                                                                      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,

                                                 14
                                                                        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

                                             17
                                                               No.    2015AP791-CR

      ¶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

                                               21
                                                                           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.




                                  23
                                                                      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
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(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

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    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.




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