People of Guam v Chung [2004] GUSC 2; 2004 Guam 02 (26 January 2004)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

vs.

SEUNG KWEON CHUNG,
also known as JEONG SEUNG-KWON,
Defendant-Appellant.

Supreme Court Case No.: CRA02-002
Superior Court Case No.: CF0643-00

OPINION

Filed: January 26, 2004

Cite as: 2004 Guam 2

Appeal from the Superior Court of Guam
Argued and submitted on May 1, 2003
Hagåtña, Guam

Appearing for the Plaintiff-Appellee: Gerad Egan Assistant Attorney General Office of the Attorney General General Crimes Div. Suite 2-200E, Guam Judicial Ctr. 120 W O'Brien Dr. Hagåtña, Guam 96910

Appearing for the Defendant-Appellant: Howard Trapp, Esq. Howard Trapp Inc. 200 Saylor Bldg. 139 Chalan Santo Papa Hagåtña, Guam 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; FRANCES M. TYDINGCO-GATEWOOD, Associate Justice; JANET HEALY WEEKS, Justice Pro Tempore

TYDINGCO-GATEWOOD, J.:

[1] Defendant-Appellant Seung Kweon Chung, also known as Jeong Seung-Kwon (AChung") appeals from his convictions of Manslaughter (As a First Degree Felony), Vehicular Homicide While Intoxicated (As a Second Degree Felony), and a Special Allegation pursuant to Title 9 GCA ' 80.37. Chung asserts that the lower court erred in accepting his guilty pleas without following the requirements set out in Title 8 GCA ' 60.50 (a), (c) and (d). Specifically, Chung argues that the lower court accepted the guilty pleas without (1) first informing him of and determining that he understood the nature of the charges; (2) informing him that he waived his right to a trial of any kind; and (3) informing him of the maximum possible penalties provided by law. See Title 8 GCA '' 60.50(a), (c) and (d). Chung also challenges the validity of the indictment by arguing that the lower court erred in applying the Special Allegation, charged pursuant to Title 9 GCA ' 80.37, to the felonies of Manslaughter and Vehicular Homicide While Intoxicated. We agree with Chung that the lower court's failure to inform Chung of, and determine that he understood, the nature of the charges to which he was pleading guilty constitutes plain error. We therefore vacate the judgment of conviction and remand to permit Chung to withdraw his pleas of guilty.

I.

[2] On December 12, 2000, Chung was indicted on the following charges:

1. Manslaughter (As a First Degree Felony), in violation of 9 GCA 16.50(b);
2. Vehicular Homicide While Intoxicated, (As a Second Degree Felony), in violation of 16 GCA '' 18111(b), 18101 and 18102(e);
3. Vehicular Homicide (As a Second Degree Felony), in violation of 16 GCA ' 18111(a);
4. Vehicular Homicide (As a Second Degree Felony), in violation of 16 GCA ' 18111(b);
5. Criminally Negligent Homicide (As a Third Degree Felony), in violation of 9 GCA' 16.60;
6. Driving While Under the Influence of Alcohol (As a Misdemeanor), in violation of 16 GCA ' 18102(a) ;
7. Driving While Under the Influence of Alcohol (BAC) (As a Misdemeanor, in violation of 16 GCA ' 18102(b);
8. Reckless Driving With Injuries (As a Misdemeanor), in violation of 16 GCA'' 9107(a) and (b).

[3] The indictment further alleges, as a Special Allegation to Charges 1 through 5:

[t]hat in the commission of each of the above felony offenses, the Defendant, SEUNG KWEON CHUNG aka Jeong Seung-Kwon, did unlawfully use a deadly weapon, that is, a motor vehicle as defined in 9 GCA 16.10(d), in violation of 9 GCA 80.37.

[4] On January 15, 2002, Chung appeared in court with his attorney for a change of plea hearing. There, the defense counsel and the Government stipulated that the lower court was to determine the applicability of the Special Allegation to the charges of Manslaughter and Vehicular Homicide While Intoxicated. Chung thereafter entered a plea of guilty to both Manslaughter and Vehicular Homicide While Intoxicated. The remaining six charges were dismissed.

[5] On April 18, 2002, the lower court applied the Special Allegation to the offenses of Manslaughter and Vehicular Homicide While Intoxicated. Chung was thereafter sentenced to forty years imprisonment as follows: fifteen years for Manslaughter, eight years for Vehicular Homicide While Intoxicated, with both sentences to run concurrently, and twenty-five years for the Special Allegation, to run consecutively to the sentence for Manslaughter. See Appellant's Excerpts of Record, p. 27 (Judgment).

[6] Chung filed a timely Amended Notice of Appeal and seeks a vacation of the judgment of conviction, based on several grounds.

II.

[7] This court has jurisdiction over this appeal pursuant to Title 7 GCA '' 3107 and 3108 and Title 8 GCA '' 130.15(a) and 130.60.

III.

[8] Chung appeals his conviction by asserting that the lower court failed to follow the requirements set out in Title 8 GCA ' 60.50. Specifically, Chung argues that the lower court erred (1) by failing to inform him of the nature of the charges of Manslaughter and Vehicular Homicide While Intoxicated and failing to determine that he understood the nature of those charges; (2) by failing to inform him that he was waiving his right to a trial of any kind; and (3) by failing to inform him of the maximum possible penalties provided by law. The lower court must satisfy these requirements pursuant to Title 8 GCA '' 60.50(a),(c) and (d). Chung also challenges the validity of the indictment by arguing that the lower court erred in applying the Special Allegation pursuant to Title 9 GCA ' 80.37 to the felonies of Manslaughter and Vehicular Homicide While Intoxicated, because the People failed to plead and prove the element of intent.

[9] Chung concedes that these issues were not raised in the lower court and thus we review for plain error. See People v. Ueki, 1999 Guam 4, & 17; United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 1776 (1993); United States v. Vonn, 535 U.S. 55, 58, 122 S. Ct. 1043, 1046 (2001). In Ueki, we recognized the limitations on our authority to correct plain error, as defined by the United States Supreme Court in United States v. Olano. Ueki, 1999 Guam 4 at & 17. First, Chung must demonstrate that there was an Aerror," which occurs