People In Interest of Jesper Joergensen

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

2022COA126

22CA0291 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 2022COA126

Court 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