Updated Tue, Oct 22, 2013 9:44 am
A New York man appealing his 30-year sentence on rape charges to the Ohio Supreme Court is now asking the court to reopen his direct appeal from Athens County.
Charles Nguyen, who was sentenced on charges of rape, kidnapping, aggravated burglary and tampering, has a pending appeal within the Supreme Court, but is now saying intimidation and ineffectiveness by a former attorney made him refuse a deal early on in his case. That deal would have given him a five-year sentence rather than the three decades he is currently serving.
Nguyen was found guilty by an Athens County jury of raping a woman after threatening to kill her nephew if she did not have sex with Nguyen, and also tying the woman up and attempting to take her back to New York with him, according to previous Messenger reporting.
In an application for reopening of appeal filed Oct. 9, Nguyen’s attorney, Elizabeth Gaba, argues that her client “has suffered severe prejudice as a direct result of his appellate counsel’s inadequate representation.”
In order to reopen an appeal, an appellate court has to determine whether the applicant “was deprived of the effective assistance of counsel on appeal,” the application stated.
Gaba further argues that Nguyen’s former attorney, Derek Farmer, failed to raise issues of ineffective assistance of trial counsel, and his rights to an effective defense were violated.
The ineffective defense included the failure to ask for a timely rape shield hearing, a hearing that would define what parts of the victim’s sexual history could be questioned in court.
“Defense counsel’s failure to adequately investigate, challenge and confront the State was demonstrably prejudicial,” Gaba said in the court document.
The application also includes an affidavit by Nguyen, stating that Farmer reported a five-year plea bargain offer by the prosecution, but instructed him to reject “any and all offers.”
“I detrimentally relied on his counsel,” Nguyen wrote. “I am now sentenced to 30 years in prison.”
Farmer wrote letters to Nguyen, the affidavit states, in which Farmer said people “often tell lies about him and about his ‘ineffectiveness’ and ‘lack of professionalism.’”
The letter also told Nguyen that three other clients had suffered “disastrous consequences” by firing Farmer.
“At trial, Mr. Farmer did not confront and ask the right questions, did not put on any evidence on my behalf, and did not timely file critical motions,” Nguyen’s affidavit states. “He further did not challenge the costs that I was forced to pay despite the fact that I was determined indigent.”
The prosecution filed a response to the application to reopen on Monday, arguing that the issues brought up have been brought up before.
“Appellant should not be afforded a second bite at the apple to reargue the issue of the rape shield hearing and the evidence of the victim’s past sexual history when it has already been litigated and decided,” the response stated.
On the topic of Farmer’s counsel, the prosecution saw no facts or reasoning in which the attorney told him to reject a favorable plea deal or failed to communicate such a deal, the prosecution stated.
“By a close review of the record, there is nothing that speaks to the issue of whether or not (Nguyen) received ineffective assistance of counsel during plea bargaining,” the prosecution argued.
Nguyen was also not deemed indigent at the trial court level, the state argued, so the trial court could have assessed court costs.
Athens County Prosecutor Keller Blackburn said the rape shield arguments that have been argued “at length” have no place being brought back up.
“We eventually did have a rape shield hearing, and at that hearing, the arguments (the defense brought up) were not admissible,” he said. “So there’s no reason to argue that again.”
The Ohio Supreme Court has yet to respond to the notice of appeal filed by Nguyen in September.