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State v. Villamil

Supreme Court of Wisconsin

July 6, 2017

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

          Submitted on Briefs Oral Argument: April 12, 2017

         REVIEW 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

         Circuit Court Waukesha County L.C. No. 2012CF1343, Donald J. Hassin Jr. and Michael J. Aprahamian Judge.

          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.

          ANN WALSH BRADLEY, J.

         ¶1 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 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 lenity[2] 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. 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) .

         ¶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.

         ¶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 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., ¶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 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.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 ...


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