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DHS’s transfer of NGI acquittee to DOC custody violated circuit court’s commitment order

State v. Bruce C. Brenizer, 2015AP2181, District 3, 6/6/17 (not recommended for publication); case activity (including select briefs)

The Department of Health Services didn’t have authority to transfer Brenizer to the Department of Corrections because the circuit court’s commitment order unambiguously states that Brenizer is committed to DHS custody for life unless his custody is terminated under § 971.17(5) (1991-92).

In 1992 Brenizer was charged with five counts of first-degree intentional homicide. He was convicted and consecutive life sentences on two counts. On the three remaining counts he was found NGI and committed to institutional care for life. The circuit court specified Brenizer should be in institutional care unless the commitment was terminated, in which case he would be released to DOC. (¶¶4-6).

Brenizer spent the next 20 years at Mendota. In 2013 DHS transferred him to DOC—not because he had been terminated from the commitment, but because DHS and DOC had a “memorandum of agreement” allowing them to arrange for custody of a person under both a criminal sentence and an NGI commitment. Brenizer objected to the transfer. (¶¶7-8).

The court of appeals holds that the plain and unambiguous terms of the commitment order require Brenizer to remain in institutional care under DHS custody for life unless his commitment is terminated under § 971.17(5). Because Brenizer’s commitment hasn’t been terminated, transferring him to DOC violated the express terms of the commitment order. (¶13). This is true even though Brenizer has also been sentenced to prison:

¶14     We acknowledge the State’s argument that Brenizer is subject to both the amended commitment order and a judgment of conviction. If neither the commitment order nor the judgment of conviction specified the circuit court’s intent as to whether the NGI commitment or sentences were to take precedence, we might agree with the State that, in the absence of a stay [of the prison sentences], the State would be free to choose whether to place Brenizer in prison or in a mental health facility. However, as discussed above, the amended commitment order clearly and unambiguously indicates the committing court intended Brenizer’s NGI commitment to take precedence over his sentences. Nothing in the judgment of conviction negates that clear intent. Reading the two documents together, it is plain the committing court did not intend the State to be able to determine, at its discretion, whether Brenizer should be placed in prison or in a mental health facility. Rather, the court intended Brenizer to be committed to the custody of DHS and placed in institutional care for life, unless his commitment is terminated. By transferring Brenizer to DOC custody while his commitment was still in effect, DHS violated the committing court’s clear intent.

The state attempts to get around the unambiguous commitment order by arguing it is invalid under State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 600 (1998). Szulczewski recognized that prison sentences ordinarily begin forthwith under § 971.15(1); however, it held that when it comes to sentencing an NGI acquittee a circuit court may, in its discretion, give precedence to the NGI commitment by staying the criminal sentence so that it begins after the NGI commitment, as a stay for that purpose satisfies the “legal cause” requirement in § 971.15(8)(a)1. Id. at 507. The circuit court didn’t stay Brenizer’s prison sentences, the state argues, so under Szulczewski the sentences take precedence over the NGI commitment. (¶18). Not so, says the court:

¶19     The problem with the State’s argument is that … Szulczewski was decided after Brenizer’s amended commitment order and judgment of conviction were entered. Although the State argues Szulczewski’s holding applies retroactively to the amended commitment order and the judgment of conviction, we disagree, for the reasons explained below. ….

The court’s reasons take up the next 12 pages of the decision, but here’s a summary of its basic conclusions:

•The court rejects the state’s claim that standard retroactivity analysis doesn’t apply to Szulczewski’s rule, as there’s no legal authority for the argument. (¶¶23-24).

•The court concludes Szulczewski’s rule is procedural, not substantive, and under standard retroactivity analysis in criminal cases procedural rules don’t apply to cases that were final before the rule was announced. Brenizer’s commitment order was final well before Szulczewski, so the case’s holding doesn’t apply to his case. (¶¶25-26). Further, none of the exceptions for retroactive application of a procedural rule apply here. (¶¶32-35).

•Finally, the state argues that Szulczewski is a civil rather than a criminal case, given the quasi-civil nature of § 971.17 proceedings, and that there’s a presumption of retroactivity for new rules of civil procedure. (¶¶27-29). The court finds the state’s claim to be dubious, but it doesn’t resolve the issue; instead it concludes that the presumption of retroactivity is overcome in this case because Szulczewski decided an issue of first impression and retroactive application would contravene the circuit court’s clear intent that the NGI commitment take precedence over the prison sentence. (¶¶31, 36-47).

A final point: In addition to allowing transfer to DOC custody in the event the commitment is terminated, the commitment order provides for transfer to DOC if Brenizer is granted conditional release, see § 971.17(4) (1991-92). (¶6). But whether it’s done through discharge or conditional release, getting Brenizer out of institutional care under DHS custody will take a court order, not DHS and DOC acting on their own.

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