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State v. Nguyen

Court of Appeals of Washington, Division 1

December 23, 2013

STATE OF WASHINGTON, Respondent,
v.
QUY DINH NGUYEN, Appellant.

Order File Date February 10, 2014

ORDER GRANTING MOTION TO PUBLISH

Respondent State of Washington has filed a motion to publish the court's opinion entered December 23, 2013. After due consideration, the panel has determined that the motion should be granted. Now therefore, it is hereby

ORDERED that respondent's motion to publish the opinion is granted.

VERELLEN, J.

Following a plea bargain, Quy Dinh Nguyen was convicted of second degree murder and conspiracy to commit leading organized crime. Nguyen challenges the trial court's denial of his motion for a continuance to allow his newly-appointed attorney four to six months to prepare for a hearing on his motion to withdraw his guilty plea. Nguyen contends that the trial court violated his right to counsel and due process by refusing to continue the hearing, and that his attorney provided ineffective assistance as a result. Finding no error, we affirm.

FACTS

Nguyen was a leader of a gang involved in growing and distributing marijuana and operating illegal gambling machines. After Nguyen's brother was convicted for shooting another gang member, Nguyen wanted to punish Hoang Nguyen (Hoang) for testifying against his brother. Nguyen arranged for his associate Le Le to pay Jerry Thomas $5, 300 to shoot Hoang. Thomas's first attempt to shoot Hoang was unsuccessful because his gun jammed. Thomas later approached Hoang in a car and shot him in the head, killing him. Afterward, Nguyen paid Thomas as agreed.

With the assistance of a confidential witness, police identified Nguyen, learned of his role in the killing, and uncovered his leadership role in the marijuana and gambling operations. The State charged Nguyen with conspiracy to commit first degree murder, attempted first degree murder, conspiracy to commit first degree murder, and violation of the uniform controlled substances act (VUCSA). The State later amended the information to add charges of leading organized crime, second degree murder, first degree assault, conspiracy to commit first degree assault, conspiracy to commit first degree professional gambling, and conspiracy to commit VUCSA.[1] The case proceeded to trial.

After jury selection and opening arguments, Nguyen accepted the State's offer to plead guilty to second degree murder with a firearm enhancement and conspiracy to lead organized crime. In his statement on plea of guilty, Nguyen acknowledged the factual basis for the murder plea as follows:

On January 7, 2007 and January 8, 2007, 1 asked a person who worked for me to hire another person to shoot Hoang Van Nguyen with a firearm. At my direction this third person shot Hoang Van Nguyen in Tukwila, King County, Washington on January 8, 2007. Although I did not intend for this third person to kill Hoang Van Nguyen, Hoang Van Nguyen died as a result of being shot. I paid this third person $5, 300 for shooting Hoang Van Nguyen.[2]

Nguyen's attorney Jennifer Cruz informed the court that Nguyen's plea was voluntary:

And your Honor we did have an opportunity, both [co-counsel] Mr. [Brian] Todd and I, to go over the Statement of Defendant on Plea of Guilty with Mr. Nguyen. Both-two interpreters. Once I went over it with Mr. Nguyen, and once Mr. Todd went over it with Mr. Nguyen. And he was able to ask any questions that he had. He had a couple of questions, and we were able to answer those questions for him. He understands that by pleading guilty today he is giving up the several constitutional rights. The most important one at this point, and at this juncture is his right to a trial. ... I believe that he is making a knowing, intelligent, and voluntary plea today to both the murder in the second degree, and also the conspiracy to commit leading organized crime.[3]

Questioned by the prosecuting attorney, Nguyen informed the court that he understood the charges against him and was satisfied with his interpreters. He stated that he had the opportunity to discuss the charges with his attorneys, and intended to plead guilty to the reduced charges.

The court's colloquy with Nguyen included the following exchange:

COURT: I want to make sure that you are not being talked into anything, and that this is your idea to plead guilty to the two counts in the second amended information of murder in the second degree armed with a firearm, and conspiracy to leading organized crime. So is it your decision to plead guilty today?
NGUYEN: Yes.
COURT: Do you have any questions about what you are doing?
NGUYEN: No.
COURT: Do you want the court, meaning me, to accept ...

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