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State v. Villamil

Court of Appeals of Wisconsin, District II

July 20, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Ernesto E. Lazo Villamil, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Waukesha County, No. 2012CF1343 DONALD J. HASSIN, JR. and MICHAEL J. Aprahamian, Judges.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          GUNDRUM, J.

         ¶1 Ernesto Lazo Villamil appeals (1) his judgment of conviction for felony causing a death while knowingly operating a motor vehicle after his driver’s license was revoked (OAR) and (2) the denial of his motion for postconviction relief.[1] He argues that the statutory provisions underlying his conviction and sentence, WIS. STAT. § 343.44(1)(b) (2009-10)[2] and WIS. STAT. § 343.44(2)(ar)4. (eff. Mar. 1, 2012), are ambiguous as to whether he should be convicted of and sentenced for a misdemeanor or a felony, and therefore, under the rule of lenity, he should be convicted of and sentenced on a misdemeanor, rather than the felony under which he is now convicted and sentenced. Relatedly, he further contends the statutory scheme is unconstitutional on due process and equal protection grounds because it does not provide fair notice of the conduct that is prohibited or adequate standards for when a defendant should be prosecuted and adjudicated for a misdemeanor or a felony. Lastly, he asserts he is entitled to resentencing because the court failed to consider specific factors enumerated in § 343.44(2)(b) when it sentenced him.

         ¶2 We conclude the rule of lenity is not applicable here and the statutory scheme under which Lazo Villamil was convicted and sentenced is constitutional. We do, however, return this matter to the circuit court for resentencing of Lazo Villamil because the record indicates the court failed to consider factors required by Wis.Stat. § 343.44(2)(b). Thus, we affirm in part, reverse in part, and remand for further proceedings.

         Background

         ¶3 On October 30, 2012, Lazo Villamil drove into the rear end of another vehicle, killing the operator of that vehicle. Lazo Villamil's driver's license was revoked at the time, and he was charged with, and pled to, one count of violating Wis.Stat. § 343.44(1)(b) (2009-10) and Wis.Stat. § 343.44(2)(ar)4. (eff. Mar. 1, 2012) for causing the death of another person while OAR, a felony. In the course of his plea, he admitted that at the time he operated the vehicle, he knew his license was revoked. The circuit court sentenced him to the maximum penalty of three years of initial confinement followed by three years of extended supervision. Lazo Villamil filed a postconviction motion, which the court denied following a hearing. He appeals. Additional facts are included below.

         Discussion

         Misdemeanor or Felony Offense

         ¶4 Prior to 2012, Wis.Stat. § 343.44 (2009-10) provided that a person could be convicted of a Class A misdemeanor if he/she caused great bodily harm to or the death of another while knowingly operating a motor vehicle with a suspended or revoked driver's license, see § 343.44(1)(am) & (b), (2)(g) & (h), but did not provide for a criminal offense of causing great bodily harm to or the death of another while unknowingly operating a motor vehicle with a suspended or revoked driver's license, see generally § 343.44. With 2011 Assembly Bill 80, ultimately enacted into law as 2011 Wis. Act 113 (Act 113), the legislature revised § 343.44.

         ¶5 Wisconsin Stat. § 343.44(1)(b) (2009-10) was unchanged by Act 113. In relevant part, it provides, as it did before:

Operating while revoked. 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 ….

Sec. 343.44(1)(b) (second emphasis added). Wisconsin Stat. § 343.44(2)(ar)4. (eff. Mar. 1, 2012), the "penalties" section of § 343.44, was changed however, so that it reads in relevant part:

Any person who violates sub. (1)(b) and, in the course of the violation, causes the death of another person[3] 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.

Sec. 343.44(2)(ar)4. (emphasis added).

         ¶6 Lazo Villamil's challenge in this case arises because Wis.Stat. § 343.44(2)(ar)4. (eff. Mar. 1, 2012) appears to establish as a misdemeanor ("imprison[ment] for not more than one year in the county jail, " see Wis. Stat. § 939.60), the offense of causing the death of another while violating § 343.44(1)(b), but then establishes that the same offense is a felony "if" the violator "knows" at the time of the violation "that his or her operating privilege has been revoked." The problem is that this "knowledge" distinction is ultimately illusory because a person cannot violate the misdemeanor provision unless he or she "knows" his/her license has been revoked because the underlying OAR offense-"sub. (1)(b)"-requires such knowledge. See § 343.44(1)(b); see also Wis JI-Criminal 2621. Thus, both the misdemeanor and felony offenses require knowledge by the offender that his/her license has been revoked and essentially have the same elements.

         The Rule of Lenity

         ¶7 Lazo Villamil argues that because Wis.Stat. § 343.44(1)(b) (2009-10) and Wis.Stat. § 343.44(2)(ar)4. (eff. Mar. 1, 2012) provide that either the misdemeanor or the felony provision could apply to his offense, ambiguity exists as to which provision should apply and thus, based upon the rule of lenity, the misdemeanor should apply. We conclude the rule of lenity is not applicable here.

         ¶8 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. The rule, however, only "comes into play" if "the penal statute is ambiguous" and "we are unable to clarify the intent of the legislature by resort to legislative history." Id. Here, any ambiguity resulting from the fact ...


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