State v. Christopher W. Yakich

2022 WI 8SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1832-CR & 2019AP1833-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Christopher W. Yakich,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 396 Wis. 2d 195,956 N.W.2d 465(2021 – unpublished)
OPINION FILED: February 16, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 8, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waupaca
JUDGE: Vicki L. Clussman
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and
KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion,
in which ANN WALSH BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Cary Bloodworth, assistant state public defender. There
was an oral argument by Cary Bloodworth.
For the defendant-appellant, there was a brief filed by Scott
E. Rosenow, assistant attorney general, with whom on the brief was
Joshua L. Kaul, attorney general. There was an oral argument by
Kara Lynn Janson, assistant attorney general.
2022 WI 8NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2019AP1832-CR & 2019AP1833-CR
(L.C. Nos. 2018CF169 & 2018CF301)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. FEB 16, 2022
Christopher W. Yakich, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY,
JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of an
unpublished decision of the court of appeals, State v. Yakich,
Nos. 2019AP1832-CR & 2019AP1833-CR, unpublished slip op. (Wis. Ct.
App. Jan. 14, 2021), affirming the Waupaca County circuit court's1
orders committing Christopher W. Yakich to the Wisconsin
Department of Health Services for a total period of five years.
1 The Honorable Vicki L. Clussman presided.
Nos. 2019AP1832-CR & 2019AP1833-CR
¶2 In two separate cases, Yakich pleaded guilty to three
counts of bail jumping and one count of phone harassment. In the
first case, he pleaded guilty to one count of bail jumping and one
count of phone harassment, and in the second case, he pleaded
guilty to two counts of bail jumping. The circuit court accepted
Yakich's pleas in both cases at the same hearing. After the
parties agreed that Yakich was not guilty by reason of mental
disease or defect ("NGI")2 for all four of his offenses, the court
ordered a five-year NGI commitment period. In so doing, the
circuit court ordered a two-year term of commitment for one of
Yakich's cases and a three-year term of commitment for the second
case. The commitment periods were ordered to run consecutively.
¶3 On appeal, Yakich argues that the circuit court's two
commitment orders must run concurrently and cannot run
consecutively. However, we hold that Wis. Stat. § 971.17 (2017-
18)3 provides circuit courts with the statutory authority to impose
consecutive periods of NGI commitment. Because the circuit court
properly exercised its authority to impose consecutive NGI
2 In Wisconsin, individuals can be found "not guilty by reason
of mental disease or defect" of a criminal charge. See Wis. Stat.
§ 971.15 (2019-20) (explaining the standard for asserting the
defense of not guilty by reason of mental disease or defect).
"This is known in common parlance as the 'insanity' defense."
State v. Burton, 2013 WI 61, ¶42, 349 Wis. 2d 1, 832 N.W.2d 611.
Thus, "NGI," for "not guilty by reason of insanity," is used as a
shorthand.
3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2
Nos. 2019AP1832-CR & 2019AP1833-CR
commitment periods, the circuit court and the court of appeals are
affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 There are two criminal cases at issue. In May 2018,
Yakich called his mother to tell her that he intended to assault
his brother and burn his brother's house to the ground. At the
time of the phone call, Yakich was on a signature bond for
unrelated criminal charges. He was subsequently charged in Waupaca
County circuit court with one count of phone harassment and one
count of felony bail jumping, and he was released again on
signature bond.4 This is the first criminal case at issue.
¶5 In August 2018, while on bond, Yakich called the Waupaca
County Department of Health and Human Services distressed and
contemplating suicide. Police went to Yakich's apartment to
conduct a welfare check. When the police arrived, they found the
front door barricaded; Yakich refused to answer the door. After
the police attempted to enter the apartment through use of a
battering ram, Yakich exited his apartment through a back entrance.
The police quickly apprehended Yakich behind his apartment, and he
was handcuffed and searched. Yakich began yelling frantically,
casting profanities, and accusing police of sexual assault. Once
Yakich was arrested, police entered his apartment and, in plain
view, officers observed drug paraphernalia and suspected illegal
narcotics. After obtaining a search warrant, police seized drug
4 Waupaca County Case No. 2018CF169.
3
Nos. 2019AP1832-CR & 2019AP1833-CR
paraphernalia and controlled substances in Yakich's possession;
marijuana and traces of cocaine were discovered.
¶6 As a result of the events in August 2018, the State
charged Yakich in Waupaca County circuit court with two counts of
felony bail jumping and one count each of misdemeanor bail jumping,
telephone harassment, obstructing an officer, possession of
tetrahydrocannabinols ("THC"), disorderly conduct, and possession
of drug paraphernalia.5 This is the second criminal case at issue
in the instant dispute.
¶7 After Yakich was charged in both cases, he entered into
a global plea agreement to resolve his outstanding charges. He
pleaded guilty to felony bail jumping and phone harassment in the
first case, and he pleaded guilty to two counts of felony bail
jumping in the second case. Yakich then pleaded NGI to those same
counts.6 The State chose to not object to Yakich's NGI plea. At
a hearing in December 2018, the circuit court accepted Yakich's
guilty and NGI pleas for both criminal cases.
¶8 At the December 2018 hearing, the State argued that the
court should impose a two-year NGI commitment period for the first
case and a three-year NGI commitment period for the second case.
In total, the State asked that the court order five years of NGI
5 Waupaca County Case No. 2018CF301.
6 NGI pleas are "bifurcated into two phases: the guilt phase
and the responsibility phase." State v. Fugere, 2019 WI 33, ¶¶26-
27, 386 Wis. 2d 76, 924 N.W.2d 469. The defendant proceeds to an
NGI determination only after he is "found guilty of the elements
of the crime(s)." Id.4
Nos. 2019AP1832-CR & 2019AP1833-CR
commitment, with the two commitment periods running consecutively.
Yakich opposed the State's proposal. He argued that the circuit
court could run the two NGI commitment orders only concurrently,
and thus, according to Yakich, a total commitment period of three
years was warranted.
¶9 The circuit court agreed with the State. It imposed a
five-year commitment period, running a two-year period in the first
case consecutive to a three-year period in the second case.
Further, the circuit court ordered that Yakich be
institutionalized in order to receive proper mental health
treatment.
¶10 Yakich appealed the circuit court's orders, arguing that
the circuit court lacked authority to run the two NGI commitment
orders consecutively. On January 14, 2021, the court of appeals
affirmed the circuit court. Yakich, Nos.
2019AP1832—CR & 2019AP1833-CR. The court of appeals noted that in
State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App. 1988),
it had held that NGI commitment periods under Wis. Stat. § 971.17(1987-88) could total the maximum period of commitment that the
defendant would have received had the defendant been subject to
traditional criminal sentencing, "taking into account
that . . . sentencing court[s] . . . have authority to impose
consecutive prison sentences." Yakich, Nos. 2019AP1832-CR &
2019AP1833-CR, ¶¶19-23. Thus, "a commitment period encompassing
multiple criminal counts" may "add[] together the maximum terms of
imprisonment for all of those counts." Id., ¶22. Because it was
5
Nos. 2019AP1832-CR & 2019AP1833-CR
concerned over whether NGI commitments could run consecutively to
criminal confinement, the court of appeals stated that combined
NGI commitment periods would not technically be "consecutive."
Id., ¶¶9-14. Instead, the court of appeals reasoned that combined
terms would be "a single commitment period" with no consecutive
NGI commitment terms.7 Id., ¶23. Nonetheless, the court of appeals
concluded that the holding of C.A.J. was still binding law, despite
amendments to Wis. Stat. § 971.17 since the 1988 case was decided.
Therefore, Yakich's five-year commitment period was affirmed.
¶11 Yakich petitioned this court to review the court of
appeals decision. On June 16, 2021, we granted the petition.
II. STANDARD OF REVIEW
¶12 This case presents a question of statutory
interpretation. "Interpretation of a statute is a question of law
that we review de novo, although we benefit from the analyses of
the circuit court and the court of appeals." Estate of Miller v.
Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759.
"[S]tatutory interpretation begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry. Statutory language is given its common,
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
As explained below, we conclude that Wis. Stat. § 971.177
authorizes consecutive NGI commitment periods. Thus, we do not
adopt the court of appeals' framing of the issue, nor do we accept
its reasoning that circuit courts are prohibited from running
multiple NGI commitment terms consecutively.
6
Nos. 2019AP1832-CR & 2019AP1833-CR
special definitional meaning." State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110(citations and quotations omitted). In addition, "statutory
language is interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results." Id., ¶46.
III. ANALYSIS
¶13 Yakich argues that courts cannot impose consecutive
periods of NGI commitment, and his two commitment orders must run
concurrently. He argues that a statute must provide circuit courts
with the authority to impose consecutive NGI commitments, and Wis.
Stat. § 971.17, the NGI commitment statute, fails to do so. In
response, the State argues that the court of appeals correctly
applied its binding precedent in C.A.J. According to the State,
the court of appeals accurately concluded in C.A.J. that
consecutive NGI commitment periods are appropriate, just as
consecutive terms of confinement are appropriate in criminal
sentencing. Even though § 971.17 has been amended since C.A.J.,
the State claims the reasoning underlying the decision remains
sound.
¶14 We agree with the State and conclude that circuit courts
may impose consecutive periods of NGI commitment.
A. The Authority To Impose Consecutive
NGI Commitment Periods
¶15 Wisconsin Stat. § 971.17(1) establishes the commitment
periods for individuals found NGI. Under the statute, commitment
7
Nos. 2019AP1832-CR & 2019AP1833-CR
periods are set by reference to the category of offense and when
the offense occurred:
(a) Felonies committed before July 30, 2002.
Except as provided in par. (c), when a defendant is found
not guilty by reason of mental disease or mental defect
of a felony committed before July 30, 2002, the court
shall commit the person to the department of health
services for a specified period not exceeding two-thirds
of the maximum term of imprisonment that could be imposed
against an offender convicted of the same felony,
including imprisonment authorized by any applicable
penalty enhancement statutes, subject to the credit
provisions of s. 973.155.
(b) Felonies committed on or after July 30, 2002.
Except as provided in par. (c), when a defendant is found
not guilty by reason of mental disease or mental defect
of a felony committed on or after July 30, 2002, the
court shall commit the person to the department of health
services for a specified period not exceeding the
maximum term of confinement in prison that could be
imposed on an offender convicted of the same felony,
plus imprisonment authorized by any applicable penalty
enhancement statutes, subject to the credit provisions
of s. 973.155.
(c) Felonies punishable by life imprisonment. If
a defendant is found not guilty by reason of mental
disease or mental defect of a felony that is punishable
by life imprisonment, the commitment period specified by
the court may be life, subject to termination under sub.
(5).
(d) Misdemeanors. When a defendant is found not
guilty by reason of mental disease or mental defect of
a misdemeanor, the court shall commit the person to the
department of health services for a specified period not
exceeding two-thirds of the maximum term of imprisonment
that could be imposed against an offender convicted of
the same misdemeanor, including imprisonment authorized
by any applicable penalty enhancement statutes, subject
to the credit provisions of s. 973.155.
§ 971.17(1).
8
Nos. 2019AP1832-CR & 2019AP1833-CR
¶16 Thus, the maximum commitment period for felonies
committed prior to July 30, 2002, is tied to the "maximum term of
imprisonment that could be imposed against an offender convicted
of the same felony," while felonies committed on or after July 30,
2002, have a maximum period tied to "the maximum term of
confinement in prison" that could be imposed in traditional
criminal sentencing. Wis. Stat. § 971.17(1)(a), (b). A felony
punishable by life imprisonment has a maximum commitment period of
life, and the maximum commitment period for misdemeanors is based
on "two-thirds of the maximum term of imprisonment" that could be
imposed in criminal sentencing. § 971.17(1)(c), (d).
¶17 All four categories of NGI commitment, by the plain text
of the statute, are tied to and directly dependent on the lengths
of sentences in criminal proceedings. See Kalal, 271 Wis. 2d 633,
¶45. NGI commitment orders are limited by how long an "offender
convicted of the same [offense]" may be "imprison[ed]" or
"confin[ed] in prison." Wis. Stat. § 971.17(1)(a), (b), (d).
Instead of setting out an independent basis by which courts may
determine the length of NGI commitments, the legislature made NGI
commitment lengths dependent upon criminal sentencing lengths.
Under § 971.17(1), to determine the length of NGI commitments,
courts must look to criminal terms of imprisonment and confinement,
as well as criminal "penalty enhancement statutes," and nowhere
else. Id. Further, the statute allows NGI committees to reduce
their period of commitment by the terms of Wisconsin's criminal
sentence credit statute. See id. (explaining that periods of NGI
9
Nos. 2019AP1832-CR & 2019AP1833-CR
commitment are "subject to the credit provisions of s. 973.155").
The statute does not limit or define lengths of NGI commitment for
multiple offenses. Instead, under the plain terms of § 971.17,
the length of NGI commitment is based on the total length of prison
terms the individual could receive in traditional criminal
proceedings.
¶18 The legislature certainly could have written the statute
differently. For instance, in Wis. Stat. § 973.09(2), the
legislature explicitly outlined "the minimum and maximum 'original
term of probation' that may be imposed for different quantities
and classes of misdemeanor and felony offenses." State v. Dowdy,
2012 WI 12, ¶40, 338 Wis. 2d 565, 808 N.W.2d 691 (quoting Wis.
Stat. § 973.09(2) (2009-10)). Under § 973.09(2), courts are
provided identified ranges for probation, and those ranges vary
based on whether the individual was convicted of one misdemeanor,
"not less than 2 nor more than 4 misdemeanors," "5 or more
misdemeanors," a felony, or "2 or more crimes, including at least
one felony." § 973.09(2)(a), (b). The probation statute itself
defines lengths of probation and bases them on the type, and
number, of offenses committed. Unlike Wis. Stat. § 971.17,
§ 973.09 does not rely on lengths of incarceration as established
under criminal sentencing statutes. In § 971.17, the legislature
took a different approach. It cited and relied on the criminal
sentencing system to define the lengths of NGI commitments. See
§ 971.17(1).
10
Nos. 2019AP1832-CR & 2019AP1833-CR
¶19 In line with Wis. Stat. § 971.17(1)'s statutory
directive, we have repeatedly recognized that the length of NGI
commitments is intimately tied to traditional criminal sentencing.
See, e.g., State v. Fugere, 2019 WI 33, ¶47, 386 Wis. 2d 76, 924
N.W.2d 469 ("In Wisconsin, NGI commitment terms may not exceed the
maximum confinement term of the charged criminal offense."); State
v. Randall, 192 Wis. 2d 800, 808-09, 532 N.W.2d 94 (1995) ("[NGI]
commitment may not exceed the maximum term of imprisonment which
could have been imposed for the offenses charged."). As the court
of appeals accurately explained in C.A.J., 148 Wis. 2d at 140,
"the legislature intended to prohibit a person found not guilty by
reason of mental defect or disease from being committed any longer
than the underlying offense," i.e., how the person would have been
sentenced if the NGI defense had failed.
¶20 When a defendant is criminally sentenced, a circuit
court has the authority to impose consecutive terms of confinement.
Wis. Stat. § 973.15(2). For decades, courts have understood that
NGI commitment lengths, by the text of Wis. Stat. § 971.17, are
dependent on the lengths of criminal sentences. Accordingly,
courts have recognized that the maximum NGI commitment term a court
can impose is the total length of consecutive criminal sentences
11
Nos. 2019AP1832-CR & 2019AP1833-CR
for the same offenses.8 See C.A.J., 148 Wis. 2d at 139 (concluding
that the maximum term of NGI commitment "reflects the maximum
length of time under consecutive sentences that [the defendant]
could have been imprisoned"); State ex rel. Helmer v. Cullen, 149
Wis. 2d 161, 163, 440 N.W.2d 790 (Ct. App. 1989) (explaining that
"the maximum period of [NGI] commitment must be based on
consecutive terms").
¶21 In C.A.J., the court of appeals provided sound reasons
for permitting NGI commitment based on the lengths of consecutive
criminal sentences. The court of appeals recognized that Wis.
Stat. § 971.17(1) tied NGI commitments to the length of the
"offense charged." C.A.J., 148 Wis. 2d at 139. However, the court
of appeals correctly noted that when the legislature uses a
singular noun in a statute such as "offense," both the singular
and the plural are generally included. Id. at 140; see Wis. Stat.
§ 990.01(1) (stating that "[i]n construing Wisconsin
laws . . . [t]he singular includes the plural"). This is true
unless the result is "inconsistent with the manifest intent of the
legislature." § 990.001. Because § 971.17(1) by its plain terms
prevents NGI commitments from exceeding criminal sentences, it did
not conflict with the statute to impose NGI commitment for periods
Under Wis. Stat. § 971.17, courts take into account the
8
distinction between confinement before and after Truth-in-
Sentencing. NGI commitment terms for felonies committed prior to
July 30, 2002, and for misdemeanors cannot exceed "two-thirds of
the maximum term of imprisonment that could be imposed." Wis.
Stat. § 971.17(1)(a), (d). For felonies committed on or after
July 30, 2002, NGI commitment terms cannot exceed "the maximum
term of confinement in prison." § 971.17(1)(b).
12
Nos. 2019AP1832-CR & 2019AP1833-CR
equal to that of criminal imprisonment. C.A.J., 148 Wis. 2d at
140. It is well accepted that circuit courts can impose
consecutive criminal sentences, and thus, NGI commitment periods
can run consecutively. Id.; see Wis. Stat. § 973.15(2)(a) ("[T]he
court may impose as many [criminal] sentences as there are
convictions and may provide that any such sentence be concurrent
with or consecutive to any other sentence imposed at the same time
or previously."). This reasoning is well-supported and correct.
¶22 The court of appeals in C.A.J. continued and explained
that the legislature could have easily limited NGI commitment terms
to the maximum criminal sentence for the most serious offense.
This would have detached NGI commitments from traditional criminal
sentencing, and, in the process, prohibited consecutive NGI
commitment periods. In fact, the legislature demonstrated the
ability to set lengths of commitment based on the most serious
offense when it enacted Wis. Stat. § 971.14, which governs
competency proceedings. Under § 971.14, unlike Wis. Stat.
§ 971.17(1), commitments to obtain competency to participate in
legal proceedings are limited to "a period not to exceed 12 months,
or the maximum sentence specified for the most serious offense
with which the defendant is charged, whichever is less."
§ 971.14(5). If NGI commitment periods are based on the maximum
sentence for the most serious offense, circuit courts would not be
permitted to impose consecutive NGI commitments and criminal
sentencing rules would not control. We adopt this reasoning in
full.
13
Nos. 2019AP1832-CR & 2019AP1833-CR
¶23 Similarly, the legislature could have limited the length
of NGI commitments to specifically delineated terms, and varied
the length based on the number of offenses of which the defendant
was convicted. As explained above, the legislature did this with
probation under Wis. Stat. § 973.09(2).
¶24 The legislature in Wis. Stat. § 971.17(1) did not limit
NGI commitments to "a period not to exceed 12 months, or the
maximum sentence specified for the most serious offense with which
the defendant is charged, whichever is less," as it did in Wis.
Stat. § 971.14, nor did it limit commitment periods based on the
number of offenses, as it did in Wis. Stat. § 973.09. Instead, it
unambiguously based NGI commitment periods on the "maximum term"
of confinement in prison "that could be imposed on an offender
convicted of the same [offenses]," enhanced by "any applicable
penalty enhancement statutes" and reduced by "the [criminal
sentence] credit provisions of s. 973.155." § 971.17(1)(a), (b),
(d). As the court of appeals explained in C.A.J., the legislature
has plainly demonstrated the ability to limit the use of
consecutive NGI commitments. 148 Wis. 2d at 140. In § 971.17, it
declined to do so, and we must give effect to the legislature's
choice. See Kalal, 271 Wis. 2d 633, ¶44 ("We assume that the
legislature's intent is expressed in the statutory language.");
Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶¶36-37,
341 Wis. 2d 607, 815 N.W.2d 367 (explaining that "the legislature
knew how to draft [different] language" in a statute, and the court
"must respect the text" as written); United Am., LLC v. DOT, 2021
14
Nos. 2019AP1832-CR & 2019AP1833-CR
WI 44, ¶¶15-16, 397 Wis. 2d 42, 959 N.W.2d 317 (comparing the text
of two statutory provisions and noting that the "legislature knows
how" to write different statutory language).
¶25 A circuit court's authority to impose consecutive NGI
commitment periods is not affected by the existence of separate
orders.9 In this case, Yakich's five-year NGI commitment was set
forth in two orders. In his first case, involving bail jumping
and phone harassment, he was ordered to three years of NGI
commitment. In his second case, involving two counts of bail
jumping, he was ordered to two years of NGI commitment.10 Although
the offenses at issue were not included in a single criminal charge
and thus the NGI commitments were separated into two orders, that
does not alter Wis. Stat. § 971.17's language permitting
consecutive NGI commitments. There is no indication in § 971.17
that periods of NGI commitment vary depending on whether charges
are brought under one or more criminal complaints. In fact, there
may be victims and crimes that occur over the course of years, and
Yakich does not appear to dispute that circuit courts can
9
impose consecutive NGI commitment periods for multiple counts
included in the same case. In briefing, he contended that Wis.
Stat. § 971.17 "arguably . . . authorizes the court to calculate
the overall commitment period in [a single] case based on
consecutive terms of confinement for each count in that case."
The parties do not dispute that these orders were well
10
within the statutory range for confinement had Yakich been
criminally sentenced. The maximum term of confinement for a Class
H felony, including felony bail jumping to which Yakich pleaded
NGI on three counts, is three years. See Wis. Stat.
§ 946.49(1)(b); Wis. Stat. § 973.01(2)(b)8. Had Yakich not been
found NGI, he could have received a sentence of at least nine years
of confinement.
15
Nos. 2019AP1832-CR & 2019AP1833-CR
in distinct factual circumstances. It is entirely possible that
individuals requiring NGI treatment can be subject to multiple
commitment orders, perhaps from different courts at different
times. Circuit courts retain discretion to impose consecutive NGI
commitments, whether the commitments are mandated in the same order
or mandated in separate orders. Yakich's total commitment period
of five years, set forth in two orders, was appropriate.11
B. Yakich's Arguments On Appeal
¶26 Yakich makes several arguments in favor of his position
on appeal. First, he accurately notes that Wis. Stat. § 971.17does not explicitly state that circuit courts may run NGI
commitments consecutively. The court of appeals noted this fact
in C.A.J. See C.A.J., 148 Wis. 2d at 139 (explaining that "the
statute's language does not specifically indicate whether the
maximum term of commitment may be based on consecutive terms").
It did not impact C.A.J. when it was decided, and it does not
impact the analysis now. The plain text of the statute ties NGI
commitment periods to the length of confinement that would have
occurred if the defendant were not NGI. § 971.17(1). Criminal
terms of confinement can run consecutively, and so can NGI
commitment terms. If the legislature wanted to limit NGI
This does not necessarily mean that Yakich will be
11
institutionalized for five years. "[A] defendant who succeeds on
an NGI defense and is committed may file a petition for conditional
release every six months, and if on conditional release, may file
a petition to terminate the underlying order of commitment."
Fugere, 386 Wis. 2d 76, ¶29 (citing Wis. Stat. § 971.17(4), (5)
(2015-16)).
16
Nos. 2019AP1832-CR & 2019AP1833-CR
commitment in a way that it did not similarly limit criminal
sentencing, it could have delineated the length of commitment for
multiple offenses, as it did for probationary terms. Wis. Stat.
§ 973.09(2). Alternatively, it could have explicitly limited
commitment periods to the maximum sentence the circuit court could
have imposed for the most serious offense, as it did with
competency proceedings. Wis. Stat. § 971.14(5). The plain text
of § 971.17 supports the conclusion that circuit courts may impose
consecutive NGI commitment periods.
¶27 Yakich also cites court of appeals decisions holding
that terms of probation and juvenile dispositions cannot run
consecutively. See State v. Wolfe, 2001 WI App 136, ¶15, 246
Wis. 2d 233, 631 N.W.2d 240 ("[T]he concept of consecutive
sentences is foreign in the context of juvenile adjudications and
dispositions."); State v. Schwebke, 2001 WI App 99, ¶29, 242 Wis.
2d 585, 627 N.W.2d 213 ("[W]e have repeatedly held that probation
cannot be made consecutive to probation."). Yakich argues that
the same logic should apply to NGI commitments. Nonetheless, the
text of the probation statute, Wis. Stat. § 973.09(2), explicitly
defines and limits the length of probationary terms when an
individual is convicted of multiple offenses. Section 973.09 is
readily distinguishable from Wis. Stat. § 971.17. Further,
"[a]lthough the juvenile system is similar in some respects to the
criminal system, we have specifically rejected an exact equation
of institutional placement of a juvenile with the incarceration of
an adult." E.C. v. DHSS, 142 Wis. 2d 906, 918, 420 N.W.2d 3717
Nos. 2019AP1832-CR & 2019AP1833-CR
(1988). That is very different from § 971.17, which by its terms
ties the length of NGI commitments to maximum terms of criminal
incarceration.
¶28 We will not opine on the correctness of the decisions
cited by Yakich. It suffices to note that probation and juvenile
dispositions are distinguishable and not at issue in this case;
Wis. Stat. § 971.17 provides circuit courts authority to impose
consecutive NGI commitments.
¶29 Yakich targets his argument more narrowly and cites a
court of appeals decision that prohibited criminal sentences from
being run consecutively to NGI commitments. See State v. Harr,
211 Wis. 2d 584, 587-88, 568 N.W.2d 307 (Ct. App. 1997). The court
of appeals in Harr interpreted Wis. Stat. § 973.15(2) (1995-96),
which allows circuit courts to impose criminal sentences
"consecutive to any other sentence." Id. The court of appeals
held that because an NGI commitment was not a "sentence," § 973.15
did not permit a circuit court to impose a criminal sentence
consecutive to the commitment. That analysis is not relevant to
the question at issue in this case. Whether a circuit court may
impose a criminal sentence consecutively to an NGI commitment under
§ 973.15 has simply no bearing on whether a circuit court may
impose consecutive NGI commitments under Wis. Stat. § 971.17.
¶30 Finally, Yakich argues that the court of appeals
decision in C.A.J. is no longer good law because the legislature
has amended Wis. Stat. § 971.17 several times since C.A.J. was
decided. At the time C.A.J. was decided, § 971.17 stated:
18
Nos. 2019AP1832-CR & 2019AP1833-CR
When the maximum period for which a defendant could
have been imprisoned if convicted of the offense charged
has elapsed, subject to s. 53.11 and the credit
provisions of s. 973.155, the court shall order the
defendant discharged subject to the right of the
department to proceed against the defendant under ch.
51. If the department does not so proceed, the court may
order such proceeding.
§ 971.17(4) (1987-88).
¶31 Like it does now, Wis. Stat. § 971.17 when C.A.J. was
decided based the maximum time in which a defendant could be
subject to NGI commitment to the maximum term of criminal
imprisonment. At that time, the maximum term of criminal
imprisonment included the possibility of consecutive terms.
C.A.J., 148 Wis. 2d at 140. There is no dispute that remains true
today.12 See Wis. Stat. § 973.15(2). Furthermore, we are not
bound by court of appeals decisions. As the state's highest court,
we interpret legal questions independently. See State v. Lira,
2021 WI 81, ¶45, 399 Wis. 2d 419, 966 N.W.2d 605 ("While respecting
court of appeals precedent is an important consideration, it is
not determinative."). To the extent that § 971.17 may have changed
since C.A.J., applying de novo review, the logic underlying the
court of appeals decision nonetheless remains convincing.
12In fact, the language included in Wis. Stat. § 971.17 at
the time of C.A.J. is almost identical to the language included in
the statute today. Compare § 971.17(4) (1987-88) (limiting NGI
commitment to "the maximum period for which a defendant could have
been imprisoned if convicted of the offense charged"), with
§ 971.17(1) (2017-18) (stating that NGI commitment periods must be
based on "the maximum term of imprisonment [or confinement in
prison] that could be imposed against an offender convicted of the
same felony [or misdemeanor]").
19
Nos. 2019AP1832-CR & 2019AP1833-CR
Independently interpreting § 971.17, we agree with C.A.J.'s
reasoning.
¶32 Yakich contends that the statutory history of Wis. Stat.
§ 971.17 indicates that the legislature has rejected the reasoning
in C.A.J. After C.A.J. was decided, the legislature amended
§ 971.17 to allow circuit courts to commit NGI defendants
for a specified period not exceeding two–thirds of the
maximum term of imprisonment that could be imposed under
s. 973.15(2) against an offender convicted of the same
crime or crimes, including imprisonment authorized by
ss. 161.48, 939.62, 939.621, 939.63, 939.64, 939.641 and
939.645 and other penalty enhancement statutes, as
applicable, subject to the credit provisions of s.
973.155.
1989 Wis. Act 334, § 5 (emphasis added).
¶33 Beginning in the late 1990s, Wisconsin transitioned to
automatic bifurcated sentences under Truth-in-Sentencing laws.13
Replacing the more indeterminate system of parole, under Truth-
in-Sentencing, circuit courts were "required to impose a
bifurcated sentence consisting of a term of confinement in prison
followed by a term of extended supervision." State v. Stenklyft,
2005 WI 71, ¶¶16-17, 281 Wis. 2d 484, 697 N.W.2d 769; see Wis.
Stat. § 973.01. As part of this reform, the legislature in 2001
13Wisconsin enacted Truth-in-Sentencing in two phases. "The
first phase, TIS–I, was enacted in June 1998 and applied to
offenses committed on or after December 31, 1999. See 1997 Wis.
Act 283. The second phase, TIS–II, was enacted in July 2002 and
became effective February 1, 2003. See 2001 Wis. Act 109." State
v. Stenklyft, 2005 WI 71, ¶16, 281 Wis. 2d 484, 697 N.W.2d 769(quoting State v. Gallion, 2004 WI 42, ¶7 n.3, 270 Wis. 2d 535,
678 N.W.2d 197)). Bifurcated sentencing was enacted in the first
phase. Id.20
Nos. 2019AP1832-CR & 2019AP1833-CR
amended § 971.17 to tie NGI commitments for felonies committed
after July 2002 (and subject to Truth-in-Sentencing) to "the
maximum term of confinement in prison that could be imposed," i.e.,
the confinement portion of a bifurcated sentence. § 971.17(1)(b).
The legislature kept the original language for NGI commitments
based on felonies committed prior to July 2002 as well as
misdemeanors; felonies subject to life imprisonment remained
subject to lifetime NGI commitment. See, e.g., § 971.17(1)(a)
("[T]he court shall commit the person to the department of health
services for a specified period not exceeding two-thirds of the
maximum term of imprisonment that could be imposed . . . .").
¶34 Yakich points out that the legislature removed the
reference to Wis. Stat. § 973.15 when it made its reforms in 2001.
Wisconsin Stat. § 971.17 no longer contains the language "under s.
973.15(2)" in the portion of the statute setting the maximum length
of NGI commitment.
¶35 Yet it is well accepted that "[w]hen the legislature
enacts a statute, it is presumed to act with full knowledge of the
existing laws." Hoffer Props., LLC v. DOT, 2016 WI 5, ¶35, 366
Wis. 2d 372, 874 N.W.2d 533. C.A.J. provided thorough and
convincing analysis on statutory language contained in Wis. Stat.
§ 971.17, and the version in existence at the time of C.A.J. did
not materially differ from the version of the statute enacted after
2001, namely neither cross references the criminal sentencing
statute. Section 971.17 was changed in 1989 to include explicit
statutory cross references to Wis. Stat. § 973.15, but, even after
21
Nos. 2019AP1832-CR & 2019AP1833-CR
1989, the statute continued to include language tying NGI
commitment to the length of criminal sentences. When the explicit
cross reference was removed in 2001, the legislature could have
accompanied the 2001 changes with an express statement that NGI
commitments must run concurrently, or other amendments that would
serve to prohibit consecutive commitment periods. See, e.g., Wis.
Stat. § 971.14(5) (stating that commitment to obtain competency
cannot extend longer than "a period not to exceed 12 months, or
the maximum sentence specified for the most serious offense with
which the defendant is charged, whichever is less"); see also
Czapinski v. St. Francis Hosp., Inc., 2000 WI 80, ¶¶17-23, 236
Wis. 2d 316, 613 N.W.2d 120 (holding that newly imposed
limitations on medical malpractice damages did not implicitly
repeal the decision of "[n]umerous Wisconsin courts" limiting the
class of individuals entitled to recover for loss of society and
companionship in medical malpractice suits, noting the lack of
express language to the contrary); Strenke v. Hogner, 2005 WI 25,
¶28, 279 Wis. 2d 52, 694 N.W.2d 296 (reiterating that legislative
enactments are made in the context of caselaw and reasoning that
changes in the statutory proof of intent for punitive damages did
not alter prior cases interpreting the meaning of intent).
Instead, the legislature chose to retain language largely tracking
the statute interpreted in C.A.J., which, by 2001, had become
accepted jurisprudence in Wisconsin.
¶36 While statutory history can be helpful when interpreting
the meaning of a statute, in this case the legislature did not
22
Nos. 2019AP1832-CR & 2019AP1833-CR
enact the substantial change Yakich advances through the removal
of a Wis. Stat. § 973.15 cross reference. State v. Williams, 2014
WI 64, ¶17, 355 Wis. 2d 581, 852 N.W.2d 467. With knowledge of
existing caselaw, the legislature reverted Wis. Stat. § 971.17 to
the language interpreted by the court of appeals in C.A.J. In so
doing, the legislature made no express statement or change in the
functioning in the statute to override decades of accepted
Wisconsin jurisprudence.14 Wisconsin Stat. § 971.17, as it did
when C.A.J. was decided, permits consecutive NGI commitment terms.
IV. CONCLUSION
¶37 In two separate cases, Yakich pleaded guilty to three
counts of bail jumping and one count of phone harassment. The
circuit court accepted Yakich's pleas in both cases at the same
hearing. After the parties agreed that Yakich was NGI for all
four of his offenses, the court ordered a five-year commitment
period. In so doing, the circuit court ordered a two-year term of
14Yakich devotes much of his energy to the statutory history
argument. Instead of the dramatic legal shift Yakich attempts to
ascribe to the 2001 change, the statutory history is better read
as a reform-minded effort of clarifying and systematizing NGI
commitments after the new regime of Truth-in-Sentencing was
passed. The legislature removed numerous other cross references
in Wis. Stat. § 971.17, outside of Wis. Stat. § 973.15(2). It
also removed citations to all other penalty provisions, including
Wis. Stat. §§ "161.48, 939.62, 939.621, 939.63, 939.64, 939.641
and 939.645." As part of this clean-up endeavor, the legislature
clarified that felonies committed prior to Truth-in-Sentencing
have NGI commitments based on "two-thirds of the maximum term of
imprisonment that could be imposed," and felonies committed after
Truth-in-Sentencing have NGI commitments based on "the maximum
term of confinement in prison that could be imposed" for a
bifurcated sentence. § 971.17(1)(a), (b).
23
Nos. 2019AP1832-CR & 2019AP1833-CR
commitment for one of Yakich's cases and a three-year term of
commitment for the second case. The commitment periods were
ordered to run consecutively.
¶38 On appeal, Yakich argues that the circuit court's two
commitment orders must run concurrently and cannot run
consecutively. Nonetheless, we hold that Wis. Stat. § 971.17provides circuit courts the statutory authority to impose
consecutive periods of NGI commitment. Because the circuit court
properly exercised its authority to impose consecutive NGI
commitment periods, the circuit court and the court of appeals are
affirmed.
By the Court.—The decision of the court of appeals is
affirmed.
24
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
¶39 REBECCA FRANK DALLET, J. (dissenting). Defendants who
are found not guilty by reason of mental disease or defect (NGI)
are by definition not guilty. See Wis. Stat. §§ 971.165(3)(b)
and 971.17. For this reason, we have repeatedly emphasized that
NGI commitments are not criminal sentences. See State v. Fugere,
2019 WI 33, ¶29, 386 Wis. 2d 76, 924 N.W.2d 469; State v.
Szulczewski, 216 Wis. 2d 495, ¶7 n.3, 574 N.W.2d 660 (1998); see
also State v. Harr, 211 Wis. 2d 584, 587, 568 N.W.2d 307 (Ct.
App. 1997). The majority's holding that circuit courts may impose
consecutive NGI commitments is contrary to this basic premise,
unsupported by the text and structure of § 971.17, and will likely
be unworkable in practice. I therefore respectfully dissent.
¶40 When a defendant is found NGI, the circuit court must
"commit the person to the department of health services" for a
specified period. See § 971.17(1). Circuit courts have some
discretion to determine the appropriate period, but the commitment
cannot exceed the maximum time periods specified in § 971.17(1).
Different offenses carry different maximum commitment periods,
depending on whether the offense is a felony or misdemeanor and
whether the offense occurred before or after July 30, 2002. See
generally id. For felonies committed after July 30, 2002,
§ 971.17(1)(b) authorizes circuit courts to commit the defendant
for "a specified period not exceeding the maximum term of
confinement in prison that could be imposed" on a person convicted
of the same crime, after accounting for any applicable penalty
enhancements and sentencing credit. For misdemeanors, the
1
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
commitment period is limited to "a specified period not exceeding
two-thirds of the maximum term of imprisonment that could be
imposed against any offender convicted of the same misdemeanor,"
subject to the same penalty-enhancement and sentencing-credit
adjustments as felonies. § 971.17(1)(d).1
¶41 Applying § 971.17 is relatively easy when the defendant
pleads NGI to one charge in one case. Yakich's case, however, is
more complicated because he pleaded NGI to four charges in two
cases: one count of felony bail jumping and one count of
misdemeanor phone harassment in one case; two counts of felony
bail jumping in a separate case.2 The circuit court handled this
1 There is no relevant distinction for this case between terms
of "confinement" for felonies and terms of "imprisonment" for
misdemeanors.
2 In general, NGI proceedings are split into a guilt phase
and a responsibility phase. See Fugere, 386 Wis. 2d 76, ¶¶26-27.
Admitting guilt in the "guilt phase" does not mean the same thing
as pleading guilty. In the NGI context, a defendant "is not
responsible for criminal conduct if at the time of such conduct as
a result of mental disease or defect the person lacked substantial
capacity either to appreciate the wrongfulness of his or her
conduct or conform his or her conduct to the requirements of law."
Wis. Stat. § 971.15(1). By contrast, in a criminal case, a
defendant who pleads guilty admits to all the elements of the
charged offense, including criminal responsibility. This
distinction animates Wis. Stat. § 971.06(1)(d), which allows a
defendant to plead NGI and to accompany that NGI plea with a plea
of not guilty. An NGI plea that is not accompanied by a plea of
not guilty "admits that but for lack of mental capacity the
defendant committed all the essential elements of the offense
charged." Id. Section 971.06(1)(d) does not allow a defendant to
plead guilty and then plead NGI.
2
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
complication by entering two separate commitment orders at the
same time, one in each case. In the first case, the circuit court
committed Yakich for two years for one count of felony bail-jumping
and the phone-harassment misdemeanor. In the second case, Yakich
was committed for three years on the other two counts of felony
bail jumping. The circuit court specified that the orders would
run consecutively for a total of five years——longer than Yakich
could have been imprisoned for any one of the crimes to which he
pleaded NGI. See Wis. Stat. § 973.01(2)(b) (specifying that the
maximum term of confinement in prison for bail jumping is three
years); Wis. Stat. § 939.51(3) (providing for a maximum term of 90
days' imprisonment for phone harassment). In reviewing those
orders, the court of appeals implied that imposing consecutive
commitments was not permitted by § 971.17. See State v. Yakich,
Nos. 2019AP1832 & 2019AP1833, unpublished op., ¶¶23-24 (Wis. Ct.
App. Jan. 14, 2021). Nevertheless it affirmed the circuit court,
reasoning that the five-year commitment term was allowable under
State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App. 1988).
¶42 In C.A.J., the court of appeals addressed how to
calculate the maximum length of a commitment when a defendant is
found NGI on multiple counts in the same case. It did so by
analyzing the then-current version of § 971.17, which provided
Although the circuit court transcript reflects that Yakich
pleaded "guilty" and then pleaded NGI, the so-called "guilty" plea
was an admission that but for his lack of mental capacity, he
committed all the essential elements of the offense. See
§ 971.06(1)(d). Yakich pleaded NGI, he did not plead guilty.
Accordingly, that is how I refer to his plea throughout this
opinion.
3
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
that NGI commitments could not exceed "the maximum period for which
a defendant could have been imprisoned if convicted of the offense
charged." See § 971.17(4) (1987-88). The question was whether,
in a multiple offense case, the "maximum period" was equal to the
maximum period of imprisonment based on consecutive sentences or
the maximum period of imprisonment for only the most serious single
offense. The court of appeals opted for the former, holding that
the maximum commitment period under § 971.17 should be calculated
by adding together the maximum terms of imprisonment for each
offense, assuming those terms ran consecutively. C.A.J., 148
Wis. 2d at 139-40. C.A.J. did not hold, however, that consecutive
NGI commitments are permitted by § 971.17; only that the maximum
length of an NGI commitment was equal to the maximum consecutive
sentence the defendant could have received had he been convicted.
Put another way, in a multiple-offense case, C.A.J. allows for a
single commitment order that is no longer than the amount of time
the defendant could have been imprisoned had he been convicted and
sentenced to consecutive terms. See Yakich, unpublished slip
op., ¶23.
¶43 As the court of appeals pointed out in this case, there
is "more than [a] semantic" difference between the approach adopted
in C.A.J. and allowing consecutive NGI commitments. Id., ¶24.
The majority, however, ignores the difference altogether. It holds
that § 971.17 authorizes consecutive commitments, while stating
that it "agree[s] with C.A.J.'s reasoning." Majority op., ¶31.
This unresolved tension appears to stem from the majority's
mischaracterization of C.A.J. as holding that "consecutive NGI
4
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
commitment periods are appropriate, just as consecutive terms of
confinement are appropriate in criminal sentencing." See
id., ¶13; see also id. ¶14. But, as explained above, that's not
what C.A.J. held.
¶44 Moreover, the majority's misreading of C.A.J. is a
symptom of a bigger problem: it wrongly treats NGI commitments as
if they were criminal sentences. Indeed, the majority erroneously
concludes that by "cit[ing] and rel[ying] on the criminal
sentencing system to define the lengths of NGI commitments," the
legislature thus incorporated into the NGI context all other
aspects of our approach to criminal sentencing. See majority
op., ¶18. And because the "criminal sentencing system" allows
criminal sentences to run consecutively, see § 973.15(2)(a), the
majority concludes that NGI commitments can do the same.
¶45 That approach is contrary to our precedent, which has
established in no uncertain terms that an NGI commitment is not a
criminal sentence. See Szulczewski, 216 Wis. 2d 495, ¶7 n.3; see
also Fugere, 386 Wis. 2d 76, ¶29. For that reason, the criminal
sentencing statutes apply in the NGI context only as specified
in § 971.17. See Grobarchik v. State, 102 Wis. 2d 461, 467, 307
N.W.2d 170 (1981) ("If the authority to fashion a particular
criminal disposition exists, it must derive from the statutes.").
Section 971.17 specifies that the appropriate length of an NGI
commitment is determined by considering the "maximum term of
confinement in prison" for felonies, the "maximum term of
imprisonment" for misdemeanors, applicable penalty enhancers, and
the sentencing-credit provisions of Wis. Stat. § 973.155. Each of
5
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
these sentencing considerations are defined by statute, and do not
reference or otherwise incorporate the concept of consecutive
sentencing, which is separately authorized by § 973.15. Because
neither § 971.17 nor any other statute authorizes or even mentions
consecutive NGI commitments, circuit courts may not impose
consecutive commitments. See Grobarchik, 102 Wis. 2d at 467.
¶46 This conclusion is consistent with how courts treat
probation and juvenile dispositions, both of which are not criminal
sentences and therefore cannot run consecutively. See State v.
Schwebke, 2001 WI App 99, ¶29, 242 Wis. 2d 585, 627 N.W.2d 213("[P]robation cannot be made consecutive to probation."); In re
Commitment of Wolfe, 2001 WI App 136, ¶15, 246 Wis. 2d 233, 621
N.W.2d 240 ("[T]he concept of consecutive sentences is foreign in
the context of juvenile adjudications and dispositions."). The
majority attempts to distinguish probation from NGI commitments by
pointing out that, unlike § 971.17, the probation statute
specifies what a circuit court should do when a probationer is
convicted of more than one offense. See, e.g., Wis.
Stat. § 973.09(2)(a)2. But the text of § 973.09 makes clear that
courts may only extend the original term of probation, not run
probation terms consecutively. For example, § 973.09(2)(a)2.
specifies that "[i]f [a] probationer is convicted of not less
than 2 nor more than 4 misdemeanors at the same time, the maximum
original term of probation may be increased by one year." The
statute contains no language authorizing circuit courts to impose
consecutive periods of probation. Likewise, ch. 938, which governs
juvenile proceedings, says nothing about authorizing consecutive
6
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
juvenile dispositions. The majority offers no reason why the
legislature's silence about consecutive commitments in § 971.17
should somehow have a different result.
¶47 The statutory history of § 971.17 provides further
evidence for why the majority's interpretation is wrong. In 1989,
the legislature amended § 971.17 to allow NGI commitments to run
"for a specific period not exceeding two-thirds of the maximum
term of imprisonment that could be imposed under s. 973.15(2)
against an offender convicted of the same crime or crimes." 1989
Wis. Act 334, § 5 (emphasis added). In 2001, however, the
legislature removed the reference to § 973.15 when the state
adopted Truth-in-Sentencing. 2001 Wis. Act 109, §§ 1106-07. That
deletion suggests that the legislature meant to remove from the
NGI commitment-period calculation any consideration of consecutive
criminal sentences. See, e.g., DNR v. City of Waukesha, 184
Wis. 2d 178, 189-90, 515 N.W.2d 88 (1994), abrogated on other
grounds by State ex rel. Auchinleck v. Town of LaGrange, 200
Wis. 2d 585, 547 N.W.2d 587 (1996).
¶48 The majority's alternative explanation again falls back
on its misreading of C.A.J. It contends that the legislature's
removal of this explicit cross-reference to § 973.15 was simply an
effort to "revert[]" to the "accepted Wisconsin jurisprudence"
that arose following C.A.J. See majority op., ¶36. But because
C.A.J. did not hold that consecutive NGI commitments are permitted,
what the majority claims as "accepted jurisprudence" never
existed. Moreover, if § 971.17 already authorized consecutive NGI
commitments at the time C.A.J. was decided, then it is unclear why
7
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
the legislature would bother to add an explicit reference
to § 973.15 one year later.
¶49 The majority offers one more hypothesis for why removing
the cross-reference to § 973.15 has no effect on how we should
interpret § 971.17. It speculates that the legislature's deletion
of the cross-reference "is better read as" part of a "reform-
minded" "clean-up endeavor" to clarify and systematize NGI
commitments after the adoption of Truth-in-Sentencing. See
majority op., ¶36 n.14. It is true that the cross-reference
to § 973.15 was deleted at the same time as other changes
associated with Truth-in-Sentencing. See 2001 Wis.
Act 109, §§ 1106-07 (removing the citation to § 973.15
from § 971.17 and adding language to distinguish between NGI
commitments for offenses committed before and after the effective
date of Truth-in-Sentencing). But the majority does not explain
why implementing Truth-in-Sentencing has anything to do with the
removal of a reference to § 973.15. Keeping the citation
to § 973.15 in § 971.17 wouldn't cause any tension with Truth-in-
Sentencing. Rather, keeping the cross-reference after adopting
Truth-in-Sentencing would simply make clear that C.A.J. remained
good law——that the maximum length of an NGI commitment should be
calculated based on the maximum consecutive prison sentences that
could be imposed for the same conduct. The majority's conjecture
about the legislature's intent would render the legislature's
textual changes meaningless.
¶50 The rest of the majority's "clean-up" theory also fails
because it doesn't explain the legislature's other changes. In
8
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
particular, it can't account for why the legislature removed the
reference to § 973.15, but kept the references to the sentencing-
credit statute, § 973.155. See, e.g., § 971.17(1)(a), (b). By
the majority's logic, the legislature's use of the terms "maximum
term of confinement in prison" and "maximum term of imprisonment"
in § 971.17 was enough to import Wisconsin's criminal sentencing
statutes wholesale into the NGI commitment context. If that were
the case, then no cross-reference would be necessary to apply the
rules for sentencing credit to NGI commitments.
¶51 To be clear, the statutory history of § 971.17 is
ambiguous at best. On the one hand, it is reasonable to conclude
that the legislature did not intend for its deletion of the cross-
reference to § 973.15 to make a consequential change to the method
of calculating the maximum length of an NGI commitment,
particularly when that change was part of an act largely focused
on implementing Truth-in-Sentencing. Moreover, if the
legislature's intention was to change the law, it seems odd that
it also removed the § 973.15 cross-reference from § 971.17(1)(a),
which applies to felonies committed before the effective date of
Truth-in-Sentencing. But on the other hand, the legislature's
removal of any reference to § 973.15 has to mean something, and it
is hard to see what it means other than to prohibit courts from
considering consecutive criminal sentences when calculating the
maximum time a person can be committed after being found NGI.
Those ambiguities aside, at least one thing is clear about the
statutory history of § 971.17: it does not support the majority's
conclusion that consecutive NGI commitments are permitted.
9
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
¶52 The final reason for rejecting the majority's conclusion
is that it creates tensions between § 971.17(1) and the provisions
of § 971.17 governing the conditional release of individuals and
the eventual termination or expiration of commitments. See State
ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110 (directing courts to construe
statutory text in context and to avoid "unreasonable results").
Individuals who are subject to NGI commitments need not serve the
entire commitment period. For example, under § 971.17(4)(a), a
person committed for institutional care "may petition the
committing court to modify its order by authorizing conditional
release if at least 6 months have elapsed since the initial
commitment order was entered." In this case, the same circuit
court imposed consecutive NGI commitments in two cases at the same
time. But as the majority points out, "individuals requiring NGI
treatment can be subject to multiple commitment orders, perhaps
from different courts at different times." Majority op., ¶25.
Thus, under the majority's holding, if an individual is subject to
consecutive commitment orders from different judges, it is unclear
whether the person has to petition one court or both for
conditional release.
¶53 There is a similar problem with § 971.17(5), which
allows an individual on conditional release to "petition the
committing court to terminate the order of commitment" if certain
conditions are met. Even if an individual does not petition for
conditional release or termination, "upon the expiration of a
commitment order under sub. (1), the court shall discharge the
10
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
person." § 971.15(6)(b) (adding that the person's discharge is
subject to the right of the Department of Health Services or a
county health department to file a commitment petition under
ch. 51). How does a court comply with this requirement if there
is a consecutive commitment order in place? The majority provides
no guidance for how the lower courts should deal with these and
other questions raised by its erroneous conclusion.
¶54 All of the majority's errors are rooted in its neglect
of the basic premise that NGI commitment orders are not criminal
sentences. The majority's conclusion that § 971.17 authorizes
consecutive commitment orders is not only contrary to that premise,
it is unsupported by the statute's text, its history, and its
interpretation in C.A.J. The majority also creates tension in the
text of § 971.17 that may result in confusion regarding how lower
courts should apply the statute. Accordingly, I respectfully
dissent.
¶55 I am authorized to state that Justice ANN WALSH BRADLEY
joins this dissent.
11
Nos. 2019AP1832-CR & 2019AP1833-CR.rfd
1