Giang T. Nguyen, Appellant,
State of Kansas, Appellee.
of the judgment of the Court of Appeals in an unpublished
opinion filed January 15, 2016.
BY THE COURT
Supreme Court Rule 183(e) (2018 Kan. S.Ct. R. 223) provides
that a motion under K.S.A. 60-1507 is sufficient if it is in
substantial compliance with the Judicial Council form. A
K.S.A. 60-1507 motion substantially complies with the
Judicial Council form if it provides the reviewing court with
the information called for by the form's questions and it
presents that information in such a manner that the reviewing
court can match the answers to their corresponding form
Nothing in Supreme Court Rule 183(e) prohibits a K.S.A.
60-1507 movant from using an attachment to the Judicial
Council form or using incorporation by reference to an
attachment when providing the information called for in the
Judicial Council form.
While a pro se K.S.A. 60-1507 movant is required to follow
the rules of procedure governing such motions, we liberally
construe the filed document to give effect to its content,
rather than focusing on the labels and forms used to
articulate the arguments.
sentencing court is not required to entertain a second or
successive K.S.A. 60-1507 motion for similar relief on behalf
of the same prisoner, unless the movant shows exceptional
circumstances justifying the consideration of the
Supreme Court Rule 183(j) requires a district court reviewing
a K.S.A. 60-1507 motion to make explicit findings of fact and
conclusions of law regarding each of the movant's
specific issues. When a district court summarily denies a
K.S.A. 60-1507 motion without appointing counsel for the
movant and without having the movant present in court, the
movant's timely filed motion to alter or amend judgment
that specifically requests findings of fact and conclusions
of law on all issues raised is sufficient to compel the
district court's compliance with Supreme Court Rule
from Finney District Court; Philip C. Vieux, judge.
Christopher J. Velez, of Law Office of Christopher J. Velez,
of Garden City, was on the briefs for appellant.
S. Hicks, assistant county attorney, Susan Lynn Hillier
Richmeier, county attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
T. Nguyen filed a pro se motion under K.S.A. 60-1507,
claiming multiple errors led to his 2003 convictions for
felony murder and numerous other felonies, including
conspiracy to commit aggravated burglary and conspiracy to
commit kidnapping. It was his third such motion. The district
court dismissed the motion for being untimely, for being
successive, and for being noncompliant with the pleading
requirements of Supreme Court Rule 183(e) (2018 Kan. S.Ct. R.
appeal, a panel of the Court of Appeals held that
Nguyen's motion was not time barred, based upon the
manifest injustice exception, because "his conviction
for conspiracy to commit kidnapping is likely
multiplicitous." Nguyen v. State, No. 112, 851,
2016 WL 197745, at *1-2 (Kan. App. 2016) (unpublished
opinion). But the panel held that the district court did not
err in dismissing the motion, because it was successive and
it failed to comply with Supreme Court Rule 183(e). Further,
the panel rejected Nguyen's claim that the district court
had failed to make the requisite findings of fact and
conclusions of law to support its decision. This court
granted Nguyen's petition for review. We reverse
Nguyen's conviction for conspiracy to commit kidnapping;
vacate the accompanying sentence; and remand the case to the
district court for resentencing. With respect to the
remainder of Nguyen's motion, we reverse the district
court's order dismissing the motion and remand the case
to the district court with directions.
and Procedural Background
facts underlying Nguyen's convictions are recited in
State v. Nguyen, 281 Kan. 702, 133 P.3d 1259 (2006),
the direct appeal opinion affirming the convictions. Briefly
stated, Nguyen; his brother, Nam Nguyen (Nam); and another
man, Ngan Pham (Pham), forcibly entered a residence, tied up
six family members, and subsequently shot and killed one
family member who attempted to flee. Two days later, Nguyen
voluntarily turned himself in to the authorities and
confessed. He was convicted of felony first-degree murder,
aggravated kidnapping, aggravated burglary, conspiracy to
commit kidnapping, conspiracy to commit aggravated burglary,
and five counts of kidnapping. The district court sentenced
Nguyen to serve a prison term of 165 months for aggravated
kidnapping consecutive to a hard 20 life sentence.
directly appealed to this court. The issues raised and our
accompanying holdings were summarized as follows:
"1. Did the district court err in allowing into evidence
certain information from the confession by coconspirator Ngan
Pham? Yes, but it was harmless error.
"2. Did the district court err in denying [Nguyen]'s
motion to suppress his own statements to police? No.
"3. Did the district court err in allowing into evidence
certain photographs? No.
"4. Did the district court err in determining that
[Nguyen]'s convictions of felony murder and aggravated
kidnapping were not multiplicitous? No.
"5. Were [Nguyen]'s rights of confrontation violated
when the district court admitted his own statements into
"Accordingly, we affirm." Nguyen, 281 Kan.
opinion in Nguyen's direct appeal was filed May 5, 2006.
The next month, on June 16, 2006, we filed an opinion in the
direct appeal of Nguyen's codefendant, Pham. State v.
Pham, 281 Kan. 1227, 136 P.3d 919 (2006). Pham had
challenged his conviction for conspiracy to commit kidnapping
as being multiplicitous with his conviction for conspiracy to
commit aggravated burglary. Finding that "there was only
a single continuing conspiracy," we reversed Pham's
conviction for conspiracy to commit kidnapping and vacated
the sentence on that count. 281 Kan. at 1262.
January 16, 2007, Nguyen filed his first pro se K.S.A.
60-1507 motion. That motion is not included in the record on
appeal, but an earlier memorandum decision from the district
court noted that the motion raised the following issues:
"(i) whether Defendant was forced to rely on an
interpreter who spoke in a culturally different dialect,
which violated his 5th, 6th and 14th amendments (sic); (ii)
whether the State failed to prove all of the elements of
aggravated burglary which constituted the underlying felony
necessary to sustain its conviction of felony murder (sic);
(iii) whether [the district court] violated Defendant's
right to a fair trial when it denied him an opportunity to
exercise individualized voir dire; (iv) whether [the district
court] contributed to the trial counsel's performance
being ineffective in violation of Defendant's 6th
amendment (sic); (v) whether the information/complaint was
fatally defective because it failed to charge all of the
elements necessary to charge the crime of aggravated
burglary; (vi) whether the State failed to prove guilt for
the crime of aggravated burglary, as being the underlying
felony to sustain a conviction for felony murder; (vii)
whether the performance of trial counsel for Defendant was
inadequate and ineffective for failing to conduct an adequate
pretrial investigation, for failing to make proper
contemporaneous objections, for failing to conduct adequate
voir dire examinations, for failing to file a proper motion
for judgment of acquittal after the jury returned its
verdict, and for failing to present an adequate closing
argument; (viii) whether the State's jury selection
process violated Batson in denying Defendant the
right to select jury members from a fair cross section of the
community; and (ix) whether Defendant's appellate counsel
was ineffective in failing to raise viable issues on
days later, the district court summarily denied Nguyen's
motion "for failure to set forth any substantial issues
of fact or law with regard to [his] criminal case."
Nguyen filed a notice of appeal of the denial of his K.S.A.
60-1507 motion. According to Nguyen's motion to docket
appeal out-of-time contained in the Kansas Appellate
Clerk's Case Tracking System, he was appointed appellate
counsel in April 2007, but appointed counsel failed to take
any action for approximately two years. Thereafter, on April
23, 2009, the Court of Appeals denied Nguyen's motion to
docket his appeal out-of-time, thereby foreclosing appellate
review of the district court's summary denial of the
first K.S.A. 60-1507 motion.
this period, in 2008, this court filed an unpublished opinion
in the direct appeal of Nguyen's other codefendant, Nam.
In that decision, we reversed Nam's conspiracy to commit
kidnapping conviction as multiplicitous, based on the same
rationale employed in Pham's appeal. State v.
Nguyen, No. 96, 430, 2008 WL 360635, at *2 (Kan. 2008)
December 31, 2009, Nguyen filed his second pro se K.S.A.
60-1507 motion. This motion is also not included in the
record on appeal, but the Court of Appeals' opinion
affirming the district court's denial of the motion noted
that the motion raised the following issues:
"(1) he was not informed of his Miranda rights in a
Vietnamese dialect he could understand, rendering his
custodial statements to law enforcement inadmissible; (2) the
charging document was defective because it alleged aggravated
burglary without specifying an underlying felony; (3) trial
counsel was ineffective in failing to interview Pham in a
manner that would have produced exculpatory evidence, in
failing to adequately research the issue of different
Vietnamese dialects, and in failing to present an adequate
argument for judgment of acquittal; (4) he was denied a fair
and impartial trial by a jury of his peers because there were
no Vietnamese or Southeast Asian people on the jury; and (5)
Pham retracted his statement to law enforcement regarding
Nguyen's involvement in the matter and this evidence was
either not disclosed by the State or Nguyen's attorney
failed to explore this possibility of exculpatory
evidence." Nguyen v. State, No. 104, 057, 2011
WL 781525, at *1 (Kan. App. 2011) (unpublished opinion).
a review of the official court file, records, and
transcripts, the district court denied Nguyen's second
motion in February 2010, without a hearing. On March 4, 2011,
a panel of the Court of Appeals affirmed the district
court's summary denial of Nguyen's second K.S.A.
60-1507 motion. Nguyen, 2011 WL 781525, at *2.
March 2012, Nguyen attempted to file a third K.S.A. 60-1507
motion, which was identical to the motion now before us. The
district court did not file the motion, but rather returned
it to Nguyen with a letter from District Judge Michael Quint.
The letter advised Nguyen that he needed "to be aware in
[K.S.A. 60-1507] paragraph (c) 'Successive motions. The
sentencing court shall not be required to entertain a second
or successive motion for similar relief on behalf of the same
prisoner.'" Judge Quint further informed Nguyen that
there was "no manifest injustice in any of the previous
rulings against [him] and the Court refuse[d] to file [his]
latest Motion as being a duplication of [his] previous
August 28, 2012, Nguyen was successful in getting his third
pro se K.S.A 60-1507 motion filed, ...