                                                               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 App. 2016 – Unpublished)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


                                               20
                                                                   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.




                                         1
    No.   2015AP1782-CR.dk




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