24CA1431 Peo in Interest of Martinez-Wong 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1431 Pueblo County District Court No. 24MH30058 Honorable Timothy O’Shea, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of
Anthony Raul Martinez-Wong,
Respondent-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE NAVARRO Dunn and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County Attorney, Pueblo, Colorado, for Petitioner-Appellee
Tezak Law, P.C., Mary Tezak, Florence, Colorado, for Respondent-Appellant ¶1 Respondent, Anthony Raul Martinez-Wong, appeals the
district court’s order authorizing the involuntary administration of
antipsychotic medication for the purpose of restoring him to
competency to stand trial in a criminal case. We affirm.
I. Background
¶2 Martinez-Wong was charged with multiple felonies (across
multiple cases) and found incompetent to stand trial. He was
ordered to undergo competency restoration and has been receiving
inpatient treatment at the Colorado Mental Health Hospital in
Pueblo (CMHHIP) since his admission in August 2023.
¶3 At CMHHIP, Martinez-Wong was diagnosed with
schizophrenia, which causes him to exhibit paranoia, multiple
delusions, and disorganized thinking. He has consistently refused
to take antipsychotic medication and has failed six competency
evaluations.
¶4 Almost a year after his admission to CMHHIP, the People
petitioned the district court to authorize the involuntary
administration of antipsychotic medication to restore Martinez-
Wong to competency. After a hearing, the court held that the
People had satisfied all four factors required by Sell v. United States,
1 539 U.S. 166 (2003), for the involuntary administration of
medication to restore a person’s competency. Therefore, the court
granted the petition and authorized the involuntary administration
of the requested medication, Zyprexa (olanzapine).
II. Sufficiency of the Evidence
¶5 Martinez-Wong argues that the evidence presented at the
hearing was insufficient to support the involuntary medication
order. While he concedes that sufficient evidence supports the first,
third, and fourth factors set forth in Sell, he says the evidence did
not support the second factor. We disagree.
A. Standard of Review
¶6 Divisions of our court have divided about the appropriate
standard of review for application of the Sell factors. Compare
People in Interest of Hardesty, 2014 COA 138, ¶¶ 15-17 (identifying
eight Sell factors and applying a mixed question review to the first
factor, de novo review to the second factor, and clear error review to
the remaining six factors), with People in Interest of R.F., 2019 COA
110, ¶ 21 (identifying four Sell factors and applying de novo review
to the first factor and clear error review for the remaining three
factors); see also People in Interest of Joergensen, 2022 COA 126,
2 ¶¶ 11-12 (noting that there are “four [Sell] elements” and stating
that “[t]he resolution of a Sell motion presents a mixed question of
fact and law”).
¶7 We agree with the division’s reasoning in R.F. and review the
district court’s factual findings concerning the second Sell factor for
clear error.1 Clear error review means we will not disturb a court’s
factual findings if there is any evidence in the record to support
them. Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020
COA 34, ¶ 24.
B. Applicable Law
¶8 As noted, the United States Supreme Court has established a
four-part test for determining when a state may involuntarily
administer antipsychotic medication to restore a defendant’s
competency in a criminal proceeding. See Sell, 539 U.S. at 180-81;
see also R.F., ¶ 21. The People bear the burden of proving each
part by clear and convincing evidence. R.F., ¶ 16.
¶9 First, there must be important governmental interests at
stake. Sell, 539 U.S. at 180; R.F., ¶ 12. Bringing to trial a person
1 We see no need to rely on the Tenth Circuit cases cited by the
parties.
3 accused of a serious crime is an important governmental interest.
Sell, 539 U.S. at 180; R.F., ¶ 12.
¶ 10 Second, administering involuntary medication must
significantly further those interests. Sell, 539 U.S. at 181; R.F.,
¶ 13. The state satisfies this factor by showing that
(1) administering the medication is substantially likely to restore
the defendant’s competency and (2) the medication is substantially
unlikely to have side effects that will interfere with the defendant’s
ability to assist in the defense. Sell, 539 U.S. at 181; R.F., ¶ 13.
¶ 11 Third, the medication must be necessary to further the
government’s interests. Sell, 539 U.S. at 181; R.F., ¶ 14. The state
satisfies this factor by showing that (1) any less intrusive treatment
alternatives are unlikely to achieve substantially the same results
and (2) less intrusive means for administering the medication were
considered. Sell, 539 U.S. at 181; R.F., ¶ 14.
¶ 12 Fourth, administering the medication must be medically
appropriate. Sell, 539 U.S. at 181; R.F., ¶ 15.
C. Analysis
¶ 13 Martinez-Wong asserts that there was insufficient evidence to
establish the second Sell element — that is, that the involuntary
4 administration of the requested medication would significantly
further the state’s interest in prosecuting him. In particular, he
contests the district court’s finding that the proposed treatment
plan is substantially unlikely to have side effects that will interfere
with his ability to assist in his defense.2
¶ 14 Martinez-Wong suffers from lupus, which he testified
“interfere[s] with [his] normal way of thinking.” On appeal, he
argues that, although the testifying psychiatrist was an expert in
the field of psychiatry, the psychiatrist was “admittedly not an
expert in lupus” and, therefore, the psychiatrist’s testimony was
insufficient to establish that the combination of Zyprexa and lupus
would be substantially unlikely to interfere with Martinez-Wong’s
ability to consult with his attorney.
¶ 15 True, the psychiatrist testified that he was not an expert in
lupus. But he was able to explain the symptoms of the condition,
and he opined that Martinez-Wong’s underlying medical problems
2 To the extent Martinez-Wong argues in his reply brief that the
evidence was insufficient to prove that the proposed treatment was substantially likely to restore his competency, we do not consider the argument on the merits because we do not address issues raised for the first time in a reply brief. See People v. Montante, 2015 COA 40, ¶ 58 n.4.
5 would “not be affected” by treatment with Zyprexa. In support of
his opinion, the psychiatrist explained that he reviewed Martinez-
Wong’s medical records and “they do not suggest in any way that
treatment with an antipsychotic medication, specifically Zyprexa,
would negatively impact [Martinez-Wong’s] current medical
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24CA1431 Peo in Interest of Martinez-Wong 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1431 Pueblo County District Court No. 24MH30058 Honorable Timothy O’Shea, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of
Anthony Raul Martinez-Wong,
Respondent-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE NAVARRO Dunn and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County Attorney, Pueblo, Colorado, for Petitioner-Appellee
Tezak Law, P.C., Mary Tezak, Florence, Colorado, for Respondent-Appellant ¶1 Respondent, Anthony Raul Martinez-Wong, appeals the
district court’s order authorizing the involuntary administration of
antipsychotic medication for the purpose of restoring him to
competency to stand trial in a criminal case. We affirm.
I. Background
¶2 Martinez-Wong was charged with multiple felonies (across
multiple cases) and found incompetent to stand trial. He was
ordered to undergo competency restoration and has been receiving
inpatient treatment at the Colorado Mental Health Hospital in
Pueblo (CMHHIP) since his admission in August 2023.
¶3 At CMHHIP, Martinez-Wong was diagnosed with
schizophrenia, which causes him to exhibit paranoia, multiple
delusions, and disorganized thinking. He has consistently refused
to take antipsychotic medication and has failed six competency
evaluations.
¶4 Almost a year after his admission to CMHHIP, the People
petitioned the district court to authorize the involuntary
administration of antipsychotic medication to restore Martinez-
Wong to competency. After a hearing, the court held that the
People had satisfied all four factors required by Sell v. United States,
1 539 U.S. 166 (2003), for the involuntary administration of
medication to restore a person’s competency. Therefore, the court
granted the petition and authorized the involuntary administration
of the requested medication, Zyprexa (olanzapine).
II. Sufficiency of the Evidence
¶5 Martinez-Wong argues that the evidence presented at the
hearing was insufficient to support the involuntary medication
order. While he concedes that sufficient evidence supports the first,
third, and fourth factors set forth in Sell, he says the evidence did
not support the second factor. We disagree.
A. Standard of Review
¶6 Divisions of our court have divided about the appropriate
standard of review for application of the Sell factors. Compare
People in Interest of Hardesty, 2014 COA 138, ¶¶ 15-17 (identifying
eight Sell factors and applying a mixed question review to the first
factor, de novo review to the second factor, and clear error review to
the remaining six factors), with People in Interest of R.F., 2019 COA
110, ¶ 21 (identifying four Sell factors and applying de novo review
to the first factor and clear error review for the remaining three
factors); see also People in Interest of Joergensen, 2022 COA 126,
2 ¶¶ 11-12 (noting that there are “four [Sell] elements” and stating
that “[t]he resolution of a Sell motion presents a mixed question of
fact and law”).
¶7 We agree with the division’s reasoning in R.F. and review the
district court’s factual findings concerning the second Sell factor for
clear error.1 Clear error review means we will not disturb a court’s
factual findings if there is any evidence in the record to support
them. Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 2020
COA 34, ¶ 24.
B. Applicable Law
¶8 As noted, the United States Supreme Court has established a
four-part test for determining when a state may involuntarily
administer antipsychotic medication to restore a defendant’s
competency in a criminal proceeding. See Sell, 539 U.S. at 180-81;
see also R.F., ¶ 21. The People bear the burden of proving each
part by clear and convincing evidence. R.F., ¶ 16.
¶9 First, there must be important governmental interests at
stake. Sell, 539 U.S. at 180; R.F., ¶ 12. Bringing to trial a person
1 We see no need to rely on the Tenth Circuit cases cited by the
parties.
3 accused of a serious crime is an important governmental interest.
Sell, 539 U.S. at 180; R.F., ¶ 12.
¶ 10 Second, administering involuntary medication must
significantly further those interests. Sell, 539 U.S. at 181; R.F.,
¶ 13. The state satisfies this factor by showing that
(1) administering the medication is substantially likely to restore
the defendant’s competency and (2) the medication is substantially
unlikely to have side effects that will interfere with the defendant’s
ability to assist in the defense. Sell, 539 U.S. at 181; R.F., ¶ 13.
¶ 11 Third, the medication must be necessary to further the
government’s interests. Sell, 539 U.S. at 181; R.F., ¶ 14. The state
satisfies this factor by showing that (1) any less intrusive treatment
alternatives are unlikely to achieve substantially the same results
and (2) less intrusive means for administering the medication were
considered. Sell, 539 U.S. at 181; R.F., ¶ 14.
¶ 12 Fourth, administering the medication must be medically
appropriate. Sell, 539 U.S. at 181; R.F., ¶ 15.
C. Analysis
¶ 13 Martinez-Wong asserts that there was insufficient evidence to
establish the second Sell element — that is, that the involuntary
4 administration of the requested medication would significantly
further the state’s interest in prosecuting him. In particular, he
contests the district court’s finding that the proposed treatment
plan is substantially unlikely to have side effects that will interfere
with his ability to assist in his defense.2
¶ 14 Martinez-Wong suffers from lupus, which he testified
“interfere[s] with [his] normal way of thinking.” On appeal, he
argues that, although the testifying psychiatrist was an expert in
the field of psychiatry, the psychiatrist was “admittedly not an
expert in lupus” and, therefore, the psychiatrist’s testimony was
insufficient to establish that the combination of Zyprexa and lupus
would be substantially unlikely to interfere with Martinez-Wong’s
ability to consult with his attorney.
¶ 15 True, the psychiatrist testified that he was not an expert in
lupus. But he was able to explain the symptoms of the condition,
and he opined that Martinez-Wong’s underlying medical problems
2 To the extent Martinez-Wong argues in his reply brief that the
evidence was insufficient to prove that the proposed treatment was substantially likely to restore his competency, we do not consider the argument on the merits because we do not address issues raised for the first time in a reply brief. See People v. Montante, 2015 COA 40, ¶ 58 n.4.
5 would “not be affected” by treatment with Zyprexa. In support of
his opinion, the psychiatrist explained that he reviewed Martinez-
Wong’s medical records and “they do not suggest in any way that
treatment with an antipsychotic medication, specifically Zyprexa,
would negatively impact [Martinez-Wong’s] current medical
problems.” Moreover, the psychiatrist testified that treatment with
Zyprexa would not interfere with Martinez-Wong’s ability to
understand and participate in his criminal proceedings; rather, “it
would improve it.” Further, the psychiatrist testified that the failure
to medicate Martinez-Wong would be more harmful than the risk
posed by the use of Zyprexa because it would “lead to persistent
psychotic symptoms and continued psychiatric hospitalization” as
well as a failure to restore him to competency.
¶ 16 Based on this testimony, the district court found that
administering Zyprexa would significantly further the important
governmental interests at stake. The court further found that
“administering Zyprexa is substantially unlikely to have side effects
that will interfere significantly with [Martinez-Wong’s] ability to
assist his counsel in conducting a trial defense, which would
thereby render the trial unfair.” Finally, the court found that
6 treatment with “Zyprexa is medically appropriate” and “in
[Martinez-Wong’s] best medical interest . . . in light of his medical
condition of lupus.”
¶ 17 Because the record supplies factual support for the district
court’s findings, they are not clearly erroneous. Accordingly, we
must uphold the court’s finding that the People met their burden to
establish by clear and convincing evidence the second Sell factor.
III. Conclusion
¶ 18 The order is affirmed.
JUDGE DUNN and JUDGE GOMEZ concur.