Sentencing

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Ernesto E. Lazo Villamil

Case No.: 2015AP791-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Sentencing

Ernesto Lazo Villamil appeals (1) his judgment of conviction for felony causing a death while knowingly operating a motor vehicle after his driver’s license was revoked (OAR) and (2) the denial of his motion for postconviction relief. He argues that the statutory provisions underlying his conviction and sentence, WIS. STAT. § 343.44(1)(b) (2009-10)2 and WIS. STAT. § 343.44(2)(ar)4. (eff. Mar. 1, 2012), are ambiguous as to whether he should be convicted of and sentenced for a misdemeanor or a felony, and therefore, under the rule of lenity, he should be convicted of and sentenced on a misdemeanor, rather than the felony under which he is now convicted and sentenced. Relatedly, he further contends the statutory scheme is unconstitutional on due process and equal protection grounds because it does not provide fair notice of the conduct that is prohibited or adequate standards for when a defendant should be prosecuted and adjudicated for a misdemeanor or a felony. Lastly, he asserts he is entitled to resentencing because the court failed to consider specific factors enumerated in § 343.44(2)(b) when it sentenced him.

We conclude the rule of lenity is not applicable here and the statutory scheme under which Lazo Villamil was convicted and sentenced is constitutional. We do, however, return this matter to the circuit court for resentencing of Lazo Villamil because the record indicates the court failed to consider factors required by WIS. STAT. § 343.44(2)(b). Thus, we affirm in part, reverse in part, and remand for further proceedings.

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