People ex rel. Uwayezuk

537 P.3d 377

2023 COA 69

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF Jean B. UWAYEZUK, a/k/a Jean B. Uwayezu, Respondent-Appellant.

Court of Appeals No. 22CA2278

Colorado Court of Appeals, Division I.

Prior Opinion Announced June 1, 2023, WITHDRAWN

OPINION PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO C.A.R. 35e" ON JUNE 1, 2023, IS NOW DESIGNATED FOR PUBLICATION

Announced July 13, 2023

Kerry C. Tipper, City Attorney, Katie L. Donahue, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee

Nathan Law, P.C., Mary E. Nathan, Pueblo, Colorado, for Respondent-Appellant

Opinion by JUDGE JOHNSON

¶ 1 Respondent, Jean B. Uwayezuk, a/k/a Jean B. Uwayezu (Uwayezuk),¹ was placed in the custody of the Department of Human Services after his defense counsel raised the issue of his competency in his criminal matters. While awaiting placement in a restoration facility, Uwayezuk's mental health deteriorated to the point that the State sought and was granted an order authorizing the involuntary administration of certain medications under section 16-8.5-112, C.R.S. 2022.

¶ 2 This case involves three issues of first impression for section 16-8.5-112 proceedings. First, drawing from the reasoning in A.R. v. D.R. , 2020 CO 10, ¶¶ 47–48, 51, 456 P.3d 1266, we conclude that there is a statutory right to effective assistance of counsel in expedited proceedings governed by section 16-8.5-112. Second, also relying on A.R. , ¶¶ 62–64, 66, we conclude that where the statutory right to effective counsel exists, a respondent on direct appeal of an order issued under section 16-8.5-112 may assert an ineffective assistance of counsel claim. Finally, when a respondent challenges the State's petition under C.R.C.P. 12(b)(5), a court's denial of a motion to dismiss for failure to state a claim is not reviewable after the expedited hearing is held. Based on these conclusions, and because we conclude, contrary to Uwayezuk's contention, that the circumstances of this case do not result in a presumption of prejudice under United States v. Cronic , 466 U.S. 648, 669, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), we determine that Uwayezuk's ineffective assistance of counsel claim and his other challenges to the order fail.

I. Background

¶ 3 On November 1, 2021, the district court in Uwayezuk's two criminal cases issued an order placing him in the custody of the Department of Human Services to undergo a competency evaluation. The court granted the order based on a motion filed by Uwayezuk's criminal counsel.² The judge presiding over the criminal cases ordered the competency evaluation because he had insufficient information to make a preliminary finding concerning Uwayezuk's competency to proceed in his two criminal cases. The evaluation was to be conducted at the Denver County Jail where Uwayezuk was in custody at the time.³

¶ 4 In this case, on November 28, 2022, the State filed a petition for the involuntary administration of medication, pursuant to section 16-18.5-112, signed by Dr. Laura Albert (Dr. Albert). At the time, Dr. Albert was a psychiatrist at Denver Health Medical Center and Uwayezuk's treating doctor. The petition alleged that Uwayezuk was in custody at the Denver County Jail because he was awaiting a bed at a "competency restoration program." The State requested an emergency order authorizing the involuntary administration of Zyprexa, Risperdal, Haldol, Ativan, Benadryl, and Cogentin. The probate court appointed counsel for Uwayezuk on November 30, 2022, and held an expedited hearing on December 2, 2022.

¶ 5 At the hearing, Uwayezuk's counsel (1) sought a dismissal of this action on grounds that the State's petition failed to plead a plausible claim for relief under Warne v. Hall , 2016 CO 50, 373 P.3d 588 ; (2) asserted that the statutes authorizing the involuntary administration of medications were unconstitutionally void for vagueness; (3) requested a continuance because appointed counsel only had two days to prepare for the hearing and had been unable to meet with Uwayezuk because the sheriff did not allow counsel into the jail; (4) alleged constructive ineffective assistance of counsel because the court denied counsel's request for a continuance; and (5) argued that for the State to obtain such an order, the factors from Sell v. United States , 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (involving proceedings where the state seeks the involuntary administration of medication for the purpose of restoring a defendant's competency to proceed with criminal proceedings), as opposed to the factors in People v. Medina , 705 P.2d 961, 971 (Colo. 1985) (proceedings where the state seeks the involuntary administration of medication on an emergency basis due to the welfare or safety of the defendant or those around the defendant), applied.

¶ 6 At the beginning of the hearing, the probate court stated that the Denver Sheriff's Department had notified the court that morning that Uwayezuk was unwilling to get out of bed, so the court construed his absence as "refusing to appear." It heard arguments from both counsel on the preliminary issues raised by Uwayezuk's counsel, denied the request for a continuance, and concluded that the statutes governing the involuntary administration of drugs are constitutional. And while the court did not make specific findings that the petition was sufficiently pled under Warne , such a finding was implied given that the court went forward with the hearing.

¶ 7 Following these rulings, the court heard testimony from a single witness, Dr. Albert. The court accepted Dr. Albert as an expert in the fields of adult and forensic psychiatry. Dr. Albert testified that Uwayezuk had been sitting in jail for a year awaiting a bed at either the Colorado Mental Health Institute at Pueblo or another restoration facility. Dr. Albert had been referred to evaluate Uwayezuk at the jail and conducted an evaluation on November 28, 2022. She testified as follows:

• In May 2022, the jail had noticed that Uwayezuk was "decompensating," including (1) not eating or eating significantly less; (2) not engaging with staff when he had been much more communicative previously; (3) refusing visits from family and friends, which was atypical; (4) not communicating and acting in a disorganized or nonsensical manner when he would respond; and (5) not taking care of basic needs like showering, changing clothes, or cleaning his cell.

• Beginning in May 2022, Uwayezuk was put on administrative review in the jail. His disorganized and nonsensical behavior deteriorated, as shown by (1) statements like he wanted his fingernails to grow like "claws"; (2) his tying pieces of towel in his hair; and (3) his being distracted in a manner that suggested that he was responding to internal stimuli, like hearing voices and possibly experiencing hallucinations.

• Sometime in August 2022, Uwayezuk was involved in a use of force incident at the jail, and although Dr. Albert did not know the specifics of the occurrence, she was aware that he was now on "an alert for a two-officer handcuff at all time [sic] because of [his] unpredictable behaviors."

• Uwayezuk was offered voluntary medical treatment, but he refused medication. Dr. Albert was concerned that even if he began to voluntarily take the medications, he was unlikely to adhere to a medication regimen because of his nonverbal and disorganized behavior.

• When she evaluated Uwayezuk on November 28, he was mostly "nonverbal" with her, but she had reason to believe he could hear her because he would look at her when she spoke.

• Based on her observation of Uwayezuk and review of medical records on November 28, Dr. Albert diagnosed him with "unspecified schizophrenia spectrum and other psychotic disorder."

• Uwayezuk did not have any prior psychiatric history, but Dr. Albert believed that he was "having his first break of schizophrenia while" in custody and that being in his early twenties was generally the age when "something like this could happen."

• Because Uwayezuk had been decompensating since May 2022, Dr. Albert's concern was that he was not improving on his own and the longer he went without medical intervention, "the harder it is to get [patients] back to their prior level of functioning." She also testified that this is particularly true when patients experience their "first break," as studies have shown that the sooner the treatment, "the better outcomes there are."

¶ 8 Based on Dr. Albert's observations and current medical diagnosis, she testified that the medications she requested were:

• Risperdal, an antipsychotic medication, with Haldol as an intermuscular backup if he refused the first;

• Zyprexa, another antipsychotic medication, which she would begin in a few weeks if Uwayezuk did not respond to Risperdal, or Haldol as a backup;

• Ativan to help with Uwayezuk's acute agitation if needed; and

• Benadryl and Cogentin to prevent or alleviate stiffness in the muscles because certain antipsychotic medications could produce this side effect, especially if the patient is using Haldol ; although both medications are used to treat the same side effects, Dr. Albert noted that she generally prescribed Cogentin when patients experienced long-term side effects because it was less sedating than Benadryl.

¶ 9 Dr. Albert testified to the various side effects of all the medications requested, but she noted that the authority to conduct physicals and labs were also requested as part of the order so that staff could monitor and safely administer the drugs.

¶ 10 On cross-examination, Dr. Albert further testified:

• Even if she later concluded that Uwayezuk did not meet all the criteria for a diagnosis of schizophrenia, his symptoms were definitely related to some mental health illness.

• In response to a line of inquiry about whether Uwayezuk might be nonverbal or disorganized because he might suffer from pain, Dr. Albert indicated that she had no sign that he was in pain. Such

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