State v. Ernesto E. Lazo Villamil

2017 WI 74

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP791-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent-Cross Petitioner,
v.
Ernesto E. Lazo Villamil,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 371 Wis. 2d 519, 885 N.W.2d 381
PDC No: 2016 WI App 61

OPINION FILED: July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 12, 2017

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Donald J. Hassin Jr. and Michael J. Aprahamian

JUSTICES:
CONCURRED: KELLY, J., joined by R.G. BRADLEY, J. concurs
(opinion filed).
DISSENTED: ABRAHAMSON, J. dissents (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

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.
 2017 WI 74

NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP791-CR
(L.C. No. 2012CF1343)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Cross
Petitioner, FILED
v.
JUL 6, 2017
Ernesto E. Lazo Villamil,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANN WALSH BRADLEY, J. 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
 No. 2015AP791-CR

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 lenity2 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.

1
State v. Villamil, 2016 WI App 61, 371 Wis. 2d 519, 885
N.W.2d 381 (affirming in part and reversing in part a judgment
and order for Waukesha County, Donald J. Hassin, Jr., and
Michael J. Aprahamian, J.J., presiding).
2
For a definition of the rule of lenity, see infra ¶27.
3
The Fourteenth Amendment to the United States Constitution
provides that no state shall "deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the
laws."

2
 No. 2015AP791-CR

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).
I

3
 No. 2015AP791-CR

¶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.

4
Villamil was originally charged with one count of OAR,
causing great bodily harm, contrary to Wis. Stat. § 343.44(1)(b)
and (2)(ar)3.(1). Following the death of the driver of the
other vehicle, the State filed an amended complaint charging
Villamil with "knowingly operating while revoked-causing death,"
contrary to Wis. Stat. § 343.44(1)(b) and (2)(ar)4(2).

4
 No. 2015AP791-CR

¶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

5
 No. 2015AP791-CR

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.,

6
 No. 2015AP791-CR

¶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

7
 No. 2015AP791-CR

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.

8
 No. 2015AP791-CR

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

to clarify the intent of the legislature by resort to

legislative history. Id.

¶28 It is undisputed that the statute is ambiguous. The

State, however, contends that this court should resolve any

ambiguity by finding that the knowledge element of the offense

of OAR has been impliedly repealed.

¶29 We agree with the parties that the statute is
ambiguous. Here, the interaction between Wis. Stat.

9
 No. 2015AP791-CR

§ 343.44(1)(b) and Wis. Stat. § 343.44(2)(ar)4 creates ambiguity

because the same offense is punishable as either a misdemeanor

or a felony. DOC v. Schwarz, 2005 WI 34, ¶14, 279 Wis. 2d 223,

693 N.W.2d 703 ("ambiguity can be found . . . by the words of

the provision as they interact with and relate to other

provisions in the statute and to other statutes.") (quotation

marks and quoted source omitted).

¶30 Because we determine that the interaction of the

statutory scheme renders it ambiguous, we turn next to the

relief requested by the parties. First, we do not agree with

Villamil that the rule of lenity should be applied in this case.

Although the rule of lenity provides generally that ambiguous

penal statutes should be interpreted in favor of the defendant,

it applies only if a penal statute is ambiguous and "we are

unable to clarify the intent of the legislature by resort to

legislative history." Cole, 262 Wis. 2d 167, ¶67.

¶31 Examining the legislative history of Wis. Stat.

§ 343.44 clarifies the intent of the legislature that persons

who commit a knowing violation of OAR-causing death be charged
with a Class H felony. The Legislative Reference Bureau

analysis for 2011 Assembly Bill 80 ("A.B. 80") recognized that

under the law as it existed prior to enactment of 2011 Wisconsin

Act 113 ("Act 113"), a defendant who committed a knowing OAR

violation was guilty of "a Class A misdemeanor, punishable by a

maximum fine of $10,000 or a maximum term of imprisonment of

nine months or both." See Drafting file for 2011 Wis. Act. 113,

Analysis by the Legislative Reference Bureau of 2011 A.B. 80,
Legislative Reference Bureau, Madison, Wis.; see also Wis. Stat.

10
 No. 2015AP791-CR

§ 343.44(2)(b) (2009–10). It explained that A.B. 80 "creates

new penalties for [OAR] violations in which the person, in the

course of the violation, causes . . . death to another person."

LRB Analysis of A.B. 80, p. 2 (emphasis added).

¶32 The LRB's analysis additionally observed that under

A.B. 80, the penalty is intended to increase if a person

committed a knowing violation:

If the person causes the death of another in the
course of the OWL or OWS violation, the person: 1)
must forfeit not less than $7,500 nor more than
$10,000 if the person did not know, respectively, that
he or she did not possess a valid operator's license
or that his or her operating privilege was suspended;
or 2) is guilty of a Class H felony if the person
knew. A Class H felony is punishable by a maximum
fine of $10,000 or a maximum term of imprisonment of
six years or both . . . If the person causes the death
of another in the course of the OAR violation, the
person: 1) must be fined not less than $7,500 nor more
than $10,000 or imprisoned for not more than one year
or both if the person did not know that his or her
operating privilege was revoked; or 2) is guilty of a
Class H felony if the person knew.
LRB Analysis of A.B. 80 at 2–3 (emphasis added).

¶33 Thus, the legislative history clarifies that the

legislature intended to write these provisions so that when a

person causes the death of another while committing an OAR

violation, the penalty would be less severe if the defendant did

11
 No. 2015AP791-CR

not know his license was revoked and more severe if he knew.5

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.

¶34 It appears, however, that the legislature failed to

remove the "knowledge" element from the misdemeanor language of

Wis. Stat. § 343.44(1)(b) and thus failed to accomplish the

first part of this intent. Nevertheless, in his case, 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.

B

¶35 The State urges this court to conclude that the

knowledge element of the offense of operating after revocation

has been impliedly repealed. According to the State, repeal of

5
Based on the LRB Analysis of A.B. 80 and the Legislative
Council Memo regarding Act 113, it appears that the legislature
intended that that the offenses of operating while suspended and
operating after revocation have symmetrical penalties. See LRB
Analysis of A.B. 80 at 2–3; see also Wis. Leg. Council, Act
Memo, 2011 Wis. Act. 113. The legislature made the offense of
operating while suspended a non-knowing offense. See Wis. Stat.
§ 343.44(1)(a) ("A person's knowledge that his or her operating
privilege is suspended is not an element of the offense under
this paragraph."). However, the legislature failed to similarly
revise the offense of operating after revocation pursuant to
Wis. Stat. § 343.44(1)(b).

12
 No. 2015AP791-CR

the element of knowledge in the offense of operating after

revocation is implied by the legislative history of Act 113.

¶36 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. Kalal explained that "[i]t is the enacted

law, not the unenacted intent, that is binding on the public."

Id., ¶46. Here, the legislature wrote the statutory scheme so

that knowledge of revocation status is an element of both the

misdemeanor and felony provision. As set forth above, in this

case Villamil was charged with the felony offense intended by

the legislature for a knowing violation of OAR-causing death.

¶37 We further observe that implied repeal is a disfavored

rule of statutory construction. See, e.g., Heaton v. Larsen, 97

Wis. 2d 379, 392-93 ("Repeals by implication are not favored in

the law."). 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. See State v. Reagles, 177 Wis. 2d 168, 176,

501 N.W.2d 861 (1993) ("If a statute fails to cover a particular

situation and the omission should be cured, the remedy lies with

the legislature, not the courts."). Thus, we decline the

State's invitation to rewrite the statute in order to create an

offense for an "unknowing" violation and hold the application of

Wis. Stat. §§ 343.44(1)(b) and (2)(ar)4. to the language the

legislature wrote. See State v. Jadowski, 2004 WI 68, 273
Wis. 2d 418, 680 N.W.2d 810 (it is legislature's broad power to

13
 No. 2015AP791-CR

promote the public welfare that authorizes it to create and

define criminal offenses).

¶38 Accordingly, we agree with the court of appeals that

the rule of lenity does note apply here. We hold the

application of Wis. Stat. §§ 343.44(1)(b) and (2)(ar)4. to the

language the legislature wrote——that the defendant's "knowledge"

of his revocation status is an element of both the misdemeanor

as well as the felony provision. It was the legislature's

intent to apply the more severe penalty to Villamil's offense

and he was appropriately charged with a Class H felony.

IV

¶39 We turn next to Villamil's argument that statutes

which prescribe significantly different penalties for the exact

same conduct cannot be applied constitutionally. According to

Villamil, the failure of a statute to give fair notice of the

proscribed conduct and the consequences violates due process.

Additionally, he contends that a statute violates equal

protection when there is no rational basis for the distinction

between misdemeanor and felony penalties.
¶40 Our analysis of Villamil's constitutional arguments

begins with the observation that legislative enactments are

presumed constitutional and the party challenging the

constitutionality must prove the statute unconstitutional beyond

a reasonable doubt. McManus, Wis. 2d at 129. If possible, we

construe the statute to preserve it. State v. Popanz, 112

Wis. 2d 166, 172, 332 N.W.2d 750 (1983).

¶41 Due process requires that penal statutes provide fair
notice of the conduct they seek to proscribe. State v. Nelson,

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 No. 2015AP791-CR

2006 WI App 124, ¶41, 294 Wis. 2d 578, 718 N.W.2d 168. This

notice does not have to be provided with absolute clarity. Id.,

¶36. Additionally, when considering an equal protection

challenge that does not involve a suspect or quasi-suspect

classification, "the fundamental determination to be made . . .

is whether there is arbitrary discrimination in the

statute . . . and thus whether there is a rational basis which

justifies a difference in rights afforded." In re Joseph E.G.,

2001 WI App 29, ¶8, 240 Wis. 2d 481, 623 N.W.2d 137.

¶42 This court's decision in State v. Cissell, 127

Wis. 2d 205, 378 N.W.2d 691 (1985), guides our analysis of

Villamil's constitutional challenge. Cissell asserted, and this

court agreed, that the elements of felony abandonment were

substantially identical to the elements of misdemeanor failure

to support. Id. at 214. He argued that statutes with identical

substantive elements but different penalty schemes violate due

process and equal protection. Id.

¶43 Similar to this case, Cissell contended that the State

violated his constitutional rights by charging him with a felony
rather than a misdemeanor. Id. Cissell further argued that

"disparate sentencing exposures for crimes with identical

elements are irrational and arbitrary." Id.

¶44 Following United States v. Batchelder, 442 U.S. 114

(1979), the Cissell court determined that "identical element

crimes with different penalties do not violate due process or

equal protection." 127 Wis. 2d 215. It explained that the

Batchelder court concluded that overlapping criminal statutes
with different penalty schemes "do not violate constitutional

15
 No. 2015AP791-CR

principles unless the prosecutor selectively bases the charging

decision upon an unjustifiable standard such as race, religion,

or other arbitrary classification." Id. (citing Batchelder, 442

U.S. at 125 n.9).

¶45 Cissell reasoned that "[T]he 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 . . . ." 127 Wis. 2d 216. It explained that "the focus

instead is on whether the prosecutor unjustifiably discriminated

against any class of defendants." Id. "Differences in

treatment between individuals . . . are determined as a matter

of prosecutorial discretion. . . . [S]uch discretion is not

unconstitutional unless the prosecutor discriminates on the

basis of unjustifiable criteria." Id.

¶46 Thus, in Cissell we concluded that "[a]lthough [the

statutes] are identical crimes with different penalties, the

state does not deny equal protection or due process by charging

defendants with the more serious crime." Id. at 224. This

court determined that the statute at issue in Cissell did not
violate due process because it "provide[d] adequate notice of

the conduct proscribed by the statute and those who must obey

it." Id. at 225. We explained that "[i]t also provides a

defined standard for those who must enforce the law and

adjudicate guilt." Id.

¶47 In this case, 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. Accordingly, under Cissell, neither

16
 No. 2015AP791-CR

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.

¶48 Villamil attempts to distinguish the facts of this

case from Cissell by arguing that in Cissell there were two

different offenses with substantively identical elements, where

here there is one offense within the same statutory provision

containing two distinct punishments. Although Villamil points

to a Utah Supreme Court case as support for this distinction, we

are not convinced that a meaningful distinction exists between

the circumstances here and those in Cissell. See State v.

Williams, 2007 UT 98, ¶1, 175 P.2d 1029.

¶49 Whether there is one criminal statute or two, both

this case and Cissell involve criminal statutes with

substantially identical elements where prosecutors have

discretion to decide whether they will charge a defendant with a

misdemeanor or a felony. Although a defendant could be charged

with a misdemeanor instead of a felony for a knowing violation

of OAR-causing death, the public is on notice that this offense
may be punished as a Class H felony pursuant to Wis. Stat.

§§ 343.44(1)(b) and (2)(ar)4. Because Villamil knew he was

operating after his license was revoked, the statutes provide

sufficient notice that this violation could be charged as a

felony.

¶50 Accordingly, we determine that Villamil has failed to

meet his burden of demonstrating that the statute is

unconstitutional beyond a reasonable doubt.
V

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¶51 We turn to address the State's cross-petition, which

asserts that the sentencing court was not required to consider

all of the statutorily enumerated factors on the record.

¶52 Wisconsin Stat. § 343.44(2)(b) provides that the court

"shall review the record and consider the following":

1. The aggravating and mitigating circumstances in
the matter, using the guidelines described in
par. (d).

2. The class of vehicle operated by the person.

3. The number of prior convictions of the person for
violations of the section within the 5 years preceding
the person's arrest.

4. The reason that the person's operating privilege
was revoked, or the person was disqualified or ordered
out of service, including whether the person's
operating privilege was revoked for an offense that
may be counted under s. 343.307(2).

5. Any convictions for moving violations arising out
of the incident or occurrence giving rise to
sentencing under this section.
¶53 In Grady, this court determined that "a circuit court

satisfies its [statutory] obligation when the record of the

sentencing hearing demonstrates that the court actually

considered the sentencing guidelines and so stated on the
record." 302 Wis. 2d 80, ¶3. Similar to the statute addressed

in Grady, Wis. Stat. § 343.44(2)(b) states that "[i]n imposing

sentence under par. (ar) or (br) the court shall . . . consider

the following," and then lists the specifically identified

18
 No. 2015AP791-CR

factors to be considered.6 Villamil asserts that the circuit

court failed to address several factors at sentencing.

¶54 The State does not dispute that the circuit court

failed to enumerate all of the statutorily-enumerated sentencing

factors on the record. Instead, it contends that at sentencing

Wis. Stat. § 343.44(2)(b) should be construed to be directory,

rather than mandatory. Although the State acknowledges that the

word "shall" is presumed to be mandatory, it asserts that there

is no per se rule to determine which way the word is used. See,

e.g., State ex rel. Marburry v. Macht, 2003 WI 79, ¶16, 262

Wis. 2d 720, 665 N.W.2d 155; State v. R.R.E., 162 Wis. 2d 698,

707, 470 N.W.2d 283 (1991). Thus, according to the State, in

determining whether the legislature intended "shall" to be

mandatory or directory, we should consider the objectives

intended to be accomplished by the statute and the potential

consequences of each interpretation.

¶55 The word "shall" can be construed as directory if

"such a construction is 'necessary to carry out the intent of

the legislature.'" Warnecke v. Estate of Warnecke, 2006 WI App
62, ¶12, 292 Wis. 2d 438, 713 N.W.2d 109 (quoting Karow v.

Milwaukee Co. Civil Serv. Comm'n, 82 Wis. 2d 565, 571 N.W.2d 214

(1978)). According to the State, interpreting the word "shall"

as mandatory leads to an unreasonable result because similar

6
The statute considered in State v. Grady, 2007 WI 81, 302
Wis. 2d 80, 734 N.W.2d 364, provided that "the court shall
consider . . . [i]f the offense is a felony, the sentencing
guideline." See Wis. Stat. § 973.017(2)(a) (2003-04).

19
 No. 2015AP791-CR

offenses, such as operating while suspended, do not require

consideration of these factors. See Wis. Stat. §§ 343.44(1)(a).

¶56 However, we agree with the court of appeals that the

State's argument underscores that the legislature intended to

treat OAR offenses differently. Villamil, 371 Wis. 2d 519, ¶26.

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.

¶57 Additionally, this case is distinguishable from other

cases in which courts have determined that an interpretation of

"shall" as mandatory would lead to an absurd result. See, e.g.,

In re Paternity of S.A. II, 165 Wis. 2d 530, 534-36, N.W.2d 21

(Ct. App. 1991). For example, in child custody matters, Wis.

Stat. ch. 767 previously provided that "the court shall

incorporate" the terms of a stipulation regarding a modification

of placement or custody into a revised order. Id. However, the

court of appeals reasoned that the best interests of a child are

the primary consideration in custody determinations, regardless
of the parties' stipulation. Id. Thus, it concluded that it

would be an absurd result if "shall" were interpreted to

prohibit an examination of the best interests of the child.

Id.; see also Eby v. Kozarek, 153 Wis. 2d 75, 80-81, 450

N.W.2d 249 (1990) (use of the word "shall" for statutory time

limit was directory because construing the statute as mandatory

would lead to an overly harsh result).

¶58 No such consideration applies here. Indeed, all of
the factors listed here are relevant to a sentencing decision

20
 No. 2015AP791-CR

for a knowing violation of OAR-causing death. These factors,

such as aggravating and mitigating circumstances, the class of

the vehicle, prior convictions, the reason for revocation, and

any convictions for moving violations arising out of the

incident are all relevant to punishment for this specific

offense. Accordingly, making their consideration mandatory does

not lead to an absurd result.

¶59 Finally, "support is given to a mandatory

interpretation of 'shall' when the legislature uses the words

'shall' and 'may' in a particular statutory section, indicating

the legislature was aware of the distinct meanings of the

words." State ex rel. Marberry v. Macht, 2003 WI 79, ¶16, 262

Wis. 2d 720, 665 N.W.2d 155. In this case, the legislature used

the word "shall" with regard to the factors set forth in Wis.

Stat. § 343.44(2)(b), but used "may" in Wis. Stat.

§ 343.44(2)(c), which provides that "penalties may be enhanced

by imprisonment and additional fines . . . ." Thus, "we can

infer that the legislature was aware of the different

denotations and intended the words to have their precise
meanings." State ex rel. Marberry v. Macht, 2003 WI 79, ¶16.

(quotation marks and quoted source omitted).

¶60 In light of the above, we conclude that the State has

failed to rebut the presumption that "shall" is mandatory here.

We thus determine 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.

¶61 The State does not dispute that the circuit court
failed to express its consideration of the statutory factors on

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 No. 2015AP791-CR

the record. Nor does it contend that the circuit court

considered those factors, but simply failed to reference Wis.

Stat. § 343.44(2)(b) on the record. We therefore remand for a

new sentencing hearing because the record in this case fails to

demonstrate that the court considered the required factors under

Wis. Stat. § 343.44(2)(b).

V

¶62 In sum, 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. Because Villamil

knew he was operating after his license was revoked, the

statutes provide fair notice that the prohibited conduct of

committing a knowing OAR-violation causing death could result in

a felony charge. There is no evidence that the charging

decision was based upon an unjustifiable standard such as race,

religion, or other arbitrary classification.
¶63 Additionally, 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.

¶64 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).

22
 No. 2015AP791-CR

By the Court.—The decision of the court of appeals is

affirmed.

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 No. 2015AP791-CR.dk

¶65 DANIEL KELLY, J. (concurring). Both the State and

Mr. Villamil want us to find an ambiguity in Wis. Stat.

§ 343.44, but for different reasons. The State would create out

of this ambiguity a new criminal offense——strict-liability

Operating After Revocation. Mr. Villamil, on the other hand,

would use the ambiguity to secure a misdemeanor punishment

instead of a felony sentence. The court agreed the statute is

ambiguous, but without showing it to be so. Consequent upon

this unexplained premise, it embarked on a wholly unnecessary

exploration of legislative history, the rule of lenity, and the

due process implications of prosecutorial discretion. As a

result, I cannot join Part III of the court's opinion.

I

¶66 I disagree with the court's assumed premise. It said

"the interaction between Wis. Stat. § 343.44(1)(b) and Wis.

Stat. § 343.44(2)(ar)4 creates ambiguity because the same

offense is punishable as either a misdemeanor or a felony."

Majority op., ¶29. But the plain language of the statute does
not allow such an option. It provides for a felony or nothing

at all.

¶67 Notwithstanding our fretting, applying Wis. Stat.

§ 343.44 to Mr. Villamil is entirely straightforward. The first

step, of course, is determining the meaning of the statute,

which begins with the language the legislature used. If there

is a plain meaning to be found there, that is where the analysis

1
 No. 2015AP791-CR.dk

also ends.1 Mr. Villamil's situation requires us to consider the

statute's definition of the crime with which he is accused (Wis.

Stat. § 343.44(1)(b)), as well as the penalty to which he is

subject (Wis. Stat. § 343.44(2)(ar)4.).

¶68 The offense of "Operating After Revocation" is defined

as follows: "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 . . . ." Wis. Stat. § 343.44(1)(b) (emphasis

added). The penalty for this offense depends, in part, on

whether the person harmed others while committing the offense.

If the driver causes the death of another, as Mr. Villamil did,

the statute provides the following penalty:

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.
Wis. Stat. § 343.44(2)(ar)4 (emphasis added).

¶69 Mr. Villamil says this language prevents him from

knowing whether he is subject to a misdemeanor or a felony

penalty. But if we give careful attention to how the actual

1
State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.'" (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis. 2d 211, 232, 612 N.W.2d 659)).

2
 No. 2015AP791-CR.dk

language of the offense and penalty provisions of this statute

operate, it will become almost immediately apparent that this

isn't so. There are four words in this statute that are

especially important to its proper functioning. The first is

"knowingly," and it appears in the definition of the offense.

The next two are "except that"——they appear in the penalty

provision and serve as the hinge point for the gate that gives

access to either the misdemeanor or the felony penalty. The

last is "know," and it helps tell us which way the gate should

swing.

¶70 I begin with the definition of the offense, where we

find that Operating After Revocation is not a strict liability

crime. It requires that the defendant know his privilege has

been revoked: "No person whose operating privilege has been

duly revoked under the laws of this state may knowingly operate

a motor vehicle . . . during the period of revocation . . . ."

Wis. Stat. § 343.44(1)(b) (emphasis added). Thus, if the person

does not know he is operating a motor vehicle while his
operating privileges are revoked, he cannot be prosecuted under

this statute at all. Mr. Villamil knew he was driving while his

operating privilege was revoked——as did everyone else convicted

under this version of the statute——and so he was properly

convicted of this offense.

¶71 Upon conviction, the court must proceed to the penalty

phase. Because Mr. Villamil caused a death while operating with

revoked privileges, we turn to Wis. Stat. § 343.44(2)(ar)4. for
the appropriate penalty. There is no doubt this penalty

3
 No. 2015AP791-CR.dk

provision describes both misdemeanor and felony sentences. But

there is also no doubt that it is impossible to be sentenced as

a misdemeanant under Wis. Stat. § 343.44(2)(ar)4.

¶72 The key to applying this penalty provision lies in the

hinge point created by the "except that" clause in subsection

(2)(ar)4. The misdemeanor penalty lies on one side of it, the

felony on the other. The condition identified by the "except

that" clause controls which way the gate swings. Satisfy the

condition, and the defendant is a felon. Leave it unsatisfied,

and the defendant is instead a misdemeanant.

¶73 This condition is where we come across the fourth

important word——"know." Here it is in context: "[E]xcept that,

if the person knows at the time of the violation that his or her

operating privilege has been revoked . . . ." Wis. Stat.

§ 343.44(2)(ar)4. So the condition that controls which way the

gate swings is whether the defendant knew, or did not know, that

he was operating his vehicle after revocation. Mr. Villamil

satisfied the condition because he knowingly operated his
vehicle after revocation.

¶74 Mr. Villamil is not the only one who will satisfy this

condition upon arriving at subsection (2)(ar)4. In fact,

everyone who reaches this subsection satisfies the condition.

For the gate to swing open on the misdemeanor penalty, the

defendant who stands for sentencing must not have known he had

operated his vehicle after revocation of his driving privileges.

But we know that will never happen because "knowing" is an
element of the offense——so the gate is always open only to the

4
 No. 2015AP791-CR.dk

felony penalty. Thus, so long as the statute remains as it is,

there will never be a pathway to the misdemeanor penalty.

¶75 So the only way to access the misdemeanor portion of

subsection (2)(ar)4.——as written——is to stop reading it before

reaching the "except that" language. But that is no way to read

a sentence. One must persevere to the period, and there is no

way to get there without encountering the exception.

¶76 That brings me back to the alleged ambiguity, which——

remember——is supposed to be that a prosecutor could opt between

misdemeanor and felony penalties. Because the statute's

explicit terms welded the gate closed on the misdemeanor option,

the plain language can yield no such prosecutorial discretion.

So it turns out the alleged ambiguity, the thing we spent so

much time and effort fixing, is a problem of our own creation.

We called it into existence by substantially re-writing

subsection (2)(ar)4. To make the misdemeanor and felony

sentences equally available, we had to make that statute say

this:

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, or the person is
guilty of a Class H felony.
We didn't explain why we should do this, nor did we even

acknowledge we did it. When the curtain went up and our

analysis started, the statute made its first appearance with

5
 No. 2015AP791-CR.dk

this meaning already attached to it. Responsibility for that

meaning lies not with any deus ex machina, it lies with us.

¶77 It is true that, one way or another, some part of

subsection (2)(ar)4. is going to be inoperable. It will happen

either because we recraft the language, or because we apply the

language as adopted by the legislature. Unfortunately, the

court chose the former. It struck out the "except that" clause

that previously governed how the gate swings and transferred its

erstwhile function to the State's prosecutors. We are supposed

to be chary of such readings. Kalal, 271 Wis. 2d 633, ¶46

("Statutory language is read where possible to give reasonable

effect to every word, in order to avoid surplusage.").

¶78 The part of subsection (2)(ar)4. that is inoperable is

the part providing for a misdemeanor penalty. That

inoperability, however, does not result from judicial language-

tweaking. It results from the inexorable operation of the

statute's duly adopted words. The legislators orphaned the

misdemeanor penalty, but it was theirs to orphan and it is no
business of ours to countermand them. We do not dishonor

Kalal's admonition by applying the statute as written because we

did not create the surplusage. It was already there when Mr.

Villamil brought it to us. If there is to be surplusage, let it

be a result of the legislature's work, not ours.

¶79 As a practical matter, we have a pretty good idea of

how this problem came to be; it was most likely a drafting

error. See Majority op., ¶¶31-34. The legislature apparently
aimed at changing "Operating After Revocation" to a strict

6
 No. 2015AP791-CR.dk

liability offense, but with a more onerous penalty for knowing

violations. It didn't quite get there. We do not, however,

have the authority to complete what it started. Therefore,

because we can apply the language as it exists, and the result

is neither irrational nor absurd, that is what we should have

done. Because we didn't, I cannot join Part III of the court's

opinion.

II

¶80 Perhaps the court reached the conclusion it did

because, at its core, the analysis rests on an enigma: The

court said Wis. Stat. § 343.44 is ambiguous, but it did not say

why. Ambiguity arises, of course, when a statute "is capable of

being understood by reasonably well-informed persons in two or

more senses." State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004 WI 58, ¶47, 271 N.W.2d 633, 681 N.W.2d 110. If that

occurs, we apply our disambiguation canons to get at the proper

meaning. The first step, however, is diagnostic——we must

determine whether the statute can carry multiple meanings.
¶81 The court skipped this step and jumped straight to the

conclusion that a statute giving prosecutors discretion to seek

either misdemeanor or felony penalties is ambiguous. But if

that is true, then our opinion thoroughly undercuts itself.

While naming this discretion an ambiguity, we simultaneously

affirmed that it is just fine so long as the prosecutor does not

unjustifiably discriminate against the defendant in making his

choice. Quoting State v. Cissell, we said "the fact that the
defendant's conduct may be chargeable under either of two

7
 No. 2015AP791-CR.dk

statutes does not make prosecution under one or the other

statute improper per se . . . ." Majority op., ¶45 (quoting

State v. Cissel, 127 Wis. 2d 205, 216, 378 Wis. 2d 691 (1985)).

We didn't so much as breathe the word "ambiguous" in that case.

And for good reason——Cissel relied largely on United States v.

Batchelder, in which the Supreme Court ruled that no ambiguity

arises from statutes that provide different penalties for the

same conduct. 442 U.S. 114, 121 (1979).

¶82 So our opinion is at odds with itself. Charging

options of this nature are either ambiguities in need of

resolution (pace Batchelder), or they are legitimate grants of

discretion to prosecutors. They can't be both. Thus, when we

say Wis. Stat. § 343.44 "creates ambiguity because the same

offense is punishable as either a misdemeanor or a felony," we

are creating an ambiguity. Our opinion could be understood as

asserting that a statute that allows for misdemeanor/felony

charging options is, on that basis alone, ambiguous. Or it

could be understood as assuming the existence of ambiguous (and
unidentified) language that could be read as allowing for such

charging options. If it is the former, our opinion refutes

itself. If it is the latter, we should have identified the

ambiguous language and described the two senses in which it

could be understood. Because we didn't, the issue around which

all else revolved——the statute's alleged ambiguity——remained an

enigma to the last.

8
 No. 2015AP791-CR.dk

III

¶83 Because I do not agree that Wis. Stat. § 343.44 is

ambiguous, I cannot join Part III of the court's opinion.

However, I join the rest of it, and the mandate, because the

plain and unambiguous language of Wis. Stat. § 343.44 requires

that Mr. Villamil receive a felony sentence.

¶84 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence.

9
 No. 2015AP791-CR.ssa

¶85 SHIRLEY S. ABRAHAMSON, J. (dissenting). I usually

do not persist in a dissent. Ordinarily after dissenting I am

guided by the precedent established by a majority opinion. In

the instant case, however, I am persuaded that my dissent in

State v. Cissell, 127 Wis. 2d 205, 228, 378 N.W.2d 691 (1985),

continues to have merit.

¶86 I wrote then and repeat now: Although broad

prosecutorial discretion is an accepted part of our criminal

justice system, 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 encompassed in the Wisconsin Constitution.

There is no rational basis for two criminal statutes that are

identical except for their respective penalties, and resting

such unbridled discretion in the prosecuting attorney violates

our concept of fundamental fairness and equal protection of the

laws. Wis. Const. art. I, §§ 1, 8(1).

¶87 I agree with the dissection of United States v.
Batchelder, 442 U.S. 114 (1979), by Professors Wayne LaFave,

Jerold Israel, Nancy King, and Orrin S. Kerr in 4 Criminal

Procedure § 13.7(a) at 284-88 (4th ed. 2015). The instant case

is the third type of statute discussed by the professors:

In assaying the Batchelder reasoning, it is useful to
think about three types of situations in which a
defendant's conduct may fall within two statutes.
They are: (1) where one statute defines a lesser
included offense of the other and they carry different
penalties (e.g., whoever carries a concealed weapon is
guilty of a misdemeanor; a convicted felon who carries
a concealed weapon is guilty of a felony); (2) where
the statutes overlap and carry different penalties
1
 No. 2015AP791-CR.ssa

(e.g., possession of a gun by a convicted felon,
illegal alien or dishonorably discharged serviceman is
a misdemeanor; possession of a gun by a convicted
felon, fugitive from justice, or unlawful user of
narcotics is a felony); (3) where the statutes are
identical (e.g., possession of a gun by a convicted
felon is a misdemeanor; possession of a gun by a
convicted felon is a felony). The Court in Batchelder
had before it a situation falling into the second
category, but [it] seems to have concluded that the
three statutory schemes [were] indistinguishable for
purposes of constitutional analysis. But in terms of
either the difficulties which are confronted at the
legislative level in drafting statutes or in the
guidance which is given to a prosecutor by the
legislation, the three schemes are markedly different.

The first of the three is certainly unobjectionable.
Such provisions are quite common (robbery-armed
robbery; battery-aggravated battery; joyriding-theft;
housebreaking-burglary), and usually are a consequence
of a deliberate attempt by the legislature to identify
one or more aggravating characteristics which in the
judgment of the legislature should ordinarily be
viewed as making the lesser crime more serious. They
afford guidance to the prosecutor, but——as noted in
Batchelder——do not foreclose the prosecutor from
deciding in a particular case that, notwithstanding
the presence of one of the aggravating facts, the
defendant will still be prosecuted for the lesser
offense.

By contrast, the third of the three is highly
objectionable. It is likely to be a consequence of
legislative carelessness, and even if it is not such a
scheme serves no legitimate purpose. There is nothing
at all rational about this kind of statutory scheme,
as it provides for different penalties without any
effort whatsoever to explain a basis for the
difference. It cannot be explained in terms of giving
assistance to the prosecutor. "Where statutes are
identical except for punishment, the prosecutor finds
not the slightest shred of guidance." It confers
discretion which is totally unfettered and which is
totally unnecessary. And thus the Court in Batchelder
is less than convincing in reasoning that this third
category is unobjectionable simply because in other
instances, falling into the first category, the need

2
 No. 2015AP791-CR.ssa

for discretionary judgments by the prosecutor has not
been and cannot be totally eliminated.

As for the second of the three categories, it clearly
presents a harder case. Here as well, the dilemma is
likely to have been created by legislative
carelessness . . . . [O]verlapping statutes are very
common at both the federal and state level, and it can
hardly be said that in every instance they are a
consequence of poor research or inept drafting.
Drafting a clear criminal statute and still ensuring
that in no instance could it cover conduct embraced
within any existing criminal statute in that
jurisdiction can be a formidable task. (This fact
alone may make courts somewhat reluctant to find
overlap per se unconstitutional, although the
consequence of such a finding, limiting punishment to
that under the lesser of the two statutes until such
time as the legislature decides what to do about the
now-identified overlap, is hardly a cause for alarm.)
Moreover, in the overlap scheme the two statutes will
at least sometimes assist the prosecutor in deciding
how to exercise his charging discretion. (Footnotes
omitted.)
The Utah Supreme Court has adopted this position. See State v.

Williams, 175 P.3d 1029 (2007).

¶88 For the reasons set forth, I dissent.

3
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1