State v. Pao Chang
| Decision Date | 20 November 2018 |
| Docket Number | Appeal No. 2017AP1922-CR |
| Citation | 385 Wis.2d 211,923 N.W.2d 174 (Table),2019 WI App 1 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. PAO CHANG, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶ 1 Pao Chang appeals a judgment, entered upon his no-contest pleas, convicting him of trafficking of a child and human trafficking, both as repeaters. He also appeals an order denying him postconviction relief. Chang contends that he is entitled to plea withdrawal based on the ineffective assistance of two of his trial attorneys. We disagree and affirm.
¶ 2 On May 2, 2014, the State filed a complaint charging Chang with three counts of trafficking of a child and a single count of human trafficking, all as repeaters. The complaint alleged that between January 1, 2013, and February 18, 2013, Chang facilitated acts of prostitution by several women, including some juvenile females.
¶ 3 On February 10, 2015, the circuit court allowed Chang’s original trial attorney to withdraw from the case due to a health issue. Attorney Brian Van Ells was then appointed to represent Chang. Van Ells filed various motions on Chang’s behalf, including three suppression motions, all of which the court denied. Van Ells also opposed, unsuccessfully, the State’s motion in limine to admit other acts evidence.
¶ 4 On May 11, 2015, the day before Chang’s trial was scheduled to begin, Van Ells informed the circuit court that a plea agreement had been reached. Van Ells then presented to the court a completed and signed plea questionnaire and waiver of rights form. Attached to this form were the terms of the plea agreement. The agreement provided that in exchange for Chang’s guilty or no-contest pleas to one count of trafficking of a child and one count of human trafficking—both as repeaters—the remaining two counts of trafficking of a child would be dismissed but read in at sentencing. The State also agreed to recommend a sentence of twenty-five years’ initial confinement followed by fifteen years’ extended supervision, along with a lifetime sex offender registration requirement.
¶ 5 Prior to the beginning of the plea colloquy, Van Ells informed the circuit court that one of the reasons Chang agreed to the plea agreement was Chang felt he "[did] not have all the information he need[ed] to defend himself." However, Van Ells continued, "I will state as an officer of the Court that I believe I have sufficient evidence to advise Mr. Chang and to make a decision on what Mr. Chang should do." The court then asked Van Ells if he needed the additional information that Chang thought he needed to defend himself at trial. Van Ells responded that he did not, as "the information that Mr. Chang believes is necessary would either be cumulative or irrelevant." Accordingly, the court proceeded to conduct a plea colloquy.
¶ 6 During the plea colloquy, Chang originally maintained his innocence and told the circuit court that he was pleading because his "hands were tied." The court responded by telling Chang that he had the right to go to trial, but it pointed out that a trial would likely mean that the State’s plea offer would be withdrawn. Chang indicated he understood, and he stated that was "what brings me to this decision." The court then asked Chang again, "Do you want to go to trial or do you want to accept the offer?" Chang responded, The court ultimately accepted Chang’s pleas, finding they were freely, voluntarily, and intelligently entered. The court scheduled sentencing for July 15, 2015.
¶ 7 Eleven days later, on May 22, 2015, Chang sent a correspondence to the circuit court, requesting that he be allowed to "fire" Van Ells and withdraw his pleas. In his letter, Chang contended he had been coerced into pleading no contest by Van Ells’ failure to "try at all to fight for me." Chang also filed a grievance against Van Ells with the Office of Lawyer Regulation. Consequently, the court allowed Van Ells to withdraw as counsel and scheduled a hearing on Chang’s motion to withdraw his pleas.
¶ 8 Attorney Marcus Falk was then appointed to represent Chang. At the plea withdrawal hearing, Falk called only Chang to testify; he did not call Van Ells. Chang testified that he wanted to withdraw his plea because: (1) he believed that the plea offer capped the State’s sentence recommendation at a twenty-five-year total bifurcated term, not twenty-five years’ initial incarceration plus fifteen years’ extended supervision; (2) he did not know that he could reject the plea offer and go to trial; (3) Van Ells failed to investigate a possible alibi defense and ignored Chang’s request to obtain his bank records, employment time sheets, and medical records; (4) Van Ells failed to file all the motions that Chang requested be filed; and (5) Chang did not have enough time to review all of the discovery in the case.1
¶ 9 The circuit court rejected Chang’s motion, finding that Chang had not presented a fair and just reason to withdraw his pleas. The court found that Chang’s testimony—which the court summarized as being that "Mr. Chang was not fully apprised of all the circumstances, [and] did not have a clear understanding of the proceedings"—was not consistent with what occurred at the actual plea hearing colloquy. The court noted that it had offered Chang two breaks during that hearing to discuss any questions he had with Van Ells, and Chang had told the court at the plea hearing that he felt he had had enough time to do so. The court also found that Chang’s complaints amounted to nothing more than a "desire now to have a jury trial."2
¶ 10 The circuit court ultimately imposed a sentence of eighteen years’ initial confinement and fifteen years’ extended supervision on the trafficking of a child count. On the human trafficking count, the court imposed a concurrent sentence of fifteen years’ initial confinement and ten years’ extended supervision.
¶ 11 On December 13, 2016, Chang’s appellate counsel filed a postconviction motion seeking plea withdrawal. In addition to renewing the arguments Chang raised in his presentencing motion for plea withdrawal, this motion raised an ineffective assistance of counsel claim against Falk. As grounds, Chang claimed that Falk was ineffective for failing to call Van Ells as a witness at the presentencing plea withdrawal hearing.
¶ 12 The circuit court held three evidentiary hearings on Chang’s postconviction motion and heard, in relevant part, testimony from both Van Ells and Falk. Van Ells testified that he had advised Chang against going to trial because Chang had no chance of acquittal on any of the four counts against him. Van Ells believed the best strategy was to accept the State’s plea offer, which, due to the dismissal of two counts of trafficking of a child, significantly limited Chang’s potential penalty exposure. Van Ells based his recommendation to Chang on his review of the "entire file," including over 1200 pages of police reports and witness statements. Van Ells estimated that he had spent over 100 hours on the case. He stated that he was ready to go to trial if Chang refused to accept the plea offer, despite Van Ells’ belief that the hopes of winning at trial were "basically zero."
¶ 13 Van Ells also testified about his rationale for not obtaining Chang’s bank records, medical records, and employment time sheets. He explained that Chang wanted him to secure those documents to support an alibi defense. However, Van Ells believed that Chang’s physical location during the alleged instances of human trafficking was irrelevant, because the State was alleging that Chang had arranged for and coordinated acts of prostitution. Therefore, Chang’s "physical location at the time [of the alleged acts of prostitution was] not particularly useful or relevant."
¶ 14 Falk testified that he decided not to call Van Ells at the presentencing plea withdrawal hearing after "having a conversation" with Van Ells. Based on that conversation, Falk "didn’t think it was really necessary" to call Van Ells. Falk instead decided that the best strategy would be to call only Chang and allow him to present "his perspective" of the plea hearing.
¶ 15 The circuit court denied Chang’s postconviction motion in an oral decision. The court found that Van Ells’ performance representing Chang had not been deficient. Based on this lack of deficient performance by Van Ells, the court concluded that Chang could not show he was prejudiced by Falk’s failure to call Van Ells to testify at the presentencing plea withdrawal hearing, as Van Ells’ testimony would have contradicted Chang’s testimony. Chang now appeals.
¶ 16 The decision to grant or deny a motion to withdraw a plea lies within a circuit court’s discretion. State v. Jenkins , 2007 WI 96, ¶ 29, 303 Wis. 2d 157, 736 N.W.2d 24. Accordingly, we review the court’s decision on such a motion under the erroneous exercise of discretion standard. Id. , ¶ 30. As such, we will affirm the court’s decision as long as the court relied upon the facts in the record, applied the applicable law, and used a rational decision-making process to reach a reasonable conclusion. Id. We will also uphold the court’s factual findings and its credibility determinations unless they are clearly erroneous. Id. , ¶¶ 33-34. A factual finding or credibility determination is clearly erroneous if it is unsupported by the record. Id. , ¶ 33.
¶ 17 Further, whether counsel provided ineffective assistance presents a mixed question of fact and law. See State v. Jeannie M.P. , 2005 WI App 183, ¶ 6, 286 Wis. 2d 721, 703 N.W.2d 694. As such, we will uphold a circuit court’s factual findings unless those findings are clearly erroneous, but we independently review whether those facts meet the constitutional standard of effective assistance of counsel. Id.
¶ 18 Chang contends that he is entitled to plea withdrawal because both Van Ells and Falk provided him ineffective...
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