State v. Ernesto E. Lazo Villamil , 377 Wis. 2d 1 ( 2017 )

2017 WI 74
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP791-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent-Cross Petitioner,
v.
Ernesto E. Lazo Villamil,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 519, 885 N.W.2d 381
PDC No: 2016 WI App 61
OPINION FILED: July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 12, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Donald J. Hassin Jr. and Michael J. Aprahamian
JUSTICES:
CONCURRED: KELLY, J., joined by R.G. BRADLEY, J. concurs
(opinion filed).
DISSENTED: ABRAHAMSON, J. dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Michelle L. Velasquez and Civitas Law Group, Milwaukee, and
an oral argument by Michelle L. Velasquez.
For the plaintiff-respondent-cross petitioner, there were
briefs filed by Thomas J. Balistreri, assistant attorney
general, and Brad D. Schimel, attorney general, and an oral
argument by Thomas J. Balistreri.
2017 WI 74
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP791-CR
(L.C. No. 2012CF1343)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Cross
Petitioner, FILED
v.
JUL 6, 2017
Ernesto E. Lazo Villamil,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. This case examines issues that
arise from statutory language that appears to make the offense
of causing a death while knowingly operating a motor vehicle
after revocation both a felony and a misdemeanor offense. Such
an unusual scenario has generated both a petition and cross-
petition for review of the court of appeals' decision.
¶2 Petitioner, Ernesto Lazo Villamil (Villamil), seeks
review of a court of appeals' decision affirming a circuit court
No. 2015AP791-CR
judgment of conviction and order denying his motion for
postconviction relief.1
¶3 Villamil asserts that the court of appeals erred
because the statutory scheme underlying his conviction and
sentence, Wis. Stat. § 343.44(1)(b) (2009-10) and Wis. Stat.
§ 343.44(2)(ar)4 (eff. March 1, 2012), is ambiguous as to
whether he should have been charged with a misdemeanor or a
felony. Therefore, he contends that the rule of lenity2 applies
and he should have been charged with a misdemeanor, rather than
a felony.
¶4 He further argues that the statutory scheme is
unconstitutional because it violates his rights to both due
process and equal protection.3 According to Villamil, the
failure of a statute to give fair notice of the proscribed
conduct and its consequences violates due process.
Additionally, he contends that a statute violates his right to
equal protection when there is no rational basis for the
distinction between misdemeanor and felony penalties.
¶5 We conclude that any ambiguity in Wis. Stat.
§ 343.44(1)(b) (2009-10) and Wis. Stat. § 343.44(2)(ar)4 (eff.
1
State v. Villamil, 2016 WI App 61, 371 Wis. 2d 519, 885
N.W.2d 381 (affirming in part and reversing in part a judgment
and order for Waukesha County, Donald J. Hassin, Jr., and
Michael J. Aprahamian, J.J., presiding).
2
For a definition of the rule of lenity, see infra ¶27.
3
The Fourteenth Amendment to the United States Constitution
provides that no state shall "deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws."
2
No. 2015AP791-CR
March 1, 2012) is clarified by the statutes' legislative history
and thus the rule of lenity does not apply. We further
determine that the statutory scheme does not violate his rights
to either due process or equal protection. Villamil had fair
notice that the prohibited conduct of committing a knowing OAR-
violation causing death could result in a felony charge and
there is no evidence that the charging decision was based upon
an unjustifiable standard such as race, religion, or other
arbitrary classification.
¶6 As cross-petitioner, the State seeks review of that
part of the court of appeals decision remanding Villamil's case
to the circuit court for resentencing. The court of appeals
determined that the circuit court failed to consider specific
factors enumerated in Wis. Stat. § 343.44(2)(b) (2013-14) at
sentencing. The State, however, asserts that the statute is
directory, rather than mandatory. Thus, it contends that the
sentencing court was not required to consider all of the
enumerated factors.
¶7 We agree with the court of appeals that Wis. Stat.
§ 343.44(2)(b) is mandatory and that the record at sentencing
must demonstrate that the circuit court considered the factors
enumerated in the statute.
¶8 Accordingly, we affirm the court of appeals decision
and remand to the circuit court for a new sentencing hearing
because the record fails to demonstrate that the circuit court
considered the required factors pursuant to Wis. Stat.
§ 343.44(2)(b).
I
3
No. 2015AP791-CR
¶9 The underlying facts in this case are not in dispute.
Villamil drove into the rear of another vehicle, killing the
operator of that vehicle. At the scene of the collision,
Villamil told the police officer that he did not have a valid
driver's license because it had been revoked for an operating
while intoxicated offense ("OWI").
¶10 Villamil was charged with operating after revocation
("OAR"), causing death, contrary to Wis. Stat. §§ 343.44(1)(b)
and (2)(ar)4.4 Wisconsin Statute § 343.44(1)(b), operating after
revocation, provides in relevant part that no person may
knowingly operate a motor vehicle after revocation.
Additionally, Wis. Stat. § 343.44(2)(ar)4, provides that a
person who violates sub. (1)(b) and causes the death of another
person, shall be charged with a misdemeanor, except "if the
person knows at the time of the violation that his or her
operating privilege has been revoked, the person is guilty of a
Class H Felony."
¶11 In exchange for his no-contest plea, the State
recommended a prison sentence, but agreed not to argue for a
particular length of time. During the plea colloquy the circuit
court discussed the factual basis and elements of the offense.
Villamil told the court he was aware that his license had been
revoked for an alcohol-related offense.
4
Villamil was originally charged with one count of OAR,
causing great bodily harm, contrary to Wis. Stat. § 343.44(1)(b)
and (2)(ar)3.(1). Following the death of the driver of the
other vehicle, the State filed an amended complaint charging
Villamil with "knowingly operating while revoked-causing death,"
contrary to Wis. Stat. § 343.44(1)(b) and (2)(ar)4(2).
4
No. 2015AP791-CR
¶12 Neither the complaint, nor anything else in the record
alleged that the collision was related to impaired driving. The
accident reconstruction report stated that there was "no
evidence to suggest that Mr. Lazo Villamil had diminished
driving abilities."
¶13 Defense counsel argued for a term of probation with an
imposed and stayed sentence because Villamil had already been in
the county jail for fifteen months. Counsel's argument
highlighted mitigating factors, such as Villamil's completion of
treatment and other programming, including obtaining his GED.
Additionally, he argued that Villamil met all the requirements
to reinstate his license, but was unable to do so because of a
change in the law.
¶14 At sentencing, the court considered the seriousness of
the offense, the need to protect the public, and the
rehabilitative needs of the defendant. It observed that the
felony offense for a knowing violation of OAR-causing death was
new and that the statute's purpose was to protect the public
from people whose licenses had been revoked. The court further
stated that it could not understand why Villamil was driving on
the day of the collision. It opined that matters were made
worse because he had been twice convicted of drunk driving and
previously served time in jail for an OAR conviction.
¶15 The sentencing court commented on the continued
problem of people driving without a license, and concluded that
all it could do "to respond to the needs of the community as
best it can under facility of the law" was to impose the maximum
term of imprisonment. It concluded that "this is a serious
5
No. 2015AP791-CR
operating after revocation" and sentenced Villamil to the
maximum sentence of six years, with three years of initial
confinement and three years of extended supervision.
¶16 Villamil filed a postconviction motion arguing that
Wis. Stat. § 343.44(2)(ar)4 is ambiguous and unconstitutional.
Additionally, he requested resentencing, asserting that the
sentencing court had not provided an adequate explanation of why
it imposed the maximum penalty. The circuit court denied
Villamil's postconviction motion in its entirety.
¶17 The court of appeals determined that the rule of
lenity was not applicable and the statutory scheme under which
Villamil was convicted and sentenced is constitutional. State
v. Villamil, 2016 WI App 61, ¶2, 371 Wis. 2d 519, 885
N.W.2d 381. However, the court of appeals remanded for a new
sentencing hearing because it concluded that the evidentiary
record failed to demonstrate that the circuit court considered
the enumerated factors set forth in Wis. Stat. § 343.44(2)(b).
Id.
II
¶18 The interpretation of a statute presents a question of
law that we decide independently of the decisions rendered by
the circuit court and the court of appeals. State v. Harrison,
2005 WI 5, ¶37, 360 Wis. 2d 246, 858 N.W.2d 372.
¶19 Statutory interpretation begins with the language of
the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. It is
interpreted in the context in which it is used, in relation to
the language of surrounding or closely-related statutes. Id.,
6
No. 2015AP791-CR
¶46. We interpret a statute reasonably in order to avoid absurd
results. Id.
¶20 A statute is ambiguous if it is capable of being
understood in two or more ways by reasonably well-informed
persons. Id., ¶47. When a statute is ambiguous, we may consult
legislative history as part of our statutory analysis. Id.,
¶51.
¶21 We are also tasked with reviewing whether the
statutory scheme is unconstitutional. Legislative enactments
are presumed constitutional and the party challenging the
constitutionality must demonstrate the statute is
unconstitutional beyond a reasonable doubt. State v. McManus,
152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989).
¶22 Finally, we are asked to determine whether Wis. Stat.
§ 343.44(2)(b) requires a sentencing court to consider on the
record the factors enumerated in the statute. "To determine how
a sentencing court satisfies its obligation to consider any
applicable sentencing guideline," we must interpret the relevant
statutory provision. State v. Grady, 2007 WI 81, ¶14, 302
Wis. 2d 80, 734 N.W.2d 364. As set forth above, statutory
interpretation is a matter of law we review independently of the
determinations rendered by the circuit court and the court of
appeals. Id.
¶23 We will remand for a new sentencing hearing only if
the circuit court erroneously exercised its discretion at
sentencing. State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535,
678 N.W.2d 197 (citing McCleary v. State, 49 Wis. 2d 263, 278,
182 N.W.2d 512 (1971)). A court erroneously exercises its
7
No. 2015AP791-CR
sentencing discretion when it fails to consider factors it is
required by statute to consider. LaRocque v. LaRocque, 139
Wis. 2d 23, 33, 406 N.W.2d 736 (1987).
III
¶24 We begin by setting forth the relevant statutory
language. Villamil was charged with a knowing violation of OAR-
causing death, contrary to Wis. Stat. §§ 343.44(1)(b) and
(2)(ar)4. Wisconsin Stat. § 343.44(1)(b), knowingly operating
after revocation, provides in relevant part:
No person whose operating privilege has been duly
revoked under the laws of this state may knowingly
operate a motor vehicle upon any highway in this state
during the period of revocation . . . .
(Emphasis added).
Additionally, Wis. Stat. § 343.44(2)(ar)4. provides:
Any person who violates sub. (1)(b) and, in the course
of the violation, causes the death of another person
shall be fined not less than $7,500, nor more than
$10,000 or imprisoned for not more than one year in
the county jail or both, except that, if the person
knows at the time of the violation that his or her
operating privilege has been revoked, the person is
guilty of a Class H Felony.
(Emphasis added).
¶25 According to Villamil, the statutory scheme is
ambiguous because it provides that a person who commits the
offense of causing death while knowingly operating a motor
vehicle after revocation could be charged with either a
misdemeanor or a felony. He asserts that the first part of the
statute sets forth a misdemeanor sentence with a fine of "not
less than $7,500, nor more than $10,000 or imprison[ment] for
not more than one year in the county jail or both . . . ." Wis.
8
No. 2015AP791-CR
Stat. § 343.44(2)(ar)4. However, the second part of the statute
classifies the offense as a "Class H felony." Id.
A
¶26 The problem that Villamil identifies with Wis. Stat.
§ 343.44(2)(ar)4. is that "knowledge" of revocation is already
required as an element of the misdemeanor charge because a
person cannot violate Wis. Stat. § 343.44(1)(b), the offense for
operating after revocation, unless he knows that his license has
been revoked. Yet, the second part of the statutory provision
also contains a knowledge requirement. He asserts that this
interaction between the statutes makes the "knowledge"
distinction between the misdemeanor and felony charge illusory.
Accordingly, Villamil contends that the statute is ambiguous and
that the rule of lenity should apply because the same offense is
punishable as either a misdemeanor or a felony.
¶27 The rule of lenity "provides generally that ambiguous
penal statutes should be interpreted in favor of the defendant."
State v. Cole, 2003 WI 59, ¶67, 262 Wis. 2d 167, 663 N.W.2d 700.
However, the rule of lenity applies only if two conditions are
met: (1) the penal statute is ambiguous; and (2) we are unable
to clarify the intent of the legislature by resort to
legislative history. Id.
¶28 It is undisputed that the statute is ambiguous. The
State, however, contends that this court should resolve any
ambiguity by finding that the knowledge element of the offense
of OAR has been impliedly repealed.
¶29 We agree with the parties that the statute is
ambiguous. Here, the interaction between Wis. Stat.
9
No. 2015AP791-CR
§ 343.44(1)(b) and Wis. Stat. § 343.44(2)(ar)4 creates ambiguity
because the same offense is punishable as either a misdemeanor
or a felony. DOC v. Schwarz, 2005 WI 34, ¶14, 279 Wis. 2d 223,
693 N.W.2d 703 ("ambiguity can be found . . . by the words of
the provision as they interact with and relate to other
provisions in the statute and to other statutes.") (quotation
marks and quoted source omitted).
¶30 Because we determine that the interaction of the
statutory scheme renders it ambiguous, we turn next to the
relief requested by the parties. First, we do not agree with
Villamil that the rule of lenity should be applied in this case.
Although the rule of lenity provides generally that ambiguous
penal statutes should be interpreted in favor of the defendant,
it applies only if a penal statute is ambiguous and "we are
unable to clarify the intent of the legislature by resort to
legislative history." Cole, 262 Wis. 2d 167, ¶67.
¶31 Examining the legislative history of Wis. Stat.
§ 343.44 clarifies the intent of the legislature that persons
who commit a knowing violation of OAR-causing death be charged
with a Class H felony. The Legislative Reference Bureau
analysis for 2011 Assembly Bill 80 ("A.B. 80") recognized that
under the law as it existed prior to enactment of 2011 Wisconsin
Act 113 ("Act 113"), a defendant who committed a knowing OAR
violation was guilty of "a Class A misdemeanor, punishable by a
maximum fine of $10,000 or a maximum term of imprisonment of
nine months or both." See Drafting file for 2011 Wis. Act. 113,
Analysis by the Legislative Reference Bureau of 2011 A.B. 80,
Legislative Reference Bureau, Madison, Wis.; see also Wis. Stat.
10
No. 2015AP791-CR
§ 343.44(2)(b) (2009–10). It explained that A.B. 80 "creates
new penalties for [OAR] violations in which the person, in the
course of the violation, causes . . . death to another person."
LRB Analysis of A.B. 80, p. 2 (emphasis added).
¶32 The LRB's analysis additionally observed that under
A.B. 80, the penalty is intended to increase if a person
committed a knowing violation:
If the person causes the death of another in the
course of the OWL or OWS violation, the person: 1)
must forfeit not less than $7,500 nor more than
$10,000 if the person did not know, respectively, that
he or she did not possess a valid operator's license
or that his or her operating privilege was suspended;
or 2) is guilty of a Class H felony if the person
knew. A Class H felony is punishable by a maximum
fine of $10,000 or a maximum term of imprisonment of
six years or both . . . If the person causes the death
of another in the course of the OAR violation, the
person: 1) must be fined not less than $7,500 nor more
than $10,000 or imprisoned for not more than one year
or both if the person did not know that his or her
operating privilege was revoked; or 2) is guilty of a
Class H felony if the person knew.
LRB Analysis of A.B. 80 at 2–3 (emphasis added).
¶33 Thus, the legislative history clarifies that the
legislature intended to write these provisions so that when a
person causes the death of another while committing an OAR
violation, the penalty would be less severe if the defendant did
11
No. 2015AP791-CR
not know his license was revoked and more severe if he knew.5
Specific to this case, the legislative history shows the
legislature's intent to treat an OAR-causing death offense as a
misdemeanor if the defendant did not know his license had been
revoked and as a Class H felony if he knew.
¶34 It appears, however, that the legislature failed to
remove the "knowledge" element from the misdemeanor language of
Wis. Stat. § 343.44(1)(b) and thus failed to accomplish the
first part of this intent. Nevertheless, in his case, Villamil
caused the death of another and knew his license had been
revoked. The legislative history shows, and Villamil
acknowledges, that the legislature intended to treat his offense
as a Class H felony. Given this clarification, the rule of
lenity cannot be invoked.
B
¶35 The State urges this court to conclude that the
knowledge element of the offense of operating after revocation
has been impliedly repealed. According to the State, repeal of
5
Based on the LRB Analysis of A.B. 80 and the Legislative
Council Memo regarding Act 113, it appears that the legislature
intended that that the offenses of operating while suspended and
operating after revocation have symmetrical penalties. See LRB
Analysis of A.B. 80 at 2–3; see also Wis. Leg. Council, Act
Memo, 2011 Wis. Act. 113. The legislature made the offense of
operating while suspended a non-knowing offense. See Wis. Stat.
§ 343.44(1)(a) ("A person's knowledge that his or her operating
privilege is suspended is not an element of the offense under
this paragraph."). However, the legislature failed to similarly
revise the offense of operating after revocation pursuant to
Wis. Stat. § 343.44(1)(b).
12
No. 2015AP791-CR
the element of knowledge in the offense of operating after
revocation is implied by the legislative history of Act 113.
¶36 Although we agree that the legislative history
indicates that the legislature intended to create a misdemeanor
offense for persons who did not know their license had been
revoked, we are tasked with interpreting the words that the
legislature wrote. Kalal explained that "[i]t is the enacted
law, not the unenacted intent, that is binding on the public."
Id., ¶46. Here, the legislature wrote the statutory scheme so
that knowledge of revocation status is an element of both the
misdemeanor and felony provision. As set forth above, in this
case Villamil was charged with the felony offense intended by
the legislature for a knowing violation of OAR-causing death.
¶37 We further observe that implied repeal is a disfavored
rule of statutory construction. See, e.g., Heaton v. Larsen, 97
Wis. 2d 379, 392-93 ("Repeals by implication are not favored in
the law."). If the legislature desires to create a misdemeanor
offense for an unknowing violation, as the legislative history
indicates, then the legislature may do so by future amendment of
the statutory text. See State v. Reagles, 177 Wis. 2d 168, 176,
501 N.W.2d 861 (1993) ("If a statute fails to cover a particular
situation and the omission should be cured, the remedy lies with
the legislature, not the courts."). Thus, we decline the
State's invitation to rewrite the statute in order to create an
offense for an "unknowing" violation and hold the application of
Wis. Stat. §§ 343.44(1)(b) and (2)(ar)4. to the language the
legislature wrote. See State v. Jadowski, 2004 WI 68, 273
Wis. 2d 418, 680 N.W.2d 810 (it is legislature's broad power to
13
No. 2015AP791-CR
promote the public welfare that authorizes it to create and
define criminal offenses).
¶38 Accordingly, we agree with the court of appeals that
the rule of lenity does note apply here. We hold the
application of Wis. Stat. §§ 343.44(1)(b) and (2)(ar)4. to the
language the legislature wrote——that the defendant's "knowledge"
of his revocation status is an element of both the misdemeanor
as well as the felony provision. It was the legislature's
intent to apply the more severe penalty to Villamil's offense
and he was appropriately charged with a Class H felony.
IV
¶39 We turn next to Villamil's argument that statutes
which prescribe significantly different penalties for the exact
same conduct cannot be applied constitutionally. According to
Villamil, the failure of a statute to give fair notice of the
proscribed conduct and the consequences violates due process.
Additionally, he contends that a statute violates equal
protection when there is no rational basis for the distinction
between misdemeanor and felony penalties.
¶40 Our analysis of Villamil's constitutional arguments
begins with the observation that legislative enactments are
presumed constitutional and the party challenging the
constitutionality must prove the statute unconstitutional beyond
a reasonable doubt. McManus, Wis. 2d at 129. If possible, we
construe the statute to preserve it. State v. Popanz, 112
Wis. 2d 166, 172, 332 N.W.2d 750 (1983).
¶41 Due process requires that penal statutes provide fair
notice of the conduct they seek to proscribe. State v. Nelson,
14
No. 2015AP791-CR
2006 WI App 124, ¶41, 294 Wis. 2d 578, 718 N.W.2d 168. This
notice does not have to be provided with absolute clarity. Id.,
¶36. Additionally, when considering an equal protection
challenge that does not involve a suspect or quasi-suspect
classification, "the fundamental determination to be made . . .
is whether there is arbitrary discrimination in the
statute . . . and thus whether there is a rational basis which
justifies a difference in rights afforded." In re Joseph E.G.,
2001 WI App 29, ¶8, 240 Wis. 2d 481, 623 N.W.2d 137.
¶42 This court's decision in State v. Cissell, 127
Wis. 2d 205, 378 N.W.2d 691 (1985), guides our analysis of
Villamil's constitutional challenge. Cissell asserted, and this
court agreed, that the elements of felony abandonment were
substantially identical to the elements of misdemeanor failure
to support. Id. at 214. He argued that statutes with identical
substantive elements but different penalty schemes violate due
process and equal protection. Id.
¶43 Similar to this case, Cissell contended that the State
violated his constitutional rights by charging him with a felony
rather than a misdemeanor. Id. Cissell further argued that
"disparate sentencing exposures for crimes with identical
elements are irrational and arbitrary." Id.
¶44 Following United States v. Batchelder, 442 U.S. 114
(1979), the Cissell court determined that "identical element
crimes with different penalties do not violate due process or
equal protection." 127 Wis. 2d 215. It explained that the
Batchelder court concluded that overlapping criminal statutes
with different penalty schemes "do not violate constitutional
15
No. 2015AP791-CR
principles unless the prosecutor selectively bases the charging
decision upon an unjustifiable standard such as race, religion,
or other arbitrary classification." Id. (citing Batchelder, 442
U.S. at 125 n.9).
¶45 Cissell reasoned that "[T]he fact that the defendant's
conduct may be chargeable under either of two statutes does not
make prosecution under one or the other statute improper per
se . . . ." 127 Wis. 2d 216. It explained that "the focus
instead is on whether the prosecutor unjustifiably discriminated
against any class of defendants." Id. "Differences in
treatment between individuals . . . are determined as a matter
of prosecutorial discretion. . . . [S]uch discretion is not
unconstitutional unless the prosecutor discriminates on the
basis of unjustifiable criteria." Id.
¶46 Thus, in Cissell we concluded that "[a]lthough [the
statutes] are identical crimes with different penalties, the
state does not deny equal protection or due process by charging
defendants with the more serious crime." Id. at 224. This
court determined that the statute at issue in Cissell did not
violate due process because it "provide[d] adequate notice of
the conduct proscribed by the statute and those who must obey
it." Id. at 225. We explained that "[i]t also provides a
defined standard for those who must enforce the law and
adjudicate guilt." Id.
¶47 In this case, Villamil makes no suggestion the
prosecutor chose to charge him with a felony violation instead
of a misdemeanor based upon his race, religion, or other
arbitrary classification. Accordingly, under Cissell, neither
16
No. 2015AP791-CR
the existence of different penalties for the same violation nor
the prosecutor's decision to charge Villamil with a felony
violates his rights to due process or equal protection.
¶48 Villamil attempts to distinguish the facts of this
case from Cissell by arguing that in Cissell there were two
different offenses with substantively identical elements, where
here there is one offense within the same statutory provision
containing two distinct punishments. Although Villamil points
to a Utah Supreme Court case as support for this distinction, we
are not convinced that a meaningful distinction exists between
the circumstances here and those in Cissell. See State v.
Williams, 2007 UT 98, ¶1, 175 P.2d 1029.
¶49 Whether there is one criminal statute or two, both
this case and Cissell involve criminal statutes with
substantially identical elements where prosecutors have
discretion to decide whether they will charge a defendant with a
misdemeanor or a felony. Although a defendant could be charged
with a misdemeanor instead of a felony for a knowing violation
of OAR-causing death, the public is on notice that this offense
may be punished as a Class H felony pursuant to Wis. Stat.
§§ 343.44(1)(b) and (2)(ar)4. Because Villamil knew he was
operating after his license was revoked, the statutes provide
sufficient notice that this violation could be charged as a
felony.
¶50 Accordingly, we determine that Villamil has failed to
meet his burden of demonstrating that the statute is
unconstitutional beyond a reasonable doubt.
V
17
No. 2015AP791-CR
¶51 We turn to address the State's cross-petition, which
asserts that the sentencing court was not required to consider
all of the statutorily enumerated factors on the record.
¶52 Wisconsin Stat. § 343.44(2)(b) provides that the court
"shall review the record and consider the following":
1. The aggravating and mitigating circumstances in
the matter, using the guidelines described in
par. (d).
2. The class of vehicle operated by the person.
3. The number of prior convictions of the person for
violations of the section within the 5 years preceding
the person's arrest.
4. The reason that the person's operating privilege
was revoked, or the person was disqualified or ordered
out of service, including whether the person's
operating privilege was revoked for an offense that
may be counted under s. 343.307(2).
5. Any convictions for moving violations arising out
of the incident or occurrence giving rise to
sentencing under this section.
¶53 In Grady, this court determined that "a circuit court
satisfies its [statutory] obligation when the record of the
sentencing hearing demonstrates that the court actually
considered the sentencing guidelines and so stated on the
record." 302 Wis. 2d 80, ¶3. Similar to the statute addressed
in Grady, Wis. Stat. § 343.44(2)(b) states that "[i]n imposing
sentence under par. (ar) or (br) the court shall . . . consider
the following," and then lists the specifically identified
18
No. 2015AP791-CR
factors to be considered.6 Villamil asserts that the circuit
court failed to address several factors at sentencing.
¶54 The State does not dispute that the circuit court
failed to enumerate all of the statutorily-enumerated sentencing
factors on the record. Instead, it contends that at sentencing
Wis. Stat. § 343.44(2)(b) should be construed to be directory,
rather than mandatory. Although the State acknowledges that the
word "shall" is presumed to be mandatory, it asserts that there
is no per se rule to determine which way the word is used. See,
e.g., State ex rel. Marburry v. Macht, 2003 WI 79, ¶16, 262
Wis. 2d 720, 665 N.W.2d 155; State v. R.R.E., 162 Wis. 2d 698,
707, 470 N.W.2d 283 (1991). Thus, according to the State, in
determining whether the legislature intended "shall" to be
mandatory or directory, we should consider the objectives
intended to be accomplished by the statute and the potential
consequences of each interpretation.
¶55 The word "shall" can be construed as directory if
"such a construction is 'necessary to carry out the intent of
the legislature.'" Warnecke v. Estate of Warnecke, 2006 WI App
62, ¶12, 292 Wis. 2d 438, 713 N.W.2d 109 (quoting Karow v.
Milwaukee Co. Civil Serv. Comm'n, 82 Wis. 2d 565, 571 N.W.2d 214
(1978)). According to the State, interpreting the word "shall"
as mandatory leads to an unreasonable result because similar
6
The statute considered in State v. Grady, 2007 WI 81, 302
Wis. 2d 80, 734 N.W.2d 364, provided that "the court shall
consider . . . [i]f the offense is a felony, the sentencing
guideline." See Wis. Stat. § 973.017(2)(a) (2003-04).
19
No. 2015AP791-CR
offenses, such as operating while suspended, do not require
consideration of these factors. See Wis. Stat. §§ 343.44(1)(a).
¶56 However, we agree with the court of appeals that the
State's argument underscores that the legislature intended to
treat OAR offenses differently. Villamil, 371 Wis. 2d 519, ¶26.
We do not assume that the legislature chose the word "shall"
lightly, but instead assume it intended to require courts to
consider the factors under Wis. Stat. § 343.44(2)(b), for a
knowing violation of OAR-causing death.
¶57 Additionally, this case is distinguishable from other
cases in which courts have determined that an interpretation of
"shall" as mandatory would lead to an absurd result. See, e.g.,
In re Paternity of S.A. II, 165 Wis. 2d 530, 534-36, N.W.2d 21
(Ct. App. 1991). For example, in child custody matters, Wis.
Stat. ch. 767 previously provided that "the court shall
incorporate" the terms of a stipulation regarding a modification
of placement or custody into a revised order. Id. However, the
court of appeals reasoned that the best interests of a child are
the primary consideration in custody determinations, regardless
of the parties' stipulation. Id. Thus, it concluded that it
would be an absurd result if "shall" were interpreted to
prohibit an examination of the best interests of the child.
Id.; see also Eby v. Kozarek, 153 Wis. 2d 75, 80-81, 450
N.W.2d 249 (1990) (use of the word "shall" for statutory time
limit was directory because construing the statute as mandatory
would lead to an overly harsh result).
¶58 No such consideration applies here. Indeed, all of
the factors listed here are relevant to a sentencing decision
20
No. 2015AP791-CR
for a knowing violation of OAR-causing death. These factors,
such as aggravating and mitigating circumstances, the class of
the vehicle, prior convictions, the reason for revocation, and
any convictions for moving violations arising out of the
incident are all relevant to punishment for this specific
offense. Accordingly, making their consideration mandatory does
not lead to an absurd result.
¶59 Finally, "support is given to a mandatory
interpretation of 'shall' when the legislature uses the words
'shall' and 'may' in a particular statutory section, indicating
the legislature was aware of the distinct meanings of the
words." State ex rel. Marberry v. Macht, 2003 WI 79, ¶16, 262
Wis. 2d 720, 665 N.W.2d 155. In this case, the legislature used
the word "shall" with regard to the factors set forth in Wis.
Stat. § 343.44(2)(b), but used "may" in Wis. Stat.
§ 343.44(2)(c), which provides that "penalties may be enhanced
by imprisonment and additional fines . . . ." Thus, "we can
infer that the legislature was aware of the different
denotations and intended the words to have their precise
meanings." State ex rel. Marberry v. Macht, 2003 WI 79, ¶16.
(quotation marks and quoted source omitted).
¶60 In light of the above, we conclude that the State has
failed to rebut the presumption that "shall" is mandatory here.
We thus determine that Wis. Stat. § 343.44(2)(b) is mandatory
and that the record at sentencing must demonstrate that the
circuit court considered the factors enumerated in the statute.
¶61 The State does not dispute that the circuit court
failed to express its consideration of the statutory factors on
21
No. 2015AP791-CR
the record. Nor does it contend that the circuit court
considered those factors, but simply failed to reference Wis.
Stat. § 343.44(2)(b) on the record. We therefore remand for a
new sentencing hearing because the record in this case fails to
demonstrate that the court considered the required factors under
Wis. Stat. § 343.44(2)(b).
V
¶62 In sum, we conclude that any ambiguity in Wis. Stat.
§ 343.44(1)(b) (2009-10) and Wis. Stat. § 343.44(2)(ar)4 (eff.
March 1, 2012) is clarified by the statutes' legislative history
and thus the rule of lenity does not apply. We further
determine that the statutory scheme does not violate his rights
to either due process or equal protection. Because Villamil
knew he was operating after his license was revoked, the
statutes provide fair notice that the prohibited conduct of
committing a knowing OAR-violation causing death could result in
a felony charge. There is no evidence that the charging
decision was based upon an unjustifiable standard such as race,
religion, or other arbitrary classification.
¶63 Additionally, we agree with the court of appeals that
Wis. Stat. § 343.44(2)(b) is mandatory and that the record at
sentencing must demonstrate that the circuit court considered
the factors enumerated in the statute.
¶64 Accordingly, we affirm the court of appeals decision
and remand to the circuit court for a new sentencing hearing
because the record fails to demonstrate that the circuit court
considered the required factors pursuant to Wis. Stat.
§ 343.44(2)(b).
22
No. 2015AP791-CR
By the Court.—The decision of the court of appeals is
affirmed.
23
No. 2015AP791-CR.dk
¶65 DANIEL KELLY, J. (concurring). Both the State and
Mr. Villamil want us to find an ambiguity in Wis. Stat.
§ 343.44, but for different reasons. The State would create out
of this ambiguity a new criminal offense——strict-liability
Operating After Revocation. Mr. Villamil, on the other hand,
would use the ambiguity to secure a misdemeanor punishment
instead of a felony sentence. The court agreed the statute is
ambiguous, but without showing it to be so. Consequent upon
this unexplained premise, it embarked on a wholly unnecessary
exploration of legislative history, the rule of lenity, and the
due process implications of prosecutorial discretion. As a
result, I cannot join Part III of the court's opinion.
I
¶66 I disagree with the court's assumed premise. It said
"the interaction between Wis. Stat. § 343.44(1)(b) and Wis.
Stat. § 343.44(2)(ar)4 creates ambiguity because the same
offense is punishable as either a misdemeanor or a felony."
Majority op., ¶29. But the plain language of the statute does
not allow such an option. It provides for a felony or nothing
at all.
¶67 Notwithstanding our fretting, applying Wis. Stat.
§ 343.44 to Mr. Villamil is entirely straightforward. The first
step, of course, is determining the meaning of the statute,
which begins with the language the legislature used. If there
is a plain meaning to be found there, that is where the analysis
1
No. 2015AP791-CR.dk
also ends.1 Mr. Villamil's situation requires us to consider the
statute's definition of the crime with which he is accused (Wis.
Stat. § 343.44(1)(b)), as well as the penalty to which he is
subject (Wis. Stat. § 343.44(2)(ar)4.).
¶68 The offense of "Operating After Revocation" is defined
as follows: "No person whose operating privilege has been duly
revoked under the laws of this state may knowingly operate a
motor vehicle upon any highway in this state during the period
of revocation . . . ." Wis. Stat. § 343.44(1)(b) (emphasis
added). The penalty for this offense depends, in part, on
whether the person harmed others while committing the offense.
If the driver causes the death of another, as Mr. Villamil did,
the statute provides the following penalty:
Any person who violates sub. (1)(b) and, in the course
of the violation, causes the death of another person
shall be fined not less than $7,500 nor more than
$10,000 or imprisoned for not more than one year in
the county jail or both, except that, if the person
knows at the time of the violation that his or her
operating privilege has been revoked, the person is
guilty of a Class H felony.
Wis. Stat. § 343.44(2)(ar)4 (emphasis added).
¶69 Mr. Villamil says this language prevents him from
knowing whether he is subject to a misdemeanor or a felony
penalty. But if we give careful attention to how the actual
1
State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.'" (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis. 2d 211, 232, 612 N.W.2d 659)).
2
No. 2015AP791-CR.dk
language of the offense and penalty provisions of this statute
operate, it will become almost immediately apparent that this
isn't so. There are four words in this statute that are
especially important to its proper functioning. The first is
"knowingly," and it appears in the definition of the offense.
The next two are "except that"——they appear in the penalty
provision and serve as the hinge point for the gate that gives
access to either the misdemeanor or the felony penalty. The
last is "know," and it helps tell us which way the gate should
swing.
¶70 I begin with the definition of the offense, where we
find that Operating After Revocation is not a strict liability
crime. It requires that the defendant know his privilege has
been revoked: "No person whose operating privilege has been
duly revoked under the laws of this state may knowingly operate
a motor vehicle . . . during the period of revocation . . . ."
Wis. Stat. § 343.44(1)(b) (emphasis added). Thus, if the person
does not know he is operating a motor vehicle while his
operating privileges are revoked, he cannot be prosecuted under
this statute at all. Mr. Villamil knew he was driving while his
operating privilege was revoked——as did everyone else convicted
under this version of the statute——and so he was properly
convicted of this offense.
¶71 Upon conviction, the court must proceed to the penalty
phase. Because Mr. Villamil caused a death while operating with
revoked privileges, we turn to Wis. Stat. § 343.44(2)(ar)4. for
the appropriate penalty. There is no doubt this penalty
3
No. 2015AP791-CR.dk
provision describes both misdemeanor and felony sentences. But
there is also no doubt that it is impossible to be sentenced as
a misdemeanant under Wis. Stat. § 343.44(2)(ar)4.
¶72 The key to applying this penalty provision lies in the
hinge point created by the "except that" clause in subsection
(2)(ar)4. The misdemeanor penalty lies on one side of it, the
felony on the other. The condition identified by the "except
that" clause controls which way the gate swings. Satisfy the
condition, and the defendant is a felon. Leave it unsatisfied,
and the defendant is instead a misdemeanant.
¶73 This condition is where we come across the fourth
important word——"know." Here it is in context: "[E]xcept that,
if the person knows at the time of the violation that his or her
operating privilege has been revoked . . . ." Wis. Stat.
§ 343.44(2)(ar)4. So the condition that controls which way the
gate swings is whether the defendant knew, or did not know, that
he was operating his vehicle after revocation. Mr. Villamil
satisfied the condition because he knowingly operated his
vehicle after revocation.
¶74 Mr. Villamil is not the only one who will satisfy this
condition upon arriving at subsection (2)(ar)4. In fact,
everyone who reaches this subsection satisfies the condition.
For the gate to swing open on the misdemeanor penalty, the
defendant who stands for sentencing must not have known he had
operated his vehicle after revocation of his driving privileges.
But we know that will never happen because "knowing" is an
element of the offense——so the gate is always open only to the
4
No. 2015AP791-CR.dk
felony penalty. Thus, so long as the statute remains as it is,
there will never be a pathway to the misdemeanor penalty.
¶75 So the only way to access the misdemeanor portion of
subsection (2)(ar)4.——as written——is to stop reading it before
reaching the "except that" language. But that is no way to read
a sentence. One must persevere to the period, and there is no
way to get there without encountering the exception.
¶76 That brings me back to the alleged ambiguity, which——
remember——is supposed to be that a prosecutor could opt between
misdemeanor and felony penalties. Because the statute's
explicit terms welded the gate closed on the misdemeanor option,
the plain language can yield no such prosecutorial discretion.
So it turns out the alleged ambiguity, the thing we spent so
much time and effort fixing, is a problem of our own creation.
We called it into existence by substantially re-writing
subsection (2)(ar)4. To make the misdemeanor and felony
sentences equally available, we had to make that statute say
this:
Any person who violates sub. (1)(b) and, in the course
of the violation, causes the death of another person
shall be fined not less than $7,500 nor more than
$10,000 or imprisoned for not more than one year in
the county jail or both, except that, if the person
knows at the time of the violation that his or her
operating privilege has been revoked, or the person is
guilty of a Class H felony.
We didn't explain why we should do this, nor did we even
acknowledge we did it. When the curtain went up and our
analysis started, the statute made its first appearance with
5
No. 2015AP791-CR.dk
this meaning already attached to it. Responsibility for that
meaning lies not with any deus ex machina, it lies with us.
¶77 It is true that, one way or another, some part of
subsection (2)(ar)4. is going to be inoperable. It will happen
either because we recraft the language, or because we apply the
language as adopted by the legislature. Unfortunately, the
court chose the former. It struck out the "except that" clause
that previously governed how the gate swings and transferred its
erstwhile function to the State's prosecutors. We are supposed
to be chary of such readings. Kalal, 271 Wis. 2d 633, ¶46
("Statutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage.").
¶78 The part of subsection (2)(ar)4. that is inoperable is
the part providing for a misdemeanor penalty. That
inoperability, however, does not result from judicial language-
tweaking. It results from the inexorable operation of the
statute's duly adopted words. The legislators orphaned the
misdemeanor penalty, but it was theirs to orphan and it is no
business of ours to countermand them. We do not dishonor
Kalal's admonition by applying the statute as written because we
did not create the surplusage. It was already there when Mr.
Villamil brought it to us. If there is to be surplusage, let it
be a result of the legislature's work, not ours.
¶79 As a practical matter, we have a pretty good idea of
how this problem came to be; it was most likely a drafting
error. See Majority op., ¶¶31-34. The legislature apparently
aimed at changing "Operating After Revocation" to a strict
6
No. 2015AP791-CR.dk
liability offense, but with a more onerous penalty for knowing
violations. It didn't quite get there. We do not, however,
have the authority to complete what it started. Therefore,
because we can apply the language as it exists, and the result
is neither irrational nor absurd, that is what we should have
done. Because we didn't, I cannot join Part III of the court's
opinion.
II
¶80 Perhaps the court reached the conclusion it did
because, at its core, the analysis rests on an enigma: The
court said Wis. Stat. § 343.44 is ambiguous, but it did not say
why. Ambiguity arises, of course, when a statute "is capable of
being understood by reasonably well-informed persons in two or
more senses." State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, ¶47, 271 N.W.2d 633, 681 N.W.2d 110. If that
occurs, we apply our disambiguation canons to get at the proper
meaning. The first step, however, is diagnostic——we must
determine whether the statute can carry multiple meanings.
¶81 The court skipped this step and jumped straight to the
conclusion that a statute giving prosecutors discretion to seek
either misdemeanor or felony penalties is ambiguous. But if
that is true, then our opinion thoroughly undercuts itself.
While naming this discretion an ambiguity, we simultaneously
affirmed that it is just fine so long as the prosecutor does not
unjustifiably discriminate against the defendant in making his
choice. Quoting State v. Cissell, we said "the fact that the
defendant's conduct may be chargeable under either of two
7
No. 2015AP791-CR.dk
statutes does not make prosecution under one or the other
statute improper per se . . . ." Majority op., ¶45 (quoting
State v. Cissel, 127 Wis. 2d 205, 216, 378 Wis. 2d 691 (1985)).
We didn't so much as breathe the word "ambiguous" in that case.
And for good reason——Cissel relied largely on United States v.
Batchelder, in which the Supreme Court ruled that no ambiguity
arises from statutes that provide different penalties for the
same conduct. 442 U.S. 114, 121 (1979).
¶82 So our opinion is at odds with itself. Charging
options of this nature are either ambiguities in need of
resolution (pace Batchelder), or they are legitimate grants of
discretion to prosecutors. They can't be both. Thus, when we
say Wis. Stat. § 343.44 "creates ambiguity because the same
offense is punishable as either a misdemeanor or a felony," we
are creating an ambiguity. Our opinion could be understood as
asserting that a statute that allows for misdemeanor/felony
charging options is, on that basis alone, ambiguous. Or it
could be understood as assuming the existence of ambiguous (and
unidentified) language that could be read as allowing for such
charging options. If it is the former, our opinion refutes
itself. If it is the latter, we should have identified the
ambiguous language and described the two senses in which it
could be understood. Because we didn't, the issue around which
all else revolved——the statute's alleged ambiguity——remained an
enigma to the last.
8
No. 2015AP791-CR.dk
III
¶83 Because I do not agree that Wis. Stat. § 343.44 is
ambiguous, I cannot join Part III of the court's opinion.
However, I join the rest of it, and the mandate, because the
plain and unambiguous language of Wis. Stat. § 343.44 requires
that Mr. Villamil receive a felony sentence.
¶84 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
9
No. 2015AP791-CR.ssa
¶85 SHIRLEY S. ABRAHAMSON, J. (dissenting). I usually
do not persist in a dissent. Ordinarily after dissenting I am
guided by the precedent established by a majority opinion. In
the instant case, however, I am persuaded that my dissent in
State v. Cissell, 127 Wis. 2d 205, 228, 378 N.W.2d 691 (1985),
continues to have merit.
¶86 I wrote then and repeat now: Although broad
prosecutorial discretion is an accepted part of our criminal
justice system, the legislature's adoption of criminal statutes
identical except for penalty is an unlawful delegation of power
to the executive branch of government contrary to the separation
of powers doctrine encompassed in the Wisconsin Constitution.
There is no rational basis for two criminal statutes that are
identical except for their respective penalties, and resting
such unbridled discretion in the prosecuting attorney violates
our concept of fundamental fairness and equal protection of the
laws. Wis. Const. art. I, §§ 1, 8(1).
¶87 I agree with the dissection of United States v.
Batchelder, 442 U.S. 114 (1979), by Professors Wayne LaFave,
Jerold Israel, Nancy King, and Orrin S. Kerr in 4 Criminal
Procedure § 13.7(a) at 284-88 (4th ed. 2015). The instant case
is the third type of statute discussed by the professors:
In assaying the Batchelder reasoning, it is useful to
think about three types of situations in which a
defendant's conduct may fall within two statutes.
They are: (1) where one statute defines a lesser
included offense of the other and they carry different
penalties (e.g., whoever carries a concealed weapon is
guilty of a misdemeanor; a convicted felon who carries
a concealed weapon is guilty of a felony); (2) where
the statutes overlap and carry different penalties
1
No. 2015AP791-CR.ssa
(e.g., possession of a gun by a convicted felon,
illegal alien or dishonorably discharged serviceman is
a misdemeanor; possession of a gun by a convicted
felon, fugitive from justice, or unlawful user of
narcotics is a felony); (3) where the statutes are
identical (e.g., possession of a gun by a convicted
felon is a misdemeanor; possession of a gun by a
convicted felon is a felony). The Court in Batchelder
had before it a situation falling into the second
category, but [it] seems to have concluded that the
three statutory schemes [were] indistinguishable for
purposes of constitutional analysis. But in terms of
either the difficulties which are confronted at the
legislative level in drafting statutes or in the
guidance which is given to a prosecutor by the
legislation, the three schemes are markedly different.
The first of the three is certainly unobjectionable.
Such provisions are quite common (robbery-armed
robbery; battery-aggravated battery; joyriding-theft;
housebreaking-burglary), and usually are a consequence
of a deliberate attempt by the legislature to identify
one or more aggravating characteristics which in the
judgment of the legislature should ordinarily be
viewed as making the lesser crime more serious. They
afford guidance to the prosecutor, but——as noted in
Batchelder——do not foreclose the prosecutor from
deciding in a particular case that, notwithstanding
the presence of one of the aggravating facts, the
defendant will still be prosecuted for the lesser
offense.
By contrast, the third of the three is highly
objectionable. It is likely to be a consequence of
legislative carelessness, and even if it is not such a
scheme serves no legitimate purpose. There is nothing
at all rational about this kind of statutory scheme,
as it provides for different penalties without any
effort whatsoever to explain a basis for the
difference. It cannot be explained in terms of giving
assistance to the prosecutor. "Where statutes are
identical except for punishment, the prosecutor finds
not the slightest shred of guidance." It confers
discretion which is totally unfettered and which is
totally unnecessary. And thus the Court in Batchelder
is less than convincing in reasoning that this third
category is unobjectionable simply because in other
instances, falling into the first category, the need
2
No. 2015AP791-CR.ssa
for discretionary judgments by the prosecutor has not
been and cannot be totally eliminated.
As for the second of the three categories, it clearly
presents a harder case. Here as well, the dilemma is
likely to have been created by legislative
carelessness . . . . [O]verlapping statutes are very
common at both the federal and state level, and it can
hardly be said that in every instance they are a
consequence of poor research or inept drafting.
Drafting a clear criminal statute and still ensuring
that in no instance could it cover conduct embraced
within any existing criminal statute in that
jurisdiction can be a formidable task. (This fact
alone may make courts somewhat reluctant to find
overlap per se unconstitutional, although the
consequence of such a finding, limiting punishment to
that under the lesser of the two statutes until such
time as the legislature decides what to do about the
now-identified overlap, is hardly a cause for alarm.)
Moreover, in the overlap scheme the two statutes will
at least sometimes assist the prosecutor in deciding
how to exercise his charging discretion. (Footnotes
omitted.)
The Utah Supreme Court has adopted this position. See State v.
Williams, 175 P.3d 1029 (2007).
¶88 For the reasons set forth, I dissent.
3
No. 2015AP791-CR.ssa
1