State v. Christopher W. Yakich

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 14, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos.
2019AP1832-CR Cir. Ct. Nos. 2018CF169
2018CF301
2019AP1833-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER W. YAKICH,

DEFENDANT-APPELLANT.

APPEALS from orders of the circuit court for Waupaca County:
VICKI L. CLUSSMAN, Judge. Affirmed.

Before Fitzpatrick, P.J., Graham, and Nashold, JJ.

¶1 GRAHAM, J. Christopher Yakich pleaded not guilty by reason of
mental disease or mental defect (NGI) to four counts that were charged in two
Nos. 2019AP1832-CR
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criminal cases.1 The circuit court accepted Yakich’s pleas and committed him to
the Wisconsin Department of Health Services pursuant to WIS. STAT. § 971.17(1)
(2017-18). Using a standard form order adopted by the Wisconsin Judicial
Conference, the court issued two NGI commitment orders, one for each case, and
checked a box on the forms indicating that the commitments would be
“consecutive.”2 In total, the court ordered that Yakich be committed for five
years, which is longer than the maximum term of confinement in prison that could
be imposed for any one of the crimes for which Yakich was committed, but well
within the maximum term of confinement in prison that could be imposed on a
defendant who was convicted of the same crimes and sentenced to consecutive
maximum sentences.

¶2 Yakich appeals the commitment orders, arguing that the circuit court
had no legal authority to impose “consecutive NGI commitments.” As explained
below, we conclude that the standard form order is somewhat misleading, and that
in cases involving multiple offenses, a court exercising its statutory authority does
not actually impose multiple commitment periods designated as either
“concurrent” or “consecutive.” We nevertheless conclude that the total

1
“NGI” stands for “not guilty by reason of insanity,” State v. Stanley, 2012 WI App 42,
¶1, 340 Wis. 2d 663, 814 N.W.2d 867, and is an affirmative defense to criminal charges, WIS.
STAT. § 971.15 (2017-18). Although the current Wisconsin statutes refer to this affirmative
defense as “not guilty by reason of mental disease or mental defect,” see WIS. STAT. § 971.17, the
term “NGI” continues to be commonly used as shorthand.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
The form at issue in this case is CR-271, 08/12, Order of Commitment (Not Guilty by
Reason of Mental Disease or Defect). See WIS. STAT. § 758.18 (providing that the Judicial
Conference “shall adopt standard forms for use by parties and court officials in all civil and
criminal actions and proceedings in the circuit court”).

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commitment period imposed on Yakich was within the court’s authority under
WIS. STAT. § 971.17(1), as we have interpreted similar language in a prior version
of that statute in State v. C.A.J., 148 Wis. 2d 137, 434 N.W.2d 800 (Ct. App.
1988). Finally, we conclude that the subsequent amendments to § 971.17 have not
abrogated C.A.J.’s holding. Accordingly, we affirm.

BACKGROUND

¶3 The State filed two criminal complaints against Yakich based on
conduct that occurred in the summer of 2018. In Case No. 2018CF169, he was
charged with one felony count of bail jumping and one misdemeanor count of
unlawful telephone use. In Case No. 2018CF301, he was charged with two
additional counts of felony bail jumping.3 Yakich pleaded NGI to these four
counts, the State did not contest his pleas, and the circuit court found him not
guilty of all counts by reason of mental disease or defect.

¶4 During the circuit court proceedings, the parties disputed whether
the commitment periods should run concurrently or consecutively. Yakich argued
that the pertinent statutes do not authorize consecutive NGI commitments. The
State countered that it is common for circuit courts to impose consecutive
commitments when a defendant is found NGI of more than one crime.

¶5 The circuit court appeared to agree with the State. Using the
standard form CR-271, it entered two separate commitment orders, one for each

3
Yakich was also charged with the following additional misdemeanor counts in Case
No. 2018CF301: bail jumping, telephone harassment, obstructing an officer, possession of THC,
disorderly conduct, and possession of drug paraphernalia. The State dismissed these charges as
part of plea negotiations, and we address them no further.

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case. It ordered that Yakich be committed for two years in No. 2018CF169 and
three years in No. 2018CF301. The form asked the court to indicate whether each
commitment was “consecutive to any other [WIS. STAT. § 971.17] commitments,”
or whether it “commences on [a date certain] which is concurrent with any other
[§ 971.17] commitments.” On both orders, the court checked a box on the form,
stating that the commitments would be “consecutive.”

¶6 As a result of the court’s orders, Yakich will be committed for a total
of five years. This commitment period is longer than the maximum term of
confinement in prison for any one of the crimes to which Yakich was found NGI.4

¶7 Yakich appealed both orders and we consolidated the appeals. He
renews his argument that the circuit court did not have statutory authority to
impose “consecutive terms of commitment,” and he asks us to remand to the
circuit court with instructions to amend the orders to reflect that his commitments
are “concurrent.”

STANDARD OF REVIEW

¶8 When a circuit court commits a defendant who has been found not
guilty by reason of mental disease or defect, “the court’s authority is derived
solely from statute.” State ex rel. Helmer v. Cullen, 149 Wis. 2d 161, 164, 440
N.W.2d 790 (Ct. App. 1989). This case requires us to interpret the statutory grant

4
See WIS. STAT. § 946.49(1)(b) (providing that the three bail-jumping charges are Class
H felonies); WIS. STAT. § 973.01(2)(b)8. (providing that Class H felonies are subject to a “term of
confinement in prison” that “may not exceed 3 years”); see also WIS. STAT. § 947.012(1)
(providing that unlawful use of a telephone is a Class B misdemeanor); WIS. STAT.
§ 939.51(3)(b) (providing that the maximum “term of imprisonment” for a Class B misdemeanor
is 90 days).

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of authority. Statutory interpretation is a question of law that appellate courts
review de novo. Nowell v. City of Wausau, 2013 WI 88, ¶19, 351 Wis. 2d 1, 838
N.W.2d 852. When interpreting a statute, we begin with its plain language, State
ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110, and we also examine the history of the statute and the case law
interpreting it, Force ex rel. Welcenbach v. American Family Mut. Ins. Co., 2014
WI 82, ¶31, 356 Wis. 2d 582, 850 N.W.2d 866. A review of the history of the
statute is part of a plain meaning analysis. County of Dane v. LIRC, 2009 WI 9,
¶27, 315 Wis. 2d 293, 759 N.W.2d 571.

DISCUSSION

¶9 We begin by briefly summarizing the most relevant statutes.
Although NGI proceedings are initiated through criminal prosecution, NGI
commitments are not criminal sentences. See State v. Harr, 211 Wis. 2d 584, 587,
568 N.W.2d 307 (Ct. App. 1997). They are governed by separate statutes that
specifically pertain to NGI proceedings and commitments. See WIS. STAT.
§§ 971.15-971.17.

¶10 WISCONSIN STAT. § 971.17(1) is the statute that grants authority to
commit defendants who have been found NGI. For ease of reference, we
sometimes refer to § 971.17(1) as the “commitment statute.” The current version
of the commitment statute provides that the circuit court “shall commit the person

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… for a specified period.” See § 971.17(1)(b), (d).5 It sets forth slightly different
methods of calculating the commitment period, depending on whether the
underlying crime is a felony or misdemeanor. See generally § 971.17(1). In both
instances, however, the maximum commitment period is calculated by reference to
the “maximum term” that “could be imposed on an offender convicted” of the
same offense. See § 971.17(1)(b), (d).6 As a result, the circuit court must refer to
criminal sentencing statutes to determine how long a defendant’s commitment can
last, even though an NGI commitment is not itself a criminal sentence.

¶11 The commitment statute does not provide explicit instructions on
how to proceed when a defendant has been found NGI of more than one crime.
See WIS. STAT. § 971.17. This is in stark contrast to statutes that address other

5
Two paragraphs of the commitment statute, WIS. STAT. § 971.17(1)(b) and (d), are
implicated by the crimes at issue in this case: § 971.17(1)(b) governs the NGI commitment
period for felonies committed on or after July 30, 2002, and § 971.17(1)(d) governs the NGI
commitment period for misdemeanors. The commitment statute also has two additional
paragraphs that are not implicated by the crimes at issue in this case: § 971.17(1)(a), which
governs NGI commitment periods for felonies committed before July 30, 2002, and
§ 971.17(1)(c), which governs NGI commitment periods for felonies that are eligible for life in
prison.
6
WISCONSIN STAT. § 971.17(1)(b) refers to the “maximum term of confinement in
prison that could be imposed on an offender convicted of the same felony.” (Emphasis added.)
By contrast, par. (1)(d) refers to two-thirds of the “maximum term of imprisonment that could be
imposed against an offender convicted of the same misdemeanor.” (Emphasis added.) The
difference in language between these two paragraphs appears to be a reference to the difference in
language in the separate statutes governing sentencing for felonies and misdemeanors. See WIS.
STAT. § 973.01(2)(b) (setting forth maximum “terms of confinement in prison” applicable to
felony offenses); WIS. STAT. § 939.51 (setting forth maximum penalties, including the maximum
“term of imprisonment” for misdemeanor offenses).

Here, the maximum commitment period for Yakich’s misdemeanor was quite short—just
60 days—and there is no indication that the circuit court extended Yakich’s commitment to
specifically account for the misdemeanor offense. Accordingly, for ease of reference throughout
this opinion, we focus on the felony offenses and the phrase “maximum term of confinement in
prison” found in the current version of the commitment statute when addressing the court’s
authority to specify the duration of an NGI commitment period.

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criminal dispositions, and which provide explicit guidance to courts about their
options for sentencing a defendant convicted of multiple criminal counts.
Specifically, WIS. STAT. § 973.15(2)(a) provides circuit courts with authority to
order that the sentences for multiple counts run concurrently or consecutively.7
Accordingly, under § 973.15(2)(a), a criminal sentence may be made “concurrent
with or consecutive to” any other sentence.

¶12 We have held that this language applies to sentences only, and not to
other dispositions.8 When a defendant is found not guilty by reason of mental
disease or defect, the resulting NGI commitment is not a “sentence,” and WIS.
STAT. § 973.15(2)(a) does not directly apply. Harr, 211 Wis. 2d at 587 (holding
that an NGI commitment cannot run consecutive to a prison sentence because the
commitment is not a “sentence” as that word is used in § 973.15(2)).

¶13 Having briefly summarized the relevant statutes, we now turn to the
issue on appeal. For reasons that will become apparent below, we frame the issue
somewhat differently than the parties have articulated it in their briefs. We
conclude that the issue is best stated as follows: whether the circuit court had
statutory authority to order a total commitment period that is longer than the
maximum term of confinement in prison that could be imposed for any one of the
crimes to which Yakich pleaded NGI. If Yakich is right, the answer is no. If the

7
See also WIS. STAT. § 973.09(1)(a), (2)(a)2., (2)(b)2. (providing that a probation period
“may be made consecutive to a sentence on a different charge, whether imposed at the same time
or previously,” and that the length of a probation period may be increased based on other crimes
for which the defendant is convicted “at the same time”).
8
See, e.g., State v. Wolfe, 2001 WI App 136, ¶15, 246 Wis. 2d 233, 631 N.W.2d 240
(addressing juvenile dispositions); State v. Gereaux, 114 Wis. 2d 110, 113, 338 N.W.2d 118 (Ct.
App. 1983) (addressing probation).

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State is right, the only limit on the duration of a commitment period is that it can
be no longer than the maximum term of confinement in prison that could be
imposed on a defendant who was convicted of the same crimes and sentenced to
consecutive maximum sentences for each crime under WIS. STAT. § 973.15(2)(a).

¶14 In the analysis that follows, we briefly summarize the parties’
arguments. We then discuss C.A.J., 148 Wis. 2d 137, a decision in which we
interpreted a prior version of the commitment statute and concluded that the
“maximum term of [an NGI] commitment” was equivalent to “maximum
consecutive terms” of imprisonment for the same offenses. Id. at 138. Finally, we
consider whether the subsequent amendments to the commitment statute
demonstrate a legislative intent to abrogate the holding of C.A.J. For reasons we
explain more fully below, we conclude that the issue on appeal has already been
decided in C.A.J., and that the subsequent amendments to the commitment statute
have not abrogated its holding.

I. Summary of the Parties’ Arguments

¶15 The parties frame their dispute as whether circuit courts have the
statutory authority to impose “consecutive NGI commitments.” Yakich contends
that circuit courts do not. He argues that a court’s authority to commit a defendant
is derived solely from statute9 and that there is no authority to impose consecutive
commitments found in the commitment statute or any other statute. Yakich also
points to the fact that in analogous situations, we have determined that the
authority found in WIS. STAT. § 973.15(2)(a) to impose consecutive sentences

9
See State ex rel. Helmer v. Cullen, 149 Wis. 2d 161, 164, 440 N.W.2d 790 (Ct. App.
1989).

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does not extend to other dispositions, including probation and juvenile
dispositions, because those dispositions are not “sentences.”10

¶16 By way of example, in State v. Gereaux, 114 Wis. 2d 110, 338
N.W.2d 118 (Ct. App. 1983), the circuit court imposed two probation periods and
ordered that they would be served consecutively. Id. at 111. On appeal, we
determined that “probation” was “not a sentence.” Id. at 113. We further
determined that the statutory authority to impose consecutive sentences did not
extend to allow consecutive periods of probation. Id. In the absence of statutory
language specifying whether periods of probation should be concurrent or
consecutive, we remanded the case to the circuit court, directing it to order that the
two probation periods “run concurrently.” Id. at 114. Yakich argues that we
should reach the same result here for the same reason.

¶17 Conversely, the State argues that this issue has already been resolved
in C.A.J., 148 Wis. 2d 137. It acknowledges that the commitment statute does not
expressly refer to the consecutive sentencing statute, WIS. STAT. § 973.15(2)(a),
nor does it expressly provide that a court can order consecutive commitments.
However, the State argues that the authority to order consecutive commitments is
“implicit” in the text of the commitment statute, as recognized in C.A.J.

10
See Wolfe, 246 Wis. 2d 233, ¶15 (concluding that WIS. STAT. § 973.15(2)(a) does not
apply to juvenile dispositions, and that consecutive juvenile dispositions cannot be imposed);
State v. Schwebke, 2001 WI App 99, ¶¶25-30, 242 Wis. 2d 585, 627 N.W.2d 213, aff’d on other
grounds, 2002 WI 55, 253 Wis. 2d 1, 644 N.W.2d 666 (concluding that § 973.15(2)(a) does not
apply to probation and that there is no statutory authority to impose consecutive probation terms);
State v. Woods, 173 Wis. 2d 129, 137, 496 N.W.2d 144 (Ct. App. 1992) (concluding that a
criminal sentence cannot be consecutive to a juvenile court disposition because there was no
statutory authority to do so); State v. Harr, 211 Wis. 2d 584, 587-89, 568 N.W.2d 307 (Ct. App.
1997) (concluding that a criminal sentence cannot be consecutive to an NGI commitment because
there was no statutory authorization to do so).

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Specifically, the current version of the commitment statute uses the phrase
“maximum term of confinement in prison that could be imposed on an offender
convicted of the same felony,” and the State contends that this language
“implicitly refers to” § 973.15(2)(a), which authorizes consecutive sentences for
criminal convictions. As a result of this “implicit” reference, the State argues that
the commitment statute “therefore allows consecutive NGI commitments.”

¶18 The parties also dispute whether the amendments to the commitment
statute since C.A.J. have abrogated its holding. After considering these arguments
and the statutory history, we ordered the parties to file supplemental briefs to
answer specific questions about the post-C.A.J. amendments. We discuss these
arguments in greater detail below.

II. State v. C.A.J.

¶19 As with this case, C.A.J., 148 Wis. 2d 137, was a consolidated
appeal of two criminal cases. The defendant, C.A.J., had been found NGI on two
counts, one that carried a maximum sentence of two years of imprisonment, and
another that carried a maximum sentence of nine months of imprisonment. Id. at
138-39. C.A.J.’s commitment period had been calculated based on consecutive
prison sentences—that is, the two maximum sentences were added together to
equal a total commitment period of two years and nine months. Id. at 139. C.A.J.
argued that the commitment period should have instead been calculated based on
concurrent prison sentences, meaning that he could not have been committed for
longer than two years. Id. at 139.

¶20 At the time we decided C.A.J., the commitment statute was less
complicated than its modern counterpart. It directed the circuit court to commit
the defendant to the Department of Health and Social Services’ custody until

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discharged. WIS. STAT. § 971.17(1) (1987-88). The defendant would then be
discharged from the Department’s custody after the “maximum period for which a
defendant could have been imprisoned if convicted of the offense charged” had
elapsed. See § 971.17(4) (1987-88). Unlike the current version of the
commitment statute, the version of the statute in effect when C.A.J. was decided
did not give the court any discretion to specify a shorter commitment period. See
Helmer, 149 Wis. 2d at 164.

¶21 In considering whether the duration of C.A.J.’s commitment was
proper, we focused on the statutory phrase “maximum period for which a
defendant could have been imprisoned if convicted of the offense charged.”
C.A.J., 148 Wis. 2d at 139 (quoting WIS. STAT. § 971.17(4) (1987-88)). C.A.J.
argued that this language “speaks only of a single offense,” and therefore, the
commitment statute did not allow a commitment period to be calculated based on
consecutive terms. Id. We did not find that textual argument to be persuasive. Id.
Because we generally interpret singular nouns to include the plural,11 we construed
the singular noun “offense” as also referring to “multiple offenses.” Id. at 140.

¶22 We acknowledged that the statute’s language did not “specifically
indicate whether the maximum term of commitment” could be calculated “based
on consecutive terms” of imprisonment in multiple offense situations. Id. at 139.
However, we reasoned that the purpose of the statutory language was to ensure
that persons found NGI would not be committed any longer than they could be
imprisoned for the underlying offense. Id. at 140. We further reasoned that, if the

11
See WIS. STAT. § 990.001 and 990.001(1) (“[i]n construing Wisconsin laws,”
generally, “[t]he singular includes the plural, and the plural includes the singular”).

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defendant had been convicted of multiple offenses, the sentencing court would
have the discretion to impose consecutive terms of imprisonment under WIS.
STAT. § 973.15(2). Id. We noted that in other statutes addressing competency
proceedings, the legislature restricted commitment periods to “the maximum
penalty for the single most serious offense,” but the legislature placed no such
restriction in the commitment statute. Id. (citing WIS. STAT. § 971.14 (1987-88)).
Therefore, we interpreted WIS. STAT. § 971.17(4) (1987-88) as providing that a
commitment period encompassing multiple criminal counts must be calculated by
adding together the maximum terms of imprisonment for all of those counts. Id. at
141.

¶23 We pause to observe that, contrary to both parties’ assertions, C.A.J.
did not conclude that a circuit court can order “consecutive commitments.” That
is, we did not appear to contemplate that C.A.J. would be serving two commitment
periods, each separately delineated and each served consecutively to the other.
Instead, consistent with the statutory language, we contemplated that C.A.J. would
be subjected to a single commitment period with a discharge date that was
calculated based on how long C.A.J. could have been imprisoned—taking into
account that a sentencing court would have authority to impose consecutive prison
sentences.

¶24 This distinction is not trivial. We recognize that some subsequent
guidance, including the standard form that the circuit court used to commit

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Yakich, appears to have blurred the distinction.12 Nevertheless, we conclude that
the distinction is more than semantic, and that it is helpful to correctly understand
the court’s authority to determine the length of an NGI commitment under the
current version of the commitment statute. This is why we have determined it
appropriate to reframe the issue on appeal. See supra, ¶13.

III. Whether C.A.J. Has Been Abrogated

¶25 Our case law may be abrogated by a subsequent statutory
amendment. See, e.g., State ex rel. Hensley v. Endicott, 2001 WI 105, ¶13, 245
Wis. 2d 607, 629 N.W.2d 686. The parties agree that, if a subsequent statutory
amendment has not abrogated C.A.J., the court had the authority to order that
Yakich be committed for five years. However, the parties dispute whether
subsequent amendments to the commitment statute have abrogated the holding of

12
As discussed above, form CR-271 directs circuit courts to check a box indicating
whether the commitment is “consecutive” or “concurrent” to any other WIS. STAT. § 971.17
commitments. Although the checkboxes are misleading for the reasons explained above, we
recognize that they serve as a useful fiction, especially in situations where a defendant is found
NGI in multiple cases at different times, perhaps even by different judges. The current version of
the commitment statute gives courts authority to specify a commitment period that is shorter than
the maximum confinement in prison for the same offenses, and in such cases, the “concurrent”
and “consecutive” checkboxes serve as familiar if not entirely accurate shorthand, allowing the
court to express its intent.

For the sake of completeness, we observe that other aspects of form CR-271 could be
revised for further clarity. Specifically, the form directs the court to calculate the “maximum
term of imprisonment” for any misdemeanor or felony. Yet, a court would err if it imposed a
commitment period equal to the maximum term of imprisonment for any offense. Under the
commitment statute, maximum commitment periods are significantly shorter than the maximum
terms of imprisonment—the maximum “term of confinement in prison that could be imposed” for
any felony and two-thirds of the maximum “term of imprisonment” that could be calculated for
any misdemeanor. WIS. STAT. § 971.17(1)(b), (d). Yet, following the standard form, it would be
easy for a court to miss this nuance and impose a commitment period that exceeds the permissible
duration. See, e.g., State v. Fugere, 2019 WI 33, ¶50, 386 Wis. 2d 76, 924 N.W.2d 469 (noting
that it was “undisputed” that the circuit court erred when it informed the defendant that his
maximum NGI commitment period was the period stated in the maximum penalty statute).

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C.A.J. Accordingly, we examine the language used in the current version of the
commitment statute, as well as the history of significant amendments to that
statute since C.A.J. was decided.

A. The Current Statute

¶26 Our supreme court has explained that “[l]egislative inaction
following judicial construction of a statute, while not conclusive, evinces
legislative approval of the interpretation.” State v. Sanders, 2018 WI 51, ¶52, 381
Wis. 2d 522, 912 N.W.2d 16 (citation omitted). This is especially true “when
other provisions within the same section are amended without affecting the
provision at issue.” Id. Although some portions of the commitment statute have
been significantly changed since C.A.J. was decided in 1988, the specific
language that C.A.J. relied upon is very similar to the language in the current
statute.

¶27 As mentioned above, at the time C.A.J. was decided, the
commitment statute did not distinguish between types of offenses—it instead
addressed all criminal offenses in a single section. The specific language upon
which C.A.J. relied was the “maximum period for which a defendant could have
been imprisoned if convicted of the offense charged ….” WIS. STAT. § 971.17(4)
(1987-88) (emphasis added). The commitment statute now distinguishes between
felonies and misdemeanors, and for felonies, it refers to “the maximum term of
confinement in prison that could be imposed on an offender convicted of the same
felony ….” Section 971.17(1)(b) (emphasis added).

¶28 Standing alone, the legislature’s decision to change “maximum
period” to “maximum term” does not demonstrate an intent to abrogate C.A.J.—
the two phrases appear to be synonymous. Neither does the legislature’s decision

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to change “could have been imprisoned” to “confinement in prison that could have
been imposed” (as it pertains to felonies). Nor does the decision to replace the
word “crime” with “felony.” None of these amendments abrogated the principle
that a maximum commitment term is calculated by reference to the maximum
length of time that a defendant could be sent to prison under consecutive sentences
for the charged crimes.

¶29 Accordingly, the plain language of the current statute does not
abrogate C.A.J. Additionally, the reasoning we used in C.A.J. applies equally
well to the language of the current statute.

B. The Statutory History of WIS. STAT. § 971.17

¶30 We now turn to the statutory history. For our purposes, there were
two acts that significantly amended the commitment statute since C.A.J. was
decided. The first occurred in 1989, the year following C.A.J. See 1989 Wis. Act
334 (which we sometimes refer to as the “1989 Act”). The second occurred in
2001, and it is part of a package of legislation that is commonly known as Truth-
in-Sentencing II (TIS-II). See 2001 Wis. Act. 109 (which we sometimes refer to
as the “2001 Act”). We examine each act in turn and, for the reasons discussed
below, we conclude that neither abrogated C.A.J.’s holding.

1989 Wis. Act 334

¶31 The 1989 Act repealed and recreated the commitment statute as part
of an overhaul of all of the statutes governing the NGI defense. The legislation

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was initially drafted by the Judicial Council Insanity Defense Committee, which
kept detailed minutes of its proceedings.13

¶32 For our purposes, the 1989 Act made three significant changes to
WIS. STAT. § 971.17. First, it specified that the maximum commitment period was
two-thirds of the maximum term of imprisonment for the same crime or crimes.
See 1989 Wis. Act 334 § 5.14 Second, the 1989 Act introduced the concept of a
specified “commitment period” that would be ordered by the circuit court at the
time the defendant was committed, and gave the court discretion to impose a
commitment period that was shorter than the maximum. See id.15 Third, and most
significant to the issue in this case, the 1989 Act specifically added a reference to
the consecutive sentencing statute, WIS. STAT. § 973.15(2). See id. As amended
by the 1989 Act, the commitment statute provided that, “[w]hen a defendant is
found [NGI], the court shall commit the person … 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
13
The committee minutes reflect that one major concern motivating the overhaul of the
NGI statutes was that defense attorneys had become reluctant to assert an NGI defense, especially
in prosecutions for minor crimes. Wisconsin Jud. Council Insanity Def. Comm. Minutes, Doc. 71
at 7 (1989) (on file with the Wisconsin State Law Library). This issue arose because persons
found NGI were automatically committed to an institution, presumptively for the maximum term,
and without any option for supervision in the community. Id., Doc. 74 at 6-7, Doc. 78 at 5. In
other words, a defendant who pleaded NGI was likely to spend significantly more time in an
institution than someone who pleaded guilty to the same offense would spend in prison.
14
This change appears to have been made to account for the fact that, at the time, most
incarcerated individuals were subject to a mandatory release date after two-thirds of their
sentences had been served. See WIS. STAT. § 302.11(1) (1989-90).
15
As stated above, prior to this amendment, the circuit court committed the defendant to
the Department’s custody, and it was up to the Department to calculate the release date. WIS.
STAT. § 971.17(4) (1987-88). Additionally, we had previously held that circuit courts did not
have authority to specify a commitment period shorter than the maximum term of imprisonment
that could be imposed for the same offense. See Helmer, 149 Wis. 2d 161.

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crimes, including” various penalty enhancers, and “subject to” sentence credit.
WIS. STAT. § 971.17(1) (1989-90) (emphasis added).

¶33 The parties agree that the emphasized language was added to codify
C.A.J.’s holding. They further agree that, if the emphasized language were still
found in the commitment statute, there could be no doubt that the court had the
authority to impose the commitment period that it imposed. However, as
discussed in greater detail below, the emphasized language was stricken when the
legislature enacted 2001 Wis. Act 109.

2001 Wis. Act 109

¶34 As noted above, the amendments that the 2001 Act made to the
commitment statute were part of a comprehensive package of legislation
commonly referred to as Truth-in-Sentencing II (TIS-II). By way of background,
the legislature had significantly changed Wisconsin’s felony sentencing regime
several years before when it enacted Truth-in-Sentencing I (TIS-I). See 1997 Wis.
Act 283; see also State v. Jackson, 2004 WI 29, ¶2 n.2, 270 Wis. 2d 113, 676
N.W.2d 872 (describing Wisconsin’s two-phased adoption of Truth-in-
Sentencing). At least some of the changes in the 2001 Act appear to be an attempt
to conform the NGI commitment regime to the new sentencing regime for
felonies.16 Specifically, the 2001 Act set forth different methods of calculating an
NGI commitment period, depending on whether the underlying crime was a felony

16
See, e.g., Michael B Brennan et al., Fully Implementing Truth-in-Sentencing,
Wisconsin Lawyer (Nov. 2002), available at https://www.wisbar.org/NewsPublications/
WisconsinLawyer/Pages/Article.aspx?Volume=75&Issue=11&ArticleID=259.

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or misdemeanor, and if a felony, whether the crime was committed before or after
TIS-II’s effective date. See 2001 Wis. Act 109 §§ 1106-08.

¶35 Most important for our purposes, the legislature struck all references
in the commitment statute to WIS. STAT. § 973.15(2)(a). It removed the reference
to § 973.15(2)(a) in WIS. STAT. § 971.17(1)(a), which it amended to specifically
address the maximum commitment period of persons found NGI of any felony that
was committed before TIS-II’s effective date.17 And when the legislature created
new subsections addressing the maximum commitment period for persons found
NGI of any misdemeanor or felony committed after TIS-II’s effective date, it did
not include any reference to § 973.15(2)(a).18

17
That provision was amended to read (with added language underscored and omitted
language stricken):

(1)(a) Felonies committed before the effective date of
this paragraph .... [revisor inserts date]. When 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 the effective date of this paragraph .... [revisor inserts
date], the court shall commit the person to the department of
health and family services for a specified period not exceeding
two-thirds of the maximum term of imprisonment that could be
imposed under s. 973.15 (2) (a) against an offender convicted of
the same crime or crimes felony, including imprisonment
authorized by ss. 346.65 (2) (f), (2j) (d) or (3m), 939.62,
939.621, 939.63, 939.635, 939.64, 939.641, 939.645, 940.09
(1b), 940.25 (1b) and 961.48 and other any applicable penalty
enhancement statutes, as applicable, subject to the credit
provisions of s. 973.155.

2001 Wis. Act 109, § 1106.
18
In its entirety, the newly amended statute provided:

(1) COMMITMENT PERIOD.

(a) Felonies committed before July 30, 2002. Except as
provided in par. (c), when a defendant is found not guilty by
(continued)

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¶36 The parties dispute why the legislature omitted the reference to
§ 973.15(2) when it passed the 2001 Act. Yakich argues that, although there is no
specific explanation in the drafting files, the omission by the legislature was

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 and family 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 and family 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 and family 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.

WIS. STAT. § 971.17(1) (2001-02). The commitment statute has not been amended since, except
that references to the department of health and family services have been changed to reflect that
agency’s current name, the department of health services. See 2007 Wis. Act 20, § 9121(6).

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deliberate. He contends that the most persuasive explanation is that the legislature
intended to abrogate C.A.J. and remove the court’s authority to impose
“consecutive NGI commitments.”

¶37 The State disagrees. According to the State, when the legislature
removes language from a statute, “it does not necessarily signal that it intends to
enact the opposite of that language.” The State cites Richland Sch. Dist. v.
DILHR, 174 Wis. 2d 878, 896 n.8, 498 N.W.2d 826 (1993) for the proposition
that it is “equally and likely reasonable” that the language was removed because it
was “unnecessary.” The State argues that the reference to WIS. STAT.
§ 973.15(2)(a) was “unnecessary” because the relevant language of the amended
commitment statute was “identical in substance” to the language that C.A.J. had
interpreted as implicitly referring to § 973.15(2).

¶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. And we note that, consistent with this
explanation, the 2001 Act did remove a number of such cross-references, as
demonstrated above in note 17.

¶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.

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CONCLUSION

¶40 In sum, we conclude that the circuit court had statutory authority to
commit Yakich for a total period of five years after finding him not guilty by
reason of mental disease or defect with regard to the four offenses charged in Case
Nos. 2018CF169 and 2018CF301. Accordingly, we affirm the circuit court.

By the Court.—Orders affirmed.

Not recommended for publication in the official reports.

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