Submitted on Briefs Oral Argument: April 12, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d
519, 885 N.W.2d 381');">885 N.W.2d 381 PDC No: 2016 WI.App. 61
Court Waukesha County L.C. No. 2012CF1343, Donald J. Hassin
Jr. and Michael J. Aprahamian Judge.
the defendant-appellant-petitioner, there were briefs by
Michelle L. Velasquez and Civitas Law Group, Milwaukee, and
an oral argument by Michelle L. Velasquez.
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.
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.
Petitioner, Ernesto Lazo Villamil (Villamil), seeks review of
a court of appeals' decision affirming a circuit court
judgment of conviction and order denying his motion for
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
lenity applies and he should have been charged
with a misdemeanor, rather than a felony.
He further argues that the statutory scheme is
unconstitutional because it violates his rights to both due
process and equal protection. 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.
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.
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.
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.
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.
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) .
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").
Villamil was charged with operating after revocation
("OAR"), causing death, contrary to Wis.Stat.
§§ 343.44(1) (b) and (2)(ar)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."
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.
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."
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.
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
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 operating after revocation" and sentenced
Villamil to the maximum sentence of six years, with three
years of initial confinement and three years of extended
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.
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.
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
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., ¶46. We interpret a statute
reasonably in order to avoid absurd results. Id.
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.
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).
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.
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 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) .
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. §
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.
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.Stat. § 343.44(2)(ar)4. However, the second
part of the statute classifies the offense as a "Class H
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.
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 ...