SCOW to review involuntary treatment to competency on appeal

State v. Andre L. Scott, 2016AP2017-CR, bypass granted 9/12/17, case activity (including briefs)

Issues:

1. Whether, despite State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), a circuit court may use §971.14(4)(b) to require a nondangerous defendant to be treated to competency against his will, and if so, whether §971.14(4)(b) is unconstitutional on its face because it does not comport with Sell v. United States, 539 U.S. 166 (2003).

2. Whether an order requiring an inmate to be involuntarily treated to competency is a nonfinal order that should be challenged by a Wis. Stat. §809.50 petition for interlocutory appeal or a final order of a special proceeding that is appealable as a matter of right via Wis. Stat. §808.03(1).

3. Whether the court of appeals exercises its discretion erroneously when it denies a motion for relief pending appeal without explaining its reasoning.

Debra A.E. holds that if a defendant is found incompetent during postconviction proceedings, defense counsel should be permitted to go forward with postconviction relief to the extent feasible. If counsel requires the defendant’s assistance, she may request a continuance, a deadline extension, or the appointment of GAL to make decisions for the defendant. Furthermore, the defendant should not be barred from raising issues at a later proceeding that he could not raise earlier due to incompetency.  “Ordinarily this process need not include a court order for treatment to restore competency” Debra A.E. at 130. In this case, the circuit court skipped Debra A.E. and relied on §971.14 (governing pretrial competency proceeding) to require the defendant to be involuntarily treated to competency for his direct appeal.

Meanwhile, Sell  holds that the government may constitutionally order a defendant to be treated to competency only if he is either (a) dangerous or (b) charged with a serious crime, and (1) there is an important governmental interest at stake; (2) involuntary medication will significantly further that governmental interest; (3) involuntary medication is necessary to further that governmental interest; and (4) the proposed involuntary medication is in his best medical interests in light of his medical condition. Sell 180-182. It appears that §971.14 was enacted before Sell  and is unconstitutional on its face.