State ex rel. Deisinger v. Treffert

• Decision Date: 03 October 1978
• Docket Number: No. 76-714,76-714
• Citation: 85 Wis.2d 257,270 N.W.2d 402
• Parties: STATE ex rel. Andrew DEISINGER, Respondent, v. Darold A. TREFFERT, M.D., Superintendent, Winnebago Mental Health Institute, Appellant.
• Court: Wisconsin Supreme Court

Page 402

270 N.W.2d 402

85 Wis.2d 257

STATE ex rel. Andrew DEISINGER, Respondent, v. Darold A. TREFFERT, M.D., Superintendent, Winnebago Mental Health Institute, Appellant.

No. 76-714.

Supreme Court of Wisconsin.

Argued Sept. 7, 1978.

Decided Oct. 3, 1978.

This is an appeal from proceedings on a writ of habeas corpus seeking the release of the petitioner, Andrew Deisinger, from the custody of the Winnebago Mental Health Institute. Deisinger was in custody at the state facility as incompetent to stand trial, pursuant to sec. 971.14(5), Stats. The writ of habeas corpus challenged the constitutionality of sec. 971.14(5) insofar as it permitted the confinement of the petitioner for a period in excess of the term of the maximum sentence that could be imposed if convicted. The Circuit Court found the petitioner's detention after the expiration of the maximum sentence period to be an unconstitutional deprivation of due process guarantees.

On September 8, 1976 Deisinger was charged with disorderly conduct in violation of sec. 947.01(1), Stats.; the charge arose out of an incident wherein Deisinger had entered a private home and had shouted at its occupants for five continuous minutes. On the same day as his arrest, a probable cause hearing was held to determine Deisinger's competency to stand trial. On September 27, 1976, following medical evaluation as to Deisinger's competency to stand trial, a County Court for Milwaukee County, in accordance with sec. 971.14(5), committed the petitioner to Winnebago Mental Health Institute as an incompetent to stand trial.

The State Public Defender commenced habeas corpus proceedings on behalf of Deisinger on February 15, 1977, alleging that the petitioner's commitment was unconstitutional insofar as he has been retained in custody for 139 days, this being 49 days beyond the ninety day period which constitutes the maximum statutory penalty for disorderly conduct under sec. 947.01(1), Stats.

On February 28, 1977, the writ was heard by the HON. WILLIAM E. CRANE, Circuit Judge. Judge Crane found the committing statute, sec. 971.14(5), Stats., unconstitutional in permitting the petitioner's detention beyond the statutory maximum penalty for the offense charged. The Circuit Court ordered the petitioner's release subject to civil commitment under ch. 51, Stats.

Pamela Magee-Heilprin, Asst. Atty. Gen., for appellant; Bronson C. La Follette, Atty. Gen., on brief.

Howard B. Eisenberg, State Public Defender, for respondent.

COFFEY, Justice.

There are two issues on appeal:

1. Is sec. 971.14(5), Stats., constitutionally violative of the petitioner's due process rights as a person incarcerated as an incompetent to stand trial in that the statute permits custody over the petitioner for a longer period than if the petitioner had been sentenced to the maximum period provided by sec. 947.01(1), Stats.?

2. Whether the petitioner should receive sentence credit for time spent during pretrial commitment awaiting the petitioner's competency to stand trial, notwithstanding that the petitioner has not yet been determined competent to stand trial?

The subject of this appeal is the alleged unconstitutionality of sec. 971.14(5), Stats. Sec. 971.14(5) was amended by ch. 153, Laws of 1975, and presently reads:

"(5) If the court determines that the defendant lacks competency to proceed, the proceeding against the defendant shall be suspended and the court shall commit the defendant to the custody of the department to be placed in an appropriate institution of the department. The defendant shall be reexamined at 6-month intervals following commitment, or during any interim period if the department files a written report that the defendant appears to have become competent, that the defendant is not making continual progress toward regaining competency, or it has become apparent that the defendant will not soon become competent to stand trial, and a determination as to competency shall be made by the court following each reexamination. Each such determination shall be preceded by a hearing unless waived by the district attorney, defendant and defendant's counsel. If it is determined that the defendant has regained competency to proceed, the proceeding shall be resumed. At any time that it is determined that the defendant is not making further progress toward regaining competency, or if the defendant has not regained competency within 24 months of commitment, the court shall order the defendant to be discharged from the commitment subject to the right of the department or other person to proceed against the defendant under ch. 51."

Before the 1975 amendment to sec. 971.14(5), the statute provided for the release, or civil commitment of the defendant when the maximum period for which the defendant could have been imprisoned, if convicted, had elapsed. It is the deletion of this provision which prompts this constitutional challenge to sec. 971.14(5).

The deletion of the maximum sentence provision was not explained in the legislative note to Assembly Bill 257, which became ch. 153, Laws of 1975. The note's pertinent portions explain the amendment as follows:

"NOTE: This bill modifies the procedure used in handling criminal defendants whose competency to proceed is in doubt. This legislation grows out of the Wisconsin Supreme Court's rulings in State ex rel. Matalik v. Schubert (1973), 57 Wis.2d 315, 204 N.W.2d 13, and State ex rel. Haskins v. Dodge County Court (1974), 62 Wis.2d 250, 214 N.W.2d 575.

"The changes in sub. (5), relating to length of commitment to determine competency, are a result of Haskins. This case follows the U.S. Supreme Court's ruling in Jackson v. Indiana (1972), 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435, that a defendant committed because of incompetency to proceed 'cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future."

As reflected in the legislative note to the 1975 amendment to sec. 971.14(5), the leading case in the area of periods of confinement for incompetents to stand trial is Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Jackson involved an illiterate deaf mute with no expectancy of ever being able to aid in the preparation of his defense. The United States Supreme Court struck down the Indiana statute which permitted Jackson's indefinite confinement pending his return to competency. The Supreme Court held that an incompetent's custody could not extend beyond the reasonable period necessary to determine whether there is any likelihood in the foreseeable future that the defendant could aid in his defense. The test set forth to determine what is a "reasonable period" is stated at 738, 92 S.Ct. at 1858:

"At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."

Decisions since Jackson v. Indiana, supra, have interpreted the preceding phrase. These cases promote the position that the phrase incorporates the dual considerations of the period necessary to make a determination as to the accused's potential for becoming competent to stand trial as well as the length of the underlying sentence for the substantive offense.

Waite v. Jacobs, 154 U.S.App.D.C. 281, 475 F.2d 392 (1973) mandates that the expiration of the maximum sentence period is a critical date at which a defendant's rights must be determined. Waite states that an acquittee by reason of insanity must be given the same procedural safeguards as a civil committee once his maximum sentence term has expired. Supra, 154 U.S.App.D.C. at 288, 475 F.2d at 399. See also, United States v. Ecker, 177 U.S.App.D.C. 31, 543 F.2d 178, 188 (1976); United States v. Jackson, 179 U.S.App.D.C. 375, 385, 553 F.2d 109, 119 (1976).

The reasoning of Waite v. Jacobs, supra, relied not only upon Jackson v. Indiana, supra, but also Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). Humphrey involved a challenge to this state's alternative sentencing procedures under the Wisconsin Sex Crimes Act. (Presently ch. 975). Under the act at that time, one convicted of a sex crime could as an alternative to sentencing be committed to a "sex deviate facility" and that after an initial term equal to the maximum sentence which might have been imposed an offender could be periodically recommitted up to five years. The renewal period was permitted after a judicial hearing with no right to a jury. The Supreme Court in striking down the Wisconsin statute used the end of the maximum penalty period as the critical date upon which the offender must be accorded the same procedural safeguards as civil committees; minimally, a jury determination as to the party's dangerousness.

In McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972), the Supreme Court again found that the maximum penalty period constituted a significant point at which a committee's rights must be determined. McNeil, who was convicted of two assaults and sentenced to five years, was referred to a mental hospital for examination as to whether he should be indefinitely committed under Maryland's Defective Delinquency Law. Because of his refusals to co- operate, no determination had been made of McNeil when his term under the offense charged had expired. The Supreme Court held that McNeil must be released and could not be recommitted for mental observation on an Ex parte order. Supra, 248-50, 92 S.Ct. 2083. The Supreme Court equated the permissible length of a commitment for observation as a defective delinquent with the permissible length of commitment due to incompetence to stand trial. Supra at 250, 92 S.Ct. 2083.

We find no factually distinguishing features between an incompetent to stand trial and an acquittee by reason of insanity, a convicted sex offender or one...