State v. Christopher W. Yakich

2022 WI 8, 970 N.W.2d 12, 400 Wis. 2d 549

• Court: Wisconsin Supreme Court
• Decided: February 16, 2022
• Docket: 2019AP001833-CR
• Status: Published

Opinion

2022 WI 8

SUPREME COURT OF WISCONSIN CASE NO.: 2019AP1832-CR & 2019AP1833-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Christopher W. Yakich, Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 396 Wis. 2d 195,956 N.W.2d 465 (2021 – unpublished)

OPINION FILED: February 16, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: December 8, 2021

SOURCE OF APPEAL: COURT: Circuit COUNTY: Waupaca JUDGE: Vicki L. Clussman

JUSTICES: ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs filed by Cary Bloodworth, assistant state public defender. There was an oral argument by Cary Bloodworth.

For the defendant-appellant, there was a brief filed by Scott E. Rosenow, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Kara Lynn Janson, assistant attorney general. 2022 WI 8 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 2019AP1832-CR & 2019AP1833-CR (L.C. Nos. 2018CF169 & 2018CF301)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. FEB 16, 2022 Christopher W. Yakich, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant-Petitioner.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of an

unpublished decision of the court of appeals, State v. Yakich,

Nos. 2019AP1832-CR & 2019AP1833-CR, unpublished slip op. (Wis. Ct.

App. Jan. 14, 2021), affirming the Waupaca County circuit court's1

orders committing Christopher W. Yakich to the Wisconsin

Department of Health Services for a total period of five years.

1 The Honorable Vicki L. Clussman presided. Nos. 2019AP1832-CR & 2019AP1833-CR

¶2 In two separate cases, Yakich pleaded guilty to three

counts of bail jumping and one count of phone harassment. In the

first case, he pleaded guilty to one count of bail jumping and one

count of phone harassment, and in the second case, he pleaded

guilty to two counts of bail jumping. The circuit court accepted

Yakich's pleas in both cases at the same hearing. After the

parties agreed that Yakich was not guilty by reason of mental

disease or defect ("NGI")2 for all four of his offenses, the court

ordered a five-year NGI commitment period. In so doing, the

circuit court ordered a two-year term of commitment for one of

Yakich's cases and a three-year term of commitment for the second

case. The commitment periods were ordered to run consecutively.

¶3 On appeal, Yakich argues that the circuit court's two

commitment orders must run concurrently and cannot run

consecutively. However, we hold that Wis. Stat. § 971.17 (2017-

18)3 provides circuit courts with the statutory authority to impose

consecutive periods of NGI commitment. Because the circuit court

properly exercised its authority to impose consecutive NGI

2 In Wisconsin, individuals can be found "not guilty by reason of mental disease or defect" of a criminal charge. See Wis. Stat. § 971.15 (2019-20) (explaining the standard for asserting the defense of not guilty by reason of mental disease or defect). "This is known in common parlance as the 'insanity' defense." State v. Burton, 2013 WI 61, ¶42, 349 Wis. 2d 1, 832 N.W.2d 611. Thus, "NGI," for "not guilty by reason of insanity," is used as a shorthand. 3 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.

2 Nos. 2019AP1832-CR & 2019AP1833-CR

commitment periods, the circuit court and the court of appeals are

affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 There are two criminal cases at issue. In May 2018,

Yakich called his mother to tell her that he intended to assault

his brother and burn his brother's house to the ground. At the

time of the phone call, Yakich was on a signature bond for

unrelated criminal charges. He was subsequently charged in Waupaca

County circuit court with one count of phone harassment and one

count of felony bail jumping, and he was released again on

signature bond.4 This is the first criminal case at issue.

¶5 In August 2018, while on bond, Yakich called the Waupaca

County Department of Health and Human Services distressed and

contemplating suicide. Police went to Yakich's apartment to

conduct a welfare check. When the police arrived, they found the

front door barricaded; Yakich refused to answer the door. After

the police attempted to enter the apartment through use of a

battering ram, Yakich exited his apartment through a back entrance.

The police quickly apprehended Yakich behind his apartment, and he

was handcuffed and searched. Yakich began yelling frantically,

casting profanities, and accusing police of sexual assault. Once

Yakich was arrested, police entered his apartment and, in plain

view, officers observed drug paraphernalia and suspected illegal

narcotics. After obtaining a search warrant, police seized drug

4 Waupaca County Case No. 2018CF169.

3 Nos. 2019AP1832-CR & 2019AP1833-CR

paraphernalia and controlled substances in Yakich's possession;

marijuana and traces of cocaine were discovered.

¶6 As a result of the events in August 2018, the State

charged Yakich in Waupaca County circuit court with two counts of

felony bail jumping and one count each of misdemeanor bail jumping,

telephone harassment, obstructing an officer, possession of

tetrahydrocannabinols ("THC"), disorderly conduct, and possession

of drug paraphernalia.5 This is the second criminal case at issue

in the instant dispute.

¶7 After Yakich was charged in both cases, he entered into

a global plea agreement to resolve his outstanding charges. He

pleaded guilty to felony bail jumping and phone harassment in the

first case, and he pleaded guilty to two counts of felony bail

jumping in the second case. Yakich then pleaded NGI to those same

counts.6 The State chose to not object to Yakich's NGI plea. At

a hearing in December 2018, the circuit court accepted Yakich's

guilty and NGI pleas for both criminal cases.

¶8 At the December 2018 hearing, the State argued that the

court should impose a two-year NGI commitment period for the first

case and a three-year NGI commitment period for the second case.

In total, the State asked that the court order five years of NGI

5 Waupaca County Case No. 2018CF301. 6 NGI pleas are "bifurcated into two phases: the guilt phase and the responsibility phase." State v. Fugere, 2019 WI 33, ¶¶26- 27, 386 Wis. 2d 76, 924 N.W.2d 469. The defendant proceeds to an NGI determination only after he is "found guilty of the elements of the crime(s)." Id.

4 Nos. 2019AP1832-CR & 2019AP1833-CR

commitment, with the two commitment periods running consecutively.

Yakich opposed the State's proposal. He argued that the circuit

court could run the two NGI commitment orders only concurrently,

and thus, according to Yakich, a total commitment period of three

years was warranted.

¶9 The circuit court agreed with the State. It imposed a

five-year commitment period, running a two-year period in the first

case consecutive to a three-year period in the second case.

Further, the circuit court ordered that Yakich be

institutionalized in order to receive proper mental health

treatment.

¶10 Yakich appealed the circuit court's orders, arguing that

the circuit court lacked authority to run the two NGI commitment

orders consecutively. On January 14, 2021, the court of appeals

affirmed the circuit court. Yakich, Nos.

2019AP1832—CR & 2019AP1833-CR. The court of appeals noted that in

State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App. 1988),

it had held that NGI commitment periods under Wis. Stat. § 971.17

(1987-88) could total the maximum period of commitment that the

defendant would have received had the defendant been subject to

traditional criminal sentencing, "taking into account

that . . . sentencing court[s] . . . have authority to impose

consecutive prison sentences." Yakich, Nos. 2019AP1832-CR &

2019AP1833-CR, ¶¶19-23. Thus, "a commitment period encompassing

multiple criminal counts" may "add[] together the maximum terms of imprisonment for all of those counts." Id., ¶22. Because it was

5 Nos. 2019AP1832-CR & 2019AP1833-CR

concerned over whether NGI commitments could run consecutively to

criminal confinement, the court of appeals stated that combined

NGI commitment periods would not technically be "consecutive."

Id., ¶¶9-14. Instead, the court of appeals reasoned that combined

terms would be "a single commitment period" with no consecutive

NGI commitment terms.7 Id., ¶23. Nonetheless, the court of appeals

concluded that the holding of C.A.J. was still binding law, despite

amendments to Wis. Stat. § 971.17 since the 1988 case was decided.

Therefore, Yakich's five-year commitment period was affirmed.

¶11 Yakich petitioned this court to review the court of

appeals decision. On June 16, 2021, we granted the petition.

II. STANDARD OF REVIEW

¶12 This case presents a question of statutory

interpretation. "Interpretation of a statute is a question of law

that we review de novo, although we benefit from the analyses of

the circuit court and the court of appeals." Estate of Miller v.

Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759.

"[S]tatutory interpretation begins with the language of the

statute. If the meaning of the statute is plain, we ordinarily

stop the inquiry. Statutory language is given its common,

ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or

As explained below, we conclude that Wis. Stat. § 971.17 7

authorizes consecutive NGI commitment periods. Thus, we do not adopt the court of appeals' framing of the issue, nor do we accept its reasoning that circuit courts are prohibited from running multiple NGI commitment terms consecutively.

6 Nos. 2019AP1832-CR & 2019AP1833-CR

special definitional meaning." State ex rel. Kalal v. Cir. Ct.

for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110

(citations and quotations omitted). In addition, "statutory

language is interpreted in the context in which it is used; not in

isolation but as part of a whole; in relation to the language of

surrounding or closely-related statutes; and reasonably, to avoid

absurd or unreasonable results." Id., ¶46.

III. ANALYSIS

¶13 Yakich argues that courts cannot impose consecutive

periods of NGI commitment, and his two commitment orders must run

concurrently. He argues that a statute must provide circuit courts

with the authority to impose consecutive NGI commitments, and Wis.

Stat. § 971.17, the NGI commitment statute, fails to do so. In

response, the State argues that the court of appeals correctly

applied its binding precedent in C.A.J. According to the State,

the court of appeals accurately concluded in C.A.J. that

consecutive NGI commitment periods are appropriate, just as

consecutive terms of confinement are appropriate in criminal

sentencing. Even though § 971.17 has been amended since C.A.J.,

the State claims the reasoning underlying the decision remains

sound.

¶14 We agree with the State and conclude that circuit courts

may impose consecutive periods of NGI commitment.

A. The Authority To Impose Consecutive NGI Commitment Periods ¶15 Wisconsin Stat. § 971.17(1) establishes the commitment periods for individuals found NGI. Under the statute, commitment

7 Nos. 2019AP1832-CR & 2019AP1833-CR

periods are set by reference to the category of offense and when

the offense occurred:

(a) Felonies committed before July 30, 2002. Except as provided in par. (c), when a defendant is found not guilty by reason of mental disease or mental defect of a felony committed before July 30, 2002, the court shall commit the person to the department of health services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed against an offender convicted of the same felony, including imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

(b) Felonies committed on or after July 30, 2002. Except as provided in par. (c), when a defendant is found not guilty by reason of mental disease or mental defect of a felony committed on or after July 30, 2002, the court shall commit the person to the department of health services for a specified period not exceeding the maximum term of confinement in prison that could be imposed on an offender convicted of the same felony, plus imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

(c) Felonies punishable by life imprisonment. If a defendant is found not guilty by reason of mental disease or mental defect of a felony that is punishable by life imprisonment, the commitment period specified by the court may be life, subject to termination under sub. (5).

(d) Misdemeanors. When a defendant is found not guilty by reason of mental disease or mental defect of a misdemeanor, the court shall commit the person to the department of health services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed against an offender convicted of the same misdemeanor, including imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

§ 971.17(1).

8 Nos. 2019AP1832-CR & 2019AP1833-CR

¶16 Thus, the maximum commitment period for felonies

committed prior to July 30, 2002, is tied to the "maximum term of

imprisonment that could be imposed against an offender convicted

of the same felony," while felonies committed on or after July 30,

2002, have a maximum period tied to "the maximum term of

confinement in prison" that could be imposed in traditional

criminal sentencing. Wis. Stat. § 971.17(1)(a), (b). A felony

punishable by life imprisonment has a maximum commitment period of

life, and the maximum commitment period for misdemeanors is based

on "two-thirds of the maximum term of imprisonment" that could be

imposed in criminal sentencing. § 971.17(1)(c), (d).

¶17 All four categories of NGI commitment, by the plain text

of the statute, are tied to and directly dependent on the lengths

of sentences in criminal proceedings. See Kalal, 271 Wis. 2d 633,

¶45. NGI commitment orders are limited by how long an "offender

convicted of the same [offense]" may be "imprison[ed]" or

"confin[ed] in prison." Wis. Stat. § 971.17(1)(a), (b), (d).

Instead of setting out an independent basis by which courts may

determine the length of NGI commitments, the legislature made NGI

commitment lengths dependent upon criminal sentencing lengths.

Under § 971.17(1), to determine the length of NGI commitments,

courts must look to criminal terms of imprisonment and confinement,

as well as criminal "penalty enhancement statutes," and nowhere

else. Id. Further, the statute allows NGI committees to reduce

their period of commitment by the terms of Wisconsin's criminal sentence credit statute. See id. (explaining that periods of NGI

9 Nos. 2019AP1832-CR & 2019AP1833-CR

commitment are "subject to the credit provisions of s. 973.155").

The statute does not limit or define lengths of NGI commitment for

multiple offenses. Instead, under the plain terms of § 971.17,

the length of NGI commitment is based on the total length of prison

terms the individual could receive in traditional criminal

proceedings.

¶18 The legislature certainly could have written the statute

differently. For instance, in Wis. Stat. § 973.09(2), the

legislature explicitly outlined "the minimum and maximum 'original

term of probation' that may be imposed for different quantities

and classes of misdemeanor and felony offenses." State v. Dowdy,

2012 WI 12, ¶40, 338 Wis. 2d 565, 808 N.W.2d 691 (quoting Wis.

Stat. § 973.09(2) (2009-10)). Under § 973.09(2), courts are

provided identified ranges for probation, and those ranges vary

based on whether the individual was convicted of one misdemeanor,

"not less than 2 nor more than 4 misdemeanors," "5 or more

misdemeanors," a felony, or "2 or more crimes, including at least

one felony." § 973.09(2)(a), (b). The probation statute itself

defines lengths of probation and bases them on the type, and

number, of offenses committed. Unlike Wis. Stat. § 971.17,

§ 973.09 does not rely on lengths of incarceration as established

under criminal sentencing statutes. In § 971.17, the legislature

took a different approach. It cited and relied on the criminal

sentencing system to define the lengths of NGI commitments. See

10 Nos. 2019AP1832-CR & 2019AP1833-CR

¶19 In line with Wis. Stat. § 971.17(1)'s statutory

directive, we have repeatedly recognized that the length of NGI

commitments is intimately tied to traditional criminal sentencing.

See, e.g., State v. Fugere, 2019 WI 33, ¶47, 386 Wis. 2d 76, 924

N.W.2d 469 ("In Wisconsin, NGI commitment terms may not exceed the

maximum confinement term of the charged criminal offense."); State

v. Randall, 192 Wis. 2d 800, 808-09, 532 N.W.2d 94 (1995) ("[NGI]

commitment may not exceed the maximum term of imprisonment which

could have been imposed for the offenses charged."). As the court

of appeals accurately explained in C.A.J., 148 Wis. 2d at 140,

"the legislature intended to prohibit a person found not guilty by

reason of mental defect or disease from being committed any longer

than the underlying offense," i.e., how the person would have been

sentenced if the NGI defense had failed.

¶20 When a defendant is criminally sentenced, a circuit

court has the authority to impose consecutive terms of confinement.

Wis. Stat. § 973.15(2). For decades, courts have understood that

NGI commitment lengths, by the text of Wis. Stat. § 971.17, are

dependent on the lengths of criminal sentences. Accordingly,

courts have recognized that the maximum NGI commitment term a court

can impose is the total length of consecutive criminal sentences

11 Nos. 2019AP1832-CR & 2019AP1833-CR

for the same offenses.8 See C.A.J., 148 Wis. 2d at 139 (concluding

that the maximum term of NGI commitment "reflects the maximum

length of time under consecutive sentences that [the defendant]

could have been imprisoned"); State ex rel. Helmer v. Cullen, 149

Wis. 2d 161, 163, 440 N.W.2d 790 (Ct. App. 1989) (explaining that

"the maximum period of [NGI] commitment must be based on

consecutive terms").

¶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.

§ 990.01(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. 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

Under Wis. Stat. § 971.17, courts take into account the 8

distinction between confinement before and after Truth-in- Sentencing. NGI commitment terms for felonies committed prior to July 30, 2002, and for misdemeanors cannot exceed "two-thirds of the maximum term of imprisonment that could be imposed." Wis. Stat. § 971.17(1)(a), (d). For felonies committed on or after July 30, 2002, NGI commitment terms cannot exceed "the maximum term of confinement in prison." § 971.17(1)(b).

12 Nos. 2019AP1832-CR & 2019AP1833-CR

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). 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.

13 Nos. 2019AP1832-CR & 2019AP1833-CR

¶23 Similarly, the legislature could have limited the length

of NGI commitments to specifically delineated terms, and varied

the length based on the number of offenses of which the defendant

was convicted. As explained above, the legislature did this with

probation under Wis. Stat. § 973.09(2).

¶24 The legislature in Wis. Stat. § 971.17(1) did not limit

NGI commitments 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," as it did in Wis.

Stat. § 971.14, nor did it limit commitment periods based on the

number of offenses, as it did in Wis. Stat. § 973.09. Instead, it

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]," enhanced by "any applicable

penalty enhancement statutes" and reduced by "the [criminal

sentence] credit provisions of s. 973.155." § 971.17(1)(a), (b),

(d). As the court of appeals explained in C.A.J., the legislature

has plainly demonstrated the ability to limit the use of

consecutive NGI commitments. 148 Wis. 2d at 140. In § 971.17, it

declined to do so, and we must give effect to the legislature's

choice. See Kalal, 271 Wis. 2d 633, ¶44 ("We assume that the

legislature's intent is expressed in the statutory language.");

Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶¶36-37,

341 Wis. 2d 607, 815 N.W.2d 367 (explaining that "the legislature

knew how to draft [different] language" in a statute, and the court "must respect the text" as written); United Am., LLC v. DOT, 2021

14 Nos. 2019AP1832-CR & 2019AP1833-CR

WI 44, ¶¶15-16, 397 Wis. 2d 42, 959 N.W.2d 317 (comparing the text

of two statutory provisions and noting that the "legislature knows

how" to write different statutory language).

¶25 A circuit court's authority to impose consecutive NGI

commitment periods is not affected by the existence of separate

orders.9 In this case, Yakich's five-year NGI commitment was set

forth in two orders. In his first case, involving bail jumping

and phone harassment, he was ordered to three years of NGI

commitment. In his second case, involving two counts of bail

jumping, he was ordered to two years of NGI commitment.10 Although

the offenses at issue were not included in a single criminal charge

and thus the NGI commitments were separated into two orders, that

does not alter Wis. Stat. § 971.17's language permitting

consecutive NGI commitments. There is no indication in § 971.17

that periods of NGI commitment vary depending on whether charges

are brought under one or more criminal complaints. In fact, there

may be victims and crimes that occur over the course of years, and

Yakich does not appear to dispute that circuit courts can 9

impose consecutive NGI commitment periods for multiple counts included in the same case. In briefing, he contended that Wis. Stat. § 971.17 "arguably . . . authorizes the court to calculate the overall commitment period in [a single] case based on consecutive terms of confinement for each count in that case."

The parties do not dispute that these orders were well 10

within the statutory range for confinement had Yakich been criminally sentenced. The maximum term of confinement for a Class H felony, including felony bail jumping to which Yakich pleaded NGI on three counts, is three years. See Wis. Stat. § 946.49(1)(b); Wis. Stat. § 973.01(2)(b)8. Had Yakich not been found NGI, he could have received a sentence of at least nine years of confinement.

15 Nos. 2019AP1832-CR & 2019AP1833-CR

in distinct factual circumstances. It is entirely possible that

individuals requiring NGI treatment can be subject to multiple

commitment orders, perhaps from different courts at different

times. Circuit courts retain discretion to impose consecutive NGI

commitments, whether the commitments are mandated in the same order

or mandated in separate orders. Yakich's total commitment period

of five years, set forth in two orders, was appropriate.11

B. Yakich's Arguments On Appeal

¶26 Yakich makes several arguments in favor of his position

on appeal. First, he accurately notes that Wis. Stat. § 971.17

does not explicitly state that circuit courts may run NGI

commitments consecutively. The court of appeals noted this fact

in C.A.J. See C.A.J., 148 Wis. 2d at 139 (explaining that "the

statute's language does not specifically indicate whether the

maximum term of commitment may be based on consecutive terms").

It did not impact C.A.J. when it was decided, and it does not

impact the analysis now. The plain text of the statute ties NGI

commitment periods to the length of confinement that would have

occurred if the defendant were not NGI. § 971.17(1). Criminal

terms of confinement can run consecutively, and so can NGI

commitment terms. If the legislature wanted to limit NGI

This does not necessarily mean that Yakich will be 11

institutionalized for five years. "[A] defendant who succeeds on an NGI defense and is committed may file a petition for conditional release every six months, and if on conditional release, may file a petition to terminate the underlying order of commitment." Fugere, 386 Wis. 2d 76, ¶29 (citing Wis. Stat. § 971.17(4), (5) (2015-16)).

16 Nos. 2019AP1832-CR & 2019AP1833-CR

commitment in a way that it did not similarly limit criminal

sentencing, it could have delineated the length of commitment for

multiple offenses, as it did for probationary terms. Wis. Stat.

§ 973.09(2). Alternatively, it could have explicitly limited

commitment periods to the maximum sentence the circuit court could

have imposed for the most serious offense, as it did with

competency proceedings. Wis. Stat. § 971.14(5). The plain text

of § 971.17 supports the conclusion that circuit courts may impose

consecutive NGI commitment periods.

¶27 Yakich also cites court of appeals decisions holding

that terms of probation and juvenile dispositions cannot run

consecutively. See State v. Wolfe, 2001 WI App 136, ¶15, 246

Wis. 2d 233, 631 N.W.2d 240 ("[T]he concept of consecutive

sentences is foreign in the context of juvenile adjudications and

dispositions."); State v. Schwebke, 2001 WI App 99, ¶29, 242 Wis.

2d 585, 627 N.W.2d 213 ("[W]e have repeatedly held that probation

cannot be made consecutive to probation."). Yakich argues that

the same logic should apply to NGI commitments. Nonetheless, the

text of the probation statute, Wis. Stat. § 973.09(2), explicitly

defines and limits the length of probationary terms when an

individual is convicted of multiple offenses. Section 973.09 is

readily distinguishable from Wis. Stat. § 971.17. Further,

"[a]lthough the juvenile system is similar in some respects to the

criminal system, we have specifically rejected an exact equation

of institutional placement of a juvenile with the incarceration of an adult." E.C. v. DHSS, 142 Wis. 2d 906, 918, 420 N.W.2d 37

17 Nos. 2019AP1832-CR & 2019AP1833-CR

(1988). That is very different from § 971.17, which by its terms

ties the length of NGI commitments to maximum terms of criminal

incarceration.

¶28 We will not opine on the correctness of the decisions

cited by Yakich. It suffices to note that probation and juvenile

dispositions are distinguishable and not at issue in this case;

Wis. Stat. § 971.17 provides circuit courts authority to impose

consecutive NGI commitments.

¶29 Yakich targets his argument more narrowly and cites a

court of appeals decision that prohibited criminal sentences from

being run consecutively to NGI commitments. See State v. Harr,

211 Wis. 2d 584, 587-88, 568 N.W.2d 307 (Ct. App. 1997). The court

of appeals in Harr interpreted Wis. Stat. § 973.15(2) (1995-96),

which allows circuit courts to impose criminal sentences

"consecutive to any other sentence." Id. The court of appeals

held that because an NGI commitment was not a "sentence," § 973.15

did not permit a circuit court to impose a criminal sentence

consecutive to the commitment. That analysis is not relevant to

the question at issue in this case. Whether a circuit court may

impose a criminal sentence consecutively to an NGI commitment under

§ 973.15 has simply no bearing on whether a circuit court may

impose consecutive NGI commitments under Wis. Stat. § 971.17.

¶30 Finally, Yakich argues that the court of appeals

decision in C.A.J. is no longer good law because the legislature

has amended Wis. Stat. § 971.17 several times since C.A.J. was decided. At the time C.A.J. was decided, § 971.17 stated:

18 Nos. 2019AP1832-CR & 2019AP1833-CR

When the maximum period for which a defendant could have been imprisoned if convicted of the offense charged has elapsed, subject to s. 53.11 and the credit provisions of s. 973.155, the court shall order the defendant discharged subject to the right of the department to proceed against the defendant under ch. 51. If the department does not so proceed, the court may order such proceeding. § 971.17(4) (1987-88).

¶31 Like it does now, Wis. Stat. § 971.17 when C.A.J. was

decided based the maximum time in which a defendant could be

subject to NGI commitment to the maximum term of criminal

imprisonment. At that time, the maximum term of criminal

imprisonment included the possibility of consecutive terms.

C.A.J., 148 Wis. 2d at 140. There is no dispute that remains true

today.12 See Wis. Stat. § 973.15(2). Furthermore, we are not

bound by court of appeals decisions. As the state's highest court,

we interpret legal questions independently. See State v. Lira,

2021 WI 81, ¶45, 399 Wis. 2d 419, 966 N.W.2d 605 ("While respecting

court of appeals precedent is an important consideration, it is

not determinative."). To the extent that § 971.17 may have changed

since C.A.J., applying de novo review, the logic underlying the

court of appeals decision nonetheless remains convincing.

12In fact, the language included in Wis. Stat. § 971.17 at the time of C.A.J. is almost identical to the language included in the statute today. Compare § 971.17(4) (1987-88) (limiting NGI commitment to "the maximum period for which a defendant could have been imprisoned if convicted of the offense charged"), with § 971.17(1) (2017-18) (stating that NGI commitment periods must be based on "the maximum term of imprisonment [or confinement in prison] that could be imposed against an offender convicted of the same felony [or misdemeanor]").

19 Nos. 2019AP1832-CR & 2019AP1833-CR

Independently interpreting § 971.17, we agree with C.A.J.'s

reasoning.

¶32 Yakich contends that the statutory history of Wis. Stat.

§ 971.17 indicates that the legislature has rejected the reasoning

in C.A.J. After C.A.J. was decided, the legislature amended

§ 971.17 to allow circuit courts to commit NGI defendants

for a specified period not exceeding two–thirds of the maximum term of imprisonment that could be imposed under s. 973.15(2) against an offender convicted of the same crime or crimes, including imprisonment authorized by ss. 161.48, 939.62, 939.621, 939.63, 939.64, 939.641 and 939.645 and other penalty enhancement statutes, as applicable, subject to the credit provisions of s. 973.155. 1989 Wis. Act 334, § 5 (emphasis added).

¶33 Beginning in the late 1990s, Wisconsin transitioned to

automatic bifurcated sentences under Truth-in-Sentencing laws.13

Replacing the more indeterminate system of parole, under Truth-

in-Sentencing, circuit courts were "required to impose a

bifurcated sentence consisting of a term of confinement in prison

followed by a term of extended supervision." State v. Stenklyft,

2005 WI 71, ¶¶16-17, 281 Wis. 2d 484, 697 N.W.2d 769; see Wis.

Stat. § 973.01. As part of this reform, the legislature in 2001

13Wisconsin enacted Truth-in-Sentencing in two phases. "The first phase, TIS–I, was enacted in June 1998 and applied to offenses committed on or after December 31, 1999. See 1997 Wis. Act 283. The second phase, TIS–II, was enacted in July 2002 and became effective February 1, 2003. See 2001 Wis. Act 109." State v. Stenklyft, 2005 WI 71, ¶16, 281 Wis. 2d 484, 697 N.W.2d 769 (quoting State v. Gallion, 2004 WI 42, ¶7 n.3, 270 Wis. 2d 535, 678 N.W.2d 197)). Bifurcated sentencing was enacted in the first phase. Id.

20 Nos. 2019AP1832-CR & 2019AP1833-CR

amended § 971.17 to tie NGI commitments for felonies committed

after July 2002 (and subject to Truth-in-Sentencing) to "the

maximum term of confinement in prison that could be imposed," i.e.,

the confinement portion of a bifurcated sentence. § 971.17(1)(b).

The legislature kept the original language for NGI commitments

based on felonies committed prior to July 2002 as well as

misdemeanors; felonies subject to life imprisonment remained

subject to lifetime NGI commitment. See, e.g., § 971.17(1)(a)

("[T]he court shall commit the person to the department of health

services for a specified period not exceeding two-thirds of the

maximum term of imprisonment that could be imposed . . . .").

¶34 Yakich points out that the legislature removed the

reference to Wis. Stat. § 973.15 when it made its reforms in 2001.

Wisconsin Stat. § 971.17 no longer contains the language "under s.

973.15(2)" in the portion of the statute setting the maximum length

of NGI commitment.

¶35 Yet it is well accepted that "[w]hen the legislature

enacts a statute, it is presumed to act with full knowledge of the

existing laws." Hoffer Props., LLC v. DOT, 2016 WI 5, ¶35, 366

Wis. 2d 372, 874 N.W.2d 533. C.A.J. provided thorough and

convincing analysis on statutory language contained in Wis. Stat.

§ 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, namely neither cross references the criminal sentencing

statute. Section 971.17 was changed in 1989 to include explicit statutory cross references to Wis. Stat. § 973.15, but, even after

21 Nos. 2019AP1832-CR & 2019AP1833-CR

1989, the statute continued to include language tying NGI

commitment to the length of criminal sentences. When the explicit

cross reference was removed in 2001, the legislature could have

accompanied the 2001 changes with an express statement that NGI

commitments must run concurrently, or other amendments that would

serve to prohibit consecutive commitment periods. See, e.g., Wis.

Stat. § 971.14(5) (stating that commitment to obtain competency

cannot extend longer than "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"); see also

Czapinski v. St. Francis Hosp., Inc., 2000 WI 80, ¶¶17-23, 236

Wis. 2d 316, 613 N.W.2d 120 (holding that newly imposed

limitations on medical malpractice damages did not implicitly

repeal the decision of "[n]umerous Wisconsin courts" limiting the

class of individuals entitled to recover for loss of society and

companionship in medical malpractice suits, noting the lack of

express language to the contrary); Strenke v. Hogner, 2005 WI 25,

¶28, 279 Wis. 2d 52, 694 N.W.2d 296 (reiterating that legislative

enactments are made in the context of caselaw and reasoning that

changes in the statutory proof of intent for punitive damages did

not alter prior cases interpreting the meaning of intent).

Instead, the legislature chose to retain language largely tracking

the statute interpreted in C.A.J., which, by 2001, had become

accepted jurisprudence in Wisconsin.

¶36 While statutory history can be helpful when interpreting the meaning of a statute, in this case the legislature did not

22 Nos. 2019AP1832-CR & 2019AP1833-CR

enact the substantial change Yakich advances through the removal

of a Wis. Stat. § 973.15 cross reference. State v. Williams, 2014

WI 64, ¶17, 355 Wis. 2d 581, 852 N.W.2d 467. With knowledge of

existing caselaw, the legislature reverted Wis. Stat. § 971.17 to

the language interpreted by the court of appeals in C.A.J. In so

doing, the legislature made no express statement or change in the

functioning in the statute to override decades of accepted

Wisconsin jurisprudence.14 Wisconsin Stat. § 971.17, as it did

when C.A.J. was decided, permits consecutive NGI commitment terms.

IV. CONCLUSION

¶37 In two separate cases, Yakich pleaded guilty to three

counts of bail jumping and one count of phone harassment. The

circuit court accepted Yakich's pleas in both cases at the same

hearing. After the parties agreed that Yakich was NGI for all

four of his offenses, the court ordered a five-year commitment

period. In so doing, the circuit court ordered a two-year term of

14Yakich devotes much of his energy to the statutory history argument. Instead of the dramatic legal shift Yakich attempts to ascribe to the 2001 change, the statutory history is better read as a reform-minded effort of clarifying and systematizing NGI commitments after the new regime of Truth-in-Sentencing was passed. The legislature removed numerous other cross references in Wis. Stat. § 971.17, outside of Wis. Stat. § 973.15(2). It also removed citations to all other penalty provisions, including Wis. Stat. §§ "161.48, 939.62, 939.621, 939.63, 939.64, 939.641 and 939.645." As part of this clean-up endeavor, the legislature clarified that felonies committed prior to Truth-in-Sentencing have NGI commitments based on "two-thirds of the maximum term of imprisonment that could be imposed," and felonies committed after Truth-in-Sentencing have NGI commitments based on "the maximum term of confinement in prison that could be imposed" for a bifurcated sentence. § 971.17(1)(a), (b).

23 Nos. 2019AP1832-CR & 2019AP1833-CR

commitment for one of Yakich's cases and a three-year term of

commitment for the second case. The commitment periods were

ordered to run consecutively.

¶38 On appeal, Yakich argues that the circuit court's two

consecutively. Nonetheless, we hold that Wis. Stat. § 971.17

provides circuit courts the statutory authority to impose

consecutive periods of NGI commitment. Because the circuit court

commitment periods, the circuit court and the court of appeals are

By the Court.—The decision of the court of appeals is

24 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

¶39 REBECCA FRANK DALLET, J. (dissenting). Defendants who

are found not guilty by reason of mental disease or defect (NGI)

are by definition not guilty. See Wis. Stat. §§ 971.165(3)(b)

and 971.17. For this reason, we have repeatedly emphasized that

NGI commitments are not criminal sentences. See State v. Fugere,

2019 WI 33, ¶29, 386 Wis. 2d 76, 924 N.W.2d 469; State v.

Szulczewski, 216 Wis. 2d 495, ¶7 n.3, 574 N.W.2d 660 (1998); see

also State v. Harr, 211 Wis. 2d 584, 587, 568 N.W.2d 307 (Ct.

App. 1997). The majority's holding that circuit courts may impose

consecutive NGI commitments is contrary to this basic premise,

unsupported by the text and structure of § 971.17, and will likely

be unworkable in practice. I therefore respectfully dissent.

¶40 When a defendant is found NGI, the circuit court must

"commit the person to the department of health services" for a

specified period. See § 971.17(1). Circuit courts have some

discretion to determine the appropriate period, but the commitment

cannot exceed the maximum time periods specified in § 971.17(1). Different offenses carry different maximum commitment periods,

depending on whether the offense is a felony or misdemeanor and

whether the offense occurred before or after July 30, 2002. See

generally id. For felonies committed after July 30, 2002,

§ 971.17(1)(b) authorizes circuit courts to commit the defendant

for "a specified period not exceeding the maximum term of

confinement in prison that could be imposed" on a person convicted

of the same crime, after accounting for any applicable penalty enhancements and sentencing credit. For misdemeanors, the

1 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

commitment period is limited to "a specified period not exceeding

two-thirds of the maximum term of imprisonment that could be

imposed against any offender convicted of the same misdemeanor,"

subject to the same penalty-enhancement and sentencing-credit

adjustments as felonies. § 971.17(1)(d).1

¶41 Applying § 971.17 is relatively easy when the defendant

pleads NGI to one charge in one case. Yakich's case, however, is

more complicated because he pleaded NGI to four charges in two

cases: one count of felony bail jumping and one count of

misdemeanor phone harassment in one case; two counts of felony

bail jumping in a separate case.2 The circuit court handled this

1 There is no relevant distinction for this case between terms of "confinement" for felonies and terms of "imprisonment" for misdemeanors. 2 In general, NGI proceedings are split into a guilt phase and a responsibility phase. See Fugere, 386 Wis. 2d 76, ¶¶26-27. Admitting guilt in the "guilt phase" does not mean the same thing as pleading guilty. In the NGI context, a defendant "is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law." Wis. Stat. § 971.15(1). By contrast, in a criminal case, a defendant who pleads guilty admits to all the elements of the charged offense, including criminal responsibility. This distinction animates Wis. Stat. § 971.06(1)(d), which allows a defendant to plead NGI and to accompany that NGI plea with a plea of not guilty. An NGI plea that is not accompanied by a plea of not guilty "admits that but for lack of mental capacity the defendant committed all the essential elements of the offense charged." Id. Section 971.06(1)(d) does not allow a defendant to plead guilty and then plead NGI.

2 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

complication by entering two separate commitment orders at the

same time, one in each case. In the first case, the circuit court

committed Yakich for two years for one count of felony bail-jumping

and the phone-harassment misdemeanor. In the second case, Yakich

was committed for three years on the other two counts of felony

bail jumping. The circuit court specified that the orders would

run consecutively for a total of five years——longer than Yakich

could have been imprisoned for any one of the crimes to which he

pleaded NGI. See Wis. Stat. § 973.01(2)(b) (specifying that the

maximum term of confinement in prison for bail jumping is three

years); Wis. Stat. § 939.51(3) (providing for a maximum term of 90

days' imprisonment for phone harassment). In reviewing those

orders, the court of appeals implied that imposing consecutive

commitments was not permitted by § 971.17. See State v. Yakich,

Nos. 2019AP1832 & 2019AP1833, unpublished op., ¶¶23-24 (Wis. Ct.

App. Jan. 14, 2021). Nevertheless it affirmed the circuit court,

reasoning that the five-year commitment term was allowable under

State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App. 1988). ¶42 In C.A.J., the court of appeals addressed how to

calculate the maximum length of a commitment when a defendant is

found NGI on multiple counts in the same case. It did so by

analyzing the then-current version of § 971.17, which provided

Although the circuit court transcript reflects that Yakich pleaded "guilty" and then pleaded NGI, the so-called "guilty" plea was an admission that but for his lack of mental capacity, he committed all the essential elements of the offense. See § 971.06(1)(d). Yakich pleaded NGI, he did not plead guilty. Accordingly, that is how I refer to his plea throughout this opinion.

3 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

that NGI commitments could not exceed "the maximum period for which

a defendant could have been imprisoned if convicted of the offense

charged." See § 971.17(4) (1987-88). The question was whether,

in a multiple offense case, the "maximum period" was equal to the

maximum period of imprisonment based on consecutive sentences or

the maximum period of imprisonment for only the most serious single

offense. The court of appeals opted for the former, holding that

the maximum commitment period under § 971.17 should be calculated

by adding together the maximum terms of imprisonment for each

offense, assuming those terms ran consecutively. C.A.J., 148

Wis. 2d at 139-40. C.A.J. did not hold, however, that consecutive

NGI commitments are permitted by § 971.17; only that the maximum

length of an NGI commitment was equal to the maximum consecutive

sentence the defendant could have received had he been convicted.

Put another way, 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. See Yakich, unpublished slip op., ¶23.

¶43 As the court of appeals pointed out in this case, there

is "more than [a] semantic" difference between the approach adopted

in C.A.J. and allowing consecutive NGI commitments. Id., ¶24.

The majority, however, ignores the difference altogether. It holds

that § 971.17 authorizes consecutive commitments, while stating

that it "agree[s] with C.A.J.'s reasoning." Majority op., ¶31.

This unresolved tension appears to stem from the majority's mischaracterization of C.A.J. as holding that "consecutive NGI

4 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

commitment periods are appropriate, just as consecutive terms of

confinement are appropriate in criminal sentencing." See

id., ¶13; see also id. ¶14. But, as explained above, that's not

what C.A.J. held.

¶44 Moreover, the majority's misreading of C.A.J. is a

symptom of a bigger problem: it wrongly treats NGI commitments as

if they were criminal sentences. Indeed, the majority erroneously

concludes that by "cit[ing] and rel[ying] on the criminal

sentencing system to define the lengths of NGI commitments," the

legislature thus incorporated into the NGI context all other

aspects of our approach to criminal sentencing. See majority

op., ¶18. And because the "criminal sentencing system" allows

criminal sentences to run consecutively, see § 973.15(2)(a), the

majority concludes that NGI commitments can do the same.

¶45 That approach is contrary to our precedent, which has

established in no uncertain terms that an NGI commitment is not a

criminal sentence. See Szulczewski, 216 Wis. 2d 495, ¶7 n.3; see

also Fugere, 386 Wis. 2d 76, ¶29. For that reason, the criminal sentencing statutes apply in the NGI context only as specified

in § 971.17. See Grobarchik v. State, 102 Wis. 2d 461, 467, 307

N.W.2d 170 (1981) ("If the authority to fashion a particular

criminal disposition exists, it must derive from the statutes.").

Section 971.17 specifies that the appropriate length of an NGI

commitment is determined by considering the "maximum term of

confinement in prison" for felonies, the "maximum term of

imprisonment" for misdemeanors, applicable penalty enhancers, and the sentencing-credit provisions of Wis. Stat. § 973.155. Each of

5 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

these sentencing considerations are defined by statute, and do not

reference or otherwise incorporate the concept of consecutive

sentencing, which is separately authorized by § 973.15. Because

neither § 971.17 nor any other statute authorizes or even mentions

consecutive NGI commitments, circuit courts may not impose

consecutive commitments. See Grobarchik, 102 Wis. 2d at 467.

¶46 This conclusion is consistent with how courts treat

probation and juvenile dispositions, both of which are not criminal

sentences and therefore cannot run consecutively. See State v.

Schwebke, 2001 WI App 99, ¶29, 242 Wis. 2d 585, 627 N.W.2d 213

("[P]robation cannot be made consecutive to probation."); In re

Commitment of Wolfe, 2001 WI App 136, ¶15, 246 Wis. 2d 233, 621

N.W.2d 240 ("[T]he concept of consecutive sentences is foreign in

the context of juvenile adjudications and dispositions."). The

majority attempts to distinguish probation from NGI commitments by

pointing out that, unlike § 971.17, the probation statute

specifies what a circuit court should do when a probationer is

convicted of more than one offense. See, e.g., Wis. Stat. § 973.09(2)(a)2. But the text of § 973.09 makes clear that

courts may only extend the original term of probation, not run

probation terms consecutively. For example, § 973.09(2)(a)2.

specifies that "[i]f [a] probationer is convicted of not less

than 2 nor more than 4 misdemeanors at the same time, the maximum

original term of probation may be increased by one year." The

statute contains no language authorizing circuit courts to impose

consecutive periods of probation. Likewise, ch. 938, which governs juvenile proceedings, says nothing about authorizing consecutive

6 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

juvenile dispositions. The majority offers no reason why the

legislature's silence about consecutive commitments in § 971.17

should somehow have a different result.

¶47 The statutory history of § 971.17 provides further

evidence for why the majority's interpretation is wrong. In 1989,

the legislature amended § 971.17 to allow NGI commitments to run

"for a specific period not exceeding two-thirds of the maximum

term of imprisonment that could be imposed under s. 973.15(2)

against an offender convicted of the same crime or crimes." 1989

Wis. Act 334, § 5 (emphasis added). In 2001, however, the

legislature removed the reference to § 973.15 when the state

adopted Truth-in-Sentencing. 2001 Wis. Act 109, §§ 1106-07. That

deletion suggests that the legislature meant to remove from the

NGI commitment-period calculation any consideration of consecutive

criminal sentences. See, e.g., DNR v. City of Waukesha, 184

Wis. 2d 178, 189-90, 515 N.W.2d 88 (1994), abrogated on other

grounds by State ex rel. Auchinleck v. Town of LaGrange, 200

Wis. 2d 585, 547 N.W.2d 587 (1996). ¶48 The majority's alternative explanation again falls back

on its misreading of C.A.J. It contends that the legislature's

removal of this explicit cross-reference to § 973.15 was simply an

effort to "revert[]" to the "accepted Wisconsin jurisprudence"

that arose following C.A.J. See majority op., ¶36. But because

C.A.J. did not hold that consecutive NGI commitments are permitted,

what the majority claims as "accepted jurisprudence" never

existed. Moreover, if § 971.17 already authorized consecutive NGI commitments at the time C.A.J. was decided, then it is unclear why

7 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

the legislature would bother to add an explicit reference

to § 973.15 one year later.

¶49 The majority offers one more hypothesis for why removing

the cross-reference to § 973.15 has no effect on how we should

interpret § 971.17. It speculates that the legislature's deletion

of the cross-reference "is better read as" part of a "reform-

minded" "clean-up endeavor" to clarify and systematize NGI

commitments after the adoption of Truth-in-Sentencing. See

majority op., ¶36 n.14. It is true that the cross-reference

to § 973.15 was deleted at the same time as other changes

associated with Truth-in-Sentencing. See 2001 Wis.

Act 109, §§ 1106-07 (removing the citation to § 973.15

from § 971.17 and adding language to distinguish between NGI

commitments for offenses committed before and after the effective

date of Truth-in-Sentencing). But the majority does not explain

why implementing Truth-in-Sentencing has anything to do with the

removal of a reference to § 973.15. Keeping the citation

to § 973.15 in § 971.17 wouldn't cause any tension with Truth-in- Sentencing. Rather, keeping the cross-reference after adopting

Truth-in-Sentencing would simply make clear that C.A.J. remained

good law——that the maximum length of an NGI commitment should be

calculated based on the maximum consecutive prison sentences that

could be imposed for the same conduct. The majority's conjecture

about the legislature's intent would render the legislature's

textual changes meaningless.

¶50 The rest of the majority's "clean-up" theory also fails because it doesn't explain the legislature's other changes. In

8 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

particular, it can't account for why the legislature removed the

reference to § 973.15, but kept the references to the sentencing-

credit statute, § 973.155. See, e.g., § 971.17(1)(a), (b). By

the majority's logic, the legislature's use of the terms "maximum

term of confinement in prison" and "maximum term of imprisonment"

in § 971.17 was enough to import Wisconsin's criminal sentencing

statutes wholesale into the NGI commitment context. If that were

the case, then no cross-reference would be necessary to apply the

rules for sentencing credit to NGI commitments.

¶51 To be clear, the statutory history of § 971.17 is

ambiguous at best. On the one hand, it is reasonable to conclude

that the legislature did not intend for its deletion of the cross-

reference to § 973.15 to make a consequential change to the method

of calculating the maximum length of an NGI commitment,

particularly when that change was part of an act largely focused

on implementing Truth-in-Sentencing. Moreover, if the

legislature's intention was to change the law, it seems odd that

it also removed the § 973.15 cross-reference from § 971.17(1)(a), which applies to felonies committed before the effective date of

Truth-in-Sentencing. But on the other hand, the legislature's

removal of any reference to § 973.15 has to mean something, and it

is hard to see what it means other than to prohibit courts from

considering consecutive criminal sentences when calculating the

maximum time a person can be committed after being found NGI.

Those ambiguities aside, at least one thing is clear about the

statutory history of § 971.17: it does not support the majority's conclusion that consecutive NGI commitments are permitted.

9 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

¶52 The final reason for rejecting the majority's conclusion

is that it creates tensions between § 971.17(1) and the provisions

of § 971.17 governing the conditional release of individuals and

the eventual termination or expiration of commitments. See State

ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶46, 271

Wis. 2d 633, 681 N.W.2d 110 (directing courts to construe

statutory text in context and to avoid "unreasonable results").

Individuals who are subject to NGI commitments need not serve the

entire commitment period. For example, under § 971.17(4)(a), a

person committed for institutional care "may petition the

committing court to modify its order by authorizing conditional

release if at least 6 months have elapsed since the initial

commitment order was entered." In this case, the same circuit

court imposed consecutive NGI commitments in two cases at the same

time. But as the majority points out, "individuals requiring NGI

treatment can be subject to multiple commitment orders, perhaps

from different courts at different times." Majority op., ¶25.

Thus, under the majority's holding, if an individual is subject to consecutive commitment orders from different judges, it is unclear

whether the person has to petition one court or both for

conditional release.

¶53 There is a similar problem with § 971.17(5), which

allows an individual on conditional release to "petition the

committing court to terminate the order of commitment" if certain

conditions are met. Even if an individual does not petition for

conditional release or termination, "upon the expiration of a commitment order under sub. (1), the court shall discharge the

10 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd

person." § 971.15(6)(b) (adding that the person's discharge is

subject to the right of the Department of Health Services or a

county health department to file a commitment petition under

ch. 51). How does a court comply with this requirement if there

is a consecutive commitment order in place? The majority provides

no guidance for how the lower courts should deal with these and

other questions raised by its erroneous conclusion.

¶54 All of the majority's errors are rooted in its neglect

of the basic premise that NGI commitment orders are not criminal

sentences. The majority's conclusion that § 971.17 authorizes

consecutive commitment orders is not only contrary to that premise,

it is unsupported by the statute's text, its history, and its

interpretation in C.A.J. The majority also creates tension in the

text of § 971.17 that may result in confusion regarding how lower

courts should apply the statute. Accordingly, I respectfully

dissent.

¶55 I am authorized to state that Justice ANN WALSH BRADLEY

joins this dissent.

11 Nos. 2019AP1832-CR & 2019AP1833-CR.rfd