State of Iowa v. Thanh Van Nguyen

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.
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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-
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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
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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
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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.