State v. Lechner

Decision Date30 April 1998
Docket NumberNo. 96-2830-CR,96-2830-CR
Citation217 Wis.2d 392,576 N.W.2d 912
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Randy J. LECHNER, Defendant-Appellant. d
CourtWisconsin Supreme Court

For the defendant-appellant there were briefs by Craig W. Albee and Shellow, Shellow & Glynn, S.C., Milwaukee and oral argument by Craig W. Albee.

For the plaintiff-respondent the cause was argued by Sharon Ruhly, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

¶1 DONALD W. STEINMETZ, Justice

This case presents three issues for review: 1

(1) Whether the State violated the defendant's constitutional rights to be free from double jeopardy when the defendant pled no contest to and was sentenced for both second-degree reckless homicide and homicide by intoxicated use of a vehicle where the defendant's criminal conduct resulted in the death of one person;

(2) Whether the State violated the defendant's constitutional rights to be free from double jeopardy when the defendant pled no contest to and was sentenced for two counts of second-degree reckless endangerment arising out of one episode of reckless driving; and

(3) Whether the circuit court erroneously exercised its discretion when it sentenced the defendant to the maximum prison term allowed by law or when it decided not to modify the sentence it imposed on the defendant when the record shows, inter alia, that the circuit court referred to a presentence report containing inaccurate information as to the number of the defendant's criminal convictions and that the circuit court admonished the legislature's failure to be tough on drunk drivers.

¶2 This case is before the court on a request for certification filed by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1995-96). The Circuit Court for Racine County, Judge Dennis J. Barry, denied defendant Randy Lechner's motion for post-conviction relief, concluding that (1) Lechner's constitutional right to be free from double jeopardy was not violated when he pled no contest to both second-degree reckless homicide and intoxicated vehicular homicide for the slaying of one person; (2) Lechner's constitutional right to be free from double jeopardy was not violated when he pled no contest to two counts of reckless endangerment arising out of one episode of reckless driving; and (3) the circuit court was not required to modify the prison term to which it sentenced Lechner. Lechner appealed both the judgment of conviction and sentence and the circuit court's denial of his post-conviction motions. The court of appeals certified to this court three issues for review. We answer each of the three issues in the negative and affirm the order of the circuit court.

¶3 The relevant facts of this case are not disputed. On December 4, 1994, a witness observed a vehicle driven by the defendant, Randy Lechner, weaving in and out of traffic as it passed each in a succession of vehicles traveling southbound on State Highway 31. In his rearview mirror, the witness watched Lechner drive his vehicle across the double yellow center line of the highway to pass the vehicle traveling immediately behind the witness. The witness testified that Lechner then passed the vehicle in which he was traveling and the vehicle immediately in front of the witness. When Lechner reentered the southbound lane of traffic, the driver of the vehicle Lechner had just passed was forced to brake to avoid a collision. The witness estimated that Lechner was driving at a speed between 60 and 65 miles per hour even though the posted speed limit in that designated no passing zone was 45 miles per hour. The witness then watched as Lechner again drove his vehicle across the center line, passed another vehicle, and abruptly cut back into the southbound lane of traffic. Once again, the driver of the vehicle Lechner had just passed was forced to brake to avoid a collision.

¶4 When Lechner again drove his vehicle across the center line to pass another vehicle, he collided head-on with a northbound vehicle driven by Jan Pinney. The collision caused great bodily harm to Jan and to her daughter, Heather Pinney, and it killed seven-year-old Robert Pinney. Lechner was later arrested and taken into custody. A post-arrest blood test showed that Lechner had a blood alcohol concentration of 0.142%, a level above the legal limit for operating a motor vehicle. See Wis. Stat. § 340.01(46m)(1993-94). 2

¶5 In its criminal complaint and amended complaint, the State charged Lechner with ten counts of violating state law: (1) one count of second-degree reckless homicide; (2) one count of intoxicated vehicular homicide; (3) two counts of causing great bodily harm by operating a motor vehicle while under the influence of alcohol; 3 (4) three counts of operating a vehicle with a prohibited blood alcohol concentration; and (5) three counts of recklessly endangering the safety of another.

¶6 Relevant to the three issues now before this court, Lechner by pretrial motion challenged on constitutional grounds the charges for reckless homicide and intoxicated vehicular homicide, arguing that he could not be convicted twice for killing the same person. The circuit court denied Lechner's motion. Lechner also challenged on constitutional grounds the three counts of reckless endangerment, arguing that he could not be charged more than once for the same criminal act of reckless driving. The circuit court denied this motion. After a plea agreement was reached by the State and Lechner, Lechner ultimately pled no contest to the following offenses: (1) second-degree reckless homicide, in violation of Wis. Stat. § 940.06; (2) homicide by intoxicated use of a vehicle, in violation of Wis. Stat. § 940.09(1)(a); (3) causing great bodily harm by intoxicated use of a vehicle, in violation of Wis. Stat. § 940.25(1)(a); (4) causing injury by intoxicated use of a vehicle, in violation of Wis. Stat. § 346.63(2)(a); and (5) two counts of second-degree recklessly endangering the safety of another, in violation of Wis. Stat. § 941.30(2). 4

¶7 At the sentencing hearing, the circuit court sentenced Lechner to the maximum sentence on each count, with the sentences to run consecutive to each other, for a total prison sentence of 30 years. The court rejected both the State's recommended sentence of 20 years and defense counsel's four-year recommendation. After the sentence was imposed, Lechner filed a post-conviction motion challenging his convictions and his sentence. Lechner again argued that his separate convictions for reckless homicide and homicide by intoxicated use of a vehicle and his two convictions for reckless endangerment violated his constitutional protection against double jeopardy and violated his fundamental right to due process. Lechner also challenged the sentences imposed by the court, arguing that the circuit court had erroneously exercised its discretion by relying on inaccurate information in the presentence report, by ignoring mitigating factors, and by employing a preconceived sentencing policy.

¶8 After a hearing, the circuit court denied Lechner's post-conviction motions. Lechner appealed to the court of appeals for review of the circuit court's denials. The court of appeals requested certification of this case pursuant to Wis. Stat. § (Rule) 809.61. We accepted the certification and answer the three issues certified by the court of appeals.

¶9 The first two issues certified by the court of appeals require us to discern whether the State violated the defendant's constitutional rights to be free from double jeopardy. Whether an individual has been twice placed in jeopardy for the same offense in violation of the Fifth Amendment to the United States Constitution and art. I, § 8 of the Wisconsin Constitution is a question of law. See State v. Sauceda, 168 Wis.2d 486, 492, 485 N.W.2d 1 (1992) (citing State v. Kramsvogel, 124 Wis.2d 101, 107, 369 N.W.2d 145 (1985)). Reviewing the first two certified issues, we therefore owe no deference to the circuit court's decisions. See id.; State v. Harris, 161 Wis.2d 758, 760, 469 N.W.2d 207 (Ct.App.1991).

¶10 Both the United States and Wisconsin Constitutions protect a criminal defendant against being twice placed in jeopardy for the same offense. 5 The double jeopardy clause embodies three protections: "protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction; and protection against multiple punishments for the same offense." Sauceda, 168 Wis.2d at 492, 485 N.W.2d 1 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). In two separate multiplicity challenges, the defendant here raises the third protection against double jeopardy. 6

¶11 The protection against multiple punishments for the same offense is generally invoked in both a "lesser-included offense" case where the defendant argues that he or she has been punished for committing a greater offense and a lesser-included offense, see, e.g., Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Sauceda, 168 Wis.2d at 492-93, 485 N.W.2d 1, and a "continuous offense" case where the defendant argues that he or she has been punished for two or more counts of the same offense arising out of one criminal act. See, e.g., In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1887); Rabe, 96 Wis.2d at 64-65, 291 N.W.2d 809. The defendant here raises both challenges. Although the focus of our analysis of each of the defendant's challenges varies, we apply the same test to both.

¶12 A defendant may be charged and convicted of multiple counts or crimes arising out of one criminal act only if the legislature intends it. See State v. Kuntz, 160 Wis.2d 722, 754, 467 N.W.2d 531 (1991); Geitner v. State, 59 Wis.2d 128, 130-31, 207 N.W.2d 837, 839 (1973); see also Missouri v....

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