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  • February 20, 2022

    State Law Allows Consecutive Terms of Commitment, Wisconsin Supreme Court Rules

    A circuit court properly imposed consecutive commitment periods on a criminal defendant who pleaded not guilty by reason of mental disease or defect, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    View Down The Hall Of A Mental Ward

    Feb. 20, 2022 – A circuit court properly imposed consecutive commitment periods on a criminal defendant who pleaded not guilty by reason of mental disease or defect (NGI), the Wisconsin Supreme Court has ruled.

    In State. v. Yakich, 2019AP183 (Feb. 16, 2022), the supreme court held a circuit court may impose consecutive NGI commitments because 1) Wis. Stat. section 971.17 links the maximum length of NGI commitments to the maximum length of criminal sentences; and 2) state law authorizes a circuit court to impose consecutive criminal sentences.

    The decision came on a 5-2 vote. Chief Justice Annette Ziegler wrote the majority opinion, joined by Justice Patience Roggensack, Justice Rebecca Grassl Bradley, Justice Brian Hagedorn, and Justice Jill Karofsky.

    Justice Rebecca Dallet dissented, joined by Justice Ann Walsh Bradley.

    Charges in Separate Cases

    As a result of two domestic incidents in 2018, the Waupaca County district attorney charged Christopher Yakich in separate cases with two counts of felony bail jumping and one count each of misdemeanor bail jumping, telephone harassment, obstructing an officer, possession of THC, disorderly conduct, and possession of drug paraphernalia.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Yakich pleaded guilty to felony bail jumping and phone harassment in the first case and pleaded guilty to two counts of felony bail jumping in the second case.

    Yakich then pleaded NGI to the same charges. The state did not object to those pleas and the circuit court accepted the guilty and NGI pleas.

    The circuit court imposed on Yakich a two-year NGI commitment for the first case, to run consecutively with a three-year NGI commitment period imposed for the second case.

    Yakich appealed, and the court of appeals affirmed the circuit court.

    Argument Over Sentencing Statute

    Before the supreme court, Yakich argued that section 971.17 did not authorize the circuit court to impose consecutive NGI commitment periods.

    The state argued that the court of appeals case State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (1988) was controlling.

    In C.A.J., the court of appeals held that a circuit court was authorized to impose consecutive sentences. C.A.J. governed the issue, the state argued, even though the legislature had amended section 971.17 since the C.A.J. was handed down.

    Link is Clear in Statute

    Chief Justice Ziegler began her opinion by noting that in enacting section 971.17, the legislature did limit or define the lengths of NGI commitments. Instead, she explained, the legislature explicitly tied the length of NGI commitments to the lengths of criminal sentences.

    Section 973.15(2) authorizes a circuit court to impose consecutive terms of criminal confinement, Chief Justice Ziegler noted.

    “Accordingly, courts have recognized that the maximum NGI commitment term a court can impose is the total length of consecutive criminal sentences for the same offense,” Chief Justice Ziegler wrote.

    The reasoning employed by the court of appeals in C.A.J. was sound, Chief Justice Ziegler explained, even though section 971.17(1) links NGI commitments to the length of the “offense charged.”

    Chief Justice Ziegler noted that traditionally, both the singular and plural of a word are included when the legislature uses only the singular, unless doing so would clash with the legislature’s intent.

    There was no such clash with regard to section 971.17, Chief Justice Ziegler explained, because section 971.17(1) is clear that the length of a NGI commitment may not exceed the length of the commensurate criminal sentence. 

    Because circuit courts are authorized to impose consecutive criminal sentences, they are authorized to impose consecutive NGI commitments, Chief Justice Ziegler reasoned.

    Legislature Could Have Changed Law

    The legislature could have restricted the authority of a circuit court to impose consecutive NGI commitments in several ways, Chief Justice Ziegler explained.

    For instance, the legislature could have limited NGI commitments to the maximum criminal sentence for the most serious offense; set a maximum time period for (as it did for commitments related to competency proceedings under section 971.14); or varied their lengths based on the number of offenses on which the defendant was convicted (as it did with probation under section 973.09(2)).

    Instead, Chief Justice Ziegler wrote, the legislature “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].’”

    The logic employed by the court of appeals in deciding C.A.J. remained sound, despite the fact the legislature had amended section 971.17 after that decision was issued, Chief Justice Ziegler explained.

    C.A.J. provided thorough and convincing analysis on statutory language contained in Wis. Stat. section 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,” Chief Justice Ziegler wrote.

    Dispute over C.AJ. Holding

    In her dissent, Justice Dallet wrote that the majority decision contravened the text and structure of section 971.17.

    The application of section 971.17 – and the holding in C.A.J. – to Yalich’s case was complicated by the fact that he pleaded NGI to four charges in two cases, Justice Dallet explained.

    “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,” Justice Dallet wrote.

    Justice Dallet explained that the majority had mischaracterized the holding in C.A.J. by interpreting it to mean that consecutive NGI commitments were just as appropriate as consecutive criminal sentences.

    Additionally, Justice Dallet wrote, “the majority erroneously concludes that … the legislature thus incorporated into the NGI context all other aspects of our approach to criminal sentencing.”

    Precedent makes clear that NGI commitments are not criminal sentences, Justice Dallet explained.

    Section 971.17 specifies only the length of NGI commitments, and “[b]ecause neither section 971.17 nor any other statute authorizes or even mentions consecutive NGI commitments, circuit courts may not impose consecutive commitments,” Justice Dallet wrote. 

    After all, Justice Dallet pointed out, probation and juvenile dispositions are not criminal sentences and therefore may not run consecutively.

    “The majority offers no reason why the legislature’s silence about consecutive commitments in section 971.17 should somehow have a different result,” Justice Dallet wrote.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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