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Tong v. State

Court of Appeal of Iowa

September 5, 2013

DENG KON TONG, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

Appeal from the Iowa District Court for Story County, Michael J. Moon, Judge.

Deng Kon Tong appeals the district court order denying his application for postconviction relief.

Nicolas G. Fontanini of Jordan & Mahoney Law Firm, P.C., Ames, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, and Stephen Holms, County Attorney, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.

BOWER, J.

Deng Kon Tong appeals the district court order denying his application for postconviction relief. Tong argues the district court should have found his trial counsel was ineffective for failing to provide him with a translator during his plea hearing. We find Tong understood the English language sufficiently and participated fully in the plea hearing. Tong has failed to demonstrate his comprehension of the English language was so poor to render his plea unintelligent or involuntary. We affirm.

I. Background Facts and Proceedings

Deng Kon Tong was born in Sudan and moved to the United States in either 2003 or 2004. At the time criminal charges were filed in this matter, Tong was attending Ames High School and classified as a senior. Tong was charged with two counts of burglary in the second degree, one count of theft in the second degree, and one count of unlawful use of a credit card.

Tong entered a guilty plea on February 2, 2009, pursuant to a plea agreement. As part of the agreement Tong pleaded guilty to one count of burglary in the second degree and was granted a deferred judgment and probation. The remaining counts were dismissed.

In his application for postconviction relief, after his probation was revoked, Tong claimed Arabic as his first language and English as his second language. During his postconviction relief trial, however, he claimed Arabic as his first language, Dinka[1] as his second language, and English as his third language. He argues his trial counsel was ineffective because he did not honor Tong's request for an interpreter.

II. Standard of Review

We ordinarily review postconviction proceedings for errors at law; however when the requested relief is based upon a constitutional violation, we review de novo. Harringt ...


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