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Conspiracy and solicitation charges weren’t multiplicitous, sentencing judge didn’t erroneously exercise sentencing discretion

State v. Lisa Rena Lantz, 2020AP742-CR, District 3, 7/27/21 (not recommended for publication); case activity (including briefs)

Lantz was convicted of conspiring to deliver methamphetamine between September 2015 and March 2016 and of soliciting the delivery of methamphetamine in February and March 2016. The court of appeals rejects Lantz’s argument that the charges are multiplicitous. It also rejects her challenge to her sentences.

Multiplicity: Multiplicity challenges are grounded on the constitutional right to be free from multiple punishments for the same offense. Criminal charges are multiplicitous if they charge more than one count for acts the statutes define as a single offense. Determining whether charges are multiplicitous is a two-step process. The first step is determining whether the charges are (a) identical in law under the “elements-only” test and (b) identical in fact. The second step inquires into legislative intent based on the outcome of the first step. If the first step establishes the offenses are identical in law and in fact, the court must presume that the legislature did not intend to permit multiple punishments, though the state may rebut that presumption by showing a clear indication of contrary legislative intent. If the offenses are not identical, then the court must presume that the legislature intended to, and it is the defendant who has the burden to show clear legislative intent against cumulative punishments. (¶10).

Lantz concedes that conspiracy and solicitation aren’t identical in law, as conspiracy includes elements solicitation doesn’t. (¶¶11-12). But she argues they are identical in fact, which depends on whether whether the offenses are “separated in time or are of a significantly different nature.” Because the acts of solicitation occurred in the same time period as the conspiracy and were part of a single intent and design and therefore the same in “nature” as the conspiracy. (¶¶13-14). The court rejects this claim, because the conspiracy began much earlier and the later-in-time acts of solicitation involved a new volitional departure and new and additional decisions beyond those involved in the conspiracy. (¶¶15-16).

That means the legisltuare is presumed to intent multipole punishments, and Lantz is uanble to persuade the court of appeals that the presumption should be rebutted. Legislative intent is discerned based on relevant statutory language, including its history and context; the nature of the proscribed conduct; and the appropriateness of multiple punishments for the conduct. (¶17). Lantz looks to three statutes to argue legislative intent:

  • First, she argues the authorization under § 971.365(1) for aggregation of multiple smaller transactions into a single conspiracy charge shows a bent against multiple punishments. But that aggregation need not include every single delivery, much less the separate acts of solicitation, and in any event aggregation is a matter of prosecutorial discretion and so doesn’t evince legislative intent to limit charges or punishment. (¶¶18-22).
  • Second, she cites § 961.45, but that statute doesn’t help because it involves charges in other jurisdictions, which aren’t applicable here. (¶¶23-26).
  • Third, she relies on § 939.72’s prohibition on being convicted as both a party to a crime and for conspiring or soliciting that crime. But this shows the legislature chose not to bar multiple convictions in situations involving both conspiracy and solicitation. (¶¶27-28).

Finally, the last factors in the multiplicity analysis–the nature of the conduct and the appropriateness of multiple punishments–don’t weigh in favor of finding the legislature intended to bar multiple punishment. (¶¶32-34).

Sentencing: The court also rejects Lantz’s claims that the circuit court erroneously exercised its sentencing discretion. She points to the fact the judge imposed consecutive sentences well in excess of the recommendations made by the state and the PSI, but a sentencing judge is never bound by any of the recommendations. (¶39). She also argues the judge disregarded mitigating information about her personal history and background and mistakenly concluding she could not remain drug free. But the record shows the court considered mitigating information about Lantz and that its conclusion about Lantz’s drug use was supported by the record. (¶¶40-43).

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