from a judgment and an order of the circuit court for
Waukesha County, No. 2012CF1343 DONALD J. HASSIN, JR. and
MICHAEL J. Aprahamian, Judges.
Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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vehicle after his driver’s license was revoked (OAR)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. He argues that the statutory provisions
underlying his conviction and sentence, WIS. STAT. §
343.44(1)(b) (2009-10) 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.
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
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Villamil's driver's license was revoked at the time,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he knew his license was revoked.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
or Felony Offense
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 §
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 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).
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
Rule of Lenity
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.
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 ...