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State v. Scott

Supreme Court of Wisconsin

June 20, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Andre L. Scott, Defendant-Appellant-Petitioner.

          Submitted on Briefs: Oral Argument: March 14, 2 018

          APPEAL from an order of the Circuit Court for Milwaukee County L.C. No. 2009CF136 Jeffrey A. Kremers Judge Reversed and remanded.

          For the defendant-appellant, there were briefs filed and an oral argument by Colleen D. Ball, assistant state public defender.

          For the plaintiff-respondent, there was a brief filed by Luke N. Berg, deputy solicitor general, with whom on the brief were Brad D. Schimel, attorney general, and Ryan J. Walsh, chief deputy solicitor general. There was an oral argument by Luke N. Berg, deputy solicitor general.

          SHIRLEY S. ABRAHAMSON, J.

         ¶1 This is an appeal from an order of the Circuit Court for Milwaukee County, Jeffrey A. Kremers, Judge. The circuit court ordered Andre Scott, the defendant, to be involuntarily medicated to competency for purposes of participating in postconviction proceedings after the circuit court found that he was not competent to proceed with his postconviction motion for relief and was not competent to refuse medication and treatment.

         ¶2 The defendant petitioned this court to bypass the court of appeals[1] and decide his appeal of the circuit court order requiring involuntary medication.[2] This court granted the petition, bypassing the court of appeals.

         ¶3 We reverse the order of the circuit court and remand the cause to the circuit court for proceedings consistent with this opinion.

         ¶4 The facts underlying the circuit court order that the defendant be involuntarily medicated to competency for purposes of assisting with his postconviction proceedings are simple and undisputed.

         ¶5 Several years after being convicted of battery, disorderly conduct, and kidnapping, the defendant, Andre Scott, sought to pursue postconviction relief. Having concerns about the defendant's ability to assist with postconviction proceedings, defendant's counsel asked for a competency evaluation.

         ¶6 In response to defense counsel's request, the circuit court held a hearing on the defendant's competency. After taking testimony, the circuit court ordered the defendant to be involuntarily medicated to competency for purposes of participating in postconviction proceedings.

         ¶7 The State initially defended the circuit court's involuntary medication order. Thereafter, the State argued that the involuntary medication order should be vacated because it was premature. The State acknowledged that the circuit court had failed to follow the procedure this court set forth in State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727');">523 N.W.2d 727 (1994), for how to resolve competency issues at the postconviction stage of criminal proceedings.

         ¶8 We conclude, as the State urges, that because the circuit court did not follow the mandatory procedure set forth in Debra A.E., the circuit court's order that the defendant be involuntarily medicated to competency for purposes of assisting with postconviction proceedings was issued prematurely and is invalid.

         ¶9 Accordingly, we reverse the order of the circuit court and remand the cause to the circuit court for further proceedings consistent with this opinion.

         ¶10 The instant case presents us with four questions:

1. May a circuit court require a non-dangerous but incompetent defendant to be involuntarily treated to competency in the context of postconviction proceedings, and if so, is Wis.Stat. § 971.14(4) (b) (2015-16)[3] unconstitutional on its face because it does not comport with the requirements announced in Sell v. United States, 539 U.S. 166 (2003)?
2. Is a circuit court order finding the defendant incompetent to proceed and requiring the defendant to be involuntarily treated to competency a final order for purposes of appellate review?
3. Did the court of appeals erroneously exercise its discretion when it denied a motion for relief pending appeal without explaining its reasoning?
4. Should involuntary medication or treatment orders be automatically stayed pending appeal?

         ¶11 We answer the questions presented as follows:

1. Before a circuit court can require a non-dangerous but incompetent defendant to be involuntarily treated to competency in the context of postconviction proceedings, the circuit court must follow the procedure this court established in State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727');">523 N.W.2d 727 (1994) . If Debra A.E. is applied properly, an order finding the defendant incompetent to seek postconviction relief ordinarily will not need to include an order for involuntary medication or treatment to restore competency. The circuit court erred in the instant case by failing to comply with the procedures established in Debra A.E.
2. The proceeding to determine whether a defendant is competent is separate and distinct from the defendant's underlying criminal proceeding. Thus, an order that the defendant is not competent to proceed (and in the instant case, that the defendant should be medicated and treated to competency) is a final order issued in a special proceeding for purposes of appeal.[4]
3. The court of appeals erroneously exercised its discretion when it denied the defendant's motion for relief pending appeal without explaining its reasoning for its discretionary denial decision.
4. Involuntary medication orders are subject to an automatic stay pending appeal, which can be lifted upon a successful motion by the State.

         ¶12 Because we reverse the circuit court order on the ground that the circuit court did not comply with Debra A.E., we need not address the effect of Sell v. United States, 539 U.S. 166 (2003), on the constitutionality of Wis.Stat. § 971.14(4) (b) . We adhere to the doctrine of constitutional avoidance: A court ordinarily resolves a case on available non-constitutional grounds.[5]

         I

         ¶13 The facts, for purposes of this review, are simple and undisputed. In 2009, the defendant, Andre Scott, was convicted of battery, disorderly conduct, and kidnapping.

         ¶14 In 2015, the defendant's counsel expressed concerns about the defendant's ability to assist with the postconviction proceedings and to make decisions committed by law to the defendant to a reasonable degree of rational understanding. Defense counsel asked for a competency evaluation of the defendant, and the circuit court granted the request.

         ¶15 During the competency evaluation, the evaluator testified that he did not consider the defendant dangerous or threatening; that although the defendant is not competent to proceed, the defendant's symptoms are treatable; that the defendant refused medication because he lacked insight into his illness and his need for treatment; and that it was likely that the defendant's competence to proceed could be restored with psychotropic treatment.

         ¶16 Defense counsel explained that the defendant was never found to be dangerous to himself or anyone else; that the defendant did not want an involuntary medication order; and that the defendant likely would not have pursued an appeal if a medication order were required.

         ¶17 Nevertheless, the circuit court issued an order directing involuntary treatment after concluding that the defendant was not competent to proceed with his motion for postconviction relief and not competent to refuse medication and treatment. However, the circuit court stayed its involuntary medication order for 30 days so that the defendant could pursue appellate relief.

         ¶18 The defendant filed a petition for leave to appeal the circuit court order. Wis.Stat. § (Rule) 809.50. The court of appeals denied the defendant's petition for leave to appeal and lifted the circuit court's stay of the involuntary medication order.

         ¶19 The defendant then appealed the involuntary medication order as an appeal as a matter of right, Wis.Stat. § 808.03(1), and filed an emergency motion to stay the medication order pending appeal. The court of appeals denied the stay of the medication order but allowed the direct appeal to proceed. The court of appeals did not explain why it denied the defendant's motion ...


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