COA concludes that circuit court properly exercised discretion in imposing maximum term of NGI commitment and declines to impose additional requirements
State v. Gavin J. Balke, 2024AP579-CR, 10/13/26, District III (not recommended for publication); case activity
COA rejects Balke’s challenge to the length of his not guilty by reason of mental disease or defect (“NGI”) commitment, concluding that the record “amply supports the circuit court’s discretionary decision” to order the maximum commitment period possible and declines to apply sentencing law in the context of an NGI commitment.
The state charged Balke with one count of battery to a law enforcement officer, one count of battery by a prisoner, and two counts of misdemeanor bail jumping, each as a repeater, after he punched a deputy in the face twice near the end of a hearing on a separate criminal case while they were in a jail “video court room.” (¶3). The circuit court ordered an NGI evaluation, and Balke ultimately entered a no contest plea to the count of battery to law enforcement as a repeater, and the state agreed to dismiss and read in the remaining counts and stipulate that Balke was NGI. (¶¶3, 8). At the dispositional hearing, the State sought the maximum term of commitment of seven years. (¶11). Balke’s counsel argued that the maximum seven-year period of commitment was unnecessary and recommended that it be two years. (¶15).
The circuit court issued an oral ruling at the conclusion of the dispositional hearing. The court discussed various facts related to its decision that Balke required institutionalized care. (¶16). As to the length of the commitment, the court stated that “we should allow at the outset the maximum time” in order “to protect society to the fullest”–which was seven years. The court continued, “I would rather set out the parameters at the maximum time to ensure safety for society and to ensure Mr. Balke’s best scenario with regards to treatment and, hopefully, keep him from reoffending down the road.” It also noted that Balke would potentially be able to petition for release before the end of his commitment. (¶18). Balke later moved for postdisposition relief, requesting a new dispositional hearing on the basis that the court erroneously exercised its discretion by failing to sufficiently explain why it imposed the maximum term of commitment, which the court denied. (¶¶19-20).
COA rejects Balke’s contention that the circuit court’s exercise of discretion as to his initial placement in institutional care is irrelevant to the court’s exercise of discretion for the length of the commitment. (¶26). It frames Balke’s argument as “insist[ing] that the court’s decisional process was inherently deficient and, in the context of setting the length of an NGI commitment, courts must essentially ‘do more.'” (¶27). COA then explains that Balke misapprehends the language from Fugere on which he relies–that, “[a]s a general rule, the length of commitment is about two-thirds of the maximum potential sentence of imprisonment.” (¶29). This language is no longer applicable because WIS. STAT. § 971.17(1)(b) now “clearly states—as it did when Fugere was decided—that NGI defendants who commit a felony on or after July 30, 2002, may receive a commitment term “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.” (¶31). And although COA tries to come up with an explanation for Fugere‘s language, it concludes that Fugere simply failed to reflect the statutory and real-world distinction in Wisconsin law between “terms of imprisonment” and “terms of confinement in prison.” (¶32).
COA then turns to the record, concluding that it is “replete with with information supporting a decision to impose a lengthy NGI commitment in Balke’s case.” (¶34). It relies on the court’s discussion related to the need for institutional care to support its conclusion that the court sufficiently explained its reasoning as to the length of the commitment and rejects Balke’s assertion that “the circuit court failed to properly link the need for the maximum term to any of the specifics of Mr. Balke’s case.” (¶35). COA also rejects Balke’s contentions that the circuit court’s comments reflect “a general policy of allowing for the maximum term of commitment allowed under the law” and that “the court seemingly applied a generic rule or preference for the maximum term of commitment” although COA acknowledges that more explanation could have helped. (¶37). Next, COA declines to adopt Balke’s request that it articulate mandatory considerations for the length of an NGI commitment or adopt the Gallion analysis in this context. It “merely conclude[s] that unlike in the sentencing context, a court committing an NGI defendant is not required to conduct a complete Gallion analysis.” (¶38). In conclusion, COA notes that an NGI commitment is not wholly criminal, its purposes are different, and it is not intended to be punishment.