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SCOW finds no problem with felony and misdemeanor penalty for same OAR offense

State v. Ernesto E. Lazo Villamil, 2017 WI 74, 7/6/17, affirming a published court of appeals decision; case activity (including briefs)

A few years ago the legislature set out to create a graduated penalty scheme for operating after revocation offenses, but it bungled the job and ended up creating misdemeanor and felony penalties for the offense of causing death while knowingly operating after revocation. The supreme court rebuffs Villamil’s claims that under the rule of lenity only the misdemeanor penalty can be imposed or, in the alternative, that creating two very different penalties for the same crime violates due process and equal protection. The court agrees with his request for resentencing, however, because the circuit court failed to consider the statutorily mandated sentencing factors.

The issue in this case results from the interaction of § 343.44(1)(b) and two penalty provisions in §343.44(2)(ar) created by 2011 Wisconsin Act 113Subsection (1)(b) creates the basic OAR offense of knowingly operating a motor vehicle during the period of revocation. Subsection (2)(ar) creates various penalties for violations of sub. (1)(b). The penalty for a simple violation is a forfeiture, sub. (2)(ar)1., while criminal penalties apply if there are certain aggravating circumstances—e.g., if the revocation was due to an OWI, sub. (2)(ar)2., or the driving caused great bodily harm, sub. (2)(ar)3., or death, sub. (2)(ar)4.

But there’s a problem: Both sub. (2)(ar)3. and 4. provide that if a person “violates sub. (1)(b)” and in the course of doing so causes great bodily harm or death to another, the person is subject to specified misdemeanor penalties, “except that, if the person knows at the time of the violation that his or her operating privilege has been revoked,” the person is guilty of a felony (Class I for great bodily harm, Class H for death). In other words, the statute obviously attempts to distinguish between the misdemeanor and felony based on whether the defendant knew he was revoked. This distinction is illusory, though, because sub. (1)(b) already requires that the defendant knew his license was revoked. Because a person can’t commit the basic OAR offense without that knowledge, knowingly operating after revocation and causing great bodily harm or death can be punished as either a misdemeanor or a felony.

The parties and a majority of the court agree § 343.44(2)(ar)4. is ambiguous. (¶¶24-29). (Villamil was charged with OAR causing death under sub. (2)(ar)4., so that is the focus of the decision, but the holdings here apply equally to OAR causing great bodily harm under sub. (2)(ar)3.) The parties and the court also agree that the legislature intended to create a graduated penalty scheme—a forfeiture for basic OAR without knowledge of revocation, a misdemeanor if the defendant operated without knowledge of revocation and caused death or great bodily harm, and a felony if the defendant operated knowing he was revoked and caused death or great bodily harm; however, the legislature failed to remove the “knowingly” element from § 343.44(1)(b) and thus failed to accomplish the first two steps of the scheme. (¶¶31-34).

Villamil argues that under the rule of lenity he can only be convicted of a misdemeanor, but the court disagrees. That rule applies only if a court is unable to clarify the intent of the legislature, State v. Cole, 2003 WI 59, ¶67, 262 Wis. 2d 167, 663 N.W.2d 700, and here “Villamil caused the death of another and knew his license had been revoked. The legislative history shows, and Villamil acknowledges, that the legislature intended to treat his offense as a Class H felony. Given this clarification, the rule of lenity cannot be invoked.” (¶34). The majority also declines the state’s invitation to hold that the knowledge requirement in § 343.33(1)(b) has been impliedly repealed, and effectively re-write the statute by judicial decision. The doctrine of implied repeal is disfavored, the court says, so it should be left to the legislature to amend the statute to achieve its intent. (¶¶35-37).

Like the court of appeals, then, the majority holds OAR causing death can be punished as either a felony or a misdemeanor. (¶38). Villamil argues that having significantly different penalties for the same offense violates his right to due process and equal protection, the court holds, but the majority disagrees, applying State v. Cissell, 127 Wis. 2d 205, 378 N.W.2d 691 (1985). Cissell rejected a similar challenge to two statutes that created identical crimes with different penalties, relying on the presumption that statutes are constitutional and on United States v. Batchelder, 442 U.S. 114 (1979), which held that overlapping criminal statutes with different penalty schemes do not violate constitutional principles unless the prosecutor selectively bases the charging decision upon an unjustifiable standard such as race, religion, or other arbitrary classification. Villamil doesn’t argue he’s the victim of invidious selective prosecution, so prosecuting him for the felony doesn’t violate due process or equal protection. (¶¶39-50).

Two concurring justices (Kelly, joined by R.G. Bradley) don’t think § 343.44(2)(ar)4. is ambiguous. They say the statute creates one penalty, a felony, because the “except that…” language negates the preceding misdemeanor penalty, and they criticize the majority for reading the exception language out of the statute. (¶¶66-76). But as the concurrence acknowledges, its reading makes the misdemeanor penalties “inoperable” surplusage; they think that’s okay because it’s due to “the inexorable operation of the statute’s duly adopted words,” and that “[i]f there is to be surplusage, let it be the result of the legislature’s work, not ours.” (¶78). But the fact the concurrence needs to render a big chunk of the statutory language “inoperable” and to ignore one of the two obviously contradictory penalties provisions belies its claim it is simply “apply[ing] the language as it exists….” (¶79).

Abrahamson dissents from the holding that creating felony and misdemeanor penalties for the same offense is constitutional, citing her dissent in Cissell and LaFave, et al.‘s criticism of Batchelder. (¶¶85-88).

While Villamil could be charged with a felony, he is entitled to resentencing. That’s because § 343.44(2)(b) says a sentencing court “shall … consider” certain specified factors, and the record shows the court failed to do that here. The state argued that, in this situation, “shall” should be interpreted to mean “may.” But there’s a long-established rule that “shall” is presumed to be mandatory, and the court finds no indication the legislature intended the “shall” in this statute to be directory or that interpreting it to be mandatory would lead to absurd results. (¶¶51-61).

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