State v. Pheng Yang

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 27, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1423-CR Cir. Ct. No. 2007CF5531

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PHENG YANG,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: PATRICIA D. McMAHON and JEFFREY A. CONEN,
Judges. Affirmed.

Before Brash, P.J., Kloppenburg and Dugan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1423-CR

¶1 PER CURIAM. Pheng Yang appeals from a judgment, entered on
his guilty plea, convicting him on one count of second-degree intentional
homicide. He also appeals from an order denying his postconviction motion for
plea withdrawal. Yang claims that: (1) his plea was not knowing, intelligent, and
voluntary because he did not understand he was admitting an intent to kill; and
(2) trial counsel was ineffective for not properly explaining the impact of the plea
and for not requesting additional time with Yang before he entered the plea. We
agree with the circuit court1 that the record reflects a valid plea and no ineffective
assistance; thus, the circuit court did not err in denying the motion without a
hearing. We affirm.

BACKGROUND

¶2 Yang and his wife, Bao Vang,2 were having relationship issues after
Vang supposedly left Yang for someone she met on the internet. On November 9,
2007, around 1:00 p.m., Vang and her cousin, Lee Xiong, went to Yang’s auto
shop so Vang could pick up a check from Yang. Xiong waited outside. Yang’s
cousin, Kao Yang (“Kao”), appeared after about ten minutes and told Xiong to
leave because Yang would take Vang to cash the check. Yang then came out and
told Xiong he would bring Vang home after cashing the check; Xiong observed
what she believed to be blood on Yang’s work shirt and cheek. She continued to

1
The Honorable Patricia D. McMahon accepted Yang’s plea and imposed sentence; we
will refer to her as the trial court. The Honorable Jeffrey A. Conen denied the postconviction
motion; we will refer to him as the circuit court.
2
Yang and Vang were not married under Wisconsin law, but considered themselves
married and had children together.

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No. 2018AP1423-CR

wait for Vang, entering the shop when a customer arrived. Someone told her
Yang had just left with Vang.

¶3 Xiong went to Vang’s home to look for her; Vang was not there.
Xiong returned to the auto shop; Yang told her that Vang had jumped out of his
car. Around 5:00 or 6:00 p.m., Xiong reported Vang missing. While Xiong was
with police, Yang called her, telling her that Vang frequently ran away when they
argued.

¶4 Police investigated at Yang’s home. Through the window of a car
parked on the property, officers observed a roll of black garbage bags and a pair of
pants that appeared to be blood-stained. Yang said the car belonged to his
nephew. An officer contacted the nephew, who agreed to come open the car for
police to search. When Yang learned his nephew was coming, he said, “Just arrest
me.” When a detective asked why, Yang answered, “I killed my wife, she’s in the
trunk of the car.” Yang was arrested. As he was being patted down, he told
officers he had a “good reason” for killing Vang. The car’s trunk was opened, and
Vang’s body was found rolled up in a tarp. The medical examiner determined the
cause of death was blunt force injury to the head and neck.

¶5 Police interviewed Yang’s nephew, who initially denied any
knowledge of what happened to Vang. Eventually, he admitted that he heard
Vang inside Yang’s shop, screaming as if in pain. When he walked past the open
office door, he saw Yang standing over Vang, striking her with a mallet between
the shoulder blades. Yang then closed the office door, and his nephew heard five
or six more blows. Later, Yang exited the office with blood on his hands and went
to wash up. The nephew then heard Yang tell Kao to go outside and speak to
Xiong. The nephew also saw Yang mopping the office floor.

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¶6 Kao admitted helping Yang clean up and helping to transport Vang’s
body to the car. After being read his rights, Kao told police that Yang knew Vang
was coming to the shop and Yang was going to “beat her down” if she came alone.

¶7 Yang told police that Vang had come at him with a hammer, striking
him three times. He then went to where the tools were kept, grabbed a mallet, and
struck Yang in the back of her head. He said that her cheating on him started the
incident. When Yang was interviewed later, he said that he was angry because
Vang did not want to get back together with him. She began to run away. She
tried to reach a hammer but could not reach it. She ran into the office. He
grabbed a mallet. She swung her purse at him, and he struck her in the head. He
asked his cousin to help him dispose of the body. Yang was charged with one
count of first-degree intentional homicide and one count of hiding a corpse.

¶8 Yang, who is Hmong, had an interpreter for all court proceedings,
although he does know some English. At a pretrial conference, he raised the
possibility of a not guilty by reason of mental disease or defect (NGI) plea. At a
later hearing, Yang’s attorney raised competency concerns and requested another
NGI evaluation. The trial court ordered various examinations, including an
inpatient commitment for evaluation at the examiners’ request. Ultimately, and
after a diagnosis of malingering, Yang was deemed competent to proceed, and at
least two evaluators determined that there was no support for an NGI plea.

¶9 In December 2008, Yang’s retained attorney withdrew, and
successor counsel was appointed. In February 2009, Yang entered a plea.
Pursuant to a plea agreement, in exchange for Yang’s guilty plea, the State would
amend the homicide charge to second-degree intentional homicide and agreed to
dismiss and read in the charge of hiding a corpse. The trial court accepted Yang’s

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No. 2018AP1423-CR

plea and sentenced him to thirty-five years of initial confinement and fifteen years
of extended supervision.

¶10 Yang’s appellate rights lapsed but were reinstated. Original
appellate counsel filed a no-merit report, which this court rejected. Successor
appellate counsel was appointed and eventually filed a postconviction motion
seeking plea withdrawal. The motion alleged that Yang’s plea “was involuntarily
made and represents a manifest injustice” because of “a continuing indication of
uncertainty on his part as well as on the part of the interpreter[.]” Yang also
claimed not to have fully understood the “true impact” of a plea because his trial
counsel did not tell him that “he was acknowledging the intent to kill” 3 or that he
was “forever waiving the right to claim that the ‘not being in the right mind’ could
be presented at trial as a basis to seek a further lesser included conviction.” The
motion further asserted that trial counsel was ineffective for not informing Yang
“that by entering a plea he was in fact admitting that he intended to kill his wife
and that he was waiving any claim that he acted in self defense … [or] that he may
have acted recklessly” and for not taking additional time to ensure his
understanding. In an affidavit supporting the motion, Yang asserted that he
“would never [have] pled if he had known that he was admitting that he intended
to kill his wife.”

¶11 The circuit court noted that the trial court had reviewed the elements
of second-degree intentional homicide with Yang during the plea colloquy and had

3
To prove second-degree intentional homicide, the State must show that the defendant
caused the death of the victim and that the defendant acted with the intent to kill the victim. See
WIS JI—CRIMINAL 1050. “‘Intent to kill’ means that the defendant had the mental purpose to
take the life of another human being or was aware that (his) [or] (her) conduct was practically
certain to cause the death of another human being. See id.

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No. 2018AP1423-CR

“fully explained the meaning of ‘intent to kill’ in the context of what occurred.”
That is, while Yang was claiming that trial counsel had not reviewed the elements
with him, “the record demonstrated unequivocally that the court fully explained
the elements” and that Yang understood the impact of his plea. The circuit court
determined that Yang’s claim that he would not have pled guilty was completely
conclusory: Yang had not explained why, if trial counsel had better explained the
elements of second-degree intentional homicide, he would have rejected the plea
deal and gone to trial on the first-degree intentional homicide charge instead.
Thus, the circuit court denied the motion without a hearing. Yang appeals.

DISCUSSION

I. Standards of Review

¶12 A defendant who seeks to withdraw his or her plea after sentencing
must demonstrate, by clear and convincing evidence, that withdrawal is necessary
to correct a manifest injustice. See State v. Sulla, 2016 WI 46, ¶24, 369 Wis. 2d
225, 880 N.W.2d 659. One way to show a manifest injustice is by showing the
plea was not knowingly, intelligently, or voluntarily entered. See id.

¶13 There are two legal paths to challenging the knowing, intelligent,
and voluntary nature of a plea. See id. The first is with a motion under State v.
Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), invoked when the plea
colloquy is allegedly defective because the trial court failed to comply with a
mandatory duty. See id. at 274. The second is with a motion under Nelson v.
State, 54 Wis. 2d 489, 95 N.W.2d 629 (1972), and State v. Bentley, 201 Wis. 2d
303, 548 N.W.2d 50 (1996), alleging that some factor extrinsic to the plea
colloquy made the plea invalid. See Sulla, 369 Wis. 2d 225, ¶25. Ineffective
assistance of counsel is one type of extrinsic factor. See id.

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No. 2018AP1423-CR

¶14 Here, Yang’s postconviction motion was a Nelson/Bentley motion,
alleging that factors extrinsic to the plea colloquy—a confused interpreter and
ineffective trial counsel—prevented a knowing, intelligent, and voluntary plea.
While Yang makes a Bangert claim on appeal that the trial court failed to “assess
his capacity to understand” the issues at the colloquy, he did not raise any Bangert
issues in his postconviction motion. We need not consider issues raised for the
first time on appeal. See State v. Van Camp, 213 Wis. 2d 131, 144, 569 N.W.2d
577 (1997).

¶15 A Nelson/Bentley postconviction motion must allege “sufficient
material facts that, if true, would entitle the defendant to relief.” See State v.
Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433; Bentley, 201 Wis. 2d
at 310. A sufficient motion entitles a defendant to a hearing, but if the motion fails
to allege sufficient facts or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, then the
circuit court has the discretion to grant or deny a hearing. See Allen, 274 Wis. 2d
568, ¶9. On appeal, we review the allegations within the four corners of the
motion itself for sufficiency, not the arguments in the appellate brief. See id., ¶27.

II. The Interpreter

¶16 Yang’s postconviction motion first asserted “there was a continuing
indication of uncertainty on his part as well as on the part of the interpreter[.]”4
On appeal, he claims the interpreter “was having difficulty with the proceedings.”

4
At least two interpreters appeared in this case. Yang does not specifically identify
which interpreter had the problem, although we presume he is complaining about only the
interpreter at his plea hearing.

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No. 2018AP1423-CR

Implicitly, Yang claims that the “difficulty” and “uncertainty” prevented him from
understanding the nature of the charges and, specifically, the intent to kill element.

¶17 Selection of an interpreter is left to the trial court’s discretion. See
State v. Besso, 72 Wis. 2d 335, 343, 240 N.W.2d 895 (1976). “On review, the
burden is on the appellant to show that the interpreter was in any way deficient.”
See id. However, Yang does not challenge the interpreter’s qualifications, identify
any erroneous interpretation, or contend that the interpreter “misstated or
inadequately explained any of the concepts that a defendant must understand in
order to make a plea of guilty.” See id. The single record citation in the
postconviction motion, to “plea transcript 10-24,” is too conclusory to identify any
actionable error by the interpreter that would warrant an evidentiary hearing.5

III. Elements of the Offense

¶18 In his affidavit supporting the postconviction motion, Yang claimed
he “did not intend to kill his wife … and would never [have] pled if he had known
that he was admitting that he intended to kill his wife.” The postconviction
motion alleged his plea was involuntary because “he was not informed by his trial
attorney that he was acknowledging the intent to kill” and he did not know “he
was forever waiving his right to claim that the ‘not being in the right mind’ could
be presented at trial as a basis to seek a further lesser included conviction.”

5
In the cited fifteen-page portion of the twenty-seven-page plea hearing transcript, the
interpreter interrupted the trial court three times: once to request a definition of “mitigate,” once
when the interpreter needed the trial court to repeat a portion of the deportation warning, and
once to ask the trial court to repeat a question. We agree with the State’s analysis that, in the
proper context of the entire colloquy, these three interruptions do not demonstrate that the
interpreter was having difficulty but, rather, that he was “faithfully discharging his duty to
accurately translate information between the [trial] court and Yang.”

8
No. 2018AP1423-CR

Relatedly, Yang alleged that “trial counsel was ineffective by not informing
Mr. Yang that by entering a plea he was in effect admitting that he intended to kill
his wife and that he was waiving any claim that he acted in self-defense.” He also
claimed that trial counsel should have requested additional time to ensure he
understood the elements and the defenses he was waiving.

A. The Plea Colloquy

¶19 The record conclusively demonstrates that Yang had been fully
advised of the elements of his offense and that Yang acknowledged his
understanding of those elements, including intent to kill. At the outset of the plea
hearing, trial counsel detailed her discussions with Yang about the elements. She
explained he was “taking responsibility for causing” Vang’s death and that his
actions were intentional because he believed that he needed to defend himself,
although he now realized those actions were not necessary. Trial counsel also said
she had twice reviewed the jury instruction with Yang with the assistance of the
interpreters—once the day before the plea and once the day of the plea. Yang
acknowledged reviewing the instruction with trial counsel.

¶20 The trial court then engaged Yang in an extensive plea colloquy. It
first summarized the second-degree intentional homicide charge, including that
Yang caused Vang’s death “with intent to kill [her] under circumstances which
mitigated [or reduced] … the offense of first-degree intentional homicide.” Yang
said he understood. Further into the colloquy, the trial court began a more detailed
discussion of the charge. It noted that “what you are telling me by pleading guilty
is that you caused the death” of Vang, then asked Yang, “[I]s that what happened,
you caused her death?” Yang answered, “Yes.”

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No. 2018AP1423-CR

¶21 The trial court specifically reviewed the “acted with intent to kill”
element with Yang, telling him that “intent to kill means that you had the purpose
to kill or you were aware that your conduct was practically certain to cause”
Vang’s death. Yang consulted trial counsel off the record. The trial court then
explained, “[Y]ou were hitting [Vang] in the head with a mallet, and certainly that
is something that can cause a person’s death, correct?” Yang consulted trial
counsel again before answering, “Yes.”

¶22 The trial court’s explanation of “intent to kill” tracked the statutory
definition of “with intent,” which “means that the actor either has a purpose to do
the thing or cause the result specified, or is aware that his or her conduct is
practically certain to cause that result.” See WIS. STAT. § 939.23(4) (2007-08).
Thus, even if Yang did not actually “ha[ve] a purpose” to kill Vang, he still
acknowledged having the requisite intent because he was aware that striking
Vang’s head with a mallet was practically certain to cause her death.

¶23 With respect to possible defenses,6 trial counsel noted that she had
reviewed the two doctor reports regarding an NGI plea with Yang; both doctors
believed that Yang “was not in a mental state that would preclude criminal
responsibility.” Yang agreed with the trial court’s summary that, while at the time
Yang thought he was acting to defend himself, that was not a reasonable belief and
the force he used was not reasonable. Yang’s trial counsel then reiterated that she
had discussed with Yang, in what she “believed to be a correct lay explanation,”
the reasonableness of his use of force. Yang agreed with the explanation trial

6
In the postconviction motion, Yang claimed that he did not know that he was giving up
a defense of “not being in the right mind.” It is not clear if Yang is referring to an NGI plea—
which was unsupported by the doctors who evaluated him—or a self-defense claim.

10
No. 2018AP1423-CR

counsel provided, and the postconviction motion does not allege that trial counsel
provided any incorrect explanations. The trial court then explained to Yang that,
according to the doctors, Yang’s condition did not meet the definition of a mental
disease or defect that would excuse his conduct. Yang acknowledged this. Thus,
the record reflects Yang entered a knowing, intelligent, and voluntary plea.

B. Trial Counsel’s Performance

¶24 To demonstrate ineffective assistance of trial counsel—and, thus, a
manifest injustice arising therefrom—Yang must show that trial counsel’s
performance was deficient and that the deficiency prejudiced the defense. See
State v. Dillard, 2014 WI 123, ¶¶84-85, 358 Wis. 2d 543, 859 N.W.2d 44.
Deficient performance occurs when the attorney’s errors are so serious that he or
she was not functioning as the counsel guaranteed by the constitution. See State v.
Villegas, 2018 WI App 9, ¶24, 380 Wis. 2d 246, 908 N.W.2d 198. To prove
prejudice, Yang must show a reasonable probability that, but for trial counsel’s
deficiency, the result of the plea would have been different. See id. However, it is
not enough for Yang to allege that he would have pled differently. He must also
support that allegation with objective, factual assertions that allow the reviewing
court to meaningfully assess the claim. See Bentley, 201 Wis. 2d at 313-14.

¶25 Yang claims that trial counsel did not inform him that, with his plea,
he was admitting he intended to kill Vang or that he was giving up any defenses,
and trial counsel should have sought more time to ensure he understood these
effects of his plea. These assertions are conclusory and refuted by the record. See
Allen, 274 Wis. 2d 568, ¶9. As noted above, trial counsel explained her efforts in
reviewing the elements of the offense with Yang and the time she had spent with
him. Trial counsel had two long meetings with Yang, facilitated by an interpreter,

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No. 2018AP1423-CR

and she reviewed the competency evaluations and the criminal responsibility
evaluations with Yang. Trial counsel also noted the assistance of one of the
interpreters, who had “been available to me literally at the moment of the call” and
who translated Yang’s written documents.

¶26 As noted, trial counsel explained that she and Yang had twice
reviewed the jury instruction for second-degree intentional homicide. She told the
court how she explained the elements of second-degree intentional homicide to
Yang, stating that “his actions at the time were intentional because he believed that
he needed to take those actions to defend himself, but that he was wrong.” Yang
agreed they had reviewed the jury instruction and that trial counsel had explained
the elements to him.

¶27 The trial court questioned Yang about the elements of second-degree
intentional homicide, including the unreasonableness of his beliefs and the force
he used, and about his intent to kill Vang. Yang agreed that trial counsel had
reviewed the jury instruction and the elements of the crime with him and agreed
that counsel had “spent a lot of time trying to explain the legal concepts into lay
language so [Yang] could understand them.”

¶28 Yang does not dispute—at the plea hearing, the postconviction
motion, or on appeal—trial counsel’s detailed description of the extensive
discussions she had with him or the assistance that the interpreters provided to
facilitate communications before the plea. He also does not allege how, in light of
such a record, additional time with trial counsel would have changed the result.
Thus, Yang has not adequately alleged that trial counsel’s conduct was deficient.

¶29 While Yang claims that trial counsel’s deficiencies prejudiced him
because he “lost his right to be tried as to the intent issue or argue for lesser

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No. 2018AP1423-CR

included instruction” by presenting his “right mind” defense, he makes no
allegations about why he would have opted for trial on first-degree intentional
homicide and tried to convince a jury to convict him of a lesser-included offense
when he was given the opportunity to plead to a lesser-included offense. Yang
also does not allege why he would have rejected a plea deal and opted for trial if
he had a better understanding that he was waiving any defenses, especially when
the evidence of record does not support an NGI plea. Thus, Yang has also failed
to sufficiently allege any prejudice.7

IV. Conclusion

¶30 The circuit court properly denied Yang’s postconviction motion
without an evidentiary hearing.8 The allegations about trial counsel’s assistance
are conclusory and, in any event, the record conclusively demonstrates that Yang
entered a knowing, intelligent, and voluntary plea.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

7
Yang’s other allegations of ineffective trial counsel include that: (1) counsel “instructed
him to just agree with the Judge when he didn’t know what to say and did not understand what
was being agreed to”; (2) he told his attorney that Vang attacked him “in a most aggressive
manner while using the hammer as a weapon” and that he acted “for the sole purpose of
terminating her assault”; (3) trial counsel told him he had to take the plea deal; and (4) trial
counsel did not take adequate time to meet with him. These claims are wholly conclusory.
8
Yang complains that “[h]ad a full hearing been allowed, a full record would have been
before the Court and would have enabled the Court to meaningfully consider whether counsel’s
conduct was deficient and whether this prejudiced” him. However, “the facts supporting plea
withdrawal must be alleged in the petition and the defendant cannot rely on conclusory
allegations, hoping to supplement them at a hearing.” See State v. Bentley, 201 Wis. 2d 303, 313,
548 N.W.2d 50 (1996).

13