On Point: 4. Competency of defendant

State v. T.A.W., 2025AP437-CR, 6/3/25, District I (not recommended for publication); case activity

Although the charges against T.A.W. — resisting an officer causing soft tissue injury and retail theft — are not “serious crimes” under Wis. Stat. § 969.08, which specifies procedures for pretrial release, the COA found that the State met its burden to show an important governmental interest in forcibly medicating T.A.W. to competency under the aggravated circumstances of the case.

Jacob Alan Powers v. Jon Noble, No. 24-2134, 3/25/25

The Seventh Circuit found that Jacob Powers was competent to stand trial in a Wisconsin court in 2006 for sexual assault of a child and child enticement.  Although Powers’ IQ was in the borderline/mild mental retardation range; his trial testimony, trial counsel’s decision not to challenge his competency, and two experts’ findings that he was competent convinced the Court that he reasonably understood the charges against him, trial procedures, and could assist his lawyer in his defense.  The Court therefore affirmed the district court’s order denying Powers’ petition for a writ of habeas corpus. 

State v. M.M.K., 2024AP591-CR, 2024AP592-CR, 2024AP593-CR, 2024AP594-CR, 10/31/24, District IV(1-judge decision, ineligible for publication); case activity

In a case which continues a new trend in appeals of involuntary medication appeals, COA holds that while the circuit court correctly found M.M.K. incompetent, it failed to correctly apply Sell in ordering involuntary medication.

State v. N.K.B., 2023AP722-CR, 10/1/24, District I (recommended for publication); petition for review granted, 2/12/25 case activity

N.K.B. (referred to as Naomi) was found incompetent to proceed on her criminal charges.  The circuit court authorized involuntarily administering medication to Naomi because she was dangerous.  Naomi argued on appeal that the circuit court did not have authority to authorize involuntarily medicating her based only on dangerousness.  In a recommended-for-publication decision, the COA vacated the circuit court’s order authorizing involuntary medication: “Defendants committed under § 971.14 cannot be involuntarily medicated based on dangerousness absent the commencement of proceedings under ch. 51 or some other statute that authorizes involuntary medication based on the defendant’s dangerousness.”  (¶ 20).

State v. Wilson P. Anderson, 2023 WI 44, 6/2/23, summarily reversing an unpublished court of appeals decision; 2020AP819; case activity (including briefs)

As we’ve noted previously, the court of appeals (in the person of a single judge in District 1) decided this case shortly after the same court (by a three-judge panel of District 4) decided State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583. Green reversed an order that a criminal defendant be involuntarily medicated to competency, relying on and fleshing out the factors established by Sell v. United States, 539 U.S. 166 (2003). In particular, Green required the state to file, for the court’s approval, an individualized treatment plan specifying medications and doses. (Green was then taken up by the supreme court, but its decision addressed other matters, leaving the court of appeals’ reading of Sell intact.) The D1 judge in Wilson’s case didn’t follow Green (or, as the state now concedes, Sell itself) and okayed a med order prepared by a psychologist with a generic recommendation that Wilson be medicated. The supreme court granted Wilson’s petition, and the state’s litigation position changed: it conceded in SCOW that it hadn’t met its burden under Sell. In briefing and argument, the only dispute between the parties was whether the testimony of a medical doctor is always necessary to satisfy Sell‘s requirements.

State v. Donald L. White, 2020AP275-CR, 11/3/2022, District 4 (not recommended for publication); case activity (including briefs)

We hope SCOW reviews this decision. An examiner opined that White was competent to proceed under §971.14 but refused to give her opinion to a reasonable degree of professional certainty. In fact, she thought White should be observed longer. The trial court excluded the examiner’s report and found White competent without it. The court of appeals affirmed.

State v. Joseph G. Green, 2022 WI 30, 5/13/22, limiting in part and affirming in part, a published court of appeals decision; case activity (including briefs)

Section 971.14(5)(a)1 provides that a defendant’s commitment for treatment to competency cannot exceed 12 months or his maximum sentence, whichever is less. So the State argued that if a defendant appeals an involuntary medication order, this period must be tolled, otherwise the appeal time will consume the commitment period. SCOW unanimously rejects that argument. Unfortunately, a majority then “limits” State v. Scott‘s automatic stay of involuntary med orders to those entered during postconviction proceedings. In truth, SCOW eliminated the automatic stay.

State v. Joseph G. Green, 2020AP298-CR, petition for review granted 6/16/21, case activity (including briefs)

Issue (from the State’s petition):

Does a circuit court have authority to order tolling of the 12-month statutory time limit for bringing an incompetent criminal defendant to trial competency?

State v. Wilson P. Anderson, 2020AP819-Cr, 3/16/21, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

A few weeks ago, District 4 issued a to-be-published decision regarding the State’s burden of proof on a motion for involuntary medication to restore a defendant’s competence for trial. See State v. Green. It held that to satisfy Sell v. U.S., 539 U.S. 166 (2003), the State must file an individualized treatment plan specifying the medications and dosages it wants to administer to the defendant, and the circuit court must approve it. In Anderson’s case, District 1 holds that the State can file a psychologist’s report that simply indicates the defendant’s diagnosis, treatment history, and a need for medication (without specifying drugs, dosages, etc.). District 1’s decision in Anderson seems oblivious to, and contradicts, Green and a new District 4 decision in State v. Engen as well as Sell itself and substantial federal case law.

State v. Eric Engen, 2020AP160-CR, 3/18/21, District 4, (not recommended for publication); case activity (including briefs)

This is the third court of appeals decision on Sell v. United States in three weeks. As in State v. Green, District 4 here again holds that the State must file an individualized treatment plan to support a motion for involuntary medication to restore a defendant’s competence for trial. A psychiatrist’s report simply opining that medication is necessary to restore competency does not satisfy Sell. Green and Engen conflict with District 1’s decision this week in State v. Anderson, which holds that a report by a psychologist (who cannot prescribe medication) simply opining that the defendant needs medication to regain competence, satisfies Sell. The Engen decision is important for several other reasons as well.