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SCOW: 1 car crash killing 2 victims yields 2 counts of “hit and run” in violation of sec. 346.67(1)

State v. Sambath Pal, 2017 WI 44, 4/28/17, affirming a court of appeals summary disposition, 2015AP1782-CR; case activity (including briefs)

Driver crashes into group of motorcyclists, kills one, mortally injures a second, flees the scene, and eventually pleads guilty to 2 counts of hit and run resulting in death contrary to §346.67(1). He’s sentenced to 2 consecutive terms of 10 years IC and 10 years ES. Questions Presented: Did driver commit 1 offense or 2? And is his sentence unduly harsh?

SCOW’s decision:

¶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 did not impose an unduly harsh sentence.  Accordingly, we affirm the decision of the court of appeals.

Why it matters:

Pal raised a multiplicity claim. That is, he contends that he received multiple punishments for the same offense in violation of the Double Jeopardy Clauses of the state and federal constitutions. To decide this type of claim, a court first examines whether the charged offenses are identical in cause and fact. If not, the court presumes the legislature authorized multiple punishments, but that presumption can be rebutted with “clear evidence of a contrary intent.” Op. ¶15 (quoting State v. Patterson, 2010 WI 130, ¶15). And just how do you prove “contrary intent?” SCOW explains:

¶15 . . . [L]egislative 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.”).

Perhaps the real reason this case matters is that the court of appeals previously held that where a driver fails to stop and render aid following a car accident, the State may assert multiple counts under §346.67 if there are multiple victims. See State v. Hartnek, 146 Wis. 2d 188, 191, 430 N.W.2d 361, (Ct. App. 1988). Pal sought to overturn Hartnek. See our post re the petition for review. SCOW has declined the invitation.

The 2 concurrences:

Justice Kelly (joined by Abrahamson and A.W. Bradley) draws an important distinction that could affect defendants involved in a single accident with a single victim:

¶54  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.

Chief Justice Roggensack’s (joined by R.G. Bradley) concurrence is also noteworthy. ¶¶40-53. She agrees completely with the majority opinion, but notes that it applied the “elements-only” test of Blockburger v. United States, 284 U.S. 299, 304 (1992) to decide Pal’s multiplicity claim. She explains that other courts do not apply the Blockburger test to multiplicity challenges based on multiple charges under the same statute. Instead, they apply the “unit of prosecution test,” which asks what “unit of prosecution” the legislature intended under the statute at issue.   Roggensack concludes that Pal would lose under this test too because, through §346.67(1), the Wisconsin legislature authorized the “unit of prosecution” to be one conviction for each victim.

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