State v. Do Thao

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.
January 22, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP338 Cir. Ct. No. 2014CF3290

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DO THAO,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.

Before Donald, P.J., Geenen and Colón, 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. 2023AP338

¶1 PER CURIAM. Do Thao, pro se, appeals from the order of the
circuit court denying his motion pursuant to WIS. STAT. § 974.06 (2021-22).1
Thao argues that his postconviction counsel was ineffective for failing to
sufficiently allege prejudice in his previous postconviction motion, relating to
purported deficiencies by his trial counsel. We affirm.

BACKGROUND

¶2 In February 2015, Thao pled no contest to two counts of first-degree
reckless homicide. As we explained in our decision in Thao’s direct appeal:

Thao shot and killed the driver and front seat
passenger of a moving car in which he was riding as a back
seat passenger. The car then crashed into a building. Thao
was found in some nearby bushes with an empty gun
holster attached to his belt. His clothes were covered in
blood and he was extremely intoxicated. Thao told the
police that he “had to do it.” Thao’s gun was found in the
car. The driver and front seat passenger both died. Thao
told the police that he had been drinking the night of the
shooting and did not remember what happened. He
acknowledged that the gun found in the car was his gun.

Thao was initially charged with two counts of first-
degree intentional homicide. Pursuant to a plea agreement,
he pled no-contest to two counts of first-degree reckless
homicide. The circuit court sentenced him to two
consecutive terms of twenty-one years of initial
confinement. Thao filed two postconviction motions to
withdraw his no-contest pleas. The circuit court denied the
motions.

State v. Thao, No. 2019AP15-CR, unpublished slip op. ¶¶2-3 (WI App Feb. 23,
2021).

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP338

¶3 As relevant to this appeal, Thao argued in a supplemental
postconviction motion2 that his trial counsel was ineffective for advising him that
voluntary intoxication was not an available defense. Shortly before the shootings
committed by Thao occurred, Wisconsin repealed the statute allowing voluntary
intoxication as an affirmative defense. See 2013 Wis. Act 307 (effective Apr. 18,
2014). Nevertheless, Thao filed a pretrial motion seeking to admit expert
testimony regarding his intoxication. He argued that it was relevant to establish
that he was unable to form the intent to kill the victims, as required to prove first-
degree intentional homicide—the initial offense with which he was charged.

¶4 The circuit court denied that pretrial motion, relying on the repeal of
the voluntary intoxication defense statute. It also relied on Montana v. Egelhoff,
518 U.S. 37 (1996), in which the United States Supreme Court concluded that a
Montana statute which precluded the use of voluntary intoxication as a defense
was constitutional. Id. at 56. Thao asserted in his supplemental postconviction
motion that his trial counsel abandoned this defense after that pretrial ruling,
which was the deciding factor in his decision to enter into the plea agreement with
the State for lesser charges of first-degree reckless homicide.

¶5 Thao further argued in his supplemental postconviction motion that
Egelhoff did not preclude the use of voluntary intoxication as a basis for negating
intent, one of the elements of first-degree intentional homicide. He therefore
contended that his trial counsel was deficient for not pursuing the voluntary

2
Thao filed a postconviction and supplemental postconviction motion as part of his
direct appeal; both were denied by the circuit court. As we noted in our decision in Thao’s direct
appeal, although Thao appealed both of those orders, he did not raise any issues on appeal from
the initial postconviction motion. State v. Thao, No. 2019AP15-CR, unpublished slip op. ¶8 n.1
(WI App Feb. 23, 2021).

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No. 2023AP338

intoxication defense. The circuit court rejected this argument, concluding that trial
counsel was not deficient for failing to make these “complex arguments.” The
court also found that Thao had not sufficiently demonstrated prejudice.

¶6 This court affirmed. See Thao, No. 2019AP15-CR, ¶1. We
concluded that even “[a]ssuming for the sake of argument that Thao’s counsel’s
advice to Thao was based on a misinterpretation of the law—and we emphasize
that we have not reached this conclusion—we reject Thao’s argument that he
received ineffective assistance of trial counsel” due to his failure to adequately
allege that he was prejudiced by his trial counsel’s actions. Id., ¶7. We stated that
Thao had made “only a conclusory assertion that he would not have pled no-
contest,” and had failed to adequately explain why he would have taken the risk of
going to trial, where he would have been facing two life sentences. Id., ¶8.
Thao’s petition for review with our supreme court for that decision was denied.

¶7 Subsequently, Thao filed the instant WIS. STAT. § 974.06 motion,
arguing that his postconviction counsel was ineffective for failing to adequately
plead prejudice in his supplemental postconviction motion. The circuit court
rejected this argument. It observed that the merits of the ineffective assistance
claim relating to the voluntary intoxication defense were litigated in the earlier
supplemental postconviction motion. It therefore concluded that the claim in
Thao’s § 974.06 motion is procedurally barred. See State v. Witkowski, 163
Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991) (“A matter once litigated may
not be relitigated in a subsequent postconviction proceeding no matter how
artfully the defendant may rephrase the issue.”). This appeal follows.

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No. 2023AP338

DISCUSSION

¶8 Once the right to a direct appeal has been exhausted, WIS. STAT.
§ 974.06 is the mechanism for a defendant to bring constitutional claims. State v.
Henley, 2010 WI 97, ¶52, 328 Wis. 2d 544, 787 N.W.2d 350. In a motion brought
under § 974.06, however, a defendant must demonstrate that there is a “sufficient
reason” that the claims in that motion were not raised in a prior motion or direct
appeal. State v. Escalona-Naranjo, 185 Wis. 2d 168, 185-86, 517 N.W.2d 157
(1994). “In some instances, ineffective assistance of postconviction counsel may
be a sufficient reason for failing to raise an available claim in an earlier motion or
on direct appeal.” State v. Romero-Georgana, 2014 WI 83, ¶36, 360 Wis. 2d 522,
849 N.W.2d 668. Whether a § 974.06 motion alleges “a sufficient reason for
failing to bring available claims earlier” is a question of law that we review de
novo. Id., ¶30.

¶9 Thao’s current claim in his WIS. STAT. § 974.06 motion is based on
the same premise as the claim brought in his previous postconviction motion—that
his trial counsel was ineffective for failing to pursue a voluntary intoxication
defense. It is merely couched in different terms here, as ineffective assistance of
his postconviction counsel for inadequately alleging prejudice. This is not
permitted. See Witkowski, 163 Wis. 2d at 990.

¶10 Put another way, Thao’s WIS. STAT. § 974.06 motion is procedurally
barred because this issue has been fully litigated, and the claim failed. A
defendant must prove both the deficiency and the prejudice prongs of the
Strickland test, or the ineffective assistance claim fails. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Furthermore, to prove that postconviction
counsel was ineffective for failing to bring ineffective assistance of trial counsel

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No. 2023AP338

claims, the defendant must prove that trial counsel did indeed provide ineffective
assistance. State v. Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d
369.

¶11 The circuit court previously determined that Thao’s trial counsel was
not deficient for failing to pursue the voluntary intoxication defense, along with
finding that no prejudice was demonstrated. It therefore denied Thao’s ineffective
assistance claim in his earlier supplemental postconviction motion. That decision
was affirmed by this court, see Thao, No. 2019AP15-CR, ¶1, and Thao’s petition
for review with our supreme court was denied.

¶12 Therefore, because the ineffective assistance claim has been heard
and rejected, it does not provide a sufficient reason for overcoming the procedural
bar. See Romero-Georgana, 360 Wis. 2d 522, ¶30. Accordingly, we affirm the
circuit court’s order denying Thao’s WIS. STAT. § 974.06 motion as procedurally
barred.

By the Court.—Order affirmed.

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

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