State v. Gavin J. Balke

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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 volune of the Official Reports.

October 13, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 80810
and RULE 809.2.
Appeal No. 2024AP579-CR Cir. Ct. No. 2022078
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT Il
STATE OF WISCONSIN,
PLAINIIFF-RESPONDENT,
V.
GAVINJ. BALKE,
DEFENDANI-APPELLANT.

APPEAL from an order of the circuit court for Outagamie County:
MITCHELL J. METROPULOS, Judge. Affirmed.

Before Stark, PJ., Hruz, and Gill, JJ.

{1 §$HRUZ,J. Gavin]. Balke appeals a circuit court order denying his
motion for a new dispositional hearing on his commitment to institutional care,
which the court ordered after it found him not guilty by reason of mental disease
or defect (“NGI”) of battery to a law enforcement officer as a repeater. Balke’s

No. 2024AP579-CR
2
commitment was ordered following his plea of no contest to punching a law
enforcement officer in the face, and a stipulated and accepted finding that Balke
was NGI. Balke argues that the court erroneously exercised its discretion when it
imposed the maximum term of seven years for his NGI commitment because the
court failed to sufficiently explain its decision and, instead, relied only on the
notion that selecting the maximum term would best protect the public. Balke
asserts that this approach was particularly problematic because his commitment
term exceeds the “general rule” that the length of an NGI commitment should be
two-thirds of the maximum potential sentence of imprisonment, which rule Balke
asserts our supreme court stated in State v. Fugere, 2019 WI 33, ¶29 & n.6, 386
Wis. 2d 76, 924 N.W.2d 469.
¶2 We conclude that the record amply supports the circuit court’s
discretionary decision to order the commitment period it did, that the court
considered proper and relevant factors in doing so, and that any omissions in the
court’s ruling that Balke identifies do not constitute reversible error. We also
conclude that Balke misstates the law regarding the so-called “two-thirds” rule.
Accordingly, we affirm.
BACKGROUND
¶3 According to the criminal complaint, on January 24, 2022, Balke
was in “the video court room on the fifth floor of the Outagamie County jail
building” for a hearing on a separate criminal matter. An Outagamie County
sheriff’s deputy was providing security inside that room. Near the end of the
hearing, the circuit court asked Balke if he had any questions, to which Balke
replied, “blah blah blah” and stood up. Balke then approached the deputy,
clenched his fists while “squar[ing] off” with the deputy, and gave him a

No. 2024AP579-CR
3
“thousand[-]yard stare.” Shortly thereafter, Balke punched the deputy in the face
twice before the deputy was able to gain control of Balke and radio for help.
¶4 The State ultimately 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. Shortly thereafter, and after
receiving concerns from Balke’s family members regarding his mental health, the
circuit court ordered a clinical evaluation of Balke’s mental health.
¶5 The clinical evaluation concluded that Balke, who was 29 years old
at the time, had severe and pervasive mental illnesses that caused “auditory and
visual hallucinations, behavioral and thought disorganization, paranoia, bizarre
delusional beliefs, and unprovoked aggressive/violent behavior in response to
hallucinations.” The evaluation also noted that Balke had a history of
schizoaffective disorder diagnoses starting when he was 22 years old. Balke
explained to the evaluator that he is often paranoid that people are watching him,
that those people can touch him without being seen, and that he hears “voices” that
he must obey in order to protect himself. Similarly, Balke claimed that he “hear[s]
frequent commands to harm others and instructions that otherwise dictate his
behavior to avoid consequences which are not based in reality,” including “that he
must assault people to ‘get back into [his] real life.’” (Alteration in original.)
¶6 The evaluator reported on Balke’s mental state at the time of the
deputy’s assault, which was consistent with the foregoing account of Balke’s
general mental health. In particular, Balke stated that, upon prompting from either
a biblical or mythical character, he was experiencing hallucinations and physical
anxiety, and he thought the judge and the deputy were not real and were
attempting to harm him. Balke said he punched the deputy because doing so

No. 2024AP579-CR
4
usually “get[s him] back to reality.” The evaluation provided a detailed account of
Balke’s mental health struggles in terms of his failing to understand reality and his
violent reaction during the incident with the deputy, which was consistent with
Balke having serious mental illnesses. The evaluator’s ultimate conclusion was
that there was sufficient support for a conclusion that Balke met the standards for
an NGI verdict.
¶7 At the time the evaluator interviewed him, Balke was subject to a
WIS. STAT. ch. 51 (2023-24)1 civil commitment—the latest in a number of his
commitments—which included an order for involuntary treatment with
psychotropic medication. Despite this treatment, Balke reported to the evaluator
that the medications did not alleviate his symptoms and actually “possibly
worsen[ed] his hallucinations.” Balke also stated he never lived in the community
long enough to establish care with an outpatient psychiatrist and that he often
failed to take his medications and greatly abused substances.
¶8 A few months after the foregoing evaluation was submitted to the
circuit court, Balke and the State reached a plea agreement. Balke agreed to plead
no contest to the count of battery to a law enforcement officer as a repeater, and
the State, in exchange, agreed to dismiss and read in the remaining counts (along
with charges in two other cases) and stipulate to a finding that Balke was NGI.
The court later accepted the no-contest plea, found Balke NGI, ordered a
predisposition investigation report, set the matter for a dispositional hearing, and
ordered Balke committed.
1 All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

No. 2024AP579-CR
5
¶9 The predisposition investigation report recommended Balke’s
institutional placement at a state mental health institution, due to him “clearly
continu[ing] to demonstrate [a] risk of serious harm to himself, others, and
property.” In particular, the author stated that “Balke suffers from serious and
active symptoms of his illness currently” and that he “verbalizes the continued
desire to harm others, connected to his beliefs about” his cousin; that he has a
“poor adherence to treatment prescribed”; and that he has “[s]ignificant substance
use” issues. The author opined that
[i]nstitutional care would allow more intensive evaluation,
on-going treatment needs being addressed for his
psychiatric illness and substance abuse, and monitoring of
response to treatment on an on-going basis. Treatment to
address acute symptoms and stabilize Mr. Balke will
undoubtedly support the increased likelihood of
longer-term success in the community.
¶10 In reaching these conclusions, the predisposition investigation report
extensively chronicled many statements by Balke regarding his mental illness and
related symptoms, his life and criminal history, and other facts, which were the
same as or similar to statements found in the earlier clinical evaluation. This
information included Balke being delusional at the time he battered the deputy; his
other delusions and auditory hallucinations—which were tied to a pervasive
obsession with his cousin, whom Balke believed had significant influence and
power over him and was constantly threatening to harm him—and other mental
health issues; Balke’s extensive substance abuse; his frequent refusals to adhere to
his medication and other treatment regimens; and the dangers he posed to himself
and others. Statements by family members supported the foregoing.
¶11 At the dispositional hearing, the State sought the maximum term of
commitment of seven years (less any custody credit due). See WIS. STAT.

No. 2024AP579-CR
6
§§ 940.62(2)(a), 973.01(2)(b)8., 939.62(1)(b). The State began its argument by
noting how Balke’s mental illnesses, as explained at length by both the clinical
evaluation and the predisposition investigation report, severely impacted his life.
The State argued that Balke had been noncompliant with his medications and
required doctor visits, both when in jail and out in the community; that even when
he was on his medications, there was “some question about how well they [were]
working”; and that Balke continued to experience intrusive hallucinations that
caused him fear of being harmed.
¶12 The State noted that Balke’s documented history of substance abuse
and homelessness have “contributed to his inability to seek medical advice and to
maintain medication compliance.” The State also mentioned that Balke’s
hallucinations cause him to verbalize dangerous behavior to himself—such as not
eating because of voices telling him not to do so—and to others, particularly his
cousin. Regarding harm to others, the State emphasized that Balke had extensive
jail reports—spanning many months—about him fighting during his current
incarceration, and Balke himself requesting to be put in segregation “because he
feels like he wants to hit someone.”
¶13 The State concluded by stating that
institutional treatment [for] seven years will assist [Balke]
in being medication compliant. It will get him the therapy
he needs. It will, hopefully, get him the resources he needs
so he can learn to be independent and live on his own and
learn to seek out medical treatment when he needs it and to
continue to live in society without harming others.
¶14 Balke’s counsel focused on the fact that much of Balke’s treatment
was attempted in a criminal setting, which counsel argued was ineffective if not
detrimental. Counsel further argued that Balke’s conduct while recently

No. 2024AP579-CR
7
incarcerated was not a good measure of what would occur with treatment in a
proper, health-oriented setting. And while defense counsel noted that Balke’s
hallucinations persisted and that he certainly needed mental health treatment,
counsel argued that successful treatment could be accomplished under an NGI
commitment that was much shorter than the length recommended by the State.
Counsel argued that Balke could then be transitioned to an outpatient setting,
including other forms of civil commitment, and noted that plenty of people are
“successfully treated for schizoaffective disorder in the community. There’s no
reason to think [Balke] can’t be one of them.”
¶15 While Balke’s counsel acknowledged that “all of the reports in this
case” have clearly laid out “the extent of [Balke]’s mental illness”—which, he
asserted, neither Balke nor anyone “seems to be disputing”—he asked the circuit
court to disregard the recommendation in the predisposition investigation report,2
“to find that [Balke] is appropriate for conditional release,” and to have him
cooperate with the relevant state agency in that setting. The defense also argued
that the maximum seven-year period of commitment was unnecessary, and it
requested a commitment period of two years.
¶16 The circuit court issued an oral ruling at the conclusion of the
hearing. In determining that Balke required institutionalized care, the court noted
2 Defense counsel’s full statement was: “We would ask the Court because it is ultimately
the Court’s decision to disregard the report that was filed, to find that [Balke] is appropriate for
conditional release, to have him cooperate with the State Department of Human Services as well
as any designee for his future treatment needs.” It seems, in context, that counsel’s “disregard”
comment was not a suggestion that the court should disregard the predisposition investigation
report as a whole. Rather, counsel was specifically referring to the report’s recommendation that
Balke be treated with institutional placement at a state mental health institution, rather than in the
community.

No. 2024AP579-CR
8
Balke’s significant criminal record, his history of severe mental illness, his
chemical dependency issues, and his failures to adhere to his mental health
medication and treatment regimen, especially when in the community. The court
noted that while those issues had been periodically addressed in some
circumstances, Balke’s condition remained problematic. The court also accepted
the evaluator’s opinion in the predisposition investigation report that Balke
remained a danger to society if he was not treated within a state mental health
institution, after which, the court hoped, Balke’s dangerousness could be reduced
such that a conditional release would be appropriate.
¶17 In summarizing its decision to order institutional care, the circuit
court stated its goals as follows:
So obviously [Balke] needs to address those chemical
dependency needs as well as his mental health needs, stay
on his medications; and, hopefully, we can get the
medications and the right amounts and in the right form so
that he can be successful.
I certainly agree with both parties that we have an
individual here that has severe mental illness and we have
to try to determine how best to protect him as well as
society by getting him in a position where he can be
successful.
¶18 Regarding the length of the commitment, the circuit court stated:
I think to protect society to the fullest we should allow at
the outset the maximum time, which would be seven years.
With that being said, Mr. Balke can petition the Court for
both conditional release from the institution; and if his
symptoms are well managed, he can petition for release
from the commitment as well. But 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.

No. 2024AP579-CR
9
Accordingly, the court ordered a seven-year commitment, with Balke’s placement
at a state facility, under the care of the Department of Health Services.
¶19 Balke moved for postdisposition relief, requesting a new
dispositional hearing.3 He argued that the circuit court erroneously exercised its
discretion by failing to sufficiently explain why it imposed the maximum term of
commitment, especially in relation to the facts of Balke’s case. While
acknowledging the law that NGI commitments are not criminal sentences, Balke
noted that both types of decisions involve the deprivation of liberty and the
exercise of discretion, and he therefore asserted that the factors and law
established under criminal sentencing should be considered. Accordingly, Balke
argued, “the term [o]f [an NGI] commitment, like a sentence, should be narrowly
crafted. It should be the minimum term consistent with the same basic factors
[applicable to a sentencing decision]: the protection of the public, the gravity of
the offense, and the rehabilitative needs of the defendant.” Citing Fugere, Balke
also asserted that, “[a]s a general rule, the length of commitment is about
two-thirds of the maximum potential sentence of imprisonment,” Fugere, 386
Wis. 2d 76, ¶29, and he argued that the court deviated from that rule, without
explanation, by ordering the maximum term of commitment.
¶20 The circuit court held a hearing on Balke’s motion. The court
observed that while its decisions—both regarding institutional placement and the
length of commitment—were based on the need to protect the public, the court
also considered Balke’s prior treatment history (including its lack of success), his
3 Balke also requested additional sentence credit against his commitment for his time
spent in jail in connection with his read-in cases, which the circuit court granted after a stipulation
by the parties. That credit is not at issue on appeal.

No. 2024AP579-CR
10
criminal history, and the psychological report generated for the dispositional
hearing. To properly address those factors and needs such that Balke “would be
safe when he returns to the community” and “maintain[] that safe existence,” the
court determined the maximum term of commitment was necessary, at least at the
outset. Accordingly, the court concluded that it had properly exercised its
discretion, irrespective of the purported two-thirds rule, and it denied Balke’s
request for a new dispositional hearing.
¶21 Balke appeals. He asks us to reverse the order denying his
postdisposition motion and seeks a new dispositional hearing.
DISCUSSION
¶22 When a criminal defendant is found not guilty by reason of mental
disease or defect for a felony committed on or after July 30, 2002, as Balke was in
this case, the circuit 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 [WIS. STAT. §] 973.155.
WIS. STAT. § 971.17(1)(b). This commitment decision essentially has two parts.
First, the court must decide whether the commitment will occur in an institutional
or a community setting (otherwise known as “conditional release”) and, second, in
either setting, the court must decide how long the commitment will be.
Sec. 971.17(1)(b), (3)(a). Both determinations are left to the discretion of the
circuit court, State v. Cook, 66 Wis. 2d 25, 27-28, 224 N.W.2d 194 (1974), albeit
with the maximum length of the commitment being capped, pursuant to the
statute.

No. 2024AP579-CR
11
¶23 “[T]he term [discretion] contemplates a process of reasoning. This
process must depend on facts that are of record or that are reasonably derived by
inference from the record and a conclusion based on a logical rationale founded
upon proper legal standards.” State v. Gallion, 2004 WI 42, ¶19, 270 Wis. 2d 535,
678 N.W.2d 197 (alterations in original; citation omitted). “Although the proper
exercise of discretion contemplates that the circuit court explain its reasoning,
when the court does not do so, we may search the record to determine if it
supports the court’s discretionary decision.” Randall v. Randall, 2000 WI App
98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. Put another way, “[r]egardless of the
extent of the [circuit] court’s reasoning, [a reviewing court] will uphold a
discretionary decision if there are facts in the record which would support the
[circuit] court’s decision had it fully exercised its discretion.” State v. Hurley,
2015 WI 35, ¶29, 361 Wis. 2d 529, 861 N.W.2d 174 (third alteration in original;
citation omitted).
¶24 Regarding the first part of the commitment decision—determination
of where the defendant will serve his or her commitment—a circuit court must
order institutional care if it finds, by clear and convincing evidence, that
“conditional release of the person would pose a significant risk of bodily harm to
himself or herself or to others or of serious property damage.” WIS. STAT.
§ 971.17(3)(a). In making that determination,
the court may consider, without limitation because of
enumeration, the nature and circumstances of the crime, the
person’s mental history and present mental condition,
where the person will live, how the person will support
himself or herself, what arrangements are available to
ensure that the person has access to and will take necessary
medication, and what arrangements are possible for
treatment beyond medication.

No. 2024AP579-CR
12
Id. As stated, these are neither required nor exclusive factors for consideration.
¶25 On appeal, Balke does not challenge the circuit court’s decision to
order that treatment begin in an institutional setting. Rather, he asserts that factors
considered by a court in determining whether to place an NGI defendant in
institutional care are “irrelevant” to whether that court “failed to properly exercise
its discretion as to the length of [the defendant’s] commitment.” Balke bases this
proposition, at least in part, on the fact that the statute “explain[ing] what [a] court
must consider in determining whether to place an individual in institutional care or
conditional release at the beginning of his or her commitment”—namely, WIS.
STAT. § 971.17(3)(a)—“contains no mention of the length of the commitment.”
¶26 We disagree with Balke’s narrow view of the statutory process.
Rather, we agree with the State that it naturally follows that the factors affecting
whether to order institutional placement in the first place also apply to determining
the length of that placement. After all, a decision to institutionalize for, say, only
one day—a highly unlikely result, we realize—is itself a decision regarding the
length of time needed for commitment. Any day, month or year added thereafter
inherently involves the circuit court’s consideration of if, and why, such additional
time is required. Therefore, using the statutory factors under WIS. STAT.
§ 971.17(3)(a) to also inform the decision regarding the length of the commitment
makes sense. Ultimately, all that is required for the court’s proper exercise of
discretion in determining the length of the commitment is for the court to
rationally analyze relevant and proper factors while applying the correct legal
standard.
¶27 What Balke does challenge on appeal is the circuit court’s decision
to set his commitment term at its maximum possible length. He seeks reversal of

No. 2024AP579-CR
13
the court’s order denying his postdisposition motion on that issue and a “remand
with directions to hold a new dispositional hearing and conduct a proper exercise
of discretion as to the length of his commitment.” Balke does not contend, per se,
that the record fails to support the court’s determination as to the length of his
commitment. Rather, he insists 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.” In this regard, Balke also asks us to address the
necessary considerations for a circuit court when determining the length of an NGI
commitment.
¶28 At the outset of our analysis, we reject a premise of Balke’s
argument. Citing language in one paragraph in Fugere, he insists that the
Wisconsin Supreme Court has established a “general rule” whereby the length of
an NGI commitment is presumed to be two-thirds of the maximum potential
sentence of imprisonment. Balke reads this rule as meaning that the length of his
commitment should be, at most, “around four and a half years in this case, taking
the repeater enhancer into account,” or two-thirds of seven years. Because the
circuit court here exceeded that time period without providing any explanation for
doing so, Balke contends the court’s determination is erroneous, presumably
because it failed to apply the proper law.
¶29 Balke misapprehends the language in Fugere on which he relies,
primarily because he fails to acknowledge the law underlying it. The issue in that
case was whether a circuit court was required to inform an NGI defendant of the
maximum possible term of civil commitment at the guilt phase.4 Fugere, 386
4 When a defendant enters an NGI plea, the case is bifurcated into a “guilt phase” and a
“responsibility phase.” State v. Fugere, 2019 WI 33, ¶26, 386 Wis. 2d 76, 924 N.W.2d 469.

No. 2024AP579-CR
14
Wis. 2d 76, ¶¶2, 51. The court declined to exercise its superintending and
administrative authority to require that circuit courts do so. Id., ¶¶2, 49, 55. In
reaching that conclusion, it relied, in part, on the fact that an NGI commitment is
not punishment, but rather a collateral consequence to someone who successfully
mounts an NGI defense to criminal charges. Id., ¶¶2, 55.
¶30 As part of its analysis in this regard, the court outlined the general
NGI process. Id., ¶¶26-29. This included the following discussion on which
Balke relies:
Defendants in criminal cases who are later found NGI are
civilly committed rather than criminally sentenced or
sanctioned. If commitment occurs, the length of that
commitment is not to exceed the maximum sentence for the
charged offense plus penalty enhancements subject to
statutory credit provisions. WIS. STAT. § 971.17(1)(b)
[(2015-16)]. As a general rule, the length of commitment is
about two-thirds of the maximum potential sentence of
imprisonment. In addition, 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. See §§ 971.17(4), (5) [(2015-16)].
Id., ¶29 (emphasis added; footnote omitted). The court included a footnote
anchored to the emphasized sentence above, which stated, in relevant part:
Under … § 971.17(1) [(2015-16)], an NGI defendant’s
maximum possible commitment period depends on the
nature of the underlying offense. NGI defendants … who
commit a misdemeanor, may receive a maximum
commitment period of two-thirds the maximum term of
imprisonment that could be imposed.
[Sec.] 971.17(1)(a) & (d) [(2015-16)]. NGI defendants
who commit a felony on or after July 30, 2002, may receive
a commitment term up to but not exceeding the maximum
term of imprisonment that could be imposed.
[Sec.] 971.17(1)(b) [(2015-16)]. Lastly, NGI defendants
who commit a felony punishable by life imprisonment may

No. 2024AP579-CR
15
receive up to a lifetime commitment term.
[Sec.] 971.17(1)(c) [(2015-16)].
Id., ¶29 n.6 (emphasis added).
¶31 It seems plain, from the statutory references in Fugere’s above
footnote, that the court’s comment was tied to the language in those statutes,
which refer to a generalization that a commitment term for a felony will not likely
exceed two-thirds the maximum potential sentence of imprisonment, and not some
independent declaration by the court. But WIS. STAT. § 971.17(1)(b) clearly
states—as it did when Fugere was decided5—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.” (Emphasis added.) Importantly, under the
nomenclature of Wisconsin’s sentencing law, “‘[i]mprisonment’ refers to both
parts of a bifurcated sentence: the period of initial confinement in prison plus the
period of extended supervision.” State v. Finley, 2016 WI 63, ¶96 attach. A, 370
Wis. 2d 402, 882 N.W.2d 761. Accordingly, under § 971.17(1)(b), only the time
that a defendant could have been confined in prison under the truth-in-sentencing
laws (which began on July 30, 2002) is available for the commitment period.
And, typically, under the bifurcation and classification of felonies in Wisconsin,
that confinement period is about two-thirds of the total available imprisonment for
the crime, unless the penalty is subject to enhancers. See WIS. STAT. §§ 939.50,
973.01(2)(b), (d).
5 The court in Fugere applied the 2015-16 version of the Wisconsin Statutes. Fugere,
386 Wis. 2d 76, ¶11 n.3. The language in WIS. STAT. § 971.17(1)(b) (2015-16) is identical to the
current version of the statute applied here.

No. 2024AP579-CR
16
¶32 Therefore, the two-thirds “general rule” mentioned in Fugere
appears to have been referring only to the fact that the two-thirds sentencing
calculation applies generally, unless unique case facts render it inapplicable.
Alternatively, the court could have been saying “general rule” in the sense that it
applies in all cases in which life imprisonment is not a potential sentence if the
case were tried to a guilty verdict, meaning in most cases—i.e., generally.
Regardless, what matters, for our purposes, is that the relevant passages in Fugere
simply failed to reflect the statutory and real-world distinction in Wisconsin law
between “terms of imprisonment” and “terms of confinement in prison.”6
6 We note, however, that later in the Fugere opinion itself, the court correctly referred to
WIS. STAT. § 971.17(1)(b) (2015-16) as providing that “[f]or felonies committed on or after
July 30, 2002, NGI commitments may at most equal ‘the maximum term of confinement in prison
that could be imposed’ on a defendant if his NGI defense failed.” Fugere, 386 Wis. 2d 76, ¶47
(emphasis added). And, three years after Fugere, our supreme court included an analysis which
properly recognized the distinction between “imprisonment” and “confinement,” citing the
provisions in WIS. STAT. § 971.17(1) (2017-18) and stating, in relevant part:
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. NGI commitment orders are
limited by how long an “offender convicted of the same
[offense]” may be “imprison[ed]” or “confin[ed] in prison.”
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 [WIS. STAT.] § 971.17(1) [(2017-18)], 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….
[U]nder the plain terms of § 971.17 [(2017-18)], the length of
NGI commitment is based on the total length of prison terms the
individual could receive in traditional criminal proceedings.
State v. Yakich, 2022 WI 8, ¶17, 400 Wis. 2d 549, 970 N.W.2d 12 (first, second and third
alterations in original; emphases added; citations omitted).

No. 2024AP579-CR
17
¶33 In Balke’s case, the seven-year number is the maximum “term of
confinement in prison” that could have been imposed on Balke if he were found
guilty of the underlying offense to which he pled, with the remainder of his
“imprisonment” being an additional roughly three years of extended supervision.
Given all of the foregoing, we simply do not read anything more into the language
from Fugere on which Balke relies, and the circuit court here did not err in any
way in relation to it.
¶34 What remains then is whether the circuit court otherwise erroneously
exercised its discretion by ordering the maximum commitment term of seven
years. As outlined extensively above—and without repeating it here—the record
is replete with information supporting a decision to impose a lengthy NGI
commitment in Balke’s case. In particular, we note that both the clinical
evaluation and the predisposition investigation report mentioned Balke’s extensive
criminal history—by age 29—from which it was reasonable to infer that most of
those charges were tied to Balke’s mental health struggles. Everyone involved in
the case—including Balke’s own family and his attorney—recognized that Balke
has severe and persistent mental illnesses, and he has had limited success
receiving and maintaining his required treatment while living in the community.
¶35 Moreover, we believe the circuit court did sufficiently explain its
reasoning. Contrary to Balke’s contention, we see no reason why we cannot rely
on the court’s overall statements regarding the need for institutional
commitment—not just those comments the court expressly made in relation to the
commitment’s length—while assessing its discretionary decision regarding that
length. This view is consistent with our earlier determination that the same factors
a court may consider in deciding to order institutional commitment apply to its
determination of the length of a commitment. See supra ¶26. Under this view of

No. 2024AP579-CR
18
the record, we reject 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.”
¶36 To summarize, the circuit court observed that Balke had a long
history of violence and instability stemming from his persistent and pervasive
mental illnesses, and this history continued even with the benefit of the
medications he was currently prescribed. The court noted that, due to Balke’s
mental illnesses, he was very dangerous to both himself and others. Furthermore,
the court observed that, over the years, Balke’s treatment regimen had been
repeatedly unsuccessful in community and inpatient settings, often due to Balke’s
failure to comply. It was under these circumstances in which the court determined
that the maximum possible seven-year term of commitment to institutional care
was necessary to ensure Balke received the treatment he needed and to protect
society. Still, the court expressly noted that Balke would be able to petition for
conditional release from the institution or discharge from the commitment entirely
if his mental state stabilized.
¶37 We also reject Balke’s contentions that “the circuit court expressed 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.” While perhaps more explanation could have
helped, it is apparent the court simply believed, given all the information before it,
that until Balke receives the much-needed treatment identified in the record, Balke
will remain at a significant risk of harm to himself or others if placed back in the
community. See WIS. STAT. § 971.17(3)(a). That conclusion is amply supported
by the record.

No. 2024AP579-CR
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¶38 Finally, we decline both Balke’s contention that the circuit court
erred by failing to consider any mandatory factors and his related request that we
articulate “mandatory considerations for the length of an NGI commitment.” In
particular, we reject any suggestion that the Gallion analysis—i.e., that the
sentence imposed by a court must be the minimum amount of confinement
consistent with the protection of the public, the gravity of the offense, and the
rehabilitative needs of the defendant, Gallion, 270 Wis. 2d 535, ¶44—necessarily
applies in this setting and that it must strictly be followed.7 A particular court may
wish to consider those factors, which it may do within the exercise of its
discretion. We merely conclude that unlike in the sentencing context, a court
committing an NGI defendant is not required to conduct a complete Gallion
analysis. See id., ¶¶39-46.
¶39 In so concluding, we are mindful that an NGI commitment is not a
criminal sentence and that the NGI procedure is neither wholly civil nor wholly
criminal. See Fugere, 386 Wis. 2d 76, ¶29; State v. Brenizer, No. 2015AP2181,
unpublished slip op., ¶¶29-30 (WI App June 6, 2017).8 To be sure, there is some
overlap between the factors considered in both settings when determining both the
location and the length of sentences and commitments. Still, they are, and should
7 In his reply brief, Balke asserts that the State “concedes … that courts should consider
the Gallion factors,” even though the State “bases its concession on the language of WIS. STAT.
§ 971.17(3)(a).” (Footnote omitted.) While the State conceded that § 971.17(3)(a), by including
the phrase “without limitation because of enumeration,” signals the legislature’s intent to “allow[]
a court imposing a term of commitment to consider any other factors it found appropriate,
including the regular sentencing factors,” that is the extent of the State’s concession. (Emphasis
added.) The State did not concede that courts “should” consider, much less “must” consider, the
Gallion factors.
8 An unpublished opinion that is authored by a member of a three-judge panel and issued
on or after July 1, 2009, may be cited for its persuasive value. See WIS. STAT.
RULE 809.23(3)(b).

No. 2024AP579-CR
20
be, very different outcomes. The purposes of a criminal sentence include
“protection of the community, punishment of the defendant, rehabilitation of the
defendant, and deterrence to others.” Gallion, 270 Wis. 2d 535, ¶40. The
purposes of an NGI commitment are “to treat the NGI acquittee’s mental illness
and to protect the acquittee and society from the acquittee’s potential
dangerousness” due to that mental illness. State v. Szulczewski, 216 Wis. 2d 495,
504, 574 N.W.2d 660 (1998). Unlike criminal sentences, NGI commitments are
not intended to be punishments. Fugere, 386 Wis. 2d 76, ¶39. It is for at least
this reason that we are not swayed by Balke’s statement that the circuit court erred
because, absent him being an NGI acquittee, the underlying charges would have
“rarely warrant[ed]” “a seven[-]year total sentence.” That calculus simply is not
the standard for determining the proper length of an NGI commitment.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.