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Statute creating both misdemeanor and felony offense isn’t subject to rule of lenity, doesn’t violate due process or equal protection

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

The issue in this case arises from overlapping language in § 343.44(1)(b) and (2)(ar)4. (created by 2011 Wis. Act 113 effective March 1, 2012). Subsection (1)(b) creates the basic OAR offense of knowingly operating a motor vehicle during the period of revocation. Subsection (2) creates various penalties for the basic OAR offense under sub. (1)(b), and sub. (2)(ar)4. provides that if a person violates sub. (1)(b) and, in the course of the violation, causes the death of another, the person is subject to misdemeanor penalties (a fine of $7,500 to $10,000, one year in jail, or both), “except that, if the person knows at the time of the violation that his or her operating privilege has been revoked, the person is guilty of a Class H felony.”

So sub. (2)(ar)4. establishes a misdemeanor offense of causing the death of another while violating sub. (1)(b), but then makes the same offense a felony if the violator knew his operating privilege was revoked. But this “knowledge” distinction between the felony and misdemeanor is illusory: Subsection (1)(b) itself requires that the defendant knew his privilege was revoked. A person can’t commit either offense without that knowledge, so the two offenses have the same elements.

Lazo Villamil argues this makes the statute ambiguous as to which penalty should apply to him and that the rule of lenity means the misdemeanor penalties should apply. The court disagrees. The rule of lenity applies only when the statute is ambiguous and the court can’t clarify the intent of the legislature by resort to legislative history. State v. Cole, 2003 WI 59, ¶67, 262 Wis. 2d 167, 663 N.W.2d 700. (¶8). Any ambiguity in this case is resolved by legislative history (¶11)—in particular the Legislative Reference Bureau’s analysis of the bill that became Act 113:

¶12     ….[T]he legislative history clarifies that the legislature intended to write these provisions so that in a situation where a person causes the death of another while OWL, OWS, or OAR, the penalty would be less severe if the operator did not know he/she did not possess a valid license or his/her license was suspended or revoked, and would be more severe if he/she knew. See Wis. Stat. §§ 343.05(5)(b)5., 343.44(2)(ag)3., (ar)4. Specifically relevant to this case, the history shows the legislature’s intent to treat an OAR causing death offense as a misdemeanor if the operator did not know his/her license had been revoked and as a Class H felony if the operator knew. The legislature, however, failed to remove the “knowledge” element from the misdemeanor language of §§ 343.44(1)(b)/343.44(2)(ar)4., and thus failed to accomplish the first part of this intent. Nonetheless, in a situation like that now before us, where Lazo Villamil caused the death of another and knew his license had been revoked, the legislative history shows, and Lazo Villamil acknowledges, the legislature intended to treat such an offense as a Class H felony.

Applying State v. Cissell, 127 Wis. 2d 205, 378 N.W.2d 691 (1985), the court also disagrees with Lazo Villamil that § 343.44(2)(ar)4. violates equal protection and due process. Cissell rejected a similar challenge to two statutes that created identical element crimes with different penalties, relying on the presumption that statutes are constitutional and on United States v. Batchelder, 442 U.S. 114 (1979) (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). Thus, “the fact that the defendant’s conduct may be chargeable under either of two statutes does not make prosecution under one or the other statute improper per se; the focus instead is on whether the prosecutor unjustifiably discriminated against any class of defendants.” 127 Wis. 2d at 216. (¶¶16-17). In this case:

¶18      Lazo Villamil makes no suggestion the prosecutor in this case chose to charge him with a felony violation instead of a misdemeanor based upon Lazo Villamil’s “race, religion or other arbitrary classification.” Under Cissell, neither the existence of different penalties for violations of the same elements nor the prosecutor’s decision to charge the felony penalty here violates due process or equal protection principles.

Nor does the existence of two penalties for the same crime make the statute void for vagueness:

¶20      …. There is no question what conduct is prohibited or what standard must be applied by prosecutors and courts. … Wis. Stat. § 343.44(2)(ar)4. … “makes clear that a person knowingly operating a vehicle while revoked faces the penalties applicable for a Class H felony if, in the course of the violation, he or she causes the death of another.” That a prosecutor could charge a person with a misdemeanor instead of a felony for the same offense does not mean the prohibited conduct is unclear or that the public is not on notice that such an offense may well result in a felony conviction…. The legislature may have erred in the language it actually adopted by failing to remove the “knowledge” element for a misdemeanor offense of causing a death while OAR; however, that just means an individual cannot be convicted of unknowing OAR causing death,… it does not invalidate a felony knowing OAR causing death conviction and sentence.

Though his challenge to being convicted and sentenced for the felony fails, Lazo Villamil 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. Under State v. Grady, 2007 WI 81, 302 Wis. 2d 80, 734 N.W.2d 364, this “shall consider” language created a mandatory duty, and failure to follow that duty is an erroneous exercise of discretion that must be remedied by a new sentencing hearing. (¶¶23-29).

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