COURT OF APPEALS

DECISION

DATED AND FILED

July 27, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP742-CR Cir. Ct. No. 2016CF482

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

LISA RENA LANTZ,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Brown County: JOHN ZAKOWSKI, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 HRUZ, J. Lisa Lantz appeals a judgment convicting her of one 

count of conspiring to deliver methamphetamine, two counts of soliciting the 

delivery of methamphetamine, and one count of maintaining a drug trafficking 

place. Lantz argues that her two convictions for soliciting the delivery of 
No. 2020AP742-CR

2

methamphetamine are multiplicitous of her conviction for conspiring to deliver 

methamphetamine, in violation of her due process rights. Lantz further contends 

she has not waived her multiplicity claim, but if she has, she argues that her trial 

counsel was ineffective for failing to raise a multiplicity argument. Lantz also 

argues the circuit court erroneously exercised its discretion by imposing an 

aggregate twenty-seven year sentence because the court disregarded mitigating 

factors and erroneously believed that Lantz could not remain drug free. Lantz 

requests that we reverse and remand her case to the circuit court with instructions 

to vacate her solicitation convictions, dismiss the solicitation charges, and 

resentence her on the remaining charges.

¶2 We conclude that conspiring to deliver methamphetamine and 

soliciting the delivery of methamphetamine are different in law and in fact. We 

therefore presume that the legislature authorized cumulative punishments for these 

offenses and determine that Lantz has not overcome her burden of rebutting this 

presumption. Because Lantz’s solicitation and conspiracy convictions are not 

multiplicitous, her counsel was not ineffective. Finally, we further conclude that 

the circuit court did not erroneously exercise its discretion when sentencing Lantz 

to a total of twenty-seven years in the Wisconsin prison system. Accordingly, we 

affirm.

BACKGROUND

¶3 According to the complaint, Lantz was a midlevel methamphetamine 

distributor for a large drug trafficking organization in Brown County. Narcotics 

investigators discovered Lantz’s involvement in the organization while

investigating a suspected member of the organization, Bill Yang. Investigators 

obtained court-authorized wiretaps of Yang’s phone, observed his movements, and 
No. 2020AP742-CR

3

obtained statements from “sellers, customers and witnesses.” During the 

investigation, Yang and Lantz interacted on numerous occasions, including by 

text, phone, and in-person meetings. Investigators learned that Lantz distributed 

methamphetamine to support her own use of that substance.

¶4 Lantz eventually pled no contest to four charges: one count of 

conspiring to deliver over fifty grams of methamphetamine; two counts of 

soliciting the delivery of between three and ten grams of methamphetamine; and 

one count of maintaining a drug trafficking place. During the plea hearing, Lantz 

agreed that the complaint could serve as the factual basis for her pleas. As 

relevant to the conspiracy charge, the State alleged that Lantz conspired to deliver

more than fifty grams of methamphetamine between September 1, 2015, and 

March 22, 2016. An informant close to Lantz told law enforcement that Lantz and 

her husband received roughly one to four ounces of methamphetamine per week 

from Yang, which Lantz and her husband then resold. In an interview with law 

enforcement, Lantz admitted that she purchased roughly 3.6 to 7.2 grams of 

methamphetamine approximately three to four times a week. Lantz stated that she 

made these purchases for about eleven weeks between January 2, 2016, and March 

19, 2016. Lantz stated that she purchased roughly half of the methamphetamine 

for use by other people.

¶5 As relevant to the solicitation charges, the State alleged that on two 

separate occasions—February 27, 2016, and March 13, 2016—Lantz solicited 

another person to deliver to her between three and ten grams of methamphetamine. 

On February 27, 2016, Lantz texted Yang, asking if he was “coming over” 

because her “people [were] waiting on [her]” and one person was “coming with 

the [money].” A narcotics investigator observed Yang arrive at Lantz’s residence

shortly thereafter and leave several minutes later. Again, on March 13, 2016, 
No. 2020AP742-CR

4

Lantz texted Yang, asking him to stop by her residence because she had all of 

Yang’s money and she “need[ed] the same & 1⁄2 of it is gone.” Yang agreed to go 

to Lantz’s residence, and a narcotics investigator observed Yang arrive there a 

short time later. A narcotics investigator opined in the complaint that both of 

these encounters between Lantz and Yang involved methamphetamine 

transactions.

¶6 The circuit court sentenced Lantz following her no-contest pleas and 

the completion of a presentence investigation report (PSI). The State 

recommended that Lantz receive a total of sixteen years’ imprisonment, consisting 

of eight years’ initial confinement and eight years’ extended supervision. 

Conversely, the PSI author recommended that Lantz be placed on probation and 

that her sentences be withheld. Lantz agreed with the PSI’s recommendation. 

Despite the PSI author’s and Lantz’s recommendations, the court viewed Lantz’s

case as a “significant prison case.” The court recognized that “there’s a lot of 

good in [Lantz]”; that she had helped veterans; and that she was smart. Still, the 

court expressed great concern about the people buying methamphetamine from 

Lantz and how their lives might be ruined. Ultimately, the court imposed 

consecutive sentences totaling twenty-seven years in the Wisconsin prison system

consisting of nine and one-half years’ initial confinement and seventeen and onehalf years’ extended supervision.

¶7 Lantz filed a postconviction motion seeking an order vacating her 

solicitation convictions and granting her resentencing. Lantz argued that “[i]t was 

unconstitutional for [her] to be punished for conspiring to deliver a large amount 

of methamphetamine over a six-month period, while also being punished for 

soliciting deliveries directly related to the same conspiracy on specific dates 

within the same six-month period.” Lantz contended that her solicitation 
No. 2020AP742-CR

5

convictions were multiplicitous of her conspiracy conviction and must be vacated 

because “the legislature did not authorize cumulative punishments in [her] case.” 

Lantz also argued that she did not waive her multiplicity challenge by pleading no 

contest, but if she did, she contended that her trial counsel was ineffective for 

failing to raise a multiplicity argument. Finally, Lantz asserted that she should be 

resentenced because the circuit court disregarded mitigating factors about her 

background and erroneously stated that she was not able to remain drug free.

¶8 Following a Machner hearing,1the circuit court issued a written 

decision denying Lantz’s postconviction motion. The court concluded that 

Lantz’s solicitation convictions were not multiplicitous of her conspiracy 

conviction because the convictions were different in fact and in law, and because 

the legislature intended to allow multiple punishments. Accordingly, the court

determined that “[t]he [S]tate had the authority to issue the charges” and the court 

had “the authority to issue separate sentences,” and therefore Lantz’s trial counsel 

was not ineffective for failing to raise a multiplicity argument. The court also

concluded that it “did not ignore [Lantz’s] amenability to rehabilitation” during 

sentencing, and that it considered mitigating factors regarding Lantz’s background 

and personal history. Lantz now appeals. Additional facts are provided below.

DISCUSSION

I. Lantz’s punishments were not multiplicitous

¶9 “The Double Jeopardy Clause of the Fifth Amendment of the 

United States Constitution and its parallel provision in the Wisconsin Constitution, 

 

1

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2020AP742-CR

6

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. When a 

defendant is charged in more than one count for a single offense proscribed by 

statute, the counts are impermissibly multiplicitous. Id. Whether a multiplicity 

violation exists in a given case is a question of law subject to our independent 

review. State v. Multaler, 2002 WI 35, ¶52, 252 Wis. 2d 54, 643 N.W.2d 437.

¶10 We review multiplicity claims according to a well-established,

two-pronged methodology. Ziegler, 342 Wis. 2d 256, ¶60. We must first 

determine whether the offenses are identical in law and in fact by applying the 

“elements-only” test. Id. (citing Blockburger v. United States, 284 U.S. 299, 304 

(1932)). The outcome of the “elements-only” test then determines what 

presumption we apply under the second prong of our multiplicity analysis. State 

v. Patterson, 2010 WI 130, ¶15, 329 Wis. 2d 599, 790 N.W.2d 909. If the 

offenses are identical in law and in fact, we presume that the legislature did not 

intend to permit multiple punishments. State v. Brantner, 2020 WI 21, ¶25, 390 

Wis. 2d 494, 939 N.W.2d 546. The State may rebut that presumption only by a 

clear indication of contrary legislative intent. Ziegler, 342 Wis. 2d 256, ¶61. If, 

however, the offenses are different in law or in fact, “we are no longer concerned 

with a double jeopardy violation but instead a potential due process violation.” 

Id., ¶62. Under those circumstances, we presume that the legislature intended to 

permit multiple punishments. Patterson, 329 Wis. 2d 599, ¶15. The defendant 

then has the burden of demonstrating a clear legislative intent against cumulative 

punishments. State v. Davison, 2003 WI 89, ¶45, 263 Wis. 2d 145, 666 N.W.2d 1. 

Once we determine what presumption to apply, we proceed to the second prong of 

the multiplicity analysis to discern legislative intent. Patterson, 329 Wis. 2d 599, 

¶16.
No. 2020AP742-CR

7

¶11 Lantz concedes, and we agree, that her solicitation and conspiracy 

convictions are different in law. Two offenses are identical in law under the 

“elements-only” test “if one offense does not require proof of any fact in addition 

to those which must be proved for the other offense.” Ziegler, 342 Wis. 2d 256, 

¶60. Conspiracy requires proof of three elements: (1) intent by the defendant that 

the crime be committed; (2) an agreement between the defendant and at least one 

other person to commit the crime; and (3) an act performed by one of the 

conspirators in furtherance of the conspiracy. State v. Peralta, 2011 WI App 81, 

¶18, 334 Wis. 2d 159, 800 N.W.2d 512; WIS JI—CRIMINAL 570; see also WIS.

STAT. §§ 939.31 and 961.41(1x) (2019-20).2 Solicitation, on the other hand,

requires proof of two elements: (1) the defendant intended that a particular felony 

be committed; and (2) the defendant advised another person, by the use of words 

or other expressions, to commit that felony and did so under circumstances that 

indicate, unequivocally, that the defendant intended that the felony be committed. 

See State v. Kloss, 2019 WI App 13, ¶7, 386 Wis. 2d 314, 925 N.W.2d 563 (citing 

WIS JI—CRIMINAL 550); see also WIS. STAT. § 939.30(1).

¶12 Solicitation and conspiracy are not identical in law. Compare WIS.

STAT. § 939.31 with WIS. STAT. § 939.30(1). In the context of this case, both 

offenses required proof that Lantz intended that the crime of delivering

methamphetamine be committed. Conspiracy, however, required proof that Lantz 

agreed with at least one other person to deliver methamphetamine, whereas 

solicitation required proof that Lantz advised another person to deliver 

methamphetamine. Conspiracy also requires that one of the conspirators commit 

 

2

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2020AP742-CR

8

an act in furtherance of the conspiracy, while a solicitation offense is complete 

without further actions by anyone beyond those actions satisfying the two 

elements listed above. Therefore, we conclude that Lantz’s convictions are not 

identical in law. 

¶13 We also conclude that Lantz’s convictions are different in fact.3 To 

determine whether offenses are different in fact, we must consider whether the 

charged acts are “separated in time or are of a significantly different nature.” 

Multaler, 252 Wis. 2d 54, ¶56 (citation omitted). Acts are separated in time when 

“sufficient time for reflection [existed] between the acts such that the defendant 

re-committed himself [or herself] to the criminal conduct.” Id. Likewise, whether 

acts are significantly different in nature is not limited to a straightforward 

determination of whether the acts are of different types. Id., ¶57. Offenses are 

also significantly different in nature if each requires “a new volitional departure in 

the defendant’s course of conduct.” Id. (citation omitted).

¶14 Lantz argues that a conspiracy conviction involving multiple 

offenses encompasses all acts that are the same in time and in nature. Lantz 

further contends that her solicitation convictions are the same in time because they 

occurred during the same time period as the acts underlying her conspiracy 

conviction. Lantz also contends that her acts were a part of a “single intent and 

design” under WIS. STAT. § 971.365(1) and, therefore, were the same in nature.

 

3

 Although we may presume that the legislature intended to permit cumulative 

punishments because Lantz’s offenses are different in law, we also address whether the offenses 

are different in fact because both parties make subtle arguments regarding this issue when 

discussing legislative intent.
No. 2020AP742-CR

9

¶15 We reject these arguments. The specific acts underlying Lantz’s 

solicitation convictions differ in time from the acts underlying her conspiracy 

conviction. Lantz admitted to purchasing roughly 3.6 to 7.2 grams of 

methamphetamine three to four times a week, beginning around January 2, 2016. 

Thus, by the time Lantz solicited the delivery of methamphetamine on 

February 27, 2016, and March 13, 2016—both over eight weeks after the 

conspiracy began—she had “sufficient time for reflection” after purchasing and 

selling methamphetamine, such that she recommitted herself to the criminal 

conduct when she later solicited the delivery of methamphetamine. The fact that 

Lantz conspired over an eleven-week period does not mean that her acts were the 

same in time. Such an approach fails to consider the distinction between acts and 

offenses, and it focuses on the overall timing of the offenses rather than focusing 

on when the acts underlying each offense occurred. Here, we conclude Lantz had 

sufficient time for reflection between her actions underlying the conspiracy 

conviction and her actions underlying her solicitation convictions.

¶16 Lantz’s actions underlying her solicitation convictions also differ in 

nature from her actions underlying her conspiracy conviction. Lantz’s 

solicitations constituted a “new volitional departure” because Lantz made 

deliberate decisions to obtain additional methamphetamine and to advise Yang to 

deliver such methamphetamine to her. Thus, her solicitations involved new and 

additional decisions beyond her decisions already made during the preexisting 

conspiracy. In sum, Lantz’s convictions differed in fact because her convictions 

differed in time and in nature. Because Lantz’s convictions are not identical in 

law or in fact, we presume that the legislature intended to permit multiple 

punishments, and Lantz carries the burden of rebutting our presumption. See

Ziegler, 342 Wis. 2d 256, ¶62.
No. 2020AP742-CR

10

¶17 With our presumption in place, we now determine whether the 

legislature intended to authorize cumulative punishments in cases such as Lantz’s. 

To discern legislative intent under the second prong of our analysis, we analyze 

the following four factors: “(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.”

Id., ¶63. Lantz contends that she can meet her burden and prevail on her 

multiplicity claim because each factor shows that the legislature did not intend 

cumulative punishments for her conspiracy and solicitation crimes.

¶18 Lantz argues that the “applicable statutory language” shows that the 

legislature “sought to bar punishing the same acts or conduct relating to controlled 

substance violations twice.” As the State correctly points out, however, Lantz 

does not discuss the applicable statutory language for conspiracy or solicitation. 

Instead, Lantz begins her analysis with WIS. STAT. § 971.365, a procedural 

provision for crimes involving certain controlled substances. Lantz contends that 

§ 971.365 “illustrates the legislature’s will to allow prosecutors to punish 

individuals for larger schemes,” and she says that this statute allowed the State to 

aggregate her smaller methamphetamine transactions into a single conspiracy 

charge involving fifty or more grams of methamphetamine. Lantz further argues 

that § 971.365(2) prohibits the State from charging a person who was either 

convicted or acquitted of conduct presented in an earlier trial related to controlled 

substance crimes. Lantz suggests that subsec. (2) is indicative of the legislature’s 

will against multiple punishments related to all controlled substance violations.

¶19 At the outset, we reject any notion that Lantz’s conspiracy 

conviction necessarily aggregated all of her smaller methamphetamine 

transactions into one charge, under WIS. STAT. § 971.365(1). Conspiracy only 
No. 2020AP742-CR

11

requires that an act be performed by one of the conspirators in furtherance of the 

conspiracy. Peralta, 334 Wis. 2d 159, ¶18. Therefore, Lantz’s conspiracy 

conviction only required proof of a single act in furtherance of the conspiracy to 

deliver fifty or more grams of methamphetamine. Her conspiracy conviction did

not require proof of each individual delivery or transaction that added up to fifty

grams. Although each smaller transaction is evidence of Lantz’s intent and 

agreement to deliver fifty or more grams of methamphetamine, each transaction 

need not be aggregated under § 971.365(1) to prove the conspiracy.

¶20 Moreover, even if the State were required to prove the aggregate 

amount of each methamphetamine delivery, the State did not need to include the 

amounts involved in the solicitation convictions in order to exceed the fifty-gram 

threshold. Lantz admitted to purchasing roughly 3.6 to 7.8 grams of 

methamphetamine three to four times a week over an eleven-week period. 

Following Lantz’s lowest estimates, she would have purchased over 115 grams of 

methamphetamine during the eleven-week period. Thus, even if we did not 

consider the amounts involved in the solicitation charges (which was at most 

twenty grams), Lantz’s conduct brought her well over the fifty-gram threshold.4

 

4

 Although the parties seem to assume that Lantz’s conspiracy conviction was based on 

the acts of Yang delivering methamphetamine to Lantz, these are not the only acts that could 

form the basis for the conspiracy charge. The undisputed facts also support a conclusion that 

Lantz and Yang conspired to deliver methamphetamine to other people. It is undisputed that 

Yang delivered over 115 grams of methamphetamine to Lantz during an eleven-week period. 

Lantz also admitted to law enforcement that she purchased about half of the methamphetamine to 

sell to other people. Lantz’s conversations with Yang also indicate that both Lantz and Yang 

understood that Lantz was selling methamphetamine to other people.

(continued)
No. 2020AP742-CR

12

¶21 With that said, we are also unconvinced that WIS. STAT. § 971.365

indicates a legislative intent against cumulative punishments for conspiracy and 

solicitation convictions involving controlled substances.5 We agree that 

§ 971.365(1) allows the State to prosecute certain controlled substance violations 

as a single crime “if the violations were pursuant to a single intent and design.” 

Nothing, however, requires the State to aggregate all of the violations into a single 

crime, even if the violations “were pursuant to a single intent and design.” See 

§ 971.365(1). Indeed, prosecutors generally have broad authority to charge under 

multiple statutes if an act forms the basis for a crime punishable under more than 

one statutory provision. State v. Moffett, 239 Wis. 2d 629, 640, 619 N.W.2d 918

(2000) (citation omitted). In short, we view § 971.365(1) as a means of enhancing 

the State’s lawful charging options, not as the legislature’s intent to prohibit 

cumulative punishments for conspiracy and solicitation convictions.

 

Because Lantz purchased over 115 grams of methamphetamine and sold about half to 

other people, one could reasonably conclude that Lantz’s delivery of methamphetamine was the 

delivery sought to be accomplished by the conspiracy. Therefore, considering Lantz’s actions 

from this view, the acts underlying Lantz’s solicitation conviction are distinct from the acts 

underlying her conspiracy conviction because Lantz was the target of the solicitation deliveries 

and other people were the target of the conspiracy deliveries.

5

 WISCONSIN STAT. § 971.365 provides in relevant part:

(1)(a) In any case under ... [WIS. STAT. § 961.41(1)(e)] ... 

involving more than one violation, all violations may be 

prosecuted as a single crime if the violations were pursuant to a 

single intent and design.

 ...

(2) An acquittal or conviction under sub. (1) does not bar a 

subsequent prosecution for any acts in violation of ... 

[§ 961.41(1)(e)] ... on which no evidence was received at the 

trial on the original charge.
No. 2020AP742-CR

13

¶22 WISCONSIN STAT. § 971.365(2) is also both inapplicable to Lantz’s 

case and unhelpful to her legislative intent argument. Subsection (2) describes the 

circumstances in which the State may pursue a subsequent prosecution after an 

acquittal or conviction has occurred. The State prosecuted Lantz for solicitation at 

the same time it prosecuted her for conspiracy; therefore, no subsequent 

prosecutions occurred in this case. The concerns with piecemeal and consecutive 

prosecutions addressed by this subsection, like subsec. (1), do not evince an intent 

to limit the State’s lawful charging options in a single case or the punishments that 

may be imposed after a defendant’s conviction on multiple charges in a single 

case. In all, § 971.365 does not indicate any legislative intent against cumulative 

punishments for conspiring to deliver methamphetamine and soliciting the 

delivery of methamphetamine when those crimes are prosecuted together.

¶23 Lantz also argues that WIS. STAT. § 961.45 “shows the legislature’s 

will to prevent a person from begin [sic] punished twice for [the] same acts related 

to a controlled substance violation.” Section 961.45 provides that “[i]f a violation 

of [WIS. STAT. ch. 961] is a violation of a federal law or the law of another state, a 

conviction or acquittal under federal law or the law of another state for the same 

act is a bar to prosecution in this state.” Our supreme court explained in State v. 

Hansen, 2001 WI 53, 243 Wis. 2d 328, 627 N.W.2d 195, that § 961.45

abrogate[s] the “dual sovereignty doctrine” in the context 

of controlled substance prosecutions. Under the dual 

sovereignty doctrine, there is no constitutional bar to 

successive prosecutions for the same offense by different 

sovereigns. Section 961.45 thus operates as a limitation on 

the State’s power to prosecute where no constitutional limit 

exists.

Id., ¶10 (citations omitted).
No. 2020AP742-CR

14

¶24 Lantz contends that under WIS. STAT. § 961.45, if a controlled 

substance violation is a violation in another jurisdiction, a conviction or acquittal 

in the other jurisdiction “for the same act” is a bar to prosecution in Wisconsin. 

Relying on Hansen, Lantz argues that § 961.45 provides broader protection than 

the “elements only” test, and it addresses “acts,” not “offenses.” Lantz further 

contends that it would be absurd for Wisconsin to bar cumulative punishment for 

the same act prosecuted in other jurisdictions, but to allow cumulative punishment 

for the same act prosecuted within Wisconsin. The State responds that § 961.45 

addresses only the dual sovereignty doctrine, and that this case has nothing to do 

with dual sovereignty.

¶25 We agree with the State. WISCONSIN STAT. § 961.45 is inapplicable 

to Lantz’s conspiracy and solicitation convictions because she was never 

convicted or acquitted in another jurisdiction for an act underlying these 

convictions. Moreover, § 961.45 shows that the legislature knows how to—and 

does—limit multiple prosecutions in controlled substances cases when it wants to, 

but it has not done so here. If anything, that omission implies a legislative intent 

not to bar the multiple punishments at issue in this case.

¶26 We also disagree with Lantz’s absurdity argument. The legislature 

enacted WIS. STAT. § 961.45 “to abolish the dual sovereignty doctrine by statute.” 

See State v. Petty, 201 Wis. 2d 337, 358, 548 N.W.2d 817 (1996). In doing so, the

legislature sought to bar successive prosecutions for the same act “where no 

constitutional limit exists.” Hansen, 243 Wis. 2d 328, ¶10. The legislature could 

reasonably, however, choose not to enact legislation that bars cumulative 

punishments for the same act or offense in Wisconsin because constitutional limits 

already exist. As discussed, Lantz has double jeopardy protection under the Fifth 

Amendment of the United States Constitution and its analogous provision in the 
No. 2020AP742-CR

15

Wisconsin Constitution. See Ziegler, 342 Wis. 2d 256, ¶59. Therefore, our 

interpretation that § 961.45 does not extend protection beyond the text of the 

statute to the circumstances of this case is not absurd.

¶27 We conclude our discussion of the applicable statutory language by 

examining WIS. STAT. § 939.72. The State notes that § 939.72(1)-(2) expressly 

prohibits convicting a person for being both party to a crime and for conspiring or 

soliciting to commit that crime. The State argues that these provisions show the 

legislature’s intent to allow convictions for conspiracy and solicitation of the same 

act because the legislature would have enacted a statute similar to § 939.72 if it 

intended to prohibit such convictions. Lantz concedes that § 939.72 provides no 

prohibition against convicting a person for both conspiring to commit a crime and 

soliciting to commit the same crime; however, Lantz argues that § 939.72 is 

insignificant because it is not narrowly tailored to drug cases. She asserts the 

focus should remain on the controlled substance act. Lantz concedes, however, 

that for nondrug crimes, “it might be fair to reason based on [§] 939.72 that the 

Legislature intended to allow punishing both conspiracy and solicitation.”

¶28 We conclude that the legislature’s failure to enact a statute similar to 

WIS. STAT. § 939.72 that would cover Lantz’s circumstances is indicative of its

intent to allow convictions for both conspiring to commit a crime and soliciting to 

commit the same crime, including crimes involving controlled substances. 

Although the legislature expressly prohibited convicting a person for both being 

party to a crime and for soliciting or conspiring to commit the same crime, the 

legislature enacted no prohibition on convicting a person for conspiring to commit 

a crime and soliciting to commit the same crime. We have already rejected 

Lantz’s arguments regarding WIS. STAT. §§ 971.365 and 961.45 on the merits, and

we reject Lantz’s suggestion that § 939.72 is less significant compared to those 
No. 2020AP742-CR

16

statutes. If the legislature intended to prohibit convicting a person for both 

conspiring to deliver methamphetamine and soliciting the delivery of 

methamphetamine, the legislature would have enacted a statute similar to 

§ 939.72. 

¶29 In sum, Lantz has failed to identify any applicable statutory language 

that indicates a legislative intent against cumulative punishments in her case.

¶30 We next consider the second factor—the legislative history and 

context of the statutes. The parties both recognize that the legislative history 

provides little support to what has already been discussed. Lantz suggests that 

because the legislature enacted the conspiracy statute regarding controlled 

substances, WIS. STAT. § 961.41(1x), at the same time it enacted the aggregation 

statute regarding controlled substances, WIS. STAT. § 971.365, the legislature had 

some knowledge as to how these statutes would interact.

¶31 We disagree that the timing of these enactments adds any benefit to 

our analysis. As we already discussed, neither of these statutes prohibit, or

indicate an intent against, convicting and punishing a person for both conspiring to 

deliver methamphetamine and soliciting the delivery of methamphetamine. 

Therefore, we conclude that the legislative history and context of the applicable 

statutes provide no indication of a legislative intent against cumulative 

punishments for both conspiracy and solicitation.

¶32 We now consider the third factor—the nature of the proscribed 

conduct. When evaluating the nature of the proscribed conduct, we must 

determine “whether the conduct is separated in time or different in nature.” State 

v. Steinhardt, 2017 WI 62, ¶33, 375 Wis. 2d 712, 896 N.W.2d 700; see also State 

v. Anderson, 219 Wis. 2d 739, 755-56, 580 N.W.2d 329 (1998) (evaluating the 
No. 2020AP742-CR

17

third factor by referring back to the identity in fact inquiry). As we discussed 

earlier, Lantz’s convictions differed in time because she had sufficient time for 

reflection after purchasing and selling methamphetamine throughout her 

long-occurring conspiracy, such that she recommitted herself to the criminal 

conduct when she later solicited the delivery of methamphetamine. We also 

concluded that Lantz’s convictions were different in nature and constituted a “new 

volitional departure” because she made deliberate decisions to obtain additional 

methamphetamine and to advise Yang to deliver such methamphetamine to her.

Because Lantz’s convictions differed in time and in nature, the nature of the 

proscribed conduct does not indicate any legislative intent against cumulative 

punishments for both solicitation and conspiracy.

¶33 Finally, we must consider the fourth factor—the appropriateness of 

multiple punishments. We determine whether multiple punishments are 

appropriate by determining whether multiple acts occurred. Steinhardt, 375 

Wis. 2d 712, ¶34. Lantz begins her argument on this factor by recognizing that 

“the solicitations were multiple acts and [that] the conspiracy involved multiple 

acts.” Nevertheless, Lantz again argues that because her conspiracy conviction 

encompassed multiple acts, including the solicitations, her actions underlying her 

solicitation convictions are inseparable from her acts in furtherance of conspiracy.

¶34 We are unpersuaded by Lantz’s attempt to combine all of her actions 

into her single conspiracy conviction. It is undisputed that Lantz took many 

actions during the course of an eleven-week period, including purchasing 

methamphetamine three to four times a week and then reselling roughly half of 

that methamphetamine to other people. Each and every time Lantz purchased 

methamphetamine, she acted. See Hansen, 243 Wis. 2d 328, ¶21 (“[T]he term 

‘act’ ... describe[s] the underlying conduct which comprises an offense.”). Lantz 
No. 2020AP742-CR

18

also acted when she advised Yang to deliver methamphetamine to her on 

February 27, 2016, and March 13, 2016. Because different actions formed the 

basis for each conviction, we conclude that multiple punishments were appropriate 

in Lantz’s case.

¶35 For the foregoing reasons, none of the four factors we employ to 

discern legislative intent regarding multiplicity show a clear legislative intent

against cumulative punishments for both conspiring to deliver methamphetamine 

and soliciting the delivery of methamphetamine. We conclude that Lantz failed to 

overcome her burden of rebutting our presumption in this regard.6

II. The circuit court did not erroneously exercise its discretion in imposing 

Lantz’s sentences

¶36 Lantz next argues that the circuit court improperly disregarded 

mitigating information about her personal history and background, and it 

 

6

 We need not address Lantz’s waiver argument. Lantz argues that she did not waive her 

multiplicity claim by pleading no contest, but if she did, then her trial counsel was ineffective for 

failing to raise a multiplicity argument. Relying on State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 

716 N.W.2d 886, the State argues that Lantz’s no-contest pleas “forfeited” her multiplicity claim 

if we cannot determine “with certainty” that her punishments are multiplicitous. The State 

contends that “Lantz’s [no-contest] pleas preclude her from developing the facts further to prove 

her claim.” We believe the record is sufficient to determine Lantz’s multiplicity claim; therefore, 

we do not conclude that Lantz “forfeited” her multiplicity claim due to her no-contest pleas. The 

State also does not contend that Lantz “waived” her multiplicity claim by failing to object or raise 

such claim before entering her pleas. Therefore, the State concedes any argument in that regard. 

See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 108-09, 279 N.W.2d 

493 (Ct. App. 1979) (an unrefuted argument is deemed conceded). 

Because Lantz premised her ineffective assistance claim on our concluding that she 

waived her multiplicity claim, we also do not need to address Lantz’s ineffective assistance claim. 

Even if we needed to address the merits of Lantz’s ineffective assistance claim, we would 

conclude that her trial counsel was not ineffective. “It is well-established that trial counsel could 

not have been ineffective for failing to make meritless arguments.” State v. Allen, 2017 WI 7, 

¶46, 373 Wis. 2d 98, 890 N.W.2d 245. As we explained, Lantz failed to overcome our 

presumption that the legislature authorized multiple punishments in her case; therefore, any 

objection from Lantz’s trial counsel on multiplicity grounds would have been meritless.
No. 2020AP742-CR

19

mistakenly believed that she could not remain drug free. Lantz contends the court 

thus erroneously exercised its discretion, and she should be resentenced.

¶37 Within certain parameters, a circuit court has wide discretion in 

determining what factors are relevant to a sentence and how much weight to give

each factor. State v. Williams, 2018 WI 59, ¶47, 381 Wis. 2d 661, 912 N.W.2d 

373. Courts must specify the objectives of the sentence, describe the facts relevant 

to the objectives, and “explain, in light of the facts of the case, why the particular 

component parts of the sentence imposed advance the specified objectives.” State 

v. Gallion, 2004 WI 42, ¶¶40-42, 270 Wis. 2d 535, 678 N.W.2d 197. In other 

words, a sentencing court must exercise its discretion “on a rational and 

explainable basis.” Id., ¶39 (citation omitted). A sentencing court must consider 

three primary factors when determining a defendant’s sentence: “(1) the gravity of 

the offense; (2) the character of the defendant; and (3) the need to protect the 

public.” Williams, 381 Wis. 2d 661, ¶46. In each case, the sentence imposed 

shall call for the minimum amount of custody or confinement that is consistent 

with those three factors. Gallion, 270 Wis. 2d 535, ¶44. On appeal, our review is 

limited to determining whether the circuit court erroneously exercised its 

discretion. Id., ¶17.

¶38 The circuit court considered the three primary sentencing factors 

when sentencing Lantz. The court discussed the gravity of the offense, 

acknowledging that Lantz sold methamphetamine to other people who were 

addicted, that she was part of a “very significant drug ring,” and that selling 

methamphetamine “is a terrible, terrible offense.” The court also considered the 

need to protect the public, noting that “the public has to be protected from drug 

dealing” and that society must “get [drug dealers] off the street.” Finally, the court 

considered Lantz’s character and her rehabilitative needs. The court expressed 
No. 2020AP742-CR

20

disappointment that Lantz used drugs with her daughter and that she used her 

husband’s disability income to purchase drugs. The court recognized that Lantz

had rehabilitative needs, and the court wanted to place Lantz in a setting where she 

could “stay clean.”

¶39 Lantz argues that the length of her sentences—which exceeded both

the State’s and the PSI author’s recommendations—and the order that they be 

served consecutively show that the circuit court erroneously exercised its 

sentencing discretion. We disagree. “The sentencing court always has an 

independent duty to look beyond the recommendations and to consider all relevant 

sentencing factors.” State v. Smith, 207 Wis. 2d 258, 281, 558 N.W.2d 379 

(1997). The court did so here. It acknowledged the recommendations made at 

sentencing, but it ultimately disagreed with those recommendations. It considered 

the fact that Lantz had previously been convicted of dealing drugs and robbery, 

and that Lantz spent four and one-half years in prison on those convictions. The 

court expressed further concern that Lantz had many chances in her life, but she 

chose “to get right back into it again.” Ultimately, the court concluded that 

Lantz’s case was a “significant prison case.”

¶40 Lantz also argues that the circuit court disregarded mitigating 

information and actually considered such information to be aggravating. Lantz 

points out that she experienced physical and sexual abuse as a child, which has led 

her into long periods of depression and resulted in diagnoses of bipolar disorder 

and posttraumatic stress disorder. Lantz contends that the court viewed this 

information as aggravating because the court stated: “[A] lot of people have 

terrible things when they’re growing up, but they don’t turn to this lifestyle.”
No. 2020AP742-CR

21

¶41 The circuit court did not erroneously exercise its discretion when 

deciding to give less weight to Lantz’s personal history and mitigating factors than 

she would have preferred. The court acknowledged the abuse Lantz had 

experienced, but it noted that “a lot of people have terrible things when they’re 

growing up, but they don’t turn to this lifestyle. They don’t wreck other people’s 

lives, they don’t put other people at risk.” Although other judges may have given 

greater weight to Lantz’s history of physical and sexual abuse, we cannot conclude 

that the court erroneously exercised its discretion in this regard. The court’s 

statements may be blunt from Lantz’s perspective, but they provide an explanation 

for its decision not to impose a lesser sentence. The court communicated that 

Lantz’s actions put others at risk, and that while her past was unfortunate, the 

court still needed to hold her accountable. The court did not err by giving greater 

weight to the need to protect the public than to Lantz’s personal history.

¶42 Finally, Lantz argues that circuit court erroneously believed that she 

could not remain drug free. Lantz argues that she had lengthy periods of 

abstaining from drug use and that she had remained drug free for several years 

before 2014. Lantz therefore contends the court erred when stating, 

“[A]pparently, when you’re out in the real world you can’t stay off the drugs.”

¶43 We conclude the circuit court did not err when considering Lantz’s 

apparent inability to remain drug free. The court discussed Lantz’s long history of 

drug use, beginning at the age of fourteen. The court also determined that Lantz 

had rehabilitative needs and that she needed to be placed in a setting where she 

could “stay clean.” Although Lantz may have had periods of sobriety during her 

life, it is undisputed that she fell back into using drugs when she conspired to 

deliver methamphetamine and solicited the delivery of methamphetamine. 
No. 2020AP742-CR

22

Therefore, the court could reasonably infer that Lantz had not shown an ability to 

remain permanently sober, and it did not err in this regard.

¶44 For the foregoing reasons, we conclude the circuit court adequately 

explained its rationale and did not erroneously exercise its discretion when 

sentencing Lantz. That the court imposed longer sentences than were

recommended by the parties, gave less weight to Lantz’s personal history and 

mitigating factors than she would have liked, and determined that Lantz could not 

remain drug free did not render the court’s overall reasoning insufficient under 

governing legal standards.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.