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 App. 2016 – Unpublished)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,

 v.

Sambath Pal,

 Defendant-Appellant-Petitioner.

FILED

APR 28, 2017

Diane M. Fremgen

Clerk of Supreme Court

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2015AP1782-CR, unpublished order (Wis.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 

2

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.
No. 2015AP1782-CR 

3

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 
No. 2015AP1782-CR 

4

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.
No. 2015AP1782-CR 

5

¶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 
No. 2015AP1782-CR 

6

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.").
No. 2015AP1782-CR 

7

¶15 "We review multiplicity claims according to a wellestablished 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 
No. 2015AP1782-CR 

8

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. 
No. 2015AP1782-CR 

9

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).
No. 2015AP1782-CR 

10

(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. 
No. 2015AP1782-CR 

11

¶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 
No. 2015AP1782-CR 

12

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 
No. 2015AP1782-CR 

13

§ 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 
No. 2015AP1782-CR 

14

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. 
No. 2015AP1782-CR 

15

"[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 
No. 2015AP1782-CR 

16

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. 
No. 2015AP1782-CR 

17

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.'" 
No. 2015AP1782-CR 

18

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 
No. 2015AP1782-CR 

19

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
No. 2015AP1782-CR 

20

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
No. 2015AP1782-CR 

21

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.
No. 2015AP1782-CR.pdr 

1

¶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
No. 2015AP1782-CR.pdr 

2

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 
No. 2015AP1782-CR.pdr 

3

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 twopronged test to the facts of this case . . . ."); State v. 

Hartnek, 146 Wis. 2d 188, 192, 430 N.W.2d 361 (Ct. App. 1988). 
No. 2015AP1782-CR.pdr 

4

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 twoprong 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."). 
No. 2015AP1782-CR.pdr 

5

¶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. 
No. 2015AP1782-CR.pdr 

6

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."). 
No. 2015AP1782-CR.pdr 

7

¶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 wellestablished 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.
No. 2015AP1782-CR.dk

1

¶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.
No. 2015AP1782-CR.dk

1