Question as originally presented: Can you score the PRVs when an offender had an offense in Wisconsin where he was found guilty but not guilty due to mental disease defect? And would this offense break the 10 year gap?
No binding legal authority addresses your question and it is ultimately an issue of law for the trial court to decide.
First, the fact that the offense occurred in Wisconsin is not a barrier to scoring the PRVs or breaking the 10 year gap because out-of-state convictions are used in scoring the PRVs and for purposes of the 10-year-gap rule. However, the fact that the person was “guilty but not guilty due to mental disease defect” is significant. The key issue is whether someone who is found guilty but not guilty due to mental disease defect has a “conviction” for purposes of scoring the PRVs and the 10-year-gap rule. Generally, for purposes of the 10-year-gap rule and scoring the PRVs, “conviction” is defined as including “assignment to youthful trainee (HYTA) status under MCL 762.11 to MCL 762.15 and a conviction set aside under MCL 780.621 to MCL 780.624.” MCL 777.50(4)(a). MCL 777.50 does not provide a comprehensive definition of everything that is considered a conviction, but it clearly includes certain potentially ambiguous situations as convictions. The statutory definition does not consider verdicts involving mental illness.
In Michigan, you can be found guilty but mentally ill or you can be found not guilty by reason of insanity. See MCL 768.20a (insanity defense); MCL 768.36 (guilty but mentally ill). It appears that a defendant who successfully asserts the insanity defense could not be considered to have a prior conviction because they are found “not guilty by reason of insanity,” and “insanity is a defense to all crimes, including general intent and strict liability offenses.” People v Moore, 497 Mich 1043 (2015). However, there is a better argument that a verdict of guilty but mentally ill should be considered a “conviction” because the person is still found “guilty.” The Court has stated, but not in the context of scoring the guidelines, that “[i]n its substance, and in its penal consequences, a plea of guilty but mentally ill is a guilty plea,” People v Long, 86 Mich App 676, 684 (1978), rev’d on other grounds sub nom People v Booth, 414 Mich 343 (1982). The guilty but mentally ill statute states that the court must “impose any sentence that could be imposed by law upon a defendant who is convicted of the same offense.” MCL 768.36(3). It is possible to use this statutory language to support both sides of the argument: it permits a person found guilty but mentally ill to be sentenced the same way as someone traditionally “convicted” so you might argue it should similarly be treated as a conviction OR you could look at this language and conclude that the fact that it makes a point of explaining that a person can be sentenced the same way as someone who is convicted means that being guilty but mentally ill is not itself a “conviction.”
Relevant to your specific case, consider whether the Wisconsin finding of “guilty but not guilty due to mental disease defect” is more like a verdict of not guilty by insanity in Michigan or more like Michigan’s guilty but mentally ill verdict. If you (or the court) ends up being persuaded by the arguments that a verdict of guilty but mentally ill is a “conviction,” then that can be scored under the appropriate PRV and break the ten-year-gap, but if it is determined that it should not be considered a “conviction,” then it cannot be scored and cannot break the ten-year-gap. Whether the conduct is a “conviction” is what determines the answer to both the scoring of the PRVs and the ten year gap question. Ultimately, as stated previously, this is a question that has not been addressed by any legal authority and the sentencing court will have to make a determination as a matter of law.