DICTATES OF R[ULE] 3:9-2, THEREBY DENYING MR. NGUYEN DUE PROCESS, AND PRECLUDING A FINDING THAT HIS PLEA HAD BEEN ENTERED VOLUNTARILY AND KNOWINGLY. (Not Raised Below).
MR. NGUYEN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA. U.S. CONST., AMEND. VI; N.J. CONST. (1947), ART. I ¶ 10 (Not Raised Below).
Following our review, we conclude the failure to make an individual inquiry of each defendant's knowing and voluntary waiver of his rights upon entry of the guilty plea violates procedural due process. We reverse defendant's conviction and vacate his guilty plea, remanding the matter for a new trial.
These are the facts surrounding the plea colloquy. Defendant was born in Vietnam in 1968 and attended only two years of school. He emigrated to the United States in 1989 and, at the time of his plea, was not proficient in reading or writing in either Vietnamese or English. Accordingly, a Vietnamese interpreter, Quock Duong, was retained for all court proceedings. During the plea hearing under review, all three co-defendants appeared and Duong was the sole interpreter.
On December 16, 2004, counsel represented defendants would accept a plea offer: in exchange for pleading guilty to one count of armed robbery, defendants would be sentenced to a term of incarceration in the second-degree range, between five and seven years, subject to NERA.
The plea agreement form was reviewed by defendant and his assigned counsel, who later explained to the court that when the proposed plea agreement was reviewed, the questions were recited by the interpreter "once to everybody."
With respect to the defendants' pleas, the court suggested a similar procedure be used, stating "we can do all three at once," then proceeded to ask questions "one time[.]" Thus, "[o]ne yes" by the interpreter "would indicate all three" defendants responded "yes." Reaffirming this procedure, the court instructed the interpreter as follows:
THE COURT: Interpreter, when you're saying yes, you're saying yes for the three gentlemen; correct?
THE INTERPRETER: Yes for three gentlemen.
THE COURT: Okay. In other words instead of saying ...