People In Interest of Jesper Joergensen ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 27, 2022
2022COA12622CA0291 Peo in Interest of Joergensen — Criminal Law —
Competency to Proceed — Involuntary Administration of
Medication — Sell Test — Procedure After Determination of
Competency or Incompetency
This appeal arises out of a court order declining to authorize
the involuntary medication of the defendant, who is presently
incompetent and facing criminal charges. The court concluded the
People had met their burden to prove three of the four factors
required by Sell v. United States, 539 U.S. 166 (2003), to authorize
an involuntary medication order. The court also concluded that the
People proved the requested medication would render the defendant
competent. But the court also found that if the defendant was
restored to competency, he would cease taking the prescribed
medication and, as a result, would become incompetent before he
could be tried on the criminal charges. Based upon these findings,
the court concluded that the People had failed to prove that the
defendant would be rendered competent and that he would remain
competent until he could be tried on the underlying criminal
charges. Thus, the court concluded, the People had failed to meet
their burden under the second Sell factor and denied the request for
an involuntary medication order.
No reported Colorado case has addressed whether the People
are required to prove that a prescribed medication would render a
defendant competent to stand trial and that the defendant’s
competency would be maintained until the trial actually occurs. The
division of the court of appeals determines that Sell does not impose
such a requirement. Additionally, and also as a matter of first
impression, the division concludes that a Sell order may subject a
defendant to involuntary medication to maintain their competency
until such time as the trial is completed.
The division therefore reverses and remands the matter for
further proceedings.
COLORADO COURT OF APPEALS 2022COA126Court of Appeals No. 22CA0291
Pueblo County District Court No. 21MH284
Honorable Tim O’Shea, Judge
The People of the State of Colorado,
Petitioner-Appellant,
In the Interest of Jesper Joergensen,
Respondent-Appellee.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE SCHUTZ
J. Jones and Welling, JJ., concur
Announced October 27, 2022
Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County
Attorney, Sarah Long, Assistant County Attorney, Pueblo, Colorado, for
Petitioner-Appellant
The Law Firm of John L. Rice, John L. Rice, Pueblo, Colorado, for Respondent-
Appellee
¶1 Few cases involve interests as weighty as those in which the
state seeks to involuntarily medicate an individual, particularly
when undertaken to restore their competency to stand trial. But as
the United States Court of Appeals for the Fourth Circuit succinctly
stated in United States v. Bush, 585 F.3d 806, 813 (4th Cir. 2009),
It surely is not an overstatement to observe
that the government’s ability to enforce the
criminal laws in accordance with due process
is the foundation on which social order rests
and from which individual liberties emanate.
Thus, when an individual commits a crime, he
forfeits his liberty interests to the extent
necessary for the government to bring him to
trial.
¶2 In Sell v. United States, 539 U.S. 166, 179-82 (2003), the
Supreme Court considered the delicate balance between a person’s
liberty interests in being free from unwanted medication and the
societal interest in restoring to competency and bringing to trial a
person accused of committing a serious crime. Sell sets forth a
four-part test that the government must satisfy before it may obtain
a court order authorizing it to medicate an accused in such
circumstances:
First, a court must find that important
governmental interests are at stake. . . .
2
....
Second, the court must conclude that
involuntary medication will significantly further
those concomitant state interests . . . [and]
that administration of the drugs is
substantially likely to render the defendant
competent to stand trial . . . [without] side
effects that will interfere significantly with the
defendant’s ability to assist counsel in
conducting a trial defense . . . .
Third, the court must conclude that
involuntary medication is necessary to further
those interests . . . [and] that any alternative,
less intrusive treatments are unlikely to
achieve substantially the same results. . . .
Fourth, . . . the court must conclude that
administration of the drugs is medically
appropriate, i.e., in the patient’s best medical
interest in light of his medical condition.
Id. at 180-81.
¶3 This case focuses on the second of these factors. We conclude
that factor does not require the People to prove both that a
defendant will be rendered competent to stand trial and that such
competency will continue through the date of trial. Relatedly, we
conclude that, if necessary, a Sell order may subject a defendant to
involuntary medication to maintain their competency until such
time as the trial is completed. Therefore, we reverse.
3
I. Factual Background and Procedural Setting
¶4 Jesper Joergensen is accused of intentionally setting a fire in
Costilla County that burned more than 100,000 acres and
destroyed more than 140 structures. The People charged him with
208 counts of arson in July of 2018. Since then, Joergensen has
been found incompetent to stand trial on numerous occasions. In
April 2020, the Costilla County District Court committed
Joergensen to the custody of the Colorado Department of Human
Services (CDHS) for competency restoration services. Joergensen
was eventually transferred to the Colorado Mental Health Institute
at Pueblo (CMHIP).
A. The Initial Sell Hearing1
¶5 While at CMHIP, Joergensen refused to voluntarily take
medication that his treatment team prescribed to restore him to
competency. In August 2021, the People requested a Sell order
authorizing the medical professionals treating Joergensen to
1 Because of the controlling import of the test in Sell v. United
States, 539 U.S. 166, 180-81 (2003), a hearing at which an
involuntary medication order is requested to restore a defendant’s
competency is frequently referred to as a Sell hearing, and the
resulting order as a Sell order.
4
administer the following medications to him: Abilify, Geodon (both
orally and by intramuscular injection), and Depakote. After a
contested Sell hearing, the district court located in Pueblo County2
(the mental health court) authorized CMHIP to involuntarily
medicate Joergensen with Abilify only. Once this order was in
place, Joergensen began to voluntarily take Abilify orally once a day
and was doing so without physical force because he wanted to avoid
being involuntarily administered injections as authorized by the
court.
¶6 A few weeks later, Joergensen’s lawyers in the criminal case
pending against him in Costilla County filed a motion for
reconsideration. The mental health court granted the request for a
hearing to address whether reconsideration of its order was
appropriate. The court left in place the existing order authorizing
the involuntary administration of Abilify, pending further order of
the court.
2A Sell hearing is properly located in the jurisdiction in which the
defendant is located, in this case Pueblo County. § 16-8.5-112(2),
C.R.S. 2022.
5
B. The Second Sell Hearing
¶7 After a second contested hearing in November 2021, the
mental health court granted the motion for reconsideration and
rescinded its prior involuntary medication order. It subsequently
entered a written order setting forth its extensive factual findings
and legal conclusions. The court determined that the People had
met their burden with respect to factors one, three, and four of the
Sell test. But the court found that the People had failed to meet
their burden as to the second factor, which it interpreted as
requiring proof that the administration of Abilify would render
Joergensen competent and that he would maintain his competency
until he was brought to trial.
¶8 The court found that Abilify was likely to return Joergensen to
competency. Joergensen had been taking Abilify orally in
accordance with the court’s August order prior to the November Sell
hearing, but as previously noted, he was only doing so to avoid
being forcibly medicated. Joergensen’s mental functioning had
improved as of the date of the hearing, but he had not yet been fully
restored to competency.
6
¶9 But the mental health court went on to make a series of
factual findings that led it to conclude that Joergensen’s
competence would not persist through trial. First, the court found
that once Joergensen was returned to competency, he would be
sent from CMHIP to the Costilla County jail. Second, crediting the
testimony of Costilla County Sheriff Danny Sanchez, the court
found that because of staff limitations, the Costilla County jail was
not in a position to administer medications to inmates on an
involuntary basis. Thus, the court found that once Joergensen was
restored to competency, he would immediately cease taking Abilify,
and shortly thereafter, he would decompensate to a degree that he
would no longer be competent to stand trial.
¶ 10 Coupling these factual findings, the mental health court
determined that although Abilify, whether involuntarily
administered or voluntarily taken, would restore Joergensen to a
mental state in which he was competent to stand trial, he would not
remain competent until the time of trial because of where he would
be held pending trial. Thus, the court reasoned, the People had
failed to prove that Abilify would render Joergensen competent until
such time as he could stand trial. The People appeal this order.
7
II. Standard of Review
¶ 11 The resolution of a Sell motion presents a mixed question of
fact and law. People in Interest of Hardesty, 2014 COA 138, ¶ 14.
We review the court’s factual findings for clear error, and we review
its application of those facts to the controlling legal standards de
novo. Id.¶ 12 At the Sell hearing, the People bear the burden of proving each
of the four elements by clear and convincing evidence. People in
Interest of R.F., 2019 COA 110, ¶ 17.
III. Analysis
¶ 13 As discussed above, the People do not contest the mental
health court’s factual and legal conclusions with respect to Sell
factors one, three, and four. They argue, however, that the court
misinterpreted the second Sell factor, and particularly, they take
issue with the court’s conclusion that Joergensen’s potential
decompensation if he stops taking Abilify in the future prohibits the
present entry of an order authorizing the involuntary
administration of Abilify. We agree that the mental health court
erred.
8
A. When is “Competency to Stand Trial” Measured?
¶ 14 The second Sell factor requires the People to demonstrate that
the administration of the requested medication is substantially
likely to render the defendant competent to stand trial. The factor
does not expressly require the People to prove that the defendant is
substantially likely to remain competent to stand trial until some
future date. Nonetheless, the mental health court required the
People to demonstrate that, if prescribed the medication,
Joergensen would not only be rendered competent to stand trial but
would also continue to remain competent until the trial occurs.
¶ 15 But neither the mental health court nor Joergensen cites any
authority requiring the People to affirmatively demonstrate that a
defendant will continue to voluntarily take medication or that jail
personnel will administer the medication so that the defendant will
not decompensate to incompetency before he can be brought to
trial. Absent express authority requiring such proof, we are
unwilling to impose that condition. Our decision is grounded in the
objectives underlying our competency statutes, the statutory
scheme the General Assembly adopted to accomplish those
9
objectives, and the need to guard against orders that are
necessarily speculative about what will occur in the future.
B. Relevant Competency Statutes
¶ 16 As a starting point, competency is generally measured as of an
existing date — such as the date that a defendant is examined or
that a contested hearing is held. Colorado’s competency statutes
speak in terms of “competency to proceed.”
“Competent to proceed” means that the
defendant does not have a mental disability or
developmental disability that prevents the
defendant from having sufficient present ability
to consult with the defendant’s lawyer with a
reasonable degree of rational understanding in
order to assist in the defense or prevents the
defendant from having a rational and factual
understanding of the criminal proceedings.
§ 16-8.5-101(5), C.R.S. 2022 (emphasis added); see also Pruett v.
Barry, 696 P.2d 789, 792 (Colo. 1985) (To be deemed competent to
stand trial, “it must appear that the accused has [sufficient] present
ability to consult with his attorney with a reasonable degree of
rational understanding, and that he has a rational as well as a
factual understanding of the proceedings against him.” (quoting
Kostic v. Smedley, 522 P.2d 535, 538 (Alaska 1974))) (emphasis
added) (footnote omitted). The mental health court properly
10
concluded, with ample record support, that the prescribed Abilify
would return Joergensen to a mental state in which he had this
present ability to consult with his lawyer to assist in his defense.
¶ 17 But the mental health court interpreted Sell to also require
that the People prove that Joergensen would remain competent
until such time as he could be tried. The court’s conclusion rested
on its interpretation of section 16-8.5-112(4), C.R.S. 2022, which
provides as follows:
If a defendant committed to the custody of
[CDHS3] for evaluation or for restoration
treatment is ordered by a court to accept
treatment . . . and is subsequently returned to
jail for pending court proceedings, the county
jail may require the defendant to continue to
receive the same court-ordered treatment that
was administered by [CDHS] before the
defendant was discharged from inpatient care,
or, alternatively, appropriate medical
personnel provided by the jail may forcibly
administer such court-ordered medication to
the defendant.
3The competency statutes use the word “department,” which is
defined as the Colorado Department of Human Services (CDHS).
See § 16-8.5-101(9), C.R.S. 2022. CDHS, in turn, manages,
supervises, and controls CMHIP. See § 27-90-104(1)(a), C.R.S.
2022.
11
(Emphasis added.) The court concluded that the statute’s use of
the term “may” authorizes, but does not require, jail staff to
administer the court-ordered medication, whether directly or
through the use of third parties. In other words, the court
concluded that the statute gives local sheriffs complete and
unfettered discretion whether to continue to subject a defendant to
involuntary medications.
¶ 18 To begin, we are not persuaded that the legislature’s use of
“may” in this context necessarily leads to the conclusion that the
sheriff is authorized to unilaterally decide whether a defendant will
or will not be required to continue to comply with an involuntary
medication order. Instead, the use of “may” in this context is better
understood to simply authorize the sheriff to permit jail personnel
or other qualified medical professionals to involuntarily medicate a
defendant subject to an involuntary medication order once the
defendant is returned to the county jail. In other words, “may” in
this context is a grant of authority to the county jail to continue to
enforce an involuntary medication order, but not a grant of
discretion to unilaterally decline to enforce such an order. And we
reject the notion that the statute’s use of the word “may” somehow
12
requires — or even permits — a mental health court to consider
whether a particular county jail is able or willing to effectuate a Sell
order when deciding whether the Sell factors are satisfied, including
whether a defendant is likely to maintain his competency until
being brought to trial.
¶ 19 Moreover, even if we accept, for the sake of argument, that the
mental health court’s interpretation of section 16-8.5-112(4) is
accurate, it does not necessarily follow that the factual scenario
envisioned by that court will come to pass.
C. The Mental Health Court’s Improper Factual Assumptions
¶ 20 From a factual perspective, the mental health court’s
construction of the statute requires courts to speculate about what
a defendant will do or not do at some future time when he is
restored to competency. See, e.g., People v. Marez, 916 P.2d 543,
547 (Colo. App. 1995) (trial court’s legal determination of exigent
circumstances may not be based upon speculation). We recognize
that Joergensen’s testimony supported the court’s findings that he
would not voluntarily take Abilify once returned to competency.
But Joergensen was incompetent at the time he provided this
testimony. It is entirely possible that once rendered competent and
13
benefitting from enhanced mental capabilities, Joergensen may
agree to take the prescribed Abilify voluntarily and without a court
order authorizing involuntary medication. Thus, the mental health
court’s order is predicated upon a factual scenario that may not
come to pass.
¶ 21 More importantly, the competency statutes do not mandate
that once a defendant is restored to competency, he must be
returned to the local jail where the charges are pending.
Specifically, section 16-8.5-111(3)(a), C.R.S. 2022, provides:
When [CDHS] submits a report to the court
that it is the position of [CDHS] that the
defendant is restored to competency, the
defendant may be returned to the custody of
the county jail.
(Emphasis added.) Thus, the statute does not mandate that a
restored defendant be returned to the county jail but, rather, uses
the permissive language “may be returned to the . . . county jail.”
And nothing in the original order authorizing the involuntary
medication of Joergensen required that he be returned to the
Costilla County jail immediately upon being restored to competency.
Therefore, if Joergensen is restored to competency, the executive
director of CDHS — knowing that the Costilla County Sheriff may
14
not have the ability to administer medications on an involuntary
basis — may elect to keep Joergensen at CMHIP until the trial can
be held.
¶ 22 As evidenced by the remote Sell hearing held in this case, if
Joergensen remained at CMHIP until his trial date, electronic
communications could be established between Joergensen and his
counsel to allow him to assist in the preparation of his defense. In
addition, the evidence presented established that once rendered
competent, Joergensen was not likely to become incompetent until
the passage of thirty to forty days. Thus, he could be transported to
Costilla County jail at the time of trial, and the trial could likely be
completed while he remained in a competent state.
¶ 23 Moreover, even if Joergensen were returned to the Costilla
County jail, section 16-8.5-111(3)(a) provides that
[CDHS] shall notify the sheriff of the
jurisdiction where the defendant is to be
returned and the court liaison. . . . When a
defendant is transferred to the physical
custody of the sheriff, [CDHS] shall work with
the sheriff and any behavioral health providers
in the jail to ensure that the jail has the
necessary information to prevent any
decompensation by the defendant while the
defendant is in jail, which must include
medication information when clinically
15
appropriate. The report to the court must also
include a statement that [CDHS] is returning
the defendant to the custody of the county jail.
Thus, the statute clearly contemplates communication and
cooperation between CDHS and the county sheriff to facilitate an
orderly transfer of the restored defendant and to ensure there is no
decompensation.
¶ 24 The mental health court’s order also requires speculation
about what would happen in the future assuming Joergensen is
returned to the county jail. Sheriff Sanchez testified that the
problem with involuntarily medicating Joergensen at the Costilla
County jail is a lack of personnel qualified to administer the
medication. But Sheriff Sanchez also testified that he would
attempt to work with outside medical professionals to involuntarily
administer the medication if required to do so by court order.
Stated otherwise, if he received adequate resources, and there was
a court order in place requiring him to facilitate the involuntary
administration of Abilify, Sheriff Sanchez stated he would do his
level best to fulfill that order. Given the significance and priority of
bringing this case to trial for Joergensen, the People, and the
alleged victims, we believe that it is improper to speculate or
16
assume that it will not be possible to involuntarily medicate
Joergensen if he is returned to the Costilla County jail.
D. The Mental Health Court’s Improper Legal Assumption
¶ 25 Finally, we do not agree with the mental health court’s legal
assumption that it is not possible to order Joergensen to be
involuntarily medicated if he is returned to jail after his restoration
to competency.
¶ 26 The first and last sentences of section 16-8.5-111(3)(a)
contemplate that CDHS will notify the court where the criminal
charges are pending of any impending transfer. Thus, the criminal
court will also have notice of any issues concerning potential
decompensation at the time of Joergensen’s transfer to the local jail.
Nothing in Colorado’s statutory framework precludes the criminal
court from entering appropriate orders to ensure that Joergensen
continues to receive the necessary medications so that he does not
decompensate and thereby frustrate the central purposes of the
competency statutes.
¶ 27 Moreover, federal precedent applying Sell supports the
conclusion that a court may enter orders to require an incompetent
defendant to receive medication involuntarily, if necessary, once
17
restored to competency to avoid decompensation either before or
during the trial. United States v. Mitchell, 11 F.4th 668, 674 (8th
Cir. 2021). As explained by the court in Mitchell,
By focusing solely on the word “render,”
Mitchell overlooks an important aspect of the
Sell standard: “whether involuntary
administration of drugs is necessary
significantly to further a particular
governmental interest, namely, the interest in
rendering the defendant competent to stand
trial.” Under Sell, the mere competency of a
defendant, standing alone, is not the
governmental interest at stake. Competency to
stand trial is. And as Mitchell acknowledges,
Sell authorizes the government not only to
involuntarily medicate an incompetent
defendant, but also to continue doing so
during trial. Permitting involuntary
medication through the conclusion of trial
ensures, at the risk of stating the obvious, that
the defendant will remain — at all necessary
times — “competent to stand trial.” . . . Given
that the purpose of involuntary medication
under Sell is to ensure the defendant is
competent enough to participate in trial,
adopting a rule that categorically prohibits the
involuntary medication of a defendant who has
regained competency for some period of time,
but who is unable to maintain it, would
frustrate that purpose where an important
governmental interest is at stake.
Id. at 673 (citations omitted). We find this reasoning persuasive.
18
¶ 28 Joergensen attempts to distinguish Mitchell by arguing that
federal statutes expressly authorize the administration of
medication to retain a defendant’s competency. But the analysis
and holding in Mitchell were not predicated upon any such statute
but, rather, on a commonsense recognition of the competing
interests that Sell balances. Id.
¶ 29 Additionally, although it may not be expressly authorized by
Colorado’s competency statutes, it is consistent with the core
purpose of our statutes to permit courts to require a competent
defendant to continue to be medicated leading up to and during
trial to ensure that they do not become incompetent. The failure to
recognize such authority would sanction a result directly at odds
with the statutes’ central purpose. As the mental health court
acknowledged, the practical consequence of its interpretation of
section 16-8.5-112(4)
is to empower county sheriffs, through their
discretion, to continue or not continue court-
ordered treatment, with the ability to terminate
court-ordered medication at the CMHIP gates,
thus undoing the hard work and expenditure
of state resources of physicians, CMHIP staff,
county attorneys, respondent’s attorneys, and
court staff (both criminal and civil), and
19
reversing the therapeutic gains made by the
patients themselves.
We appreciate the mental health court’s candor in its assessment of
the practical consequences of its interpretation of the statute. But
we part ways with the mental health court’s conclusion that section
16-8.5-112(4) dictates such a result. Rather, we conclude that
neither section 16-8.5-112(4) nor the balance of the competency
statutes contemplates such a result. Instead, we conclude that the
competency statutes permit a court, if necessary, to order a
defendant to continue to receive appropriate medication to ensure
that they are restored to competency and to continue such
involuntary medication until the defendant’s trial is completed.
¶ 30 The mental health court failed to contemplate the possibility
that a court may require a defendant to be subject to an involuntary
mediation order once restored to competency or its ability to enter
alternative orders to ensure a defendant’s competency is
maintained. Instead, the court too narrowly construed our
competency statutes and their purpose, and it assumed factual
developments that may not come to pass.
20
IV. Conclusion
¶ 31 For the reasons stated, we reverse the mental health court’s
order and remand the case for further proceedings consistent with
this opinion. On remand, the mental health court shall
immediately reinstate the order subjecting Joergensen to the
involuntary administration of Abilify. Incident thereto, the court
may extend the duration of the order through the date of any trial
that may be held in this case, or the court may delay the decision of
whether to extend the order through the date of a trial pending any
additional hearing that may be held after Joergensen is returned to
competency.
JUDGE J. JONES and JUDGE WELLING concur.
21