July 27, 2017 – Ernesto Villamil was driving with a revoked license when he rear-ended another vehicle, killing the other driver. Recently, a state supreme court majority rejected his claim that the crime should be classified as a misdemeanor, not a felony.

Villamil argued that provisions within Wis. Stat. section 343.44, which applies to drivers whose licenses have been suspended or revoked, are ambiguous as to whether his crime was a misdemeanor or felony and so the “rule of lenity” applies. That rule says ambiguous criminal statutes should be applied in favor of the defendant.

But in State v. Villamil, 2017 WI 74 (July 6, 2 017), a four-justice majority said the rule of lenity does not apply because any ambiguity is clarified in the legislative history.

“We further determine that the statutory scheme does not violate his rights to either due process or equal protection,” wrote Justice Ann Walsh Bradley, noting Villamil had fair notice that driving while revoked, causing death, was a felony in Wisconsin.

However, the majority ruled that Villamil is entitled to a new sentencing because the sentencing court failed to consider certain factors that were required to be considered.

Justice Daniel Kelly (joined by Justice Rebecca Bradley) wrote a concurring opinion, arguing the statute that imposed the felony is not ambiguous. Justice Shirley Abrahamson dissented, raising a point about prosecutorial discretion.

Villamil Charged

Villamil was charged under section 343.44(1b), which prohibits driving with a revoked license, and 343.44(2)(ar)4, which says a person who knowingly drives with a revoked license and causes another person’s death commits a Class H felony.

He pled no contest. Under the plea agreement, the state would recommend a prison sentence but would not push for a particular length of time. During the plea hearing, Villamil told the judge that he knew his license was revoked when he drove the car.

By that time, Villamil had already served 15 months in jail. So the state recommended probation with a stayed prison sentence. The state noted that Villamil had completed alcohol treatment and obtained his general educational development (GED).

But the judge noted that Villamil had two prior drunk driving violations, as well as a prior conviction for operating a vehicle after revocation (OAR). The judge imposed the maximum sentence: three years in prison and three years extended supervision.

Villamil challenged the sentence on statutory and constitutional grounds, and argued for a new sentence on the ground that the judge did not adequately explain why the maximum sentence was imposed, and the statutes require adequate explanation.

The circuit court denied Villamil’s postconviction motion and an appeals court affirmed. But the appeals court ruled that Villamil was entitled to a new sentencing.

No Rule of Lenity

Villamil argued that the statutes are ambiguous because the felony charge for OAR causing death requires “knowledge” of the revocation. That would seem to suggest that he committed a misdemeanor if he did not know his license was revoked. But as Villamil pointed out, “knowledge” is still required to be charged with a misdemeanor.

Section 343.44(1b) says: “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).

Other provisions impose varying penalties, based on whether someone was hurt or killed. And section 343.44(2)(ar)4 is supposed to change a misdemeanor to a felony if the person “knew” his or her license is revoked, but “knowledge” is always required.

Thus, the statutes are ambiguous and the rule of lenity applies, Villamil argued. The majority agreed that the statute is ambiguous but declined to apply the rule of lenity because the statute can be clarified by looking at the legislative history.

Bill draft documents indicated that prior to 2012, a knowing violation of OAR causing death was a misdemeanor. But the new law increased that crime to a felony without removing the “knowledge” element from the misdemeanor language of the statute.

“Specific to this case, the legislative history shows the legislature’s intent to treat an OAR-causing death offense as a misdemeanor if the defendant did not know his license had been revoked and as a Class H felony if he knew,” Justice A.W. Bradley wrote.

Thus, the majority failed to apply the rule of lenity. But it declined to rule that the “knowledge” element of OAR is “impliedly repealed,” as the state argued.

“Although we agree that the legislative history indicates that the legislature intended to create a misdemeanor offense for persons who did not know their license had been revoked, we are tasked with interpreting the words that the legislature wrote,” wrote A.W. Bradley, noting that “implied repeal” is a disfavored rule of statutory construction.

“If the legislature desires to create a misdemeanor offense for an unknowing violation, as the legislative history indicates, then the legislature may do so by future amendment of the statutory text,” wrote Justice A.W. Bradley for the majority.

No Constitutional Violation

Villamil argued that his due process rights were violated because the statutes allow different penalties for the same conduct: the statutes did not give fair notice.

And, he argued that there is no rational basis for the difference, an equal protection violation, because disparate charging decisions based on race or religion can occur.

But the majority noted that statutes with different penalties for identical crimes are not per se unconstitutional. The question is whether a prosecutor unjustifiably discriminated against a protected class of citizens. And that is not what happened here.

“Villamil makes no suggestion the prosecutor chose to charge him with a felony violation instead of a misdemeanor based upon his race, religion, or other arbitrary classification,” Justice A.W. Bradley wrote. “[N]either the existence of different penalties for the same violation nor the prosecutor’s decision to charge Villamil with a felony violates his rights to due process or equal protection.”

New Sentencing Warranted

The appeals court ruled that Villamil was entitled to a new trial because the sentencing court did not follow Wis. Stat. section 343.44(2)(b), which requires the court to consider aggravating and mitigating circumstances, the class of vehicle, the number of prior convictions in the previous five years, the reason for revocation, and convictions for moving violations arising out of the incident that gave rise to the sentencing.

Villamil argued that the court did not consider all of these factors on the record. The state did not dispute that argument but said those considerations are not mandatory, even though the statute says the court “shall” consider the enumerated factors.

The majority did agree with the state’s position.

“We do not assume that the legislature chose the word ‘shall’ lightly, but instead assume it intended to require courts to consider the factors under Wis. Stat. § 343.44(2)(b), for a knowing violation of OAR-causing death,” A.W. Bradley wrote.

“We therefore remand for a new sentencing hearing because the record in this case fails to demonstrate that the court considered the required factors. …”

Concurrence and Dissent

Justice Daniel Kelly wrote a concurring opinion, joined by Justice Rebecca Bradley. He agreed that the appeals court decision should be affirmed, but for different reasons.

“The court agreed the statute is ambiguous, but without showing it to be so,” he wrote. “Consequent upon this unexplained premise, it embarked on a wholly unnecessary explanation of legislative history, the rule of lenity, and the due process implications of prosecutorial discretion. As a result, I cannot join Part III of this court’s opinion.”

Kelly examined the penalty statute to conclude that a person can never be guilty of a misdemeanor for an OAR-causing death, because “knowledge” is always a requirement, and knowledge will automatically place the defendant in the felony category. Thus, the prosecutorial discretion that Villamil complained of can never happen.

“Because the statute’s explicit terms welded the gate closed on the misdemeanor option, the plain language can yield no such prosecutorial discretion,” Kelly wrote.

“So it turns out the alleged ambiguity, the thing we spent so much time and effort fixing, is a problem of our own creation.”

Justice Kelly said it’s not the court’s role to fix what was likely a legislative drafting error, so long as the error does not lead to irrational or absurd results.

Justice Shirley Abrahamson dissented. She said prosecutorial discretion is an accepted part of the criminal justice system, but “the legislature’s adoption of criminal statutes identical except for penalty is an unlawful delegation of power to the executive branch of government contrary to the separation of powers doctrine” in the state constitution.