COURT OF APPEALS

DECISION

DATED AND FILED

September 18, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal Nos. 2022AP924-CR

2022AP943-CR

2022AP1109-CR

Cir. Ct. Nos. 2022CM114

2022CM169

2022CF954

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

MARCUS CROSBY,

 DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Waukesha County: 

JENNIFER R. DOROW, Judge. Affirmed. 

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
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2

¶1 PER CURIAM. In this consolidated appeal, Marcus Crosby appeals

involuntary medication orders entered in felony and misdemeanor proceedings. 

He argues the orders were based on constitutionally inadequate evidence and 

therefore violated his due process rights. We conclude there was sufficient 

evidence to support the order in the felony matter under the four-part test 

articulated in Sell v. United States, 539 U.S. 166 (2003). We therefore need not 

decide whether dangerousness in an institutional setting constitutes a separate and 

independent basis for an involuntary medication order. Additionally, both the 

mootness doctrine and the harmless error doctrine counsel against addressing the 

constitutional validity of the misdemeanor order. Accordingly, we affirm.

BACKGROUND

¶2 The involuntary medication orders at issue in this consolidated 

appeal relate to three criminal cases. As described more fully below, the first two 

cases concern misdemeanor offenses that took place in January 2022. The third 

case, a felony matter, relates to Crosby’s alleged conduct in June 2022 while 

confined in the Waukesha County Jail. 

¶3 On January 21, 2022, Crosby was charged with disorderly conduct 

based on his alleged conduct the prior day at Brookfield Square Mall, where he 

shouted profanities at guests and refused to leave the premises. 

¶4 A few days later, Crosby allegedly violated the conditions of his 

signature bond when he returned to the mall while it was closed and refused to 

leave. He was taken into custody, but upon his release he allegedly engaged in 

loud, disruptive conduct at two other businesses necessitating police intervention. 

At the second location, Crosby refused requests by the business and by police to 
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leave. Crosby began making erratic movements with his body, and officers feared 

he was going to strike or fight them. They eventually decided to restrain Crosby, 

at which time Crosby allegedly continued shouting and began to “violently thrash 

from side to side and kick his legs.” Crosby was ultimately tased and arrested. 

Based on those events, Crosby was charged with two counts of bail jumping, one 

count of disorderly conduct, and one count of resisting an officer, all 

misdemeanors. 

¶5 At the probable cause hearing for the first mall incident, the court 

commissioner ordered a competency evaluation to be completed within thirty days 

and set the matter for a February 21, 2022 hearing before the circuit court. At the 

February 21 hearing, the circuit court extended the competency order to the 

second misdemeanor case. Thereafter, the competency proceedings occurred in 

tandem for both misdemeanor matters. 

¶6 Psychiatrist John Pankiewicz evaluated Crosby at the jail and opined 

that Crosby lacked substantial capacity to understand court proceedings or assist in 

his own defense. Pankiewicz noted Crosby’s historical diagnoses of “severe and 

persistent mental illness including Schizophrenia and Schizoaffective disorder,” as 

well as that Crosby was exhibiting behaviors consistent with such diagnoses in the 

jail, including being “unpredictably aggressive and on occasion scream[ing] for 

hours.” Pankiewicz opined that Crosby could be restored to competency within 

the statutory time period if treated with medication at an inpatient institution, 

which he believed was in Crosby’s best interests. Pankiewicz believed Crosby 

would require an involuntary medication order if he was deemed incompetent, as 

Crosby had refused treatment and had falsely denied he had any mental illness or 

any history of treatment. Pankiewicz did not identify any proposed medications, 
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but opined that there were no alternative treatments and the unspecified 

medications were not likely to have side effects. 

¶7 Crosby appeared in person at the competency hearing on June 1, 

2022, but he had to be removed from the courtroom after he stated he was hearing 

voices and became disruptive. Pankiewicz offered testimony consistent with his 

report. At the conclusion of his testimony, the circuit court asked Pankiewicz 

whether Crosby was a danger to himself or others. Relying on Pankiewicz’s 

affirmative answer, the court concluded involuntary medication was warranted 

because Crosby was a danger to others. The court concluded that it likely could 

not order involuntary medication under the four-part due process test articulated in

Sell, as the charged offenses were only misdemeanors that did not reflect an 

“important governmental interest at stake.” However, the court understood Sell to 

recognize dangerousness as a separate and independent basis for an involuntary 

medication order. The involuntary medication order was stayed pending appeal.

¶8 On June 3, 2022, the circuit court held a hearing to clarify its 

findings related to the involuntary medication. After that hearing, Crosby was 

returned to the jail and allegedly spat in the face of a jail employee. A new felony 

case was opened charging Crosby with assault by prisoner and disorderly conduct. 

¶9 The circuit court ordered a competency evaluation in the felony 

matter, which was completed by Dr. Andressa Medrado Dias Silveira, under the 

supervision of psychologist Thomas DeBoer. Medrado Dias Silveira diagnosed 

Crosby with schizophrenia and opined that he lacked substantial mental capacity 

to understand the proceedings and assist in his defense. She concluded Crosby 
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would likely be restored to competency with treatment, including psychotropic 

medication, within the statutory period. 

¶10 Doctor Michelle Hume submitted an accompanying request for 

involuntary medication. Hume prepared an individualized treatment plan that 

identified possible drugs to be administered and allowed Crosby to pick from 

among the offered antipsychotic medications. If Crosby refused to select one, 

Hume stated she would prescribe risperidone, as Crosby had responded to similar 

medication in the past. Hume’s report discussed dosage information, delivery 

method, possible side effects, and monitoring efforts. Hume’s report offered a 

number of conclusions supporting her overall opinion that involuntary medication 

was necessary to restore Crosby to competency. 

¶11 The circuit court held an evidentiary hearing, at which Medrado Dias 

Silveira and Hume testified.1 During Medrado Dias Silveira’s testimony, the court 

again inquired about Crosby’s dangerousness, and Medrado Dias Silveira 

responded that he seemed “labile and threatening and poses a risk for other 

people.” Hume likewise offered the opinion that Crosby posed a danger to himself 

or others based on his aggressive behavior and diagnosis. 

¶12 Hume also elaborated upon her report. Crosby had been 

successfully treated previously using paliperidone. If Crosby refused to select a 

medication, Hume proposed to treat him with risperidone, which metabolizes to 

paliperidone and is “really the same medication.” Risperidone had the added 

benefit of being available in a drinkable liquid form, which Hume hoped could 

 

1

 Crosby refused to participate in the hearing.
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avoid forced medication. Hume discussed three categories of possible side effects 

to risperidone and noted that if monitoring revealed any serious side effects that 

affected Crosby’s cognition, his treatment plan would be modified accordingly. 

¶13 As it did with the misdemeanor cases, the circuit court determined 

Crosby was not competent to understand the proceedings or assist in his defense 

but was likely to become competent within the statutory time period. In ordering 

involuntary medication, the court chronicled Crosby’s behavior demonstrating he 

was in the throes of a psychiatric crisis, including his aggressive and combative 

conduct. And, once again, the court concluded that Crosby’s dangerousness 

warranted involuntary medication, independently of the four-part Sell test. 

¶14 Unlike the misdemeanor cases, however, the circuit court concluded 

the Sell test was also satisfied in the felony matter. The more severe charge 

increased the governmental interest at stake, and the court determined involuntary 

medication would significantly further the governmental interest in prosecution. 

The court next found that the treatment plan was appropriate and that the 

medication was substantially unlikely to have side effects that undermined the 

fairness of the trial. It also determined involuntary medication was both medically 

appropriate in light of Crosby’s condition and necessary in the sense that there 

were no alternative, less intrusive treatments likely to achieve substantially the 

same results. 

¶15 Crosby filed a notice of appeal and a motion to stay the involuntary 

medication order in the felony matter pending appeal. The circuit court denied the 

motion, and by order we concluded the circuit court did not erroneously exercise 

its discretion in doing so. The appeals from the involuntary medication orders in 
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the two misdemeanor cases and in the felony case were consolidated for briefing 

and disposition by a three-judge panel. 

DISCUSSION

¶16 Crosby brings constitutional challenges to the involuntary 

medication orders entered in connection with his three cases. We decide de novo 

whether an involuntary medication order violates a person’s constitutional right to 

due process. State v. Silverstein, 2017 WI App 64, ¶27, 378 Wis. 2d 42, 902 

N.W.2d 550. To the extent our review implicates the circuit court’s findings of 

historical fact, we review those findings using the “clearly erroneous” standard.2 

Marathon County. v. D.K., 2020 WI 8, ¶18, 390 Wis. 2d 50, 937 N.W.2d 901. 

¶17 A defendant who is incompetent to stand trial may be, within 

constitutional boundaries, subjected to an involuntary medication order as part of 

efforts to restore him or her to competency. State v. Fitzgerald, 2019 WI 69, ¶13, 

387 Wis. 2d 384, 929 N.W.2d 165. A restoration-to-competency order under WIS.

STAT. § 971.14 (2021-22)3 may include involuntary medication only when the 

 

2

 Having concluded that Wisconsin law adequately sets forth the standard of review on 

the constitutional issue Crosby raises (and because such review consists of a de novo 

consideration of the issue, the most favorable standard for Crosby’s position), we leave for 

another day the State’s assertion that the court should adopt separate standards of review for each 

of the Sell factors, as articulated in United States v. Diaz, 630 F.3d 1314, 1330-31 (11th Cir. 

2011). See State v. Green, 2021 WI App 18, ¶¶19-20, 396 Wis. 2d 658, 957 N.W.2d 583, aff’d in 

part, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770 (similarly declining to offer a definitive 

determination of the standard of review). 

3

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
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order complies with the four-factor Sell test. Fitzgerald, 387 Wis. 2d 384, 

¶¶26-29. 

¶18 Under Sell, to comport with due process, a court desiring to order 

involuntary medication must find that: (1) there is an important governmental 

interest at stake; (2) the involuntary medication will significantly further that 

interest, i.e., the medication will be substantially likely to render the defendant 

competent to stand trial and unlikely to have side effects that will compromise the 

assistance he or she can provide with the trial defense; (3) the involuntary 

medication is necessary to further that interest, in that alternative, less intrusive 

treatments are unlikely to achieve substantially the same result; and (4) the 

administration of drugs is medically appropriate, i.e., in the patient’s best medical 

interest. Fitzgerald, 387 Wis. 2d 384, ¶¶14-17. 

¶19 As it relates to Crosby’s felony matter, Crosby challenges only the 

circuit court’s findings on the second and fourth factors. Crosby argues that the 

second and fourth factors “taken together require a treatment plan tailored to the 

defendant that provides the ‘medically informed record’ needed for the court to 

evaluate whether involuntary medication is constitutional.” He argues Hume 

offered only “non-committal statements regarding medication and dosage” that 

amounted to only a general—not individualized—treatment plan. Crosby further 

argues Hume’s analysis of risk factors, side effects, and basic health information 

was lacking. 

¶20 We agree with the State that the evidence was sufficient to support 

the circuit court’s findings on the second and fourth Sell factors. As an initial 

matter, Crosby concedes Hume identified Crosby’s prior response to treatment, his 
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known medical illnesses or drug allergies, and the typical side effects of 

risperidone, which was Hume’s preferred medication should Crosby decline to 

select his own. Hume also expressed a desire for Crosby to take risperidone 

orally, in an expected dosage ranging from four to eight milligrams, or higher 

depending on the effectiveness of the drug if some was already in his bloodstream. 

¶21 In asserting that the proposed treatment plan fell short of Sell, 

Crosby emphasizes that Hume provided detailed information regarding only one 

medication, risperidone, and even then discussed only the general side effects of 

that drug. But the focus on risperidone was a function of Hume’s recognition that 

Crosby had previously been successfully treated with that medication. The other 

proposed medications were only to be used conditionally: five milligrams of 

short-acting haloperidol, to be injected if Crosby refused an oral antipsychotic 

agent, with a maximum of ten milligrams daily; and a long-term injectable version 

if Crosby continued his refusals even with short-term treatment. Hume did not 

note that Crosby was particularly likely to suffer from any potential side effects of 

his preferred drug, and Crosby is unclear as to what more Hume could have done 

absent such susceptibility beyond identifying some risk of the side effects 

occurring and create an alternative plan should the need arise—both of which she 

did.

¶22 Crosby contends the circuit court here did nothing more than 

“delegate [the court’s] responsibility [under Sell] to a treating provider,” which is 

prohibited under State v. Green, 2021 WI App 18, ¶44, 396 Wis. 2d 658, 957 

N.W.2d 583, aff’d in part, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770. 

Though the quoted language has bite, it is not a contextually appropriate statement 

of what occurred here. The Green court chastised the lower court for its “pro-
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forma review” of a treatment plan that was not signed by any physician. Id., ¶44. 

The plan in Green consisted of merely “matching a general treatment plan for a 

condition to the defendant’s diagnosed condition,” which was insufficient. Id., 

¶34. Moreover, the involuntary medication order at issue in Green had the 

sequencing backwards, leaving the medical soundness of the court-ordered 

involuntary medication as a determination for the treatment providers to make 

after the competency proceedings were done. Id., ¶44.

¶23 Though due process demands much, Crosby’s argument holds the 

circuit court to an even more rigorous standard than is supported by Sell, 

Fitzgerald, and Green. Crosby suggests the constitutional validity of the 

involuntary medication order turns on the treatment plan setting forth exhaustive 

details about the defendant, such that the omission of a basic fact like the 

defendant’s age or weight could sink an otherwise valid order. Involuntary 

medication proceedings are necessarily fact-specific and detailed, but the legal 

granularity Crosby suggests is necessary is not supported by the relevant 

authorities. More may be required if the defendant has never received medication; 

less in a case like this, where Crosby has been successfully treated in the recent 

past. And while a treatment plan should certainly take into account a defendant’s 

basic medical information—which includes, under Green, age and weight, illness

duration, past responses to psychotropic medications, cognitive abilities, other 

medications, etc.—in not every case will these need to be extensively chronicled 

to satisfy due process.

¶24 Having concluded that the evidence was sufficient in the felony 

matter to satisfy the Sell factors, we have no need to also consider Crosby’s 

argument that an individual’s dangerousness does not provide a separate basis for 
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the involuntary administration of medication. See Turner v. Taylor, 2003 WI App 

256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (observing we need not address all 

issues raised by the parties if one is dispositive). 

¶25 We also need not consider whether the misdemeanor involuntary 

medication order is constitutionally deficient. The State argues that the issues 

surrounding the misdemeanor order are moot, since that order (and the 

concomitant commitment order) has expired. Crosby concedes the orders in the 

misdemeanor matters have expired, but argues the orders might be resurrected at 

some future time and have some collateral financial consequences that make the 

mootness doctrine inapt. 

¶26 Both the mootness and the harmless error doctrines counsel against 

our review. The harmless error doctrine instructs that in every stage of an action, 

courts shall disregard errors or defects that do not affect the substantial rights of 

the adverse party. WIS. STAT. § 805.18; State v. Nieves, 2017 WI 69, ¶60, 376 

Wis. 2d 300, 897 N.W.2d 363. An error affects the substantial rights of a party if 

there is a reasonable probability of a different outcome absent the error. Id., ¶17. 

The mootness doctrine applies if the resolution of an issue will have no practical 

effect on the underlying controversy. Portage County. v. J.W.K., 2019 WI 54, 

¶11, 386 Wis. 2d 672, 927 N.W.2d 509. Both harmless error and mootness 

present questions of law. Id., ¶10; State v. Jackson, 2014 WI 4, ¶44, 352 Wis. 2d 

249, 841 N.W.2d 791.

¶27 Ascertaining whether there was error associated with the 

misdemeanor cases would not, as a practical matter, benefit Crosby, and 

moreover, even if there was error it would not have affected Crosby’s substantial 
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rights. The misdemeanor involuntary medication order was stayed almost 

immediately and has never been enforced. By Crosby’s own admission, it is now 

expired and cannot be enforced in the future. Although Crosby argues he might be 

liable for the cost of his commitment under WIS. STAT. ch. 46, he does not explain 

how that liability could extend to the cost of administering involuntary medication 

under an order that, as a practical matter, has never been active. 

¶28 Crosby also emphasizes the “stigmatizing consequences of a transfer 

to a mental hospital for involuntary psychiatric treatment,” Vitek v. Jones, 445 

U.S. 480, 494 (1980), as demonstrating continuing harm if the misdemeanor 

involuntary medication order is not vacated. But in light of our affirming the 

felony involuntary medication order, a reversal of the misdemeanor order would 

not remove any stigmatizing effect. It would be a perfunctory gesture that would 

not obtain Crosby any meaningful benefit. 

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.