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SCOW will decide whether NGI commitments can be consecutive to each other

State v. Christopher W. Yakich, 2019AP1832-CR & 2019AP1833-CR, petition for review of an unpublished decision of the court of appeals granted 6/16/21; case activity (including briefs)

Issue Presented (from the PFR):

When a defendant has been found not guilty by reason of mental disease or defect in two separate cases and is subject to two separate commitment orders, does the circuit court have authority to run the terms of commitment consecutive to one another?

Anyone who handles NGI cases will want to keep an eye on this case. As explained in our post on the court of appeals decision, the issue in this case arises from changes the legislature made to the statutes governing the length of the commitment of a person found not guilty by reason of mental disease or defect (NGI).

Back in the late 1980s, the NGI commitment statute, § 971.17 (1987-88), required imposition of the maximum term of commitment. In State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App. 1988), the court of appeals interpreted the statute to require maximum consecutive commitments for a person found NGI on multiple counts. The legislature codified C.A.J. in a 1989 enactment that also gave judges discretion to order commitment for less than the maximum available term. The codication was accomplished by inserting a reference to § 972.15(2)(a), which provides for consecutive sentences (which otherwise doesn’t apply, because NGI commitments aren’t sentences, see, e.g., State v. Harr, 211 Wis. 2d 584, 587, 568 N.W.2d 307 (Ct. App. 1997)).

But a decade later, in 2001 Wis. Act 109, the legislation fully implementing Truth in Sentencing, the legislature deleted the reference to § 972.15(2) while also recalibrating the maximum terms of commitment in light of the penalty increases that accompanied the switch to TIS. Yakich argues that deletion shows the legislature intended to bar consecutive commitments. The court of appeals didn’t agree, and instead concluded the legislature was only tidying up some already complex statutes. The supreme court will now decide whether Act 109 worked a substantive change or was merely housekeeping.

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