People ex rel. Joergensen, 22CA0291

Citation2022 COA 126
Case DateOctober 27, 2022
CourtCourt of Appeals of Colorado

2022 COA 126

The People of the State of Colorado, Petitioner-Appellant, In the Interest of Jesper Joergensen, Respondent-Appellee.

No. 22CA0291

Court of Appeals of Colorado, Fourth Division

October 27, 2022


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.


Pueblo County District Court No. 21MH284 Honorable Tim O'Shea, Judge

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 RespondentAppellee




¶ 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....
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.


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 Hearing [1]

¶ 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


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 County[2](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.


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.


¶ 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.


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...

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