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State v. Sambath Pal, 2015AP1782-CR, petition for review granted 10/11/2016

Review of a court of appeals summary disposition; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Could the defendant be convicted of two counts of hit and run with death resulting for a single act of leaving the scene of an accident that caused two deaths?

(2) Is the defendant’s sentence unduly harsh?

Pal crossed the center line of a highway, causing an accident that killed two people. He left the scene without complying with the requirements of § 346.67. He pled to two counts of leaving the scene of an accident involving death, and now claims it violates double jeopardy to convict him of two counts for leaving the scene of the same accident. The court of appeals held his argument was foreclosed by State v. Hartnek, 146 Wis. 2d 188, 430 N.W.2d 361 (Ct. App. 1988), which decided that § 346.67 permits multiple charges in cases where there are multiple victims. Pal argues that Hartnek‘s analysis is unconvincing and cursory and should be overruled, and cites cases from other jurisdictions that have interpreted statutes similar to §346.67 to allow only a single charge for a single accident, e.g., State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012). The supreme court will now decide whether Hartnek was right or wrong about § 346.67.

Note that lurking in the background of the multiplicity issue is the question of whether Pal forfeited his double jeopardy challenge because he pled guilty to the two counts. The state didn’t harp on the question, and the court of appeals didn’t need to address it, because the case was easily disposed of using the binding decision in Hartnek. But we note the question because the court also just granted the PFR in State v. Steinhardt, where the issue of forfeiture of a double jeopardy claim is front and center, and because the court said the two cases will be argued on the same day.

Finally, Pal challenged his sentence (10 years of confinement on each count, running consecutively) as unduly harsh in light of his lack of intent to cause death, and indeed the lack of basis to charge Pal with reckless, negligent, or intoxicated homicide. He also complains the sentencing judge emphasized Pal’s flight from the scene as an aggravating factor when it is, of course, the gravamen of the offense. Pal cited the old (and not yet expressly overruled) decision in State v. Tuttle, 21 Wis. 2d 147, 124 N.W.2d 9 (1963), to argue that a reviewing court has the power to reverse a sentence when it appears that justice hasn’t been done, and that in this case justice hasn’t been done because his sentence doesn’t fit the crime. Not surprisingly, the court of appeals was unmoved by this argument, and hewed to Wisconsin appellate courts’ long tradition of abject deference to the decisions of sentencing judges. It’s hard to imagine the supreme court will do anything to change the current approach to sentence review, but you never know.

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