Pal v. Kemper
| Decision Date | 16 January 2019 |
| Docket Number | 18-CV-404 |
| Parties | SAMBATH PAL, Petitioner, v. WARDEN PAUL S. KEMPER, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
RECOMMENDATION ON THE PETITION FOR A WRIT OF HABEAS CORPUS
Sambath Pal was driving his father's SUV when he swerved into oncoming traffic and struck a group of motorcyclists. State v. Pal, 2017 WI 44, ¶5, 374 Wis.2d 759 893 N.W.2d 848. Pal never stopped, leaving one motorcyclist dead in the middle of the road and another dying. Pal, 2017 WI 44, ¶5. The second motorcyclist later died. The state charged Pal with two counts of hit-and-run involving death, one count for each person Pal killed. Although he pled guilty to these two charges, Pal argued on appeal that the charges were multiplicitous.
After the Wisconsin Supreme Court affirmed his conviction, Pal, 2017 WI 44, 374 Wis.2d 759, 893 N.W.2d 848, Pal filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that the two charges were multiplicitous, and that “[t]he multiplicity test used by the Wisconsin Supreme Court violated Mr. Pal's right to due process.” (ECF No. 1 at 6.) Pal argues that the Wisconsin Supreme Court should have used the “unit of prosecution” test, cf. Sanabria v. United States, 437 U.S. 54, 69-70 (1978), instead of the Blockburger test, see Blockburger v. United States, 284 U.S. 299, 304 (1932).
The respondent moved to dismiss Pal's petition. (ECF No. 8.) The respondent argues that whether a charge is multiplicitous is a matter of state law and therefore not a cognizable federal habeas claim.
Multiplicity describes the impermissible charging of a single offense in multiple counts. Sanchez-Rengifo v. Caraway, 798 F.3d 532, 537 (7th Cir. 2015). “The purpose of this rule is to prevent multiple punishments for the same act in violation of the Double Jeopardy Clause of the Fifth Amendment.” Lechner v. Litscher, 213 F.Supp.2d 975, 992 (E.D. Wis. 2002) (citing Schiro v. Farley, 510 U.S. 222, 229 (1994); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Broadly speaking, there are two sorts of multiplicity challenges. In some cases a single act leads to the state charging a defendant with violating multiple statutes. See, e.g., United States v. Muhammad, 120 F.3d 688, 702-03 (7th Cir. 1997).
In other cases a single act leads to the state charging a defendant with multiple counts of violating the same statute. See, e.g., Sanchez-Rengifo, 798 F.3d at 538.
That is not to say a defendant cannot be convicted of multiple crimes, or even multiple counts of the same offense, for a single act. Rather, as regards multiplicity, the Double Jeopardy Clause prohibits only punishment greater than the legislature intended. See McCloud v. Deppisch, 409 F.3d 869, 873 (7th Cir. 2005) (). “In short, ‘the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.'” Sanchez-Rengifo, 798 F.3d at 537 (quoting Albernaz v. United States, 450 U.S. 333, 344 (1981)).
“[D]etermining the permissibility of imposing multiple punishments for one course of conduct is a matter of discerning the legislature's intent.” Sanchez-Rengifo, 798 F.3d at 537 (quoting United States v. Patel, 370 F.3d 108, 114 (1st Cir. 2004)). “Although [plaintiff]'s double jeopardy claim presents a federal question, it is one that turns on the intent of the Wisconsin legislature.” McCloud, 409 F.3d at 875. A federal court is bound by a state court's finding as to the intent of the state's legislature. Id. ( ) . Pal was convicted of two counts of hit-and-run causing death, in violation of Wis.Stat. § 346.67(1), which states:
(1) The operator of a vehicle involved in an accident shall reasonably investigate what was struck and if the operator knows or has reason to know that the accident resulted in injury or death of a person or in damage to a vehicle that is driven or attended by a person, the operator shall stop the vehicle he or she is operating as close to the scene of the accident as possible and remain at the scene of the accident until the operator has done all of the following:
Pal argues that, although he killed two people, there was only one accident. Therefore, he could be convicted of only one violation of the statute. The Wisconsin Supreme Court found that the statute imposed on Pal distinct duties with respect to each victim, concluding that the legislature intended multiple punishments when multiple deaths result from a single hit-and-run accident. Pal, 2017 WI 44, ¶¶24, 28.
Pal insists he is not challenging the Wisconsin Supreme Court's finding of legislative intent. (ECF No. 11 at 4 (“Mr. Pal does not challenge the legislative intent behind the statute here”); see also ECF No. 11 at 6 ().) Rather, Pal's claim is that the Wisconsin Supreme Court used the wrong test for determining whether the charges were multiplicitous.
Under Wisconsin law, if offenses are not identical in law and fact, the court will presume the legislature intended to permit multiple punishments. Pal, 2017 WI 44, ¶15 (citing State v. Patterson, 2010 WI 130, ¶15, 329 Wis.2d 599, 790 N.W.2d 909). Although legally identical because they alleged violations of the same statute, id. at ¶19, the counts against Pal were not factually identical because they involved different victims, id. at ¶¶17, 22. Thus, it was up to Pal to rebut the presumption and produce evidence that the legislature intended to punish the hit-and-run deaths of two victims with only one conviction under Wis.Stat. § 346.67(1). Because there was no evidence as to the legislature's intent, he failed to rebut the presumption.
As the court understands Pal's argument, he contends that the Wisconsin Supreme Court should not have required him to rebut a presumption that the legislature intended to permit multiple punishments when multiple deaths result as part of a violation of the relevant hit-and-run statute. He argues that the court should have applied the “unit of prosecution” test, under which the court examines the statute to determine what is an “allowable ‘unit' of prosecution” (ECF No. 11 at 3 (citing United States v. Allender, 62 F.3d 909, 912 (7th Cir. 1995))). Pal argues that, when a single act leads the state charging a defendant with multiple counts of violating the same statute, the offenses always will be factually distinct. Thus, application of the test articulated by the Wisconsin Supreme Court will always result in a presumption that the legislature intended multiple punishments. It will then always be up to the defendant to rebut the presumption with evidence of a contrary legislative intent. Whenever the legislative intent behind a statute is unclear (as it is here, according to Pal), the defendant will never be able to meet his burden.
Under the unit of prosecution test, Pal argues, there is no presumption that the legislature intended multiple punishments when the charges at issue are not the same in law or fact. Without a presumption to rebut, and given the alleged lack of clarity as to the legislature's intent behind the statute, Pal argues that application of the unit of prosecution test “likely” would have resulted in the Wisconsin Supreme Court finding in Pal's favor. (ECF No. 11 at 5.)
The court questions whether what Pal characterizes as the “unit of prosecution” test necessarily constitutes a comprehensive test for assessing claims of multiplicity. In particular, the court questions whether any such assessment necessarily precludes the use of presumptions such as those used by the Wisconsin Supreme Court. Rather discerning the “unit of prosecution” may be seen simply as an aspect of the analysis in any “same statute” multiplicity claim. In fact, contrary to Pal's contention, the Wisconsin Supreme Court did determine the unit of prosecution for the crime of hit-and-run resulting in death. The majority and the concurrence of Chief Justice Roggensack and...
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