Dec. 7, 2021 – A man convicted on four counts of fleeing or eluding an officer after leading police on a high-speed chase is not entitled to have three of the convictions vacated on grounds of ineffective counsel, because the three convictions were not multiplicitous.

In State v. Wise, 2020AP1756-CR (Nov. 16, 2021), the Court of Appeals District IV heard an appeal from a denial of post-conviction relief filed by Roman Wise in Milwaukee County.

After a high speed chase in December 2017, Wise was charged with four counts of fleeing or eluding an officer under Wis. Stat. section 346.04(3). The chase ended in a crash that involved two other vehicles.

In the first count, the state alleged that Wise fled and caused the death of a person referred to as Daniel. In the second count, the state alleged he fled and caused great bodily harm to Helen.

In the third and fourth counts, the state alleged that Wise fled and caused damage to the property of Charlie and the property of Charlotte, respectively. A jury convicted Wise on all four counts.

Wise filed for postconviction relief. He claimed that his lawyer had provided ineffective assistance of counsel because the lawyer had failed to move to dismiss three of the charges on the grounds they were multiplicitous. The circuit court denied the motion.

Two-Part Test

In an opinion written by Chief Judge William W. Brash III, the appellate panel agreed with circuit court.

To determine whether Wise’s lawyer had provided him with ineffective assistance of counsel, the appellate panel inquired whether the lawyer’s performance was deficient and if so, whether the deficiency prejudiced Wise’s defense.

To determine whether the lawyer’s performance was deficient, the panel considered whether the three charges that Wise sought to have vacated were multiplicitous. The panel employed a two-part test to analyze whether the three charges were multiplicitous

First, the court examined if the charges identical in law and fact. Second, the court examined whether, if identical in law and fact, a presumption exists that the legislature did not intend to punish the same offense under two different statutes. The state could rebut the presumption using legislative history to show the legislature did so intend.

If the charges were not identical in law and fact, a presumption exists that the legislature did intend to allow cumulative punishments. The defense could rebut that presumption using legislative history to show that the legislature did not so intend.

Four Charges Under One Statute?

The three charges were identical in law and fact, Wise argued, because they were brought under section 346.04(3) and were based a single act.

The offense created by section 346.04(3) contains two elements – a person received a visual or audible signal from a police officer and knowingly fled or attempted to elude the officer after receiving the signal. Nothing in section 346.04(3) mentions the harm that results from fleeing a police officer, Wise claimed.

Whatever harm results from fleeing an officer affects only the penalty assessed under Wis. Stat. section 346.17(3), Wise argued. Because all three charges required the state to prove the same two elements, they were identical in law and fact and therefore duplicitous.

Separate Harms, Separate Crimes

Section 346.17(3) is not merely a penalty statute, the appellate panel held.

“Rather, we conclude that, reading these statutes together, section 346.17(3)(b)-(d) provides additional elements to the offense stated in section 346.04(3) when death, great bodily harm, or property damage is involved,” Chief Judge Brash wrote. “Wise’s charges are not the same in law and fact because the charges involve proof of additional elements or facts that the others do not.”

Each paragraph in section 346.17(3) classifies a separate felony and addresses a particular harm, Brash wrote, and the proof of that harm is an additional element of the felony that must be proved by the state. The first two charges, therefore, were not the same in law and thus not multiplicitous.

As Many Offenses as Victims

The court then considered whether third and fourth counts charged against Wise by the state were the same in fact because they were the same in law; both charges were for fleeing an officer that resulted in property damage.

Under State v. Pal, a Wisconsin Supreme Court decision, “’there are, as a general rule, as many offenses as individuals affected,’” Brash wrote. In Pal, the defendant’s vehicle collided with two motorcyclists, killing them both.

“Applying the reasoning in Pal, it is clear that Wise’s charges in counts three and four are different in fact,” Brash wrote. “Each charge is based on a separate harm to a separate victim. Thus, the State charged Wise not only with fleeing and eluding but with fleeing and eluding and causing damage to the property of each victim.”

Having determined that the three charges were not identical in law and fact, the court considered whether Wise had rebutted the presumption that the legislature intended to allow cumulative punishments. Wise failed to rebut the presumption, the appellate panel held.

“The statutory language indicates that the legislature created multiple crimes to address multiple harms,” Brash wrote.

Wise pointed to a drafter’s note, made when the bill that became the current version of section 346.17(3) was being drafted, that read, “[m]ake penalties similar to those for OWI [i.e., higher penalties where OWI results in injuries or death].”

Wise failed to explain the import of the drafter’s note, the panel concluded. Additionally, before the bill was drafted the supreme court had decided a case that allowed a defendant to be charged with multiple counts of homicide by intoxicated use of a motor vehicle involving multiple victims, Brash reasoned.

“The legislature is presumed to know the law when drafting legislation,” Brash wrote.

Proportionality

Wise’s final rebuttal argument was that the multiple charges were impermissible because the penalty statutes provide proportionate punishment and there was no compelling basis for multiple punishments.

Accepting that argument, Chief Judge Brash wrote, “would unduly depreciate the severity of any harm caused by the act of fleeing or eluding and the seriousness of the conduct because, for example, a defendant could face the same penalty whether he caused the death of one, two, or ten people.”

“This could leave the deaths of innocent victims unaddressed, and result in a defendant facing no repercussions for killing multiple people because he would not face the same punishment as someone who killed one person. Such a result is not proportional, and we conclude that the legislature did not intend it.”

Because the three charges were not multiplicitous, the appellate panel held, Wise’s claim of ineffective counsel must fail, because he had not demonstrated that his lawyer’s performance was deficient.