     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
                                                                July 18, 2019

                               2019COA110

No. 19CA0304, People in Interest of R.F. — Criminal Law —
Competency to Proceed — Involuntary Administration of
Medication

     The People petitioned the district court for an order allowing

them to administer antipsychotic medication to respondent for the

purpose of rendering him competent to stand trial, and, after a

hearing, the court granted the petition.

     A division of the court of appeals adopts the four-part test

articulated in Sell v. United States, 539 U.S. 166 (2003), for

evaluating the state’s request to involuntarily administer

antipsychotic medications to restore a defendant to competency.

Under the Sell test, the state must prove by clear and convincing

evidence that (1) important governmental interests are at stake; (2)

involuntary medication will significantly further those interests; (3)
involuntary medication is necessary to further the governmental

interests; and (4) the administration of the drugs is medically

appropriate. The second and third factors are necessarily

established by proof of subsidiary facts: that the medication is

substantially likely to restore the defendant to competency and is

substantially unlikely to have side effects that would interfere with

his ability to participate in his defense (second factor), and that no

other less intrusive alternative treatment is likely to achieve

substantially the same result and there is no less intrusive means

for administering the medication (third factor). The division

concludes that an appellate court reviews the first factor de novo

but the remaining factors for clear error.

     In adopting the four-part Sell test, the division disagrees with

People in Interest of Hardesty, 2014 COA 138, which adopted a

variation of the Sell test consisting of eight factors and treated the

second and third factors as requiring proof separate and

independent of proof of the subsidiary facts.

     Because the respondent, using the eight-part test, expressly

concedes the sufficiency of the evidence to support the district

court’s order, the division affirms.
COLORADO COURT OF APPEALS                                    2019COA110


Court of Appeals No. 19CA0304
Pueblo County District Court No. 19MH34
Honorable Jill S. Mattoon, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of R.F.,

Respondent-Appellant.


                                ORDER AFFIRMED

                                    Division V
                            Opinion by JUDGE HARRIS
                           Richman and Tow, JJ., concur

                             Announced July 18, 2019


Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County
Attorney, Pueblo, Colorado, for Petitioner-Appellee

The Law Firm of John L. Rice, John L. Rice, Pueblo, Colorado, for Respondent-
Appellant
¶1    Sell v. United States, 539 U.S. 166 (2003), established a four-

 part test for evaluating petitions to involuntarily administer

 antipsychotic medication to render the respondent competent to

 stand trial. In this case, we adopt the framework as set out by the

 Supreme Court, thus disagreeing with another division of this

 court, People in Interest of Hardesty, 2014 COA 138, which framed

 the test as having eight parts.

¶2    Respondent, R.F., appeals the district court’s order allowing

 doctors at the state mental health hospital to involuntarily

 administer antipsychotic medication for the purpose of restoring

 him to competency to stand trial. Because he expressly concedes

 the sufficiency of the evidence to support the district court’s order,

 we affirm.

                           I.      Background

¶3    The People charged R.F. with second degree assault. The

 district court ordered a competency evaluation, and, in July 2018,

 R.F. was diagnosed by a psychiatrist at the state mental health

 hospital with “psychosis — not otherwise specified” and found

 incompetent to stand trial.




                                     1
¶4    In January 2019, after other restoration efforts proved

 unsuccessful, the People petitioned the court under section 16-8.5-

 112(1), C.R.S. 2018, for permission to involuntarily administer

 antipsychotic medications and to monitor any side effects. The

 district court held an evidentiary hearing on the petition.

¶5    R.F. and his treating psychiatrist, Dr. Lennart Abel, testified at

 the hearing. Dr. Abel offered expert testimony that R.F. suffered

 from persistent delusions and was unlikely to be rendered

 competent without antipsychotic medications. He opined that the

 medications the People sought to involuntarily administer were

 substantially likely to render R.F. competent, but he did not provide

 any basis for his conclusion, other than a brief reference to

 “somebody who suffer[ed] from psychosis not otherwise specified”

 whom he had once restored to competency.

¶6    Dr. Abel acknowledged that R.F. had not previously taken

 antipsychotic medication and that he did not know “how [R.F. was]

 going to react to these medications.” He conceded that R.F. might

 be part of the “small group” of patients with delusional disorders

 who do not respond to antipsychotic medication; in that event, Dr.




                                   2
 Abel testified, he would “try other medications, other antipsychotic

 medications that are not currently on this list.”

¶7    R.F. testified that he had refused the medication because he

 disagreed with Dr. Abel’s diagnosis and treatment plan. He said he

 would not consider taking the medications voluntarily until he

 received a second opinion.

¶8    The district court found that the People had met their burden

 to show that administration of the medication was necessary to

 advance the state’s interest in restoring R.F. to competency.

 Specifically, the court found that

         • R.F. suffers from psychosis;

         • R.F. is incapable of making treatment decisions because

           of his mental health disorder;

         • reasonable efforts have been made to obtain voluntary

           acceptance of treatment, but R.F. objects to the proposed

           treatment and refuses to take antipsychotic medication;

         • a less intrusive treatment option is not available;

         • an important governmental interest is at stake;

         • the medication is substantially likely to render R.F.

           competent to stand trial;

                                      3
         • the medication is substantially unlikely to have side

             effects that will affect R.F.’s ability to assist in his

             defense;

         • alternative or less intrusive treatment is unlikely to

             achieve substantially similar results; and

         • the medication is medically appropriate.

 Based on these findings, the district court granted the People’s

 petition.

                                II.   Analysis

              A.    Legal Principles and Standard of Review

¶9    Forcing “medication into a nonconsenting person’s body

 represents a substantial interference with that person’s liberty.”

 Washington v. Harper, 494 U.S. 210, 229 (1990). In the case of

 antipsychotic drugs, “that interference is particularly severe,”

 Riggins v. Nevada, 504 U.S. 127, 134 (1992), because “such

 medications threaten[] an individual’s ‘mental, as well as physical,

 integrity,’” United States v. Watson, 793 F.3d 416, 419 (4th Cir.

 2015) (quoting United States v. White, 620 F.3d 401, 422 (4th Cir.

 2010) (Keenan, J., concurring)). Thus, the Due Process Clause of

 the Fourteenth Amendment recognizes an interest in avoiding


                                       4
  involuntary administration of antipsychotic drugs. Harper, 494

  U.S. at 228.

¶ 10        Accordingly, the government may only involuntarily administer

  antipsychotic medication to a defendant for the purpose of

  rendering him competent to stand trial in cases “sufficiently

  exceptional to warrant [such an] extraordinary measure.” White,

  620 F.3d at 413.

¶ 11        To show that the case is sufficiently exceptional, the People

  must satisfy the four-part test articulated by the Supreme Court in

  Sell. 1

¶ 12        First, the state must prove that important governmental

  interests are at stake. Sell, 539 U.S. at 180. The governmental



  1 This test applies only when involuntary administration of drugs is
  sought for the purpose of rendering the defendant competent to
  stand trial. Sell v. United States, 539 U.S. 166, 181 (2003). When
  the government seeks to involuntarily administer drugs to further
  other purposes, such as those “related to the individual’s
  dangerousness” or those related to an individual’s own interests
  “where refusal to take drugs puts his health gravely at risk,” id. at
  181-82, the test established in People v. Medina, 705 P.2d 961
  (Colo. 1985), controls. “There are often strong reasons for a court
  to determine whether forced administration of drugs can be
  justified” under the Medina test “before turning to the trial
  competence question.” Sell, 539 U.S. at 182.


                                         5
  interest in bringing to trial an individual accused of a serious crime

  is important. Id. Still, special circumstances may lessen the

  importance of that interest. For example, if the defendant has

  already been confined for a significant amount of time, for which he

  would receive credit toward any sentence ultimately imposed, the

  government’s interest may be somewhat diminished. Id.

¶ 13   Second, the state must prove that involuntary medication will

  significantly further those interests. Id. at 181. The state proves

  this factor by showing that the medication (a) is substantially likely

  to render the defendant competent to stand trial and (b) is

  substantially unlikely to have side effects that will interfere with the

  defendant’s ability to assist in his defense. Id.

¶ 14   Third, the state must prove that involuntary medication is

  necessary to further the governmental interests. Id. The state

  proves this factor by showing that (a) any alternative, less intrusive

  treatments are unlikely to achieve substantially the same results;

  and (b) there are no less intrusive means for administering the

  medication, such as an order to the defendant backed by the court’s

  contempt power. Id.




                                     6
¶ 15   And fourth, the state must prove that administration of the

  drugs is medically appropriate — that is, in the patient’s best

  medical interests in light of his medical condition. Id.

¶ 16   Because involuntary administration of antipsychotic

  medication is “a tool that must not be casually deployed,” United

  States v. Chatmon, 718 F.3d 369, 374 (4th Cir. 2013), the

  government is held to a heightened burden and must prove each

  factor by clear and convincing evidence, United States v. Gomes,

  387 F.3d 157, 160 (2d Cir. 2004). “Clear and convincing evidence

  means evidence which is stronger than a mere ‘preponderance’; it is

  evidence that is highly probable and free from serious or

  substantial doubt.” Metro Moving & Storage Co. v. Gussert, 914

  P.2d 411, 414 (Colo. App. 1995).

¶ 17   We acknowledge that a different division of this court has

  framed the Sell inquiry as an eight-part test. Hardesty, ¶¶ 7-14. In

  that version of the test, factors two and three are stand-alone

  factors, rather than conclusions derived from subsidiary findings.

  In other words, the Hardesty division determined that the state

  must prove that the involuntary medication will significantly further

  the important governmental interest and that the medication is


                                     7
  substantially likely to render the defendant competent to stand trial

  and that the medication is substantially unlikely to have side effects

  that would interfere with the defendant’s ability to participate in his

  defense. Id. at ¶¶ 8-10. Likewise, the division concluded that the

  state must prove that the involuntary medication is necessary to

  further the governmental interest and that an alternative treatment

  is unlikely to achieve substantially the same results and that there

  are no less intrusive means for administering the medication. Id. at

  ¶¶ 11-13.

¶ 18    The following chart illustrates the two different approaches:

                       Sell                               Hardesty
       1.   Important governmental            1.   The defendant is facing
            interests are at stake.                serious criminal charges.
       2.   Involuntary medication            2.   Involuntary medication
            will significantly further             will significantly further
            those interests, meaning               the state’s interest in
            the following:                         prosecution.
       a.   Administration of the             3.   Administration of the
            drugs is substantially                 drugs is substantially
            likely to render the                   likely to render the
            defendant competent to                 defendant competent to
            stand trial; and                       stand trial.
       b.   Administration of the             4.   Administration of the
            drugs is substantially                 drugs is substantially
            unlikely to have side                  unlikely to have side
            effects that will interfere            effects that will interfere
            significantly with the                 significantly with the
            defendant’s ability to                 defendant’s ability to
            assist in his defense.                 assist in his defense.


                                          8
     3. Involuntary medication is     5. Administration of the
        necessary to further those       drugs is necessary to
        interests, meaning the           further the governmental
        following:                       interests.
     a. Any alternative, less         6. The district court
        intrusive treatments are         considered less intrusive
        unlikely to achieve              means for administering
        substantially the same           the drugs to the
        results; and                     defendant.
     b. The district court            7. Any alternative, less
        considered less intrusive        intrusive treatments are
        means for administering          unlikely to achieve
        the drugs to the                 substantially the same
        defendant.                       results.
     4. Administration of the         8. Administration of the
        drugs is medically               drugs is medically
        appropriate.                     appropriate.
¶ 19   But in our view, the second and third factors describe the

  conclusion drawn from the subsidiary findings. Sell instructs, for

  example, that to grant the government’s petition, the district court

  must “conclude” that involuntary medication will significantly

  further the governmental interests based on “find[ings]” that the

  medication will render the defendant competent and that it will not

  have deleterious side effects. Sell, 539 U.S. at 181. Thus, under

  our reading of Sell, the second and third factors are necessarily

  established upon proof by clear and convincing evidence of the

  subsidiary facts that underlie those factors.




                                    9
¶ 20   To the extent the Hardesty division intended to impose some

  additional burden on the government under the second and third

  factors, we are unable to discern the nature of that burden or its

  derivation from Sell. Accordingly, we elect to adhere to the test as

  articulated by the Supreme Court. See In re Estate of Becker, 32

  P.3d 557, 563 (Colo. App. 2000), aff’d sub nom. In re Estate of

  DeWitt, 54 P.3d 849 (Colo. 2002) (a division of the court of appeals

  is not obligated to follow the precedent established by another

  division).

¶ 21   Because we construe the test as comprising four factors, three

  of which are based on specific factual findings, we also disagree

  with the Hardesty division’s articulation of the standard of review.

  In our view, only the first factor — whether the government’s

  asserted interest is sufficiently important — presents a legal

  question subject to de novo review. See Gomes, 387 F.3d at 160.

  The district court’s findings with respect to the other Sell factors are

  factual in nature and are therefore subject to review for clear error.

  Id.; cf. Hardesty, ¶¶ 15-17 (reviewing importance of governmental

  interest and whether medication will significantly advance the




                                    10
  interest under a de novo standard of review but applying clear error

  review to the remaining six factors).

                             B.    Application

¶ 22   This appeal illustrates the confusion that can arise from

  application of an eight-part test.

¶ 23   R.F. expressly concedes that the state proved by clear and

  convincing evidence that the governmental interest in bringing him

  to trial is sufficiently strong (Sell factor one) and that administration

  of the drugs is medically appropriate (Sell factor four).

¶ 24   He also concedes that the state proved that the medication is

  substantially likely to render him competent to stand trial and that

  the medication is substantially unlikely to have side effects that will

  interfere with his ability to participate in his defense. Under our

  application of the Sell test, he has therefore conceded factor two:

  that the involuntary administration of drugs will significantly

  further the important governmental interest at stake.

¶ 25   But following Hardesty, R.F. argues that the People failed to

  prove this second factor, which the Hardesty division interpreted as

  requiring some inquiry independent of whether the drugs are likely

  to restore the defendant to competency and whether the drugs are


                                       11
  unlikely to produce deleterious side effects. R.F. does not explain,

  though, what additional inquiry is required, or what additional

  evidence the People had to present, to prove Hardesty’s version of

  the second factor.

¶ 26   To be sure, a mere conclusory statement from the defendant’s

  treating psychiatrist that the proposed medication is substantially

  likely to restore the defendant to competency is not sufficient.

  Because allowing “the government to meet its burden through

  generalized evidence alone would effectively allow it to prevail in

  every case involving the same condition or course of treatment” and

  involuntary medication is to be the exception rather than the rule,

  we require individualized evidence. Watson, 793 F.3d at 425. So

  instead of proof that the medications are generally effective, the

  People must demonstrate that the “proposed treatment plan, as

  applied to this particular defendant, is ‘substantially likely’ to render

  the defendant competent to stand trial.” United States v. Evans,

  404 F.3d 227, 241-42 (4th Cir. 2005); see also United States v.

  Diaz, 630 F.3d 1314 (11th Cir. 2011) (affirming the district court’s

  order granting the government’s petition where experts testified

  about relevant studies and applied data to the defendant’s


                                     12
  condition); United States v. Ruiz-Gaxiola, 623 F.3d 684, 700 (9th

  Cir. 2010) (the government did not prove the second Sell factor

  where “the government experts rely on generalities and fail to apply

  their views to [the defendant’s] condition with specificity”); People v.

  Coleman, 145 Cal. Rptr. 3d 329, 335 (Cal. Ct. App. 2012) (the

  government proved the second Sell factor with evidence that the

  “[m]edication successfully restored defendant’s competence

  previously”); State v. Barzee, 177 P.3d 48, 77-78 (Utah 2007)

  (affirming the district court’s involuntary medication order where

  doctors testified regarding their clinical experience treating other

  patients with the same condition and similar symptoms as the

  defendant).

¶ 27   However, we have no occasion to evaluate the sufficiency of

  the evidence regarding the likelihood that the medications will

  restore R.F. to competency, as he did not challenge the district

  court’s finding that it would.

¶ 28   As for the argument regarding sufficiency of the evidence to

  support the third Sell factor, R.F. makes the same analytical error.

  He expressly concedes that the People proved by clear and

  convincing evidence that any alternative, less intrusive treatment is


                                     13
  unlikely to achieve substantially the same result as the

  antipsychotic medication and that there are no less intrusive means

  for administering the medication. Yet, he argues that the evidence

  was insufficient to establish that involuntary medication is

  necessary to further an important governmental interest. Again, he

  does not explain what additional showing is required to establish

  the third Sell factor.

¶ 29   Because we conclude that the People have met their burden to

  prove the second and third Sell factors by virtue of R.F.’s concession

  that the medication is substantially likely to restore him to

  competency, the medication is substantially unlikely to have side

  effects that will affect his ability to assist in his defense, no

  alternative treatment is likely to achieve the same results, and the

  court considered less intrusive means for administering the

  medication, we affirm the district court’s order.

                              III.   Conclusion

¶ 30   The order is affirmed.

       JUDGE RICHMAN and JUDGE TOW concur.




                                      14
