State v. Sambath Pal ( 2017 )

2017 WI 44
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1782-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Sambath Pal,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(WI Ct. App. 2016 – Unpublished)
OPINION FILED: April 28, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 28, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Rock
JUDGE: Richard T. Werner
JUSTICES:
CONCURRED: ROGGENSACK, C. J. concurs, joined by BRADLEY, R.
G., J. (opinion filed).
KELLY, J. concurs, joined by ABRAHAMSON, J. and
BRADLEY, A. W., J. (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner there were briefs
and oral argument by Philip J. Brehm, Janesville.
For the plaintiff-respondent the cause was argued by Daniel
P. Lennington, deputy solicitor general, with whom on the brief
was Misha Tseytlin, solicitor general and Brad D. Schimel,
attorney general.
2017 WI 44
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1782-CR
(L.C. No. 2014CF766)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. APR 28, 2017
Sambath Pal, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
summary disposition of the court of appeals, State v. Pal, No.
2015AP1782-CR, unpublished order (Wis. Ct. App. Apr. 8, 2016),
which affirmed the Rock County circuit court's1 judgment of
conviction of defendant Sambath Pal ("Pal") and order denying
Pal's motions for postconviction relief.
¶2 On April 20, 2014, Pal was involved in a traffic
accident when his sport utility vehicle ("SUV") collided with a
group of motorcyclists on a highway; two motorcyclists died from
1
The Honorable Richard T. Werner presided.
No. 2015AP1782-CR
the injuries they sustained in the crash. Pal fled the accident
scene, but was apprehended by the police a few days later. He
eventually pleaded guilty to two counts of hit and run resulting
in death, in violation of Wis. Stat. § 346.67(1) (2013-14).2 The
circuit court sentenced Pal to ten years of initial confinement
and ten years of extended supervision for each count, with the
term of imprisonment for the first count to be served
consecutive to the term of imprisonment for the second count.
¶3 Before this court, Pal raises two challenges to his
sentence. First, Pal argues that he was unconstitutionally
punished for two counts of hit and run resulting in death even
though he only committed a single offense, his flight from the
scene. This is a multiplicity claim implicating double jeopardy
and due process protections guaranteed by the state and federal
constitutions. Second, Pal argues that the circuit court
erroneously exercised its discretion at sentencing by imposing
an unduly harsh sentence. Both the circuit court and the court
of appeals rejected these arguments.
¶4 We conclude that Pal committed two offenses, not one,
when he fled from the scene of his accident, and that the
legislature authorized punishment for each offense. It was
therefore not unconstitutional for the circuit court to accept
guilty pleas and sentence Pal for both counts of hit and run
resulting in death. We further conclude that the circuit court
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2015AP1782-CR
did not impose an unduly harsh sentence. Accordingly, we affirm
the decision of the court of appeals.
I. FACTUAL BACKGROUND
¶5 On April 20, 2014, at around 8:00 p.m., law
enforcement officers and emergency responders were dispatched to
a traffic accident near Janesville in Rock County, Wisconsin.
Witnesses reported that an SUV had swerved into the oncoming
traffic lane near a curve in the highway, collided with a group
of motorcyclists, and driven off without stopping. Two
motorcyclists lay in the middle of the road. The first was
found dead; the second was found alive but later succumbed to
his injuries. Using debris found at the scene, members of law
enforcement were able to determine the likely make and model of
the SUV that had caused the accident.
¶6 Pal, the driver of the SUV, never turned himself in.
But on April 24, 2014, Pal's father, suspecting Pal's
involvement in the accident, notified the Rock County 911 Center
that Pal had been driving his father's SUV in Janesville on the
date of the accident and that Pal had returned the vehicle
damaged. Law enforcement confirmed that the make and model of
the SUV owned by Pal's father matched that of the vehicle they
were seeking. The damage to the SUV was also consistent with
the debris that law enforcement had located at the accident
scene.
¶7 The same day a detective spoke with Pal's girlfriend
and her mother, both of whom lived in Janesville. Together,
their statements indicated that Pal drove a black SUV matching
3
No. 2015AP1782-CR
the description of the vehicle involved in the accident; that
Pal had been staying at their house in Janesville on April 20,
2014; that Pal had left the house around 7:20 p.m. that night to
pick up his girlfriend from work; and that Pal had left his
girlfriend's place of work alone3 around 7:40 p.m. with plans to
purchase a bottle of wine and return to his girlfriend's house.
It was about a three-minute drive from the scene of the accident
to Pal's girlfriend's house.
II. PROCEDURAL BACKGROUND
¶8 On April 25, 2014, a criminal complaint was filed
against Pal in Rock County circuit court charging him with two
counts of hit and run resulting in death, one count for each of
the deceased motorcyclists, in violation of Wis. Stat.
§ 346.67(1). On May 16, 2014, an information was filed. On
July 31, 2014, Pal pleaded guilty to both counts.
¶9 On October 1, 2014, the circuit court sentenced Pal to
ten years of initial confinement and ten years of extended
supervision for each count, with the term of imprisonment for
the first count to be served consecutive to the term of
imprisonment for the second count.4 On October 3, 2014, a
judgment of conviction was entered.
3
Pal's girlfriend claimed she had informed Pal when he
arrived at her place of work that night that she was "going to
work another shift."
4
The circuit court also concluded that Pal was not eligible
for the Challenge Incarceration Program or the Earned Release
Program.
4
No. 2015AP1782-CR
¶10 On May 7, 2015, Pal filed motions for postconviction
relief, arguing, as explained above, that the circuit court had
erroneously exercised its discretion at sentencing and that the
two counts to which he had pleaded guilty were multiplicitous.
On August 7, 2015, the circuit court denied the motions on the
record following a hearing. On August 11, 2015, the circuit
court signed a written order to that effect.
¶11 On August 24, 2015, Pal filed a notice of appeal. On
April 8, 2016, the court of appeals summarily affirmed Pal's
judgment of conviction and the order denying Pal's motions for
postconviction relief. Pal, No. 2015AP1782-CR, unpublished
order. On May 2, 2016, Pal filed a petition for review in this
court. On October 11, 2016, we granted the petition.
III. STANDARD OF REVIEW
¶12 Whether the two counts to which Pal pleaded guilty
"are multiplicitous in violation of the federal and state
constitutions is a question of law subject to our independent
review." State v. Ziegler, 2012 WI 73, ¶38, 342 Wis. 2d 256,
816 N.W.2d 238. Examination of this question requires
interpretation and application of Wis. Stat. §§ 346.67(1) and
346.74(5), which "present questions of law that this court
reviews de novo while benefitting from the analyses of the court
of appeals and circuit court." Id., ¶37.
¶13 Finally, "[w]e review a trial court's conclusion that
a sentence it imposed was not unduly harsh and unconscionable
for an erroneous exercise of discretion." State v. Cummings,
2014 WI 88, ¶45, 357 Wis. 2d 1, 850 N.W.2d 915 (emphasis
5
No. 2015AP1782-CR
omitted) (quoting State v. Grindemann, 2002 WI App 106, ¶30, 255
Wis. 2d 632, 648 N.W.2d 507). Pursuant to this standard, "[w]e
will not set aside a discretionary ruling of the trial court if
it appears from the record that the court applied the proper
legal standards to the facts before it, and through a process of
reasoning, reached a result which a reasonable judge could
reach." Id. (quoting Grindemann, 255 Wis. 2d 632, ¶30).
IV. ANALYSIS
A. Whether Pal Can Be Punished for Two Counts of
Hit and Run Resulting in Death
¶14 Pal's multiplicity claim is a claim that he received
multiple punishments for the same offense in violation of the
Double Jeopardy Clause of the United States Constitution5 and its
counterpart in the Wisconsin Constitution.6 See Ziegler, 342
Wis. 2d 256, ¶59. We therefore examine whether the two counts
for which Pal was sentenced actually pertain to the commission
of a single offense. See, e.g., State v. Derango, 2000 WI 89,
¶28, 236 Wis. 2d 721, 613 N.W.2d 833. We must determine whether
the circuit court "impos[ed] a greater penalty than the
legislature intended." Id.
5
"[N]or shall any person be subject for the same offence to
be twice put in jeopardy of life or limb . . . ." U.S. Const.
amend. V.
6
"[N]o person for the same offense may be put twice in
jeopardy of punishment . . . ." Wis. Const. art. I, § 8(1);
State v. Davison, 2003 WI 89, ¶18, 263 Wis. 2d 145, 666 N.W.2d 1
("Our tradition is to view [the state and federal double
jeopardy] provisions as identical in scope and purpose.").
6
No. 2015AP1782-CR
¶15 "We review multiplicity claims according to a well-
established two-pronged methodology." Ziegler, 342 Wis. 2d 256,
¶60. We first examine "whether the charged offenses are
identical in law and fact." State v. Trawitzki, 2001 WI 77,
¶21, 244 Wis. 2d 523, 628 N.W.2d 801; State v. Davison, 2003 WI
89, ¶43, 263 Wis. 2d 145, 666 N.W.2d 1. If we conclude that the
offenses are not identical in law and fact, we presume that the
legislature authorized multiple punishments. State v.
Patterson, 2010 WI 130, ¶15, 329 Wis. 2d 599, 790 N.W.2d 909.
This presumption, however, may be rebutted "by clear evidence of
contrary legislative intent." Id., ¶17. Under our case law,
legislative intent in multiplicity cases is discerned through
study of: "(1) all applicable statutory language; (2) the
legislative history and context of the statutes; (3) the nature
of the proscribed conduct; and (4) the appropriateness of
multiple punishments for the conduct." Ziegler, 342
Wis. 2d 256, ¶63. If the presumption is rebutted and this court
concludes that the legislature did not authorize multiple
punishments, then the defendant "has a legitimate due process
claim." Id., ¶62; see also Davison, 263 Wis. 2d 145, ¶33 ("'The
same offense' is the sine qua non of double jeopardy.").
¶16 The basic issue before us today was addressed by the
court of appeals in State v. Hartnek, 146 Wis. 2d 188, 430
N.W.2d 361 (Ct. App. 1988). The court of appeals concluded that
in situations involving "a single event of failing to stop and
render aid following an automobile accident," the State may
assert multiple counts under Wis. Stat. § 346.67 if there are
7
No. 2015AP1782-CR
multiple victims. Hartnek, 146 Wis. 2d at 191. Pal agrees that
"[t]he issue in Hartnek was essentially identical to the issue
raised by [Pal] in this appeal," but urges us to overrule that
case.
¶17 We proceed to analyze Pal's claim.7 First, we conclude
that the two offenses for which Pal was sentenced are not
identical in fact. Second, we conclude that Pal has not
rebutted the presumption that the legislature authorized
punishment for each offense. Consequently, it was not
unconstitutional for the circuit court to accept guilty pleas
and sentence Pal for both counts of hit and run resulting in
death.
¶18 We begin by setting out the language of the relevant
statutes. Wisconsin Stat. § 346.67(1) provides:
The operator of any vehicle involved in an
accident resulting in injury to or death of any person
or in damage to a vehicle which is driven or attended
by any person shall immediately stop such vehicle at
the scene of the accident or as close thereto as
possible but shall then forthwith return to and in
every event shall remain at the scene of the accident
until the operator has fulfilled the following
requirements:
(a) The operator shall give his or her name,
address and the registration number of the vehicle he
or she is driving to the person struck or to the
7
On direct appeal, "a guilty plea relinquishes the right to
assert a multiplicity claim when the claim cannot be resolved on
the record." State v. Kelty, 2006 WI 101, ¶2, 294 Wis. 2d 62,
716 N.W.2d 886. We agree with Pal that we can resolve his claim
on the basis of the facts in the record.
8
No. 2015AP1782-CR
operator or occupant of or person attending any
vehicle collided with; and
(b) The operator shall, upon request and if
available, exhibit his or her operator's license to
the person struck or to the operator or occupant of or
person attending any vehicle collided with; and
(c) The operator shall render to any person
injured in such accident reasonable assistance,
including the carrying, or the making of arrangements
for the carrying, of such person to a physician,
surgeon or hospital for medical or surgical treatment
if it is apparent that such treatment is necessary or
if such carrying is requested by the injured person.
Wis. Stat. § 346.67(1).8 Wisconsin Stat. § 346.74(5) provides
the applicable penalties:
Any person violating any provision of
s. 346.67(1):
(a) Shall be fined not less than $300 nor more
than $1,000 or imprisoned not more than 6 months or
both if the accident did not involve death or injury
to a person.
(b) May be fined not more than $10,000 or
imprisoned for not more than 9 months or both if the
accident involved injury to a person but the person
did not suffer great bodily harm.
(c) Is guilty of a Class E felony if the
accident involved injury to a person and the person
suffered great bodily harm.
(d) Is guilty of a Class D felony if the
accident involved death to a person.
8
Shortly before oral argument in this case, Pal brought to
our attention that the legislature recently amended Wis. Stat.
§ 346.67. See 2015 Wis. Act 319. Neither party contends that
the new version of the statute is applicable. Nor do the
parties argue that the revisions overruled State v. Hartnek, 146
Wis. 2d 188, 430 N.W.2d 361 (Ct. App. 1988).
9
No. 2015AP1782-CR
(e) Is guilty of a felony if the accident
involved death or injury to a person.
Wis. Stat. § 346.74(5).
¶19 The State concedes that the counts charged against Pal
are identical in law because they derive from violations of the
same statute. See, e.g., State v. Anderson, 219 Wis. 2d 739,
747, 580 N.W.2d 329 (1998); Ziegler, 342 Wis. 2d 256, ¶66. We
therefore must determine whether the offenses are identical in
fact, inquiring into whether "the acts . . . committed are
sufficiently different in fact to demonstrate that separate
crimes have been committed." Ziegler, 342 Wis. 2d 256, ¶60.
¶20 Pal argues that "each count . . . in this case charges
exactly the same offense of leaving the scene of an accident
causing the death of any person." We do not agree. The State
did not simply charge Pal for his failure to stop his vehicle at
the scene of the accident; it charged Pal for his failure to
stop his vehicle at the scene of the accident until he had
fulfilled his statutory obligations of providing information and
assistance to each of the two victims he had hit with his
vehicle. Because Pal did not perform his statutorily-imposed
duties with regard to each of two victims, the State charged Pal
with two violations of the statute.9
9
We note that, as this case involves two motorcyclists, one
could perhaps argue that this case involved more than one "scene
of the accident" under Wis. Stat. § 346.67(1). This argument,
however, is not one that was made by the parties, either in
briefing or at oral argument, and we decline to address it.
10
No. 2015AP1782-CR
¶21 The first count in the information filed in this case
reads in part:
[Pal] . . . being the operator of a vehicle
involved in an accident resulting in death to [D.J.],
did fail to immediately stop his own vehicle at the
scene of said accident, or as close thereto as
possible, and failed to remain at the scene of said
accident until he fulfilled the following
requirements, to-wit: provide name, address and the
registration number of the vehicle he is driving to
the person struck or to the operator or occupant of or
person attending any vehicle collided with; upon
request and if available, exhibit his operator's
license to the person struck or to the operator or
occupant of or person attending any vehicle collided
with; or render to any person injured in such accident
reasonable assistance, including the carrying, or the
making of arrangements for the carrying, of such
person to a physician, surgeon or hospital for medical
or surgical treatment if it is apparent that such
treatment is necessary or if such carrying is
requested by the injured person . . . .
(Emphasis added.) The second count repeats these allegations,
substituting the second victim's name for the first victim's
name. The State's prosecutorial approach in this case is
consistent with our previous conclusion in State v. Rabe that
"where the crime is against persons rather than property, there
are, as a general rule, as many offenses as individuals
affected." State v. Rabe, 96 Wis. 2d 48, 68, 291 N.W.2d 809
(1980).
¶22 "[I]f the State were put to their proof" in this case,
they would have to establish that Pal had failed to complete his
statutory responsibilities with regard to each victim. State v.
Richter, 189 Wis. 2d 105, 109, 525 N.W.2d 168 (Ct. App. 1994).
Thus, we conclude that the offenses charged are not identical in
11
No. 2015AP1782-CR
fact. See, e.g., Rabe, 96 Wis. 2d at 53, 62-68 (four counts of
homicide by intoxicated use of a vehicle were not identical in
fact in case wherein defendant's vehicle collided with a second
vehicle and two occupants in each car died); c.f., e.g.,
Richter, 189 Wis. 2d at 107-110 (three counts of bail jumping
were not identical in fact in case wherein defendant violated,
with a single phone call, three distinct bonds in three distinct
cases).
¶23 Because the two counts of hit and run resulting in
death are not identical in fact, we presume that the legislature
authorized punishment for each offense. Patterson, 329
Wis. 2d 599, ¶15. Pal's attempts to rebut that presumption
fail. With regard to the text of the statute, Pal points to the
repeated use of the word "any" in Wis. Stat. § 346.67(1) as
support for his claim that once "any" person is injured or
killed in an accident——regardless of the actual number of
victims——Wis. Stat. § 346.67(1) is triggered and a defendant can
be penalized only once for leaving that single qualifying
accident scene. See, e.g., § 346.67(1) (applying to "[t]he
operator of any vehicle involved in an accident resulting in
injury to or death of any person or in damage to a vehicle which
is driven or attended by any person" (emphases added)).
¶24 Pal's argument fails when viewed in light of the text
of the statute as a whole. Under Wis. Stat. § 346.67(1), Pal
owed a distinct set of duties to each of the two victims at the
accident scene he fled. Although stopping one's vehicle at the
scene of the accident is certainly one of the obligations that
12
No. 2015AP1782-CR
§ 346.67(1) imposes, that requirement is manifestly in service
of the statute's true focus: the operator's obligation to remain
at the scene of the accident until the operator has fulfilled
each of the enumerated statutory obligations owed to specified
persons at the scene. To take one example, the statute requires
certain vehicle operators to "remain at the scene of the
accident" in order to
render to any person injured in such accident
reasonable assistance, including the carrying, or the
making of arrangements for the carrying, of such
person to a physician, surgeon or hospital for medical
or surgical treatment if it is apparent that such
treatment is necessary or if such carrying is
requested by the injured person.
Wis. Stat. § 346.67(1)(c) (emphasis added). Thus "a person who
renders aid to three out of four injured persons is still
exposed to liability under the statute." Hartnek, 146 Wis. 2d
at 194 (citing State v. Lloyd, 104 Wis. 2d 49, 62-63, 310
N.W.2d 617 (Ct. App. 1981)). Section 346.67(1)'s statement that
it applies to "an accident resulting in injury to or death of
any person or in damage to a vehicle which is driven or attended
by any person" simply establishes the minimum threshold at which
the statute is triggered; it does not limit the number of
beneficiaries of the duties the statute imposes on specified
vehicle operators. § 346.67(1) (emphases added). And, as
stated above, "where the crime is against persons rather than
property, there are, as a general rule, as many offenses as
individuals affected." Rabe, 96 Wis. 2d at 68. Given this
rule, and the statute's clear imposition of duties with regard
13
No. 2015AP1782-CR
to each of the victims at the accident scene in this case, it is
reasonable to presume, as we do, that the legislature authorized
multiple punishments under § 346.67(1).
¶25 We add to this analysis the observation that
"[m]ultiple victim accidents are not so rare that we can say the
legislature did not take them into consideration when drafting
the statute. Had the legislature intended that only one penalty
could be imposed per accident, it could have more clearly done
so." Hartnek, 146 Wis. 2d at 194. Nothing in Wis. Stat.
§ 346.67(1) or Wis. Stat. § 346.74(5)10 persuades us that the
legislature prohibited multiple counts under the circumstances
present in this case.
¶26 Next, Pal states that "the legislative history and the
context of the statu[t]e" do not provide "relevant guidance
either way." The State somewhat similarly asserts that
10
Pal suggests that the penalties provided in Wis. Stat.
§ 346.74(5) are graduated based on the greatest degree of harm
sustained by any victim in a particular accident; that is, that
"[t]he applicable penalty will presumably be based on the most
seriously injured person." See, e.g., § 346.74(5) ("Any person
violating any provision of s. 346.67 (1): . . . (d) Is guilty of
a Class D felony if the accident involved death to a person."
(emphasis added)). But see Hartnek, 146 Wis. 2d at 194-95
(concluding that "a multiple victim accident could invoke
several of the differing penalties of sec. 346.74(5)").
Even if Pal were correct, this would not dictate that
multiple counts are prohibited under the statute. It might
instead simply mean that the appropriate penalty for each of
multiple counts must be based on the penalty applicable with
regard to "the most seriously injured person." We do not
express an opinion on the question; we merely observe that Pal's
argument is not determinative here.
14
No. 2015AP1782-CR
"[n]othing in the legislative history indicates that the
Legislature intended to limit the number of charges that may be
filed resulting from a multi-victim hit-and-run accident."
Given that Pal bears the burden of rebutting the presumption,
see Ziegler, 342 Wis. 2d 256, ¶62, and that nothing of a
conclusive nature suggests itself to us with regard to this
factor, we will not construct an argument for him. See, e.g.,
Indus. Risk Insurers v. Am. Eng'g Testing, Inc., 2009 WI App 62,
¶25, 318 Wis. 2d 148, 769 N.W.2d 82 ("[W]e will not abandon our
neutrality to develop arguments.").
¶27 With regard to the nature of the conduct proscribed by
Wis. Stat. § 346.67(1), Pal again contends that "[t]he gravamen
of the offense is not the killing of a person, but the flight
from the scene." We reiterate that the statute is patently
concerned with more than simply flight from the scene of an
accident. Instead, the statute prohibits flight until the
vehicle operator has fulfilled his or her duties with regard to
specified persons at the scene. Indeed, it is at least
conceivable that a vehicle operator could, consistent with the
statute, freely leave an accident scene in a matter of minutes
if he or she manages to complete the statutorily-mandated tasks
in that amount of time. See § 346.67(1). Given that the
statute pertains to a vehicle operator's duties to certain
individuals at an accident scene, it makes sense to allow
punishment for violations of duties to separate individuals.
"Each offense caused harm that the other offense did not."
Anderson, 219 Wis. 2d at 755. For the same reason, we see
15
No. 2015AP1782-CR
nothing inappropriate about punishing Pal for each instance of
failing to aid one of the victims in this case. See Davison,
263 Wis. 2d 145, ¶98 (noting that "[o]ften in our multiplicity
analyses, consideration of the appropriateness of multiple
punishments is informed by our conclusions regarding the nature
of the proscribed conduct").11
¶28 Our analysis leads us to a single conclusion: the
legislature authorized the State to charge multiple counts of
the offense of hit and run resulting in death in cases involving
multiple victims. We therefore have no need to apply "the 'rule
of lenity' and the general rule subjecting penal statutes to
strict construction so as to safeguard a defendant's rights,"
State v. Kittilstad, 231 Wis. 2d 245, 266-67, 603 N.W.2d 732
(1999), as Pal urges us to do. See, e.g., Callanan v. United
States, 364 U.S. 587, 596 (1961) ("The rule [of lenity] comes
into operation at the end of the process of construing what
Congress has expressed, not at the beginning as an overriding
consideration of being lenient to wrongdoers. That is not the
function of the judiciary."); Zarnott v. Timken-Detroit Axle
Co., 244 Wis. 596, 600, 13 N.W.2d 53 (1944) ("[T]he rule of
11
Wisconsin Stat. § 346.67(1) enumerates a number of
duties, some contained within the same paragraph. Additionally,
a given accident could involve varying numbers of victims. One
could therefore imagine many complex hypotheticals posing
questions about how many violations could validly be charged in
a given case. We decline to weigh in on these types of
hypotheticals, however, and instead simply conclude that what
the State charged in this specific case is permissible.
16
No. 2015AP1782-CR
strict construction [of penal statutes] is not violated by
taking the common-sense view of the statute as a whole and
giving effect to the object of the legislature, if a reasonable
construction of the words permits it.").
¶29 In our system, "the substantive power to prescribe
crimes and determine punishments is vested with the
legislature." Davison, 263 Wis. 2d 145, ¶31 (quoting Ohio v.
Johnson, 467 U.S. 493, 499 (1984)). All that we determine today
is that the legislature authorized the sentence meted out below.
The legislature is free to clarify the statute in the future if
it wishes. Further,
the fact that multiple counts may be charged for
multiple deaths does not mean that in all such cases
multiple charges will be filed or that, upon
conviction, separate and consecutive sentences will be
imposed. Such decisions are subject to both
prosecutorial charging discretion and judicial
sentencing discretion.
9 Christine M. Wiseman & Michael Tobin, Wisconsin Practice
Series: Criminal Practice & Procedure § 1:23 (2d ed.) (footnote
omitted). This latter safeguard, judicial sentencing
discretion, is the subject of Pal's second challenge.
B. Whether Pal's Sentence Is Unduly Harsh
¶30 Pal contends that his sentence is unduly harsh. We
have said that "[a] sentence is unduly harsh or unconscionable
'only where the sentence is so excessive and unusual and so
disproportionate to the offense committed as to shock public
sentiment and violate the judgment of reasonable people
concerning what is right and proper under the circumstances.'"
17
No. 2015AP1782-CR
Cummings, 357 Wis. 2d 1, ¶72 (quoting Ocanas v. State, 70
Wis. 2d 179, 185, 233 N.W.2d 457 (1975)).
¶31 Pal's sentence was less than the statutory maximum.
He received two consecutive 20-year terms of imprisonment, with
each term consisting of ten years of initial confinement and ten
years of extended supervision. However, he could have received
two consecutive 25-year terms of imprisonment, with each term
consisting of 15 years of initial confinement and ten years of
extended supervision. See Wis. Stat. §§ 346.74(5)(d);
939.50(3)(d); 973.01(2)(b)4. and (2)(d)3.
¶32 We cannot conclude that the circuit court erred in
rejecting Pal's claim that its sentence was unduly harsh. In
sentencing Pal, the circuit court properly considered "the
gravity of the offense, the character of the defendant, and the
need to protect the public." State v. Harris, 2010 WI 79, ¶28,
326 Wis. 2d 685, 786 N.W.2d 409 (citing State v. Harris, 119
Wis. 2d 612, 623, 350 N.W.2d 633 (1984)).
¶33 Remarking that it could not "say enough about the
seriousness of these offenses," the circuit court explained that
it was "giv[ing] the greatest amount of weight" to that factor.
The circuit court discussed in detail Pal's actions in the hours
and days after the accident which, in the circuit court's view,
demonstrated Pal's lack of remorse and failure to take
responsibility for his actions.
¶34 In particular, the circuit court noted the following
relevant pieces of information, among others: that following the
accident (while two individuals lay dead or dying on the
18
No. 2015AP1782-CR
highway) Pal returned to his girlfriend's house where he "drank
some beer and . . . talked about sports and other things" with
his girlfriend's stepfather; that Pal did not confess to what he
had done when questioned by his girlfriend and his father; that
Pal never turned himself in; that a search of Pal's phone
"indicated . . . web page searches of many pages, of many
subjects about how to avoid being caught for a hit and run, how
to repair a vehicle, how to hide a vehicle, what are the
penalties"; that after his arrest, while in jail, Pal "tried to
talk to [sic] [his] girlfriend into deleting some information";
and that "[t]he agent that wrote the [presentence investigation]
report" viewed Pal's "claims of remorse [as] somewhat suspect."
The court stated, "I . . . believe I must impose a sentence that
does not unduly depreciate the seriousness of these offenses and
a sentence that has a punitive component as well."
¶35 Pal discusses a number of matters relating to the
circumstances of the accident below, the nature of the crime
itself, the recommendations of the State and of the author of
the presentence investigation report, and his own personal
background in support of his argument that a lighter sentence is
appropriate. He explains that he "expressed remorse for his
conduct, not [by] mere words, but by waiving his right to a
trial and pleading to the charges, as alleged." But these
arguments are generally for the circuit court, not this court,
to consider. See, e.g., Harris, 119 Wis. 2d at 622 ("We have
acknowledged our reluctance to interfere with a trial court's
19
No. 2015AP1782-CR
sentence, because it has a great advantage in considering the
relevant factors and the demeanor of the defendant.").
¶36 In sum, the circuit court imposed a sentence within
the statutory maximum after it had properly considered the
relevant factors and had provided Pal with a thorough
explanation of the reasons supporting its decision. The circuit
court's actions were not unduly harsh and unconscionable.
¶37 Finally, Pal briefly argues that "[t]he focus by the
trial court on the flight as an aggravating factor was
misplaced" because the flight "was not an aggravating factor; it
was the crime." The circuit court below rejected this argument
postconviction, explaining that what it had considered
aggravating was not Pal's flight but his "course of conduct that
went well beyond the initial flight or . . . not immediately
stopping." Our review of the sentencing transcript leaves us
unable to disagree with this characterization.
¶38 Pal similarly contends that "the remarks of the trial
court indicate it considered the deaths an aggravating factor
justifying a harsh penalty," even though "[t]he death of a
person at the scene of a hit and run accident is what propelled
the offense to a Class D felony" in the first place. Again, we
do not accept Pal's interpretation of the sentencing transcript.
The circuit court undoubtedly viewed the deaths of the two
victims in this case as relevant to its sentencing decision, but
that was because the deaths pertained to "the gravity of the
offense," undoubtedly a proper concern for the court. See
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No. 2015AP1782-CR
Harris, 326 Wis. 2d 685, ¶28. We uphold the sentence the
circuit court imposed in this case.
V. CONCLUSION
¶39 This case arose because Pal abandoned two dead or
dying motorcyclists on the road following his vehicle accident.
We conclude that Pal committed two offenses, not one, when he
fled from the scene of his accident, and that the legislature
authorized punishment for each offense. It was therefore not
unconstitutional for the circuit court to accept guilty pleas
and sentence Pal for both counts of hit and run resulting in
death. We further conclude that the circuit court did not
impose an unduly harsh sentence. Accordingly, we affirm the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
21
No. 2015AP1782-CR.pdr
¶40 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The
Majority opinion correctly applies well-established Wisconsin
law, and therefore I join the opinion in full. I write
separately to explain that there is an alternate way in which
this case could have been analyzed. In so doing, I hope to
encourage future parties who raise multiplicity challenges that
are grounded in multiple charges under a single statute to
address their challenges as "unit of prosecution" claims.
¶41 "The Double Jeopardy Clause of the Fifth Amendment of
the United States Constitution and its parallel provision in the
Wisconsin Constitution, Article I, Section 8(1), prohibit
multiple punishments for the same offense." State v. Ziegler,
2012 WI 73, ¶59, 342 Wis. 2d 256, 816 N.W.2d 238. The Double
Jeopardy Clause "protects against a second prosecution for the
same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it
protects against multiple punishments for the same offense."
State v. Davison, 2003 WI 89, ¶19, 263 Wis. 2d 145, 666 N.W.2d 1
(emphasis in original)(internal quotations omitted).
¶42 The last protection is commonly referred to as a
"multiplicity" claim. "When a defendant is charged in more than
one count for a single offense, the counts are deemed
impermissibly multiplicitous." Ziegler, 342 Wis. 2d 256, ¶59.
Multiplicity claims may arise when multiple counts are charged
under the same statute for what is asserted to be the same
conduct or when multiple counts are charged under different
statutes for what is asserted to be the same conduct. In either
1
No. 2015AP1782-CR.pdr
case, their resolution will turn on legislative intent, in part,
because the legislature is constitutionally delegated the
substantive power to delineate and define crimes. Davison, 263
Wis. 2d 145, ¶31.
¶43 Wisconsin courts have analyzed both types of
multiplicity claims using a two-step test. Id., ¶43. "First,
the court determines whether the offenses are identical in law
and fact using the 'elements-only' test set forth in Blockburger
v. United States, 284 U.S. 299, 304 (1932)." Ziegler, 342
Wis. 2d 256, ¶60. "The results of the 'elements-only' test
determine the presumption under which we analyze the second
prong of our methodology." Id., ¶61 (citation omitted). "If
the offenses are identical in law and fact, a presumption arises
that the legislature did not intend to authorize cumulative
punishments." Id. (citation omitted). "Conversely, if the
offenses are different in law or fact, the presumption is that
the legislature intended to permit cumulative punishments."
Id., ¶62. See also Davison, 263 Wis. 2d 145, ¶43 ("First, the
court determines whether the charged offenses are identical in
law and fact using the Blockburger test.").
¶44 The Blockburger test was derived from the Court's
analysis of the proper way to address multiple convictions that
arose from under different statutory provisions. Blockburger,
284 U.S. at 304; see also Garrett v. United States, 471 U.S.
773, 778 (1985) ("Where the same conduct violates two statutory
provisions, the first step in the double jeopardy analysis is to
determine whether the legislature-in this case Congress-intended
2
No. 2015AP1782-CR.pdr
that each violation be a separate offense."). Therefore,
Blockburger is not directly on point for instances in which a
defendant is convicted under a single statute. However,
Wisconsin courts have applied the two-step multiplicity test,
and therefore the Blockburger test, to these situations.
Specifically, we have used it to analyze situations in which a
defendant receives multiple convictions under a single statute.
See State v. Rabe, 96 Wis. 2d 48, 64-65, 291 N.W.2d 809 (1980);
State v. Richter, 189 Wis. 2d 105, 108–09, 525 N.W.2d 168 (Ct.
App. 1994) and other cases discussed below.
¶45 However, the unit of prosecution analysis is also
applicable when multiple charges are made under the same
statute. "The unit of prosecution is the manner in which a
criminal statute permits a defendant's conduct to be divided
into discrete acts for purposes of prosecuting multiple
offenses." Woellhaf v. People, 105 P.3d 209, 215 (Colo. 2005).
In unit of prosecution cases, Wisconsin courts routinely apply
the above-mentioned Blockburger test to determine if a
defendant's convictions were multiplicitous. See, e.g., State
v. Multaler, 2002 WI 35, ¶59, 252 Wis. 2d 54, 643 N.W.2d 437
("Having determined that the charges are different in fact, we
turn to examine the legislature's intent regarding the allowable
unit of prosecution."); Rabe, 96 Wis. 2d at 64-65; Richter, 189
Wis. 2d at 108–09 ("In order to determine whether the three
counts of bail jumping were multiplicitous, we must apply a two-
pronged test to the facts of this case . . . ."); State v.
Hartnek, 146 Wis. 2d 188, 192, 430 N.W.2d 361 (Ct. App. 1988).
3
No. 2015AP1782-CR.pdr
However, in the context of multiple counts made under the same
statute, the application of the Blockburger test may not work as
well as Wisconsin courts have assumed.
¶46 For example, the first prong of Wisconsin's
multiplicity analysis is potentially illusory when a defendant's
convictions are for multiple violations of a single statute.
"When a defendant is convicted for violating one statute
multiple times, the same evidence test will never be satisfied."
State v. Adel, 965 P.2d 1072, 1074 (Wash. 1998). "Two
convictions for violating the same statute will always be the
same in law, but they will never be the same in fact. In
charging two violations of the same statute, the prosecutor will
always attempt to distinguish the two charges by dividing the
evidence supporting each charge into distinct segments." Id.1
1
For a more thorough explanation of why Wisconsin's two-
prong multiplicity analysis may be reconsidered in unit of
prosecution cases, see Michelle A. Leslie, Note, State v.
Grayson, Clouding the Already Murky Waters of Unit of
Prosecution Analysis in Wisconsin, 1993 Wis. L. Rev. 811, 824-25
("The first prong of the Rabe test, 'identical in law and in
fact,' is not useful in the continuing offense, unit of
prosecution context. The identical in law portion is always
satisfied and therefore never determinative, since each charge
is brought under the identical statutory provision. The
identical in fact portion is equally uninformative, but in a
more subtle manner. The prosecutor, in deciding on the
challenged unit of prosecution, must divide the continuing
conduct into distinct segments (usually temporal segments).
Implicit in that division, however, are different factual
contexts, controlled solely by the prosecutor's unit of
prosecution choice. Thus, identical in fact will never be
satisfied.").
4
No. 2015AP1782-CR.pdr
¶47 Perhaps for this reason, other courts, including the
United States Supreme Court, generally do not apply the
Blockburger analysis to multiplicity challenges based on
multiple charges under the same statute.2 See generally,
Sanabria v. United States, 437 U.S. 54, 70 (1978) ("Because only
a single violation of a single statute is at issue here, we do
not analyze this case under the so-called 'same evidence' test,
which is frequently used to determine whether a single
transaction may give rise to separate prosecutions, convictions,
and/or punishments under separate statutes." (citing
Blockburger, 284 U.S. 299 (1932)). For example, the Court of
Criminal Appeals of Texas stated: "Both parties' arguments are
predicated on the assumption that the proper analysis includes
the application of the Blockburger test . . . . However, we
employ that analysis only when the charged conduct involves
multiple offenses in different statutory provisions that are the
result of a single course of conduct." Loving v. State, 401
S.W.3d 642, 645 (Tex. Crim. App. 2013); see also State v. Smith,
436 S.W.3d 751, 768 (Tenn. 2014) ("Generally, we do not apply
2
The Supreme Court's decision in Ladner v. United States,
358 U.S. 169 (1958) is illustrative. In Ladner, the defendant
was convicted "of assaulting two federal officers with a deadly
weapon" in violation of a single statute. Id. at 170. The
defendant received separate convictions for each officer that
was harmed. Id. at 170-71. The Court had to address whether
"the wounding of two federal officers by the single discharge of
a shotgun would constitute a separate offense against each
officer under the statute." Id. at 171. The Court did not
apply the Blockburger analysis; instead, the Court focused
solely on the text of the statute. Id. at 172.
5
No. 2015AP1782-CR.pdr
the Blockburger test when addressing a unit-of-prosecution
claim.").
¶48 Instead, "[w]here two violations of the same statute
rather than two violations of different statutes are charged,
courts determine whether a single offense is involved not by
applying the Blockburger test, but rather by asking what act the
legislature intended as the 'unit of prosecution' under the
statute." United States v. Weathers, 186 F.3d 948, 952 (D.C.
Cir. 1999). Stated otherwise, a court's inquiry becomes "what
'unit of prosecution' has the Legislature intended as the
punishable act under the specific criminal statute." Adel, 965
P.2d at 1074 (citations omitted); see also State v. Thompson,
200 P.3d 22, 28 (Kan. 2009) ("In a unit of prosecution case, the
court asks how the legislature has defined the scope of conduct
composing one violation of a statute. Under this test, the
statutory definition of the crime determines what the
legislature intended as the allowable unit of prosecution.");
Loving, 401 S.W.3d at 645 (reasoning, "whether the Legislature
intended for the separate statutory subsections in a single
statute to constitute distinct offenses" is the question); State
v. Ravell, 922 A.2d 685, 689 (N.H. 2007) (Duggan, J.,
dissenting) ("Where, as here, a defendant asserts a double
jeopardy violation, arguing that he is being punished multiple
times under the same statute for the same offense, courts must
inquire what 'unit of prosecution' was intended by the
legislature as the punishable act.").
6
No. 2015AP1782-CR.pdr
¶49 Therefore, in multiplicity challenges grounded in
multiple charges under a single statute, courts interpret the
statute at issue to determine if the legislature authorized
multiple convictions.
¶50 In the present case, Pal alleges that he was
impermissibly charged with two violations of a single statute.
Accordingly, this case could be framed as a unit of prosecution
case. And, as discussed above, under a unit of prosecution
analysis, the sole question would be whether the legislature
intended to authorize multiple punishments through a single
statute.
¶51 However, as the Majority opinion correctly notes, the
statute at issue in the present case is designed to confer a
duty towards each individual harmed by a driver's actions.3 And,
as a result, the legislature authorized the unit of prosecution
to be one conviction for each victim.
¶52 Because the Majority opinion proceeds under well-
established Wisconsin law, I join the Majority opinion in full.
I respectfully concur in order to encourage future parties to
consider a unit of prosecution analysis for multiplicity
challenges based on multiple charges under a single statute.
¶53 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
3
Maj. Op., ¶24.
7
No. 2015AP1782-CR.dk
¶54 DANIEL KELLY, J. (concurring). I concur in the
mandate because there were two accidents, one following
immediately after the other. I do not join the court's opinion,
however, because its reasoning could be understood to allow, in
a single accident with a single victim, a separate charge for
each paragraph of Wis. Stat. § 346.67(1)——a result that I think
would be improper.
¶55 For the foregoing reasons, I concur.
¶56 I am authorized to state that Justices SHIRLEY S.
ABRAHAMSON and ANN WALSH BRADLEY join this concurrence.
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No. 2015AP1782-CR.dk
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