SUMMARY

October 27, 2022

2022COA126

22CA0291 Peo in Interest of Joergensen — Criminal Law —

Competency to Proceed — Involuntary Administration of 

Medication — Sell Test — Procedure After Determination of 

Competency or Incompetency

This appeal arises out of a court order declining to authorize 

the involuntary medication of the defendant, who is presently 

incompetent and facing criminal charges. The court concluded the 

People had met their burden to prove three of the four factors 

required by Sell v. United States, 539 U.S. 166 (2003), to authorize 

an involuntary medication order. The court also concluded that the 

People proved the requested medication would render the defendant 

competent. But the court also found that if the defendant was 

restored to competency, he would cease taking the prescribed 

medication and, as a result, would become incompetent before he 

could be tried on the criminal charges. Based upon these findings, 

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.
the court concluded that the People had failed to prove that the 

defendant would be rendered competent and that he would remain 

competent until he could be tried on the underlying criminal 

charges. Thus, the court concluded, the People had failed to meet 

their burden under the second Sell factor and denied the request for 

an involuntary medication order. 

No reported Colorado case has addressed whether the People 

are required to prove that a prescribed medication would render a 

defendant competent to stand trial and that the defendant’s 

competency would be maintained until the trial actually occurs. The 

division of the court of appeals determines that Sell does not impose 

such a requirement. Additionally, and also as a matter of first 

impression, the division concludes that a Sell order may subject a 

defendant to involuntary medication to maintain their competency 

until such time as the trial is completed. 

The division therefore reverses and remands the matter for 

further proceedings.
COLORADO COURT OF APPEALS 2022COA126

Court of Appeals No. 22CA0291

Pueblo County District Court No. 21MH284

Honorable Tim O’Shea, Judge

The People of the State of Colorado,

Petitioner-Appellant,

In the Interest of Jesper Joergensen,

Respondent-Appellee.

ORDER REVERSED AND CASE 

REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE SCHUTZ

J. Jones and Welling, JJ., concur

Announced October 27, 2022

Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County 

Attorney, Sarah Long, Assistant County Attorney, Pueblo, Colorado, for 

Petitioner-Appellant

The Law Firm of John L. Rice, John L. Rice, Pueblo, Colorado, for RespondentAppellee
2

¶ 1 Few cases involve interests as weighty as those in which the 

state seeks to involuntarily medicate an individual, particularly 

when undertaken to restore their competency to stand trial. But as 

the United States Court of Appeals for the Fourth Circuit succinctly 

stated in United States v. Bush, 585 F.3d 806, 813 (4th Cir. 2009), 

It surely is not an overstatement to observe 

that the government’s ability to enforce the 

criminal laws in accordance with due process 

is the foundation on which social order rests

and from which individual liberties emanate. 

Thus, when an individual commits a crime, he 

forfeits his liberty interests to the extent

necessary for the government to bring him to 

trial.

¶ 2 In Sell v. United States, 539 U.S. 166, 179-82 (2003), the

Supreme Court considered the delicate balance between a person’s 

liberty interests in being free from unwanted medication and the 

societal interest in restoring to competency and bringing to trial a 

person accused of committing a serious crime. Sell sets forth a 

four-part test that the government must satisfy before it may obtain 

a court order authorizing it to medicate an accused in such 

circumstances:

First, a court must find that important

governmental interests are at stake. . . . 
3

. . . .

Second, the court must conclude that 

involuntary medication will significantly further

those concomitant state interests . . . [and] 

that administration of the drugs is 

substantially likely to render the defendant

competent to stand trial . . . [without] side 

effects that will interfere significantly with the 

defendant’s ability to assist counsel in 

conducting a trial defense . . . .

Third, the court must conclude that 

involuntary medication is necessary to further 

those interests . . . [and] that any alternative, 

less intrusive treatments are unlikely to 

achieve substantially the same results. . . .

Fourth, . . . the court must conclude that 

administration of the drugs is medically 

appropriate, i.e., in the patient’s best medical 

interest in light of his medical condition.

Id. at 180-81.

¶ 3 This case focuses on the second of these factors. We conclude 

that factor does not require the People to prove both that a 

defendant will be rendered competent to stand trial and that such 

competency will continue through the date of trial. Relatedly, we 

conclude that, if necessary, a Sell order may subject a defendant to 

involuntary medication to maintain their competency until such 

time as the trial is completed. Therefore, we reverse.
4

I. Factual Background and Procedural Setting

¶ 4 Jesper Joergensen is accused of intentionally setting a fire in 

Costilla County that burned more than 100,000 acres and 

destroyed more than 140 structures. The People charged him with 

208 counts of arson in July of 2018. Since then, Joergensen has 

been found incompetent to stand trial on numerous occasions. In 

April 2020, the Costilla County District Court committed 

Joergensen to the custody of the Colorado Department of Human 

Services (CDHS) for competency restoration services. Joergensen 

was eventually transferred to the Colorado Mental Health Institute 

at Pueblo (CMHIP).

A. The Initial Sell Hearing1

¶ 5 While at CMHIP, Joergensen refused to voluntarily take 

medication that his treatment team prescribed to restore him to 

competency. In August 2021, the People requested a Sell order 

authorizing the medical professionals treating Joergensen to

1 Because of the controlling import of the test in Sell v. United 

States, 539 U.S. 166, 180-81 (2003), a hearing at which an 

involuntary medication order is requested to restore a defendant’s 

competency is frequently referred to as a Sell hearing, and the 

resulting order as a Sell order. 
5

administer the following medications to him: Abilify, Geodon (both 

orally and by intramuscular injection), and Depakote. After a 

contested Sell hearing, the district court located in Pueblo County2

(the mental health court) authorized CMHIP to involuntarily 

medicate Joergensen with Abilify only. Once this order was in 

place, Joergensen began to voluntarily take Abilify orally once a day 

and was doing so without physical force because he wanted to avoid 

being involuntarily administered injections as authorized by the 

court. 

¶ 6 A few weeks later, Joergensen’s lawyers in the criminal case 

pending against him in Costilla County filed a motion for 

reconsideration. The mental health court granted the request for a 

hearing to address whether reconsideration of its order was 

appropriate. The court left in place the existing order authorizing 

the involuntary administration of Abilify, pending further order of 

the court.

2 A Sell hearing is properly located in the jurisdiction in which the 

defendant is located, in this case Pueblo County. § 16-8.5-112(2), 

C.R.S. 2022.
6

B. The Second Sell Hearing

¶ 7 After a second contested hearing in November 2021, the 

mental health court granted the motion for reconsideration and 

rescinded its prior involuntary medication order. It subsequently 

entered a written order setting forth its extensive factual findings 

and legal conclusions. The court determined that the People had 

met their burden with respect to factors one, three, and four of the 

Sell test. But the court found that the People had failed to meet 

their burden as to the second factor, which it interpreted as 

requiring proof that the administration of Abilify would render 

Joergensen competent and that he would maintain his competency 

until he was brought to trial. 

¶ 8 The court found that Abilify was likely to return Joergensen to 

competency. Joergensen had been taking Abilify orally in 

accordance with the court’s August order prior to the November Sell

hearing, but as previously noted, he was only doing so to avoid 

being forcibly medicated. Joergensen’s mental functioning had 

improved as of the date of the hearing, but he had not yet been fully 

restored to competency. 
7

¶ 9 But the mental health court went on to make a series of 

factual findings that led it to conclude that Joergensen’s 

competence would not persist through trial. First, the court found 

that once Joergensen was returned to competency, he would be 

sent from CMHIP to the Costilla County jail. Second, crediting the 

testimony of Costilla County Sheriff Danny Sanchez, the court 

found that because of staff limitations, the Costilla County jail was 

not in a position to administer medications to inmates on an 

involuntary basis. Thus, the court found that once Joergensen was 

restored to competency, he would immediately cease taking Abilify, 

and shortly thereafter, he would decompensate to a degree that he 

would no longer be competent to stand trial. 

¶ 10 Coupling these factual findings, the mental health court 

determined that although Abilify, whether involuntarily 

administered or voluntarily taken, would restore Joergensen to a 

mental state in which he was competent to stand trial, he would not 

remain competent until the time of trial because of where he would 

be held pending trial. Thus, the court reasoned, the People had 

failed to prove that Abilify would render Joergensen competent until 

such time as he could stand trial. The People appeal this order.
8

II. Standard of Review

¶ 11 The resolution of a Sell motion presents a mixed question of 

fact and law. People in Interest of Hardesty, 2014 COA 138, ¶ 14. 

We review the court’s factual findings for clear error, and we review 

its application of those facts to the controlling legal standards de 

novo. Id. 

¶ 12 At the Sell hearing, the People bear the burden of proving each 

of the four elements by clear and convincing evidence. People in 

Interest of R.F., 2019 COA 110, ¶ 17.

III. Analysis

¶ 13 As discussed above, the People do not contest the mental 

health court’s factual and legal conclusions with respect to Sell

factors one, three, and four. They argue, however, that the court 

misinterpreted the second Sell factor, and particularly, they take 

issue with the court’s conclusion that Joergensen’s potential 

decompensation if he stops taking Abilify in the future prohibits the 

present entry of an order authorizing the involuntary 

administration of Abilify. We agree that the mental health court 

erred.
9

A. When is “Competency to Stand Trial” Measured?

¶ 14 The second Sell factor requires the People to demonstrate that 

the administration of the requested medication is substantially 

likely to render the defendant competent to stand trial. The factor 

does not expressly require the People to prove that the defendant is 

substantially likely to remain competent to stand trial until some 

future date. Nonetheless, the mental health court required the 

People to demonstrate that, if prescribed the medication, 

Joergensen would not only be rendered competent to stand trial but 

would also continue to remain competent until the trial occurs.

¶ 15 But neither the mental health court nor Joergensen cites any 

authority requiring the People to affirmatively demonstrate that a 

defendant will continue to voluntarily take medication or that jail

personnel will administer the medication so that the defendant will 

not decompensate to incompetency before he can be brought to 

trial. Absent express authority requiring such proof, we are 

unwilling to impose that condition. Our decision is grounded in the 

objectives underlying our competency statutes, the statutory 

scheme the General Assembly adopted to accomplish those 
10

objectives, and the need to guard against orders that are 

necessarily speculative about what will occur in the future.

B. Relevant Competency Statutes

¶ 16 As a starting point, competency is generally measured as of an 

existing date — such as the date that a defendant is examined or 

that a contested hearing is held. Colorado’s competency statutes 

speak in terms of “competency to proceed.” 

“Competent to proceed” means that the 

defendant does not have a mental disability or 

developmental disability that prevents the 

defendant from having sufficient present ability

to consult with the defendant’s lawyer with a 

reasonable degree of rational understanding in 

order to assist in the defense or prevents the 

defendant from having a rational and factual 

understanding of the criminal proceedings. 

§ 16-8.5-101(5), C.R.S. 2022 (emphasis added); see also Pruett v. 

Barry, 696 P.2d 789, 792 (Colo. 1985) (To be deemed competent to 

stand trial, “it must appear that the accused has [sufficient] present 

ability to consult with his attorney with a reasonable degree of 

rational understanding, and that he has a rational as well as a 

factual understanding of the proceedings against him.” (quoting 

Kostic v. Smedley, 522 P.2d 535, 538 (Alaska 1974))) (emphasis 

added) (footnote omitted). The mental health court properly 
11

concluded, with ample record support, that the prescribed Abilify 

would return Joergensen to a mental state in which he had this 

present ability to consult with his lawyer to assist in his defense.

¶ 17 But the mental health court interpreted Sell to also require 

that the People prove that Joergensen would remain competent 

until such time as he could be tried. The court’s conclusion rested 

on its interpretation of section 16-8.5-112(4), C.R.S. 2022, which 

provides as follows:

If a defendant committed to the custody of 

[CDHS3] for evaluation or for restoration 

treatment is ordered by a court to accept 

treatment . . . and is subsequently returned to 

jail for pending court proceedings, the county 

jail may require the defendant to continue to 

receive the same court-ordered treatment that 

was administered by [CDHS] before the 

defendant was discharged from inpatient care, 

or, alternatively, appropriate medical 

personnel provided by the jail may forcibly 

administer such court-ordered medication to 

the defendant.

3 The competency statutes use the word “department,” which is 

defined as the Colorado Department of Human Services (CDHS). 

See § 16-8.5-101(9), C.R.S. 2022. CDHS, in turn, manages, 

supervises, and controls CMHIP. See § 27-90-104(1)(a), C.R.S. 

2022.
12

(Emphasis added.) The court concluded that the statute’s use of 

the term “may” authorizes, but does not require, jail staff to 

administer the court-ordered medication, whether directly or 

through the use of third parties. In other words, the court 

concluded that the statute gives local sheriffs complete and 

unfettered discretion whether to continue to subject a defendant to 

involuntary medications.

¶ 18 To begin, we are not persuaded that the legislature’s use of 

“may” in this context necessarily leads to the conclusion that the 

sheriff is authorized to unilaterally decide whether a defendant will 

or will not be required to continue to comply with an involuntary 

medication order. Instead, the use of “may” in this context is better 

understood to simply authorize the sheriff to permit jail personnel 

or other qualified medical professionals to involuntarily medicate a 

defendant subject to an involuntary medication order once the 

defendant is returned to the county jail. In other words, “may” in 

this context is a grant of authority to the county jail to continue to 

enforce an involuntary medication order, but not a grant of 

discretion to unilaterally decline to enforce such an order. And we 

reject the notion that the statute’s use of the word “may” somehow 
13

requires — or even permits — a mental health court to consider 

whether a particular county jail is able or willing to effectuate a Sell

order when deciding whether the Sell factors are satisfied, including 

whether a defendant is likely to maintain his competency until 

being brought to trial. 

¶ 19 Moreover, even if we accept, for the sake of argument, that the 

mental health court’s interpretation of section 16-8.5-112(4) is 

accurate, it does not necessarily follow that the factual scenario 

envisioned by that court will come to pass. 

C. The Mental Health Court’s Improper Factual Assumptions

¶ 20 From a factual perspective, the mental health court’s 

construction of the statute requires courts to speculate about what 

a defendant will do or not do at some future time when he is 

restored to competency. See, e.g., People v. Marez, 916 P.2d 543, 

547 (Colo. App. 1995) (trial court’s legal determination of exigent 

circumstances may not be based upon speculation). We recognize 

that Joergensen’s testimony supported the court’s findings that he

would not voluntarily take Abilify once returned to competency. 

But Joergensen was incompetent at the time he provided this 

testimony. It is entirely possible that once rendered competent and 
14

benefitting from enhanced mental capabilities, Joergensen may 

agree to take the prescribed Abilify voluntarily and without a court 

order authorizing involuntary medication. Thus, the mental health 

court’s order is predicated upon a factual scenario that may not 

come to pass. 

¶ 21 More importantly, the competency statutes do not mandate 

that once a defendant is restored to competency, he must be 

returned to the local jail where the charges are pending. 

Specifically, section 16-8.5-111(3)(a), C.R.S. 2022, provides:

When [CDHS] submits a report to the court 

that it is the position of [CDHS] that the 

defendant is restored to competency, the 

defendant may be returned to the custody of 

the county jail. 

(Emphasis added.) Thus, the statute does not mandate that a 

restored defendant be returned to the county jail but, rather, uses 

the permissive language “may be returned to the . . . county jail.” 

And nothing in the original order authorizing the involuntary 

medication of Joergensen required that he be returned to the 

Costilla County jail immediately upon being restored to competency. 

Therefore, if Joergensen is restored to competency, the executive 

director of CDHS — knowing that the Costilla County Sheriff may 
15

not have the ability to administer medications on an involuntary 

basis — may elect to keep Joergensen at CMHIP until the trial can 

be held.

¶ 22 As evidenced by the remote Sell hearing held in this case, if 

Joergensen remained at CMHIP until his trial date, electronic 

communications could be established between Joergensen and his 

counsel to allow him to assist in the preparation of his defense. In 

addition, the evidence presented established that once rendered 

competent, Joergensen was not likely to become incompetent until 

the passage of thirty to forty days. Thus, he could be transported to 

Costilla County jail at the time of trial, and the trial could likely be 

completed while he remained in a competent state.

¶ 23 Moreover, even if Joergensen were returned to the Costilla 

County jail, section 16-8.5-111(3)(a) provides that

[CDHS] shall notify the sheriff of the 

jurisdiction where the defendant is to be 

returned and the court liaison. . . . When a 

defendant is transferred to the physical 

custody of the sheriff, [CDHS] shall work with 

the sheriff and any behavioral health providers 

in the jail to ensure that the jail has the 

necessary information to prevent any 

decompensation by the defendant while the 

defendant is in jail, which must include 

medication information when clinically 
16

appropriate. The report to the court must also 

include a statement that [CDHS] is returning 

the defendant to the custody of the county jail.

Thus, the statute clearly contemplates communication and 

cooperation between CDHS and the county sheriff to facilitate an 

orderly transfer of the restored defendant and to ensure there is no 

decompensation.

¶ 24 The mental health court’s order also requires speculation 

about what would happen in the future assuming Joergensen is 

returned to the county jail. Sheriff Sanchez testified that the 

problem with involuntarily medicating Joergensen at the Costilla 

County jail is a lack of personnel qualified to administer the 

medication. But Sheriff Sanchez also testified that he would 

attempt to work with outside medical professionals to involuntarily 

administer the medication if required to do so by court order. 

Stated otherwise, if he received adequate resources, and there was 

a court order in place requiring him to facilitate the involuntary

administration of Abilify, Sheriff Sanchez stated he would do his 

level best to fulfill that order. Given the significance and priority of 

bringing this case to trial for Joergensen, the People, and the 

alleged victims, we believe that it is improper to speculate or 
17

assume that it will not be possible to involuntarily medicate 

Joergensen if he is returned to the Costilla County jail.

D. The Mental Health Court’s Improper Legal Assumption

¶ 25 Finally, we do not agree with the mental health court’s legal 

assumption that it is not possible to order Joergensen to be 

involuntarily medicated if he is returned to jail after his restoration 

to competency. 

¶ 26 The first and last sentences of section 16-8.5-111(3)(a)

contemplate that CDHS will notify the court where the criminal 

charges are pending of any impending transfer. Thus, the criminal 

court will also have notice of any issues concerning potential 

decompensation at the time of Joergensen’s transfer to the local jail. 

Nothing in Colorado’s statutory framework precludes the criminal 

court from entering appropriate orders to ensure that Joergensen 

continues to receive the necessary medications so that he does not 

decompensate and thereby frustrate the central purposes of the 

competency statutes.

¶ 27 Moreover, federal precedent applying Sell supports the 

conclusion that a court may enter orders to require an incompetent 

defendant to receive medication involuntarily, if necessary, once 
18

restored to competency to avoid decompensation either before or 

during the trial. United States v. Mitchell, 11 F.4th 668, 674 (8th 

Cir. 2021). As explained by the court in Mitchell,

By focusing solely on the word “render,” 

Mitchell overlooks an important aspect of the 

Sell standard: “whether involuntary 

administration of drugs is necessary 

significantly to further a particular 

governmental interest, namely, the interest in 

rendering the defendant competent to stand 

trial.” Under Sell, the mere competency of a 

defendant, standing alone, is not the 

governmental interest at stake. Competency to 

stand trial is. And as Mitchell acknowledges, 

Sell authorizes the government not only to 

involuntarily medicate an incompetent 

defendant, but also to continue doing so 

during trial. Permitting involuntary 

medication through the conclusion of trial 

ensures, at the risk of stating the obvious, that 

the defendant will remain — at all necessary 

times — “competent to stand trial.” . . . Given 

that the purpose of involuntary medication 

under Sell is to ensure the defendant is 

competent enough to participate in trial, 

adopting a rule that categorically prohibits the 

involuntary medication of a defendant who has 

regained competency for some period of time, 

but who is unable to maintain it, would 

frustrate that purpose where an important 

governmental interest is at stake.

Id. at 673 (citations omitted). We find this reasoning persuasive.
19

¶ 28 Joergensen attempts to distinguish Mitchell by arguing that 

federal statutes expressly authorize the administration of 

medication to retain a defendant’s competency. But the analysis 

and holding in Mitchell were not predicated upon any such statute 

but, rather, on a commonsense recognition of the competing 

interests that Sell balances. Id. 

¶ 29 Additionally, although it may not be expressly authorized by 

Colorado’s competency statutes, it is consistent with the core 

purpose of our statutes to permit courts to require a competent 

defendant to continue to be medicated leading up to and during 

trial to ensure that they do not become incompetent. The failure to 

recognize such authority would sanction a result directly at odds 

with the statutes’ central purpose. As the mental health court 

acknowledged, the practical consequence of its interpretation of 

section 16-8.5-112(4) 

is to empower county sheriffs, through their 

discretion, to continue or not continue courtordered treatment, with the ability to terminate 

court-ordered medication at the CMHIP gates, 

thus undoing the hard work and expenditure 

of state resources of physicians, CMHIP staff, 

county attorneys, respondent’s attorneys, and 

court staff (both criminal and civil), and 
20

reversing the therapeutic gains made by the 

patients themselves.

We appreciate the mental health court’s candor in its assessment of 

the practical consequences of its interpretation of the statute. But 

we part ways with the mental health court’s conclusion that section 

16-8.5-112(4) dictates such a result. Rather, we conclude that 

neither section 16-8.5-112(4) nor the balance of the competency 

statutes contemplates such a result. Instead, we conclude that the 

competency statutes permit a court, if necessary, to order a 

defendant to continue to receive appropriate medication to ensure 

that they are restored to competency and to continue such 

involuntary medication until the defendant’s trial is completed.

¶ 30 The mental health court failed to contemplate the possibility 

that a court may require a defendant to be subject to an involuntary 

mediation order once restored to competency or its ability to enter 

alternative orders to ensure a defendant’s competency is 

maintained. Instead, the court too narrowly construed our 

competency statutes and their purpose, and it assumed factual 

developments that may not come to pass.
21

IV. Conclusion

¶ 31 For the reasons stated, we reverse the mental health court’s 

order and remand the case for further proceedings consistent with 

this opinion. On remand, the mental health court shall 

immediately reinstate the order subjecting Joergensen to the 

involuntary administration of Abilify. Incident thereto, the court 

may extend the duration of the order through the date of any trial 

that may be held in this case, or the court may delay the decision of 

whether to extend the order through the date of a trial pending any 

additional hearing that may be held after Joergensen is returned to 

competency.

JUDGE J. JONES and JUDGE WELLING concur.