Wise was convicted of 4 counts of fleeing or eluding an officer under §346.04(3). He claimed trial counsel was ineffective for failing to seek dismissal of 3 of his 4 charges on the grounds that they were multiplicitous. The court of appeals held that the charges were not multiplicitous because each one required proof of a different element or fact. Thus, the circuit court appropriately denied Wise’s ineffective assistance of counsel claim without a hearing.
Multiplicity arises when a defendant is charged in more than one count for a single offense. To determine whether charges are identical in law and fact the court uses the test in Blockburger v. United States, 284 U.S. 299 (1932). That test requires the court to first determine whether multiple charges require proof of different facts or elements. It then requires consideration of the legislature’s intent.
Section 346.04(3) sets forth the offense of fleeing or eluding police:
No operator of a vehicle, after having received a visual or audible signal from a traffic officer, federal law enforcement officer, or marked or unmarked police vehicle that the operator knows or reasonably should know is being operated by a law enforcement officer, shall knowingly flee or attempt to elude any officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, the traffic officer, the law enforcement officer, other vehicles, or pedestrians, nor shall the operator increase the speed of the operator’s vehicle or extinguish the lights of the vehicle in an attempt to elude or flee.
Regarding fleeing or eluding police, §346.17(3) additionally provides:
(a) Except as provided in par. (b), (c) or (d), any person violating s. 346.04(3) is guilty of a Class I felony.
(b) If the violation results in bodily harm, as defined in s. 939.22(4), to another, or causes damage to the property of another, as defined in s. 939.22(28), the person is guilty of a Class H felony.
(c) If the violation results in great bodily harm, as defined in s. 939.22(14), to another, the person is guilty of a Class F felony.
(d) If the violation results in the death of another, the person is guilty of a Class E felony.
Wise argued that he was charged 4 times under §346.04(3) for a single act of fleeing and that §346.17(3) simply sets forth different penalty enhancers. The court of appeals held that §346.04(3) sets forth the offense of fleeing or eluding. And §346.17(3) is not a penalty enhancer. Rather, it provides different felony classifications for different harms caused by fleeing or eluding. Opinion, ¶18.
The court relied heavily on State v. Beasley, 2004 WI App 42, ¶8, 271 Wis. 2d 469, 678 N.W.2d 600, which rejected a similar argument regarding the burglary statute. Beasley held that §943.10(1) sets forth the basic crime of burglary, and §943.10(2) sets forth the separate harms committed during a burglary. Thus, §943.10(2) is not a penalty enhancer. Opinion, ¶¶16-20. See our post on Beasley.
Wise was charged with one count of fleeing an officer resulting in death, one count of fleeing an officer resulting in great bodily harm, and two counts of fleeing an officer resulting in property damage. The first two charges address separate harms during the act of fleeing, and each requires proof of an element that the other does not. Opinion, ¶22.
As for the 2 charges resulting in property damage, they were not the same in fact because they involved different victims. Opinion, ¶¶24-25. (citing State v. Pal, 2017 WI 44, 374 Wis. 2d 759, 893 N.W.2d 848 and State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980)).
After concluding that Wise’s charges were not the same in law or fact, the court of appeals considered whether the legislature intended to permit cumulative punishments. Answer: yes. The legislature created multiple crimes to address multiple harms. The court of appeals rejected all of Wise’s efforts to prove otherwise. Opinion, ¶¶26-32.
Bottom line: Wise’s IAC claim fails because trial counsel cannot be ineffective for failing to raise an argument that lacks merit.