State v. T.A.W., 2025AP437-CR, 6/3/25, District I (not recommended for publication); case activity
Although the charges against T.A.W. — resisting an officer causing soft tissue injury and retail theft — are not “serious crimes” under Wis. Stat. § 969.08, which specifies procedures for pretrial release, the COA found that the State met its burden to show an important governmental interest in forcibly medicating T.A.W. to competency under the aggravated circumstances of the case.
T.A.W. (referred to as Thomas) was charged with resisting an officer causing a soft tissue injury and misdemeanor retail theft. The complaint alleged that Thomas was detained by police because he matched the description of a retail theft suspect; when police tried to handcuff him, Thomas briefly fled. Police pulled him to the ground while Thomas kicked at an officer and attempted to grab a Taser from the officer’s holster. The officer sustained abrasions to his hands and knees as a result of the incident. (¶ 2).
Thomas was 40 when he was arrested with an extensive juvenile and adult record; including retail theft, taking and driving a vehicle without consent, disorderly conduct, delivering THC and cocaine, and violating the sex offender registry. Thomas’s competence to stand trial was evaluated in several of those cases and he was determined incompetent to proceed in all but one. (¶ 3).
The circuit court ordered a competency evaluation, which diagnosed Thomas with schizophrenia. After a competency hearing, the circuit court found Thomas incompetent and committed him for treatment in August 2024 because, if treated, he was likely to become competent within the statutory deadline. (¶ 4).
Thomas was admitted to Sand Ridge Secure Treatment Center in December 2024 and prescribed an antipsychotic drug, but told that he was not required to take the drug. He refused all doses. The psychologist met with Thomas in January 2025 and found him “profoundly disorganized” with “prominent delusions.” (¶ 6). The psychologist determined that medication was needed to alleviate the symptoms and filed a motion to authorize involuntarily medicating Thomas. The psychologist specified the daily dosage of Risperdal, Haldol, and/or Olanzipine that he recommended, which would be administered “at bedtime.” (¶ 7).
The circuit court held a hearing on the motion for involuntary medication, at which the psychologist testified. The circuit court authorized involuntarily medicating Thomas because it determined the State satisfied the Sell factors and that Thomas was not competent to refuse treatment. (¶ 10).
To review, SCOTUS held in Sell that, before the State is allowed to forcibly medicate an accused person to competency to stand trial, it must show: 1) the State has an important interest in proceeding to trial; 2) involuntary medication will significantly further the State’s interest; 3) involuntary medication is necessary to further the State’s interest; and 4) involuntary medication is medically appropriate. (¶ 13).
Thomas argued on appeal that the State did not satisfy the first Sell factor because he was charged with non-violent offenses that do not meet the legislature’s definition of serious crimes, and special circumstances reduce the State’s interest in prosecuting Thomas due to the length of his pretrial detention and the timelines with which he received treatment.
The State has an important governmental interest in bringing to trial a person accused of a “serious crime.” Sell, 539 U.S. at 180. Although resisting an officer causing soft tissue injury is not listed as a “serious crime” under Wis. Stat. § 969.08, the Court noted that its 2024 decision in J.D.B. does not require a crime to be listed by statute in other contexts as a “serious crime” to qualify as a “serious crime” under Sell. (¶ 19) (J.D.B. is currently pending in SCOW; see post on order granting review). The Court compared similarities between the charges against Thomas and the charge for battery to a law enforcement officer in J.D.B., where the Court found that the State did not show an important interest: the alleged victims were police officers, the charges carried a maximum penalty of 6 years imprisonment, and bodily injury was allegedly inflicted. (¶ 19). However, the Court found “at least one aggravating factor present in this case that was not present in J.D.B.; namely, that Thomas reached for [the officer’s] Taser.” (¶ 20). The Court therefore concluded that the State has an important interest in prosecuting Thomas because he is charged with a “serious crime” for purposes of Sell. (¶ 20).
The Court recognized that the inquiry does not end with categorizing the charge because Sell requires it to consider the facts of an individual case such as the length of the defendant’s pretrial detention, the timeliness with which the defendant receives treatment, and the defendant’s potential for future civil commitment. (¶ 21). Although the length of Thomas’s pretrial detention before he received treatment (five months) reduced the State’s interest in prosecuting him, the Court found that the State’s interest was not totally undermined because Thomas “lacks a record upon which to argue that there is a significant potential of future civil commitment.” (¶ 22).
Thomas also argued that the State’s treatment plan did not satisfy the second and fourth Sell factors because it did not identify the maximum number of dosages that may be administered during any given period of time. However, the Court found that the psychologist’s treatment plan specifying that medication would be administered “[a]t bedtime indicates that medication will be administered once per day, which was sufficient to meet the Sell criteria. (¶ 24).
