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SCOW: circuit courts may impose consecutive NGI commitments

State v. Christopher W. Yakich, 2022 WI 8, 2/16/22, affirming an unpublished court of appeals decision; case activity (including briefs)

When a defendant is found not guilty by reason of mental disease or defect (NGI) for more than one offense, the commitments for the offenses may be ordered to run consecutively.

As we explained in our posts on the court of appeals decision and the supreme court’s review grant, Yakich was found NGI for four different crimes in two different cases. As required under § 971.17(1), the court committed Yakich to the care and custody of the Department of Health Services in each case, and ordered the commitment in the second case to run consecutively to the commitment in the first case. (¶¶4-9).

Yakich argues that § 971.17 itself doesn’t say the commitments in multiple cases can be consecutive, and that NGI commitments aren’t “sentences,” State v. Harr, 211 Wis. 2d 584, 587-88, 568 N.W.2d 307 (Ct. App. 1997), and so can’t be deemed to be governed by § 973.15(2)(a)‘s authorization for consecutive sentences. Further, he asserts, even though State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App. 1988), held that the maximum term of commitment under § 971.17 equals the maximum term of consecutive sentences, that opinion has no force now because of changes the legislature made to §  971.17 after C.A.J. was decided—specifically, and as described in our aforementioned previous posts on this case, the legislature expressly added a reference to § 971.15(2)(a) in § 971.17, but then deleted that reference a decade later, which shows an intent not to authorize consecutive commitments. (¶¶13, 26-36).

The supreme court rejects these claims. Citing § 971.17’s references to the “maximum term of confinement” (¶¶17-18) and the fact NGIs are “intimately tied to traditional criminal sentencing” (¶19), the court agrees with C.A.J.’s conclusions:

¶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.[0]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[(intro)]. 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 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)[(a)1]. 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.

What about the insertion and then repeal of the reference to consecutive sentencing authority? Was it all just so much argle-bargle? Well, the insertion apparently was, as the repeal was merely “a reform-minded effort of clarifying and systematizing” the NGI commitment statute, given the full statutory context and established interpretation of the statute in C.A.J., which prevails over the statutory history Yakich points to. (¶36 & n.14). Two dissenting justices (Dallet and A.W. Bradley) disagree, finding the majority’s explanation of a “clean-up effort” to be speculative; instead , the dissent concludes the legislature codified the consecutive commitment authority announced by C.A.J. but later took that authority away, and criticizes the majority for “neglect of the basic premise that NGI commitment orders are not criminal sentences.” (¶¶39-54).

Note to practitioners: The majority’s holding applies not only in multiple cases disposed of with an NGI commitment at the same time in front of the same judge, as in Yakich’s case, but also in multiple cases disposed of at different times before different judges, all of whom will have the authority to order new commitments to run consecutively to previously imposed commitments. (¶25).

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