Opinion
DOCKET NO. A-5966-10T3
07-18-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TOAN H. NGUYEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-04-1011.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Following denial of his motion to dismiss pursuant to the Interstate Agreement on Detainers (IAD), N . J . S . A . 2A:159A-1 to - 15, defendant Toan H. Nguyen pleaded guilty to one count of second-degree conspiracy to commit theft by deception involving over $75,000, N . J . S . A . 2C:5-2 and N . J . S . A . 2C:20-4. Pursuant to his plea agreement, the court sentenced defendant to a term of seven years. The court also required defendant to pay restitution of $406,000.
Defendant now appeals from the denial of his dismissal motion, asserting that the State failed to bring defendant to trial within 180 days as required by the IAD. See N.J.S.A. 2A:159A-3(a). At issue is when the 180-day period began to run, and whether it was suspended. Defendant argues the 180-day period began to run when the Atlantic County Prosecutor received the IAD request, although the State Division of Criminal Justice (DCJ) handled his prosecution and received the request ten days later from the county prosecutor. Defendant also argues the 180-day period was not suspended after his appointed assistant deputy public defender advised the court that he had a conflict of interest, and substitute counsel would be needed.
Defendant does not challenge the restitution amount, which defendant accepted at sentencing, but was neither included in the plea agreement, nor supported by a showing of ability to pay or consideration of the factors in N.J.S.A. 2C:44-2. He purports to reserve "any later claim defendant might raise regarding either ability to pay restitution or ineffective assistance of counsel."
Having reviewed these arguments in light of the facts and applicable law, we are convinced the 180-day period did not begin to run until the DCJ received the request, and the period was suspended once counsel announced his conflict and did not resume until substitute counsel entered his appearance. We therefore affirm.
I.
The facts are undisputed. According to defendant's plea allocution in 2008, defendant agreed with several others to deposit forged bank checks totaling at least $75,000 at various casinos. Defendant admitted that he made unauthorized copies of checks, forged them, and gave them to at least six other co-conspirators. They presented them to the casinos, gambled with the proceeds, and shared gambling winnings with defendant.
Defendant was indicted by an Atlantic County grand jury on April 28, 2010. In addition to the second-degree conspiracy count to which defendant pleaded guilty, the indictment included ten counts of theft and attempted theft, some in the second-degree and others in the third-degree. The indictment was signed by Yvonne G. Maher, who was identified as a deputy attorney general (DAG) in DCJ's Casino Prosecutions Bureau. The indictment bore the indictment number 10-04-1011-DCP, and prosecutor's file number 10001827-001. The April 2010 indictment superseded a November 19, 2009 indictment, not included in the record before us, which charged defendant with two counts of second-degree theft by deception and second-degree conspiracy.
Defendant was incarcerated in California when he was indicted. The California Department of Corrections notified him on December 11, 2009, that the New Jersey State Police, Casino Gaming Bureau, at 1300 Atlantic Avenue in Atlantic City, had filed a detainer against him on November 17, 2009. The notice referred to the warrant number, 0102W2009008105. Defendant filed his first request for disposition on January 11, 2010, which is not included in the record. According to the trial court, the request was unaccompanied by a certificate from California prison officials.
We presume the warrant was included in a warrant-complaint, but a copy is not included in the record.
After the April 2010 superseding indictment, defendant filed a second request for disposition. The parties agree the forms transmitted complied with the IAD. Included was: Form I, "Notice of Untried Indictment, Information or Complaint and of Right to Request Disposition," which referred to "case number 0102W2009008105," and not the indictment; Form II, "Inmate's Notice of Placement of Imprisonment and Request for Disposition of Indictments, Information or Complaints," which referred to the "State of New Jersey" as prosecutor and Atlantic City Municipal Court as the relevant court; Form III, "Certificate of Inmate Status," dated April 29, 2010, certified by the California warden, which disclosed defendant was serving a three-year sentence with a parole eligibility date of October 23, 2010, and a maximum expiration date of November 8, 2011; and Form IV, "Offer to Deliver Temporary Custody," also signed by the warden, which was directed to "District Attorney New Jersey." The four forms were transmitted by the California Correctional Center, by certified mail with a return receipt requested, with a cover letter dated April 29, 2010, addressed to "District Attorney, State of New Jersey" at "4997 Unami Blvd., Mays Landing, NJ 08330." The certified mail receipt and registered mail card included the same address.
The return receipt card was signed with a date of delivery of May 7, 2010. The signature is unintelligible. The forms were then apparently transmitted to the Casino Prosecutions Bureau, which stamped the cover letter received May 17, 2010. We reached this determination based on the cover letter in the record, which bore the received stamp and handwritten notes. Although partially obscured, the notes included "YM" — an apparent reference to DAG Maher; "10-1827" — an apparent reference to the prosecutor's file number. These notes were placed above "RR," "5/10/10," and "Trans to atty gen ofc." We surmise that the documents, received on May 7, 2010, were forwarded three days later, May 10, 2010, to the Casino Prosecutions Bureau of DCJ.
On August 9, 2010, DAG Maher, on behalf of the State, executed a Form VII, "Prosecutor's Acceptance of Temporary Custody Offered With An Inmate's Request for Disposition of Detainer," which included Judge Michael A. Donio's certification that DAG Maher was the appropriate officer under the IAD. Defendant was then transferred from California into custody of New Jersey officials on September 13, 2010. The next day, the Office of the Public Defender (OPD) was appointed to represent him.
On September 27, 2010, defendant, represented by assistant deputy public defender Eric Shenkus, entered a not guilty plea. By letter delivered October 12, 2010, the State advised Shenkus that defendant's case should be assigned to a pool attorney as OPD represented one of defendant's co-defendants. At a status conference on October 25, 2010, Shenkus "advised that the matter needed to be pooled due to attorney conflict."
The letter is not included in the record and we rely on Judge Donio's written opinion for this part of the factual background, which is essentially undisputed. Defendant was the only defendant named in his April 2010 indictment. By "one of defendant's co-defendants," the court apparently referred to other co-conspirators who presumably were separately charged.
Substitute counsel, Murray Sufrin, appeared for defendant at a November 8, 2010, status conference. Sufrin requested a continuance to order a grand jury transcript and to allow him to prepare for trial. At a subsequent status conference on December 6, 2010, Sufrin requested a further continuance for plea negotiations. On January 3, 2011, he requested a continuance in order to file a motion to dismiss the indictment.
Judge Donio denied the motion in a cogent written opinion dated February 25, 2011. Judge Donio found that the 180-day period began to run on May 17, 2010, when the forms were received by the DCJ. There is no indication from Judge Donio's opinion that defendant asserted the period began to run on May 7, 2010, when received by the county prosecutor. Judge Donio found that defendant's January 11, 2010, demand for trial was ineffective because it pertained to an indictment that was later superseded, and it was incomplete, because it did not contain the warden's offer to transfer custody.
Apparently, the motion was heard on the papers, as no transcript of argument was provided.
Rather, defendant appeared to argue the 180-day period had expired since defendant demanded a trial on January 10, April 29, and July 12, 2010.
The court noted that absent tolling, the 180-day period commencing May 17, 2010, would have expired on November 12, 2010. However, the judge concluded the time period was tolled for the period between October 25, 2010, when Shenkus disclosed his conflict, and November 8, 2010, when Sufrin appeared. It was also tolled during the continuances Sufrin requested, beginning November 8, 2010, and extended December 6, 2010. Judge Donio found that as of February 25, 2011, 147 days had elapsed. He therefore set the case down for trial on March 28, 2011, within the remaining thirty-three days. However, he also scheduled a pre-trial conference on March 3, 2011. On that earlier date, defendant entered his plea, conditioned on his right to appeal the order denying his dismissal motion.
On appeal, defendant argues,
THE LAW-DIVISION JUDGE ERRED BY REFUSING TO DISMISS THE CHARGES AGAINST DEFENDANT FOR A SIGNIFICANT VIOLATION OF THE INTERSTATE AGREEMENT ON DETAINERS.
In a supplemental pro se brief, defendant argues,
DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE INTERSTATE AGREEMENT ON DETAINERS ACT W[ERE] VIOLATED BY THE STATE OF NEW JERSEY NOT HONORING THE TIME PERIODS FOR BRINGING THE CASE TO TRIAL. WHEREFORE THE CONVICTION SHOULD BE REVERSED AND THE INDICTMENT DISMISSED.
II.
The IAD "creates uniform procedures for lodging and executing a detainer[.]" Alabama v. Bozeman, 533 U.S. 146, 148, 121 S. Ct. 2079, 2082, 150 L. Ed. 2d. 188, 192 (2001). Article III of the IAD, N.J.S.A. 2A:159A-3, sets forth the procedure by which a prisoner in another state's correctional facility may initiate proceedings to bring charges in this state to trial. Trial must be commenced within 180 days of delivery of a request to the prosecuting officer and the court.
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint[.]
[N.J.S.A. 2A:159A-3(a).]
Article III also expressly provides for extensions of the 180-day period based on continuances granted in court for good cause. "[F]or good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." Ibid. If the trial is not commenced within 180 days, absent necessary and reasonable continuances, "the court shall enter an order dismissing [the indictment] with prejudice." N.J.S.A. 2A:159A-3(d). The IAD is intended to "encourage the expeditious and orderly disposition of . . . charges [outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, information[] or complaints." N.J.S.A. 2A:159A-1.
Strict compliance with the provisions of the IAD is required to effectuate an inmate's request for final disposition. State v. Pero, 370 N.J. Super. 203, 222 (App. Div. 2004). Substantial compliance does not suffice. Id. at 220-21. Nor does a prosecutor's knowledge that a request has been made. Id. at 222. In Pero, supra, 370 N.J. Super. at 209-10, the State initially received unsigned copies of Forms III and IV — the Certificate of Inmate Status, and Offer to Deliver Temporary Custody. See N.J.A.C. 10A:10-1.4(b). We held the 180-day period was triggered only when New Jersey authorities received completed and signed forms. Id. at 214; see also State v. Stiles, 233 N.J. Super. 299, 307-08 (App. Div. 1989) (holding a request for disposition containing an unsigned Form II and lacking the required certificate of inmate status is insufficient to start the time period).
The IAD assigns to the warden of the out-of-state correctional facility the obligation to comply with IAD's requirements. "[A] prisoner has limited power to insure his warden's efficient and complete cooperation with the requirements of the IAD." Pero, supra, 370 N.J. Super. at 221. We held, nonetheless, "it does not seem unduly harsh to place both practical and legal burdens on the prisoner who seeks to force another jurisdiction to bring him to trial within 180 days, on threat of dismissal for failure to meet that deadline." Ibid. We held it was a prisoner's burden to follow up and assure proper delivery and receipt. Ibid. We reasoned it would not further the IAD's intent to counter prosecutorial delays by dismissing an indictment "where the prosecuting authority is not in violation of the compact." Ibid.
A.
We first address when the 180-day period began to run after a California correctional official transmitted the IAD documents in April 2010. "[T]he 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Fex v. Michigan, 507 U.S. 43, 52, 113 S. Ct. 1085, 1091, 122 L. Ed. 2d 406, 416 (1993); State v. Ternaku, 156 N.J. Super. 30, 34 (App. Div.), certif. denied, 77 N.J. 479 (1978). "The legal burden upon a defendant is to prove actual receipt by the prosecutor and the court in the State where the inmate seeks a prompt disposition." Pero, supra, 370 N.J. Super. at 221.
Defendant argues in his pro se brief that a 180-day period should have started with his first request in January 2010, because he substantially complied with the statute. The argument lacks sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), as the record lacks evidence of his first request, he has not demonstrated substantial compliance, and substantial compliance is, in any event, insufficient. Pero, supra, 370 N.J. Super. at 220-21.
In this case, the warden sent the IAD forms to the County Prosecutor, mistakenly named "District Attorney," at 4997 Unami Boulevard in Mays Landing. However, as reflected in the indictment, the prosecuting authority in defendant's case is DCJ, Casino Prosecutions Bureau. The Bureau's offices were located at 1330 Atlantic Avenue in Atlantic City, the same address as the New Jersey State Police, Casino Gaming Bureau, which filed the detainer against defendant.
We have found no New Jersey case that addresses the impact of misdirecting IAD forms to the wrong prosecuting authority. However, persuasive out-of-state authority, along with the general principles of strict compliance set forth in Pero, persuade us that the 180-day period does not start running until the correct prosecuting authority receives a complete request. As in this case, the IAD request in State v. Wells, 638 N.W.2d 456, 458 (Minn. Ct. App. 2002), was mailed to a county prosecuting attorney instead of an assistant attorney general, to whom it was forwarded over two weeks later. The court held that absent any evidence showing "a joint prosecution or a separate basis for designating the Stearns County Attorney as the prosecuting authority," the 180 day period began only when the Attorney General's office received the request. Id. at 460.
A contrary result would disserve the policy behind the IAD expressed in Pero. Although we recognize that the county prosecutors are subject to supersession by the Attorney General, N.J.S.A. 52:17B-106, -107, the county prosecutors and DCJ do not comprise a unified prosecuting agency. To permit transmittal of IAD forms to a county prosecutor when DCJ is prosecuting a case, would allow the clock to run before notification of the prosecuting attorney with the authority to control the timing of trial. The goal of the IAD is to provide a mechanism to secure prompt trials, not to provide means to secure ill-deserved dismissals of indictments.
In sum, we conclude Judge Donio correctly held the 180-day period began to run May 17, 2010, when DCJ received the forms at its Atlantic City offices.
B.
We consider next whether the 180-day period was tolled when Shenkus announced his conflict, until Sufrin entered his appearance. Defendant argues the time period was not tolled because he did not request the change in counsel. We disagree.
Article VI(a) of the IAD states the 180-day period is "tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter." N.J.S.A. 2A:159A-6(a). If it is determined that the inmate is unable to stand trial, "the court subtracts from the total number of days elapsed the number of days the inmate in unable to stand trial to determine if the time period has been exceeded." Leslie W. Abramson, The Interstate Agreement of Detainers: Narrowing Its Availability and Application, 21 New Eng. J. on Crim. & Civ. Confinement 1, 35 (1995).
We have held that when a defendant is unrepresented, but has not waived counsel, he is unable to stand trial and the 180-day period does not run. State v. Miller, 299 N.J. Super. 387, 396 (App. Div.) (stating "the 180-day statutory limit . . . is tolled starting from the time that a defendant is not represented by counsel until new counsel is either appointed or retained when the defendant has not waived his right to counsel"), certif. denied, 151 N.J. 464 (1997).
Although we do not have the transcript of the October 25, 2010 status conference, defendant does not challenge Judge Donio's finding that Shenkus advised the case needed to be pooled because of a conflict. The fair import of that statement was that the conflict was current, and barred Shenkus's continued representation. Under Miller, defendant consequently was unable to stand trial. See also State v. Millett, 272 N.J. Super. 68, 106 (App. Div. 1994) (stating defendant was unable to stand trial "while he was between attorneys"); 5 LaFave, Criminal Procedure, § 18.4(c) at 176-77 (3d ed. 2007) (stating the time period can be extended by "'any period of delay caused by the defendant's request or ordered to accommodate the defendant, as where defense counsel has withdrawn because of a conflict of interest'" (citations omitted) (emphasis added)).
Thus, the 180-day period was tolled on October 25, 2010. Defendant has presented no evidence that Sufrin filed a formal substitution of attorney before his appearance in court on November 8, 2010. Although defendant was no longer
unrepresented, on that day, Sufrin requested a continuance. The time clock remained frozen upon Sufrin's subsequent requests for continuances. See Millett, supra, 272 N.J. Super. at 106 (holding that prisoner was unable to stand trial during delays occasioned by defense counsel's requested continuances to prepare for trial, to conduct an investigation, and to file pre-trial motions).
We reject the State's argument that, inasmuch as defendant was not represented until the initial appointment of the assistant deputy public defender, which the State asserts was September 27, 2010, the time period was tolled between May 17, 2010 and September 27, 2010. The State misapplies Miller. Until defendant arrived in New Jersey in September, and then was arraigned September 27, 2010, he was unable to go to trial for reasons unrelated to his lack of representation. Lack of counsel constitutes an inability to go to trial, which tolls the time period, only when defendant is otherwise able to go to
Sufrin's continuances were granted in open court in defendant's presence. See N.J.S.A. 2A:159A-3(a). Defendant cannot be heard to dispute good cause for the continuances, as his attorney requested them, and Judge Donio found they were justified. See United States v. Scheer, 729 F.2d 164, 168 (2d Cir. 1984) ("Considering that the defendant requested these delays solely for his benefit, we are unpersuaded that his [IAD rights] were violated."); State v. Nelson, 8 A.3d 40, 44 (N.H. 2010) ("There is 'good cause' to grant a 'reasonable' and 'necessary' continuance to allow defense counsel 'time for adequate trial preparation.'" (citation omitted)); Millett, supra, 272 N.J. Super. at 106-07 (stating that continuances requested to allow replacement counsel time to prepare for trial and to file pre-trial motions are sufficient to extend the time period); State v. Shatney, 572 A.2d 872, 875 (R.I. 1990) ("[T]he IAD was not designed to protect against delays caused by actions of a defendant." (citation omitted)).
We also reject defendant's pro se argument that the continuances requested by his attorney required his personal concurrence. See New York v. Hill, 528 U.S. 110, 115, 120 S. Ct. 659, 664, 145 L. Ed. 2d 560, 567 (2000) (holding that the right to trial within the 180-day period under the IAD is not a fundamental right that requires a personal waiver and "[s]cheduling matters are plainly among those for which agreement by counsel generally controls"); State v. Onapolis, 541 S.E.2d 611, 615 (W.Va. 2000) ("The fact that the appellant's counsel instead of the appellant requested the continuance is of no consequence.")
Based on our calculations, 161 days elapsed from May 17, 2010 to October 25, 2010. The last defense request for a continuance was to permit consideration of a motion to dismiss. The court resolved the motion by written decision on February 25, 2011. The court then postponed trial until March 28, 2011. We need not address whether the court's ordered continuance, which was not granted in open court in defendant's presence, would have effectively tolled the time period. Defendant entered his plea on March 3, 2011. Thus, even if the time period resumed on February 25, 2011, defendant entered his plea six days later, on the 167th day. Thus, there was no violation of defendant's rights under the IAD. Affirmed.
May 17, 2010 was the 137th day of the year and October 25, 2010 was the 298th day.
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION