State v. Ernesto E. Lazo Villamil
2017 WI 74
| Wis. | 2017Background
- Defendant Ernesto Lazo Villamil drove into the rear of another vehicle, killing its driver; he told police his license had been revoked for a prior OWI.
- Villamil pleaded no contest to operating after revocation (OAR), causing death, charged under Wis. Stat. § 343.44(1)(b) and § 343.44(2)(ar)4.
- § 343.44(1)(b) defines OAR as knowingly operating while revoked; § 343.44(2)(ar)4 prescribes a misdemeanor penalty for causing death during OAR except that a person who knows of revocation is guilty of a Class H felony.
- Villamil argued the statutory scheme is ambiguous (invoking the rule of lenity) and unconstitutional (due process and equal protection); the State argued the legislative history shows intent to make knowing OAR-causing-death a felony and urged that the sentencing-factor provision be treated as directory.
- The court of appeals affirmed conviction but remanded for resentencing because the sentencing court did not on the record consider factors in Wis. Stat. § 343.44(2)(b). The Wisconsin Supreme Court granted review of both parties’ issues.
- The Supreme Court affirmed conviction, rejected lenity and constitutional challenges, held the statute is to be read consistent with legislative history (knowing OAR-causing-death is a Class H felony), and held § 343.44(2)(b) is mandatory — remanding for a new sentencing hearing.
Issues
| Issue | Villamil's Argument | State's Argument | Held |
|---|---|---|---|
| Ambiguity / Rule of lenity | Statute ambiguous because knowledge appears in both the offense and the felony exception, so lenity requires misdemeanor | Legislative history clarifies legislature intended knowing OAR-causing-death to be a felony; lenity inapplicable | Statute ambiguous on its face but legislative history clarifies intent; rule of lenity does not apply; felony charge proper |
| Implied repeal / knowledge element | Knowledge requirement for felony is redundant because OAR already requires knowledge; may imply different treatment | Legislative history shows intent to distinguish knowing vs. unknowing violations; courts should not imply repeal | Court declines to find implied repeal; applies enacted text and legislative history; knowledge remains element and felony applies when proven |
| Constitutionality (due process / equal protection) | Statute fails to give fair notice and creates arbitrary penalty differences for identical conduct | Charging discretion between overlapping penalties is permissible absent unjustifiable, discriminatory selection | Statute constitutional; adequate notice exists that knowing OAR-causing-death may be a felony; no evidence of arbitrary prosecutorial discrimination |
| Sentencing procedure — § 343.44(2)(b) "shall" | N/A (Villamil argued inadequate explanation of maximum sentence) | "Shall" should be directory; sentencing court not required to state each enumerated factor on the record | "Shall" construed as mandatory; record must show the court considered listed factors; remand for resentencing because record did not show consideration |
Key Cases Cited
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633, 681 N.W.2d 110 (2004) (statutory interpretation begins with statutory text and context)
- State v. Cole, 262 Wis. 2d 167, 663 N.W.2d 700 (2003) (rule of lenity applies only if legislative intent cannot be clarified by history)
- State v. Cissell, 127 Wis. 2d 205, 378 N.W.2d 691 (1985) (overlapping statutes with different penalties do not violate due process or equal protection absent unjustifiable prosecutorial discrimination)
- United States v. Batchelder, 442 U.S. 114 (1979) (prosecutor may choose between overlapping criminal statutes; that choice is not unconstitutional per se)
- State v. Grady, 302 Wis. 2d 80, 734 N.W.2d 364 (2007) (sentencing court must state on the record that it considered applicable statutory sentencing guidelines)