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Maximum length of NGI commitment equals maximum terms of confinement for all cases, added together

State v. Christopher W. Yakich, 2019AP1832-CR & 2019AP1833-CR, District 4, 1/14/21 (not recommended for publication), petition for review granted, 6/16/21; affirmed, 2022 WI 8; case activity (including briefs)

A defendant who is found not guilty by reasons of mental disease or defect (NGI) of a crime may be committed under § 971.17 for the maximum term of confinement (for felonies under Truth-in-Sentencing II, § 971.17(1)(b)) or two-thirds the maximum term of imprisonment (for misdemeanors or pre-TIS II felonies, § 971.17(1)(a) and (d)). The court of appeals holds that if a defendant is found NGI for more than one offense, the maximum term of commitment is determined by adding together the maximum terms on each offense, as if they were consecutive.

Yakich was found NGI for four offenses in two different cases. On one case the court committed him for 3 years. On the second case the court committed him for 2 years.  Using standard form CR-271, the court ordered the commitments to be “consecutive” to each other, for a total commitment of 5 years. (¶¶3-6).

The court’s authority regarding NGI commitments is derived solely from the statute. State ex rel. Helmer v. Cullen, 149 Wis. 2d 161, 164, 440 N.W.2d 790 (Ct. App. 1989). Yakich argues nothing in § 971.17 says commitments can be ordered to be consecutive to each other, and that because commitments aren’t criminal sentences, State v. Harr, 211 Wis. 2d 584, 587, 568 N.W.2d 307 (Ct. App. 1997), the consecutive sentence rule in § 973.15(2)(a) doesn’t authorize consecutive commitments, either. Moreover, back in the day, State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App. 1988), interpreted a prior version of § 971.17 to mean that the maximum term of commitment is equal to the total amount of time the person could have been imprisoned on maximum consecutive sentences for the crimes for which the person is found to be NGI. The legislature then codified C.A.J. by amending § 971.17 to expressly refer to § 972.15. But under 2001 Wis. Act 109—or TIS-II, the implementing legislation for the Truth-in-Sentencing revolution—the length of NGI commitments was altered and the reference to § 972.15 was deleted. This, Yakich says, shows the legislature decided to abrogate C.A.J. and bar “consecutive” commitments. (¶¶9-16, 19-22, 26-35).

The court of appeals has a different view:

¶38     After reviewing the statutory history and considering the parties’ arguments, we agree with the State that there is no indication that the legislature intended to abrogate C.A.J. when it passed the 2001 Act. If the legislature intended to change the substantive law as Yakich contends, it seems unlikely that the legislature would have removed the reference to Wis. Stat. § 973.15(2)(a) in Wis. Stat. § 971.17(1)(a), which addresses felonies that occurred before the effective date of the 2001 Act. The more likely explanation is that the legislature was attempting to simplify an already complex statute by omitting cross-references that were deemed unnecessary. [See Richland Sch. Dist. v. DILHR, 174 Wis. 2d 878, 896 n.8, 498 N.W.2d 826 (1993).] And we note that, consistent with this explanation, the 2001 Act did remove a number of such cross-references….

¶39     For all of these reasons, we conclude that the post-C.A.J. amendments to Wis. Stat. § 971.17 have not abrogated the holding of that case.

The court notes that the parties and form CR-271 use the term “consecutive” commitments, when, in fact, there is only one commitment period, the maximum potential length of which is calculated by adding up what maximum consecutive sentences could be imposed if the defendant wasn’t found NGI. (The court may give less than the maximum commitment under current law, a difference from the statute interpreted by C.A.J., which mandated the maximum period of commitment in every case.) Despite that criticism, however, the court notes the “fiction” of consecutive commitments is useful, particularly if different judges are ordering commitments in different cases at different times. (¶¶23-24 & n.12).

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