State v. M. L. H.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 13, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2025AP2250-CR Cir. Ct. Nos. 2024CF2008
2024CF2270
2025AP2251-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

M. L. H.,

DEFENDANT-APPELLANT.

APPEALS from orders of the circuit court for Brown County:
BEAU G. LIEGEOIS, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).
Nos. 2025AP2250-CR
2025AP2251-CR

¶1 PER CURIAM. Mary1 appeals orders authorizing the involuntary
administration of medication to restore her to competency in two criminal cases.
See WIS. STAT. § 971.14(5)(am); WIS. STAT. RULE 809.109. She also appeals an
order that denied her motions for postdisposition relief in both of those cases.2
Mary contends that the State presented insufficient evidence to support the
issuance of involuntary medication orders and that her attorney was
constitutionally ineffective during the hearing regarding those orders. We reject
Mary’s arguments and affirm.

BACKGROUND

¶2 On November 8, 2024, the State filed a criminal complaint in Brown
County Case No. 2024CF2008 charging Mary with knowingly fleeing or eluding
an officer, a Class H felony, and obstructing an officer, a Class A misdemeanor,
both counts as a repeater. According to the complaint, a postal worker called
police after she observed Mary speeding on the wrong side of the road in a school
zone. The postal worker reported that Mary’s vehicle was “coming right at her”
and that she “thought the vehicle was going to hit her.”

1
For ease of reading, we refer to the appellant in these confidential matters using a
pseudonym, rather than her initials. See WIS. STAT. RULE 809.109(6) (2023-24). All references
to the Wisconsin Statutes are to the 2023-24 version.
2
Mary has filed identical briefs in these appeals. On our own motion, we now
consolidate the appeals for disposition. See WIS. STAT. RULE 809.10(3).

Additionally, we note that Mary has filed a motion for a three-judge panel in both of
these appeals. However, because the underlying cases involve felony criminal charges, these
appeals have already been designated as appeals to be decided by a three-judge panel. See WIS.
STAT. § 752.31(1)-(2). We therefore deny Mary’s motions for a three-judge panel as
unnecessary.

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¶3 An officer located Mary’s vehicle, activated his squad car’s
emergency lights, and pulled behind Mary’s vehicle. The officer made contact
with Mary, who began making “nonsensical comments.” When the officer asked
Mary to step out of her vehicle, she refused to do so. While the officer was
speaking to a colleague, Mary locked her vehicle’s doors and drove away from the
traffic stop.

¶4 Mary was located and arrested the following day. She was released
on bond, and her bond conditions required her to “make all court appearances” and
“commit no criminal law violations.” Her attorney subsequently raised an issue
regarding her competency, and a competency hearing was scheduled for
December 10, 2024. Mary failed to appear at that hearing, however, and the
circuit court issued a bench warrant. Mary was later arrested on December 17,
2024, and the State charged her with three new offenses, each as a repeater, in
Brown County Case No. 2024CF2270: (1) felony bail jumping (missed court), a
Class H felony; (2) obstructing an officer, a Class A misdemeanor; and (3) felony
bail jumping (new law violation), a Class H felony.

¶5 On January 9, 2025, the circuit court ordered competency
evaluations in both of the cases against Mary. On February 7, 2025, the court
found Mary incompetent to proceed in both cases and ordered her committed to
the Department of Health Services (DHS) for treatment. On March 5, 2025, the
DHS informed the court by letter that it had determined that Mary was not suitable
for participation in the “Outpatient Competency Restoration Program” but was
eligible to begin receiving “Jail Based Remediation Services.” Mary was
subsequently admitted to the Mendota Mental Health Institute (MMHI) on
June 13, 2025.

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¶6 On June 20, 2025, Mary’s treating psychiatrist at MMHI,
Dr. Michelle Hume, filed a motion for an involuntary medication order, which
included an attached individual treatment plan. In the motion, Hume reported that
when Mary was admitted to MMHI for treatment, it was “immediately evident”
that “she had mania and delusions.” According to Hume, Mary stated that she is
“wealthy, a member of the Illuminati, and that she governs all 50 states.” Mary
also stated that she is “with Google so [she] can do anything she wants.”

¶7 Hume diagnosed Mary with schizoaffective disorder and noted that
Mary’s available treatment records revealed “a long history of mental illness and
multiple psychiatric hospitalizations.” Hume noted that Mary had been prescribed
various antipsychotic medications in the past, including lurasidone, ziprasidone,
quetiapine, haloperidol, and aripiprazole, and that she had also been prescribed
“lamotrig[i]ne and valproic acid, which are mood stabilizers.” According to
Hume, Mary’s records “indicate[d] that she was able to productively function in
the community when she was compliant with her medications.” For instance,
Mary “showed symptom improvement in 2020 when she was prescribed
haloperidol, and remained symptom free when her medications were switched to
aripiprazole.” Hume noted, however, that Mary had a “history of frequently
refusing voluntary treatment,” which resulted in the return of her symptoms.

¶8 Hume described three different meetings that she had with Mary, in
which Mary insisted that she had no mental health problems and refused to take
any medications. Hume attempted to explain the advantages and disadvantages of
medication, but Mary “spoke over [Hume’s] attempted explanations, and loudly
insisted that she had been poisoned by medications in the past, that she was not
schizophrenic, and did not need any treatment.”

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¶9 In the individual treatment plan that Hume submitted to the circuit
court, Hume explained that if the court granted an involuntary medication order,
she would first offer Mary the choice to take any one of five different
antipsychotics—aripiprazole, paliperidone, olanzapine, risperidone, or
lurasidone—because all of those medications were “reasonable choices” and “the
risk and benefit profiles in women are similar.” Hume did not include haloperidol
as one of the potential antipsychotics for Mary because Mary had previously
reported side effects from that medication. Hume explained that if Mary were
unwilling or unable to choose one of the listed antipsychotics, Hume would
choose aripiprazole, as Mary had responded well to that medication in the past
with no known side effects.

¶10 Hume listed the maximum daily oral dosages for each of the
antipsychotics set forth in the individual treatment plan. She explained that Mary
“would ONLY be administered medication by injection if she refused to take the
medication orally,” and in that case, Hume “would administer a long-acting
injectable to avoid the need for daily injections.”

¶11 The individual treatment plan further stated that, initially, Hume
expected “to only administer a single antipsychotic.” Hume noted, however, that
“patients with prominent manic symptoms like [Mary]” may require “a mood
stabilizer in addition to an antipsychotic.” Consequently, if an antipsychotic alone
proved insufficient to treat Mary, Hume would ask Mary which of two mood
stabilizers she preferred—either lithium or valproic acid—as both are “reasonable
treatment options and have comparable risks and benefits.” The individual
treatment plan stated that the maximum dosage of either of those medications
would be “determined by blood level.”

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¶12 Hume opined that Mary is “unable to express an understanding of
the advantages and disadvantages of medications” because she is “currently
psychotic, with active hallucinations and delusions,” and is “not in touch with
reality.” Hume further opined that medication would likely render Mary
competent to stand trial because Mary had previously responded well to
antipsychotic and mood-stabilizing medications, and “[i]f the medication is
administered on a daily basis, she is likely to be able to engage on a rational
basis.” Hume also stated that Mary was unlikely to become competent without
medications because “[i]n the community, she has rapidly become ill if she stops
taking her medication.”

¶13 The circuit court held an involuntary medication hearing on June 27,
2025. Mary was represented by counsel at the hearing,3 and she had the
opportunity to participate in the hearing via Zoom, but she refused to do so. Hume
testified at the involuntary medication hearing, and her motion for involuntary
medication and individual treatment plan were entered into evidence. Consistent
with those documents, Hume testified that the medications listed in the treatment
plan would help Mary become competent because Mary presented with symptoms
of schizoaffective disorder, which was consistent with her “historical diagnoses,”
and in the past, “her symptoms have been improved when she has been on
medication.”

3
At the hearing, Mary’s trial attorney clarified that he had only been appointed to
represent Mary in Case No. 2024CF2008, as Mary “has refused to even be interviewed by my
office for the other case.” The State notes that Mary “does not appear to believe that this [fact]
changes the ineffective assistance analysis, and for the purposes of this particular case, the State
does not believe so either.” As neither party argues that this issue makes a difference for
purposes of our analysis on appeal, we will not address it further.

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¶14 On cross-examination, Hume explained that her approach “is always
to use as few medications as possible and the least possible dose or the dose that
the patient responds to.” Typically, following the issuance of an involuntary
medication order, she will ask the patient whether they have a preference as to
which one of several different antipsychotics they would like to try, and in her
experience, patients usually select one of the available options. Hume explained,
however, that if Mary were unable to express a preference, Hume would choose
aripiprazole “because that is a medication that she has taken in the past, she did
not have documented side effects to it, and it did appear to benefit her.” Hume
also clarified that she would add one of the mood stabilizers only if a single
antipsychotic did not adequately address Mary’s symptoms.

¶15 Mary’s attorney then questioned Hume about “any anticipated
adverse side effects” of the proposed medications. Hume responded that the
potential side effects “depend on the medication,” and that while Hume would be
“happy to talk about any specific medication,” generally speaking, “the
antipsychotic medications can have side effects including things like higher blood
sugar, high cholesterol,” which are “things that we monitor for.” Hume further
testified that “[t]here are some potential movement-related side effects like
stiffness,” but those side effects can be treated, “or if they’re … sufficiently
severe, we can switch to a different medicine that seems to be better tolerated.”

¶16 Following Hume’s testimony, and arguments from the parties, the
circuit court granted the request for an involuntary medication order, concluding
that the State had satisfied each of the four factors set forth in Sell v. United
States, 539 U.S. 166 (2003). See State v. Fitzgerald, 2019 WI 69, ¶35, 387
Wis. 2d 384, 929 N.W.2d 165 (“Circuit courts may order involuntary medication

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to restore a defendant’s competency to proceed in a criminal case, provided the
four factors the United States Supreme Court established in Sell are met.”).

¶17 As an initial matter, the circuit court explained that Mary had been
diagnosed with schizoaffective disorder, and that diagnosis was “very consistent
with” behaviors that Mary had displayed in the courtroom. The court found that
Mary’s symptoms were “due to having a significant mental illness.” The court
also found, based on Hume’s testimony, that Mary had been offered medications
“numerous times” in the past, and while she refused to take them voluntarily, she
was unable “to articulate specific reasons why she doesn’t want to take the
medications outside of delusional beliefs about them.”

¶18 The circuit court then stated that medication is “necessary” to
address Mary’s symptoms and that Mary “does have a history of improving when
she’s on medications.” The court further determined that the treatment plan
proposed by Hume is “narrowly tailored to [Mary] as an individual,” specifically
citing the fact that Hume had eliminated haloperidol from the treatment plan based
on Mary’s prior reported side effects to that medication.

¶19 Next, the circuit court determined that there is “an important
government interest at stake here.” The court noted that Mary has been charged
with three Class H felonies and two misdemeanors—all as a repeater—which
means that she is “facing significant penalties.” Given the severity of the crimes
and the potential penalties, the court concluded that the State “does have an
interest in restoring [Mary] to competency to continue the prosecution of those
cases.”

¶20 The circuit court then stated that “[i]nvoluntary medication will
significantly further” the State’s interest in prosecuting Mary. The court explained

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that Mary “hasn’t been on any medications at all” since arriving at MMHI and that
her symptoms have not improved without medication. Accordingly, the court
stated that the proposed medications “are necessary to have those improvements in
her mental health.”

¶21 Based on its findings and conclusions during the involuntary
medication hearing, the circuit court entered involuntary medication orders in both
of the criminal cases against Mary on June 30, 2025.4 Mary then moved for
postdisposition relief. She argued that her trial attorney was constitutionally
ineffective during the involuntary medication hearing by failing to adequately
cross-examine Hume and by “effectively conced[ing]” during his closing
argument that all four of the Sell factors had been satisfied.

¶22 At a subsequent hearing on Mary’s motion for postdisposition relief,
the State raised a concern that because Mary was not competent, she could not
waive the attorney/client privilege in order to allow her trial attorney to testify
regarding confidential matters. The State argued, however, that the circuit court
could deny Mary’s postdisposition motion without an evidentiary hearing because
the record conclusively showed that counsel’s performance was neither deficient
nor prejudicial.

¶23 The circuit court agreed that it did not need to hear trial counsel’s
testimony in order to decide Mary’s postdisposition motion, explaining, “We have
a transcript that we all have access to [in order] to see what [trial counsel] said. I

4
Pursuant to statute, the involuntary medication orders were automatically stayed for 14
days. See WIS. STAT. RULE 809.109(7)(a). Mary filed a motion to continue the stay, which this
court denied by order dated August 19, 2025.

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don’t think why he said what he said at the hearing makes any difference to the
analysis.” The court noted that no evidence was presented at the involuntary
medication hearing that contradicted Hume’s testimony regarding the second,
third, and fourth Sell factors. After hearing arguments from the parties regarding
the first Sell factor—i.e., whether the State had an important interest in
prosecuting Mary for the charged offenses, see Fitzgerald, 387 Wis. 2d 384,
¶14—the court stated it still believed the State had satisfied that factor. As a
result, the court concluded, as a matter of law, that Mary had failed to establish
either deficient performance or prejudice.

¶24 The circuit court entered a written order denying Mary’s
postdisposition motion on October 2, 2025. Mary now appeals.

DISCUSSION

I. Sufficiency of the evidence

¶25 On appeal, Mary argues that the evidence introduced at the
involuntary medication hearing was insufficient to support the issuance of the
involuntary medication orders. In response, the State asserts that Mary forfeited
her arguments regarding the sufficiency of the evidence “when [her trial] counsel
failed to make them at the involuntary medication hearing.” See Tatera v. FMC
Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810 (“Arguments
raised for the first time on appeal are generally deemed forfeited.”).

¶26 We do not find the State’s forfeiture argument convincing. In the
context of an appeal from a criminal conviction, our supreme court has held that
“a challenge to the sufficiency of the evidence [may] be raised on appeal as a
matter of right despite the fact that the challenge was not raised in the circuit

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court.” State v. Hayes, 2004 WI 80, ¶54, 273 Wis. 2d 1, 681 N.W.2d 203. The
State fails to explain why a different rule should apply to an appeal from an
involuntary medication order that was entered to restore a defendant to
competency in his or her criminal case.5 We therefore decline to apply the
forfeiture rule under the circumstances of this case, and we instead address the
merits of Mary’s arguments regarding the sufficiency of the evidence.

¶27 In Sell, the United States Supreme Court “held that in limited
circumstances the government may involuntarily medicate a defendant to restore
his competency to proceed to trial, and it outlined four factors that must be met
before a circuit court may enter an order for involuntary medication.” Fitzgerald,
387 Wis. 2d 384, ¶2. First, the State must have an important interest in
prosecuting the defendant for the charged crime. Sell, 539 U.S. at 180. Second,
“the court must conclude that involuntary medication will significantly further”
the State’s interest. Id. at 181. Third, “the court must conclude that involuntary
medication is necessary to further” the State’s interest. Id. 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.

¶28 If each of the Sell factors is satisfied, the circuit court may enter an
involuntary medication order; however, “[i]f any factor is unsatisfied, involuntary
medication is a violation of the Due Process Clause and is unconstitutional.” State

5
Notably, the Hayes court interpreted WIS. STAT. § 974.02(2), which states, “An
appellant is not required to file a postconviction motion in the trial court prior to an appeal if the
grounds are sufficiency of the evidence or issues previously raised.” See State v. Hayes, 2004 WI
80, ¶8, 273 Wis. 2d 1, 681 N.W.2d 203. The statute setting forth the process for appealing
involuntary medication orders similarly states, “The person shall file a motion for postdisposition
relief in the circuit court before a notice of appeal is filed unless the grounds for seeking relief are
sufficiency of the evidence or issues previously raised.” WIS. STAT. RULE 809.109(2)(h).

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v. Green, 2021 WI App 18, ¶16, 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. “The State is required to prove
the factual components of each of the four factors by clear and convincing
evidence.” Id.

¶29 Wisconsin law is unsettled as to the standard of review that we apply
to a circuit court’s determination of whether the four Sell factors are satisfied.
Green, 396 Wis. 2d 658, ¶18. “The majority of federal courts review the first
factor de novo, although any factual findings relevant to this legal determination
are subject to clearly erroneous review.” State v. J.D.B., 2024 WI App 61, ¶33,
414 Wis. 2d 108, 13 N.W.3d 525, review granted, 2025 WI 8, 18 N.W.3d 694.
“These circuits also treat the remaining factors as fact questions subject to clearly
erroneous review, although one circuit treats the second factor as a legal question
reviewed de novo.” Id.

¶30 In this case, we need not resolve the uncertainty regarding our
standard of review. Even applying de novo review with respect to each of the
disputed Sell factors, we conclude that the State presented sufficient evidence to
support the issuance of the involuntary medication orders.6 See J.D.B., 414
Wis. 2d 108, ¶34; Green, 396 Wis. 2d 658, ¶20.

A. First Sell factor

6
On appeal, Mary argues that the evidence was insufficient to satisfy the first, second,
and fourth Sell factors. See Sell v. United States, 539 U.S. 166, 180-81 (2003). While Mary at
one point contends that the State “failed to meet at least three, and likely all four, of the Sell
factors,” she does not present a developed argument regarding the sufficiency of the evidence
related to the third Sell factor. Accordingly, we do not address the third Sell factor further.

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¶31 As noted above, the first Sell factor asks whether the State has an
important interest in prosecuting the defendant. See Sell, 539 U.S. at 180. Sell
clarified that the State’s “interest in bringing to trial an individual accused of a
serious crime is important.” See id. Sell did not define what constitutes a “serious
crime,” and “and the federal circuit courts do not agree on a method for
determining whether a crime is ‘serious’ for purposes of Sell.” J.D.B., 414
Wis. 2d 108, ¶36. One factor relevant to the analysis, however, is the maximum
penalty that the defendant faces. See id. For instance, some courts applying Sell
have determined that “crimes authorizing punishments of over six months are
‘serious.’” See United States v. Palmer, 507 F.3d 300, 304 (5th Cir. 2007); see
also United States v. Algere, 396 F. Supp. 2d 734, 739 (E.D. La. 2005); State ex
rel. D.B., 214 S.W.3d 209, 213 (Tex. App. 2007); State v. Velez, 2022-Ohio-3707,
¶14, 199 N.E.3d 188.

¶32 Here, Mary has been charged with three Class H felonies, each of
which carries a maximum sentence of six years’ imprisonment, and two Class A
misdemeanors, each of which carries a maximum sentence of nine months’
imprisonment. See WIS. STAT. §§ 939.50(3)(h), 939.51(3)(a). Those maximum
penalties are further increased by the fact that Mary has been charged as a repeater
for each crime. See WIS. STAT. § 939.62(1)(a)-(b). Thus, the maximum penalties
for Mary’s charges far exceed the six-month penalty that has been deemed to
denote a “serious crime” by some courts. See Palmer, 507 F.3d at 304.

¶33 Moreover, when determining whether a crime is serious for purposes
of the first Sell factor, we must also consider “the facts of the individual case in
evaluating the [State’s] interest in prosecution.” Sell, 539 U.S. at 180. In Case
No. 2024CF2008, Mary has been charged with knowingly fleeing or eluding an
officer, an offense that has the potential to endanger both the public and law

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enforcement. Additionally, as the circuit court recognized, Mary’s driving
behavior that led to the police encounter and the fleeing or eluding charge was
“inherently dangerous,” as Mary reportedly drove through a school zone at a high
rate of speed, on the wrong side of the road, and nearly hit a postal worker. Under
these circumstances, we agree with the State that Mary has been charged with a
“serious crime” for purposes of the first Sell factor.

¶34 In arguing to the contrary, Mary emphasizes that the legislature has
defined the terms “serious crime” and “serious felony” in “multiple contexts,” and
none of the statutes defining those terms include any of the crimes with which
Mary has been charged. See, e.g., J.D.B., 414 Wis. 2d 108, ¶36 (noting that the
definition of “serious crime” in WIS. STAT. § 969.08, for purposes of modifying or
revoking bail, specifically includes the offense of battery to a law enforcement
officer). Mary, however, cites no binding authority in support of the proposition
that an offense cannot be considered a “serious crime,” for purposes of the first
Sell factor, unless the legislature has included that offense in a statutory definition
of the term “serious crime” or “serious felony.” Moreover, we agree with the
State that “a crime’s maximum penalty is, in and of itself, an indicator of how
serious the legislature considers a crime.”

¶35 Our conclusion that Mary has been charged with a serious crime
does not end our analysis of the first Sell factor, however, because even if a
defendant has been charged with a serious crime, “[s]pecial circumstances may
lessen the importance of” the State’s interest in prosecuting the defendant. See
Sell, 539 U.S. at 180. Mary argues that two such special circumstances are
relevant here: (1) the length of her pretrial detention and her resultant sentence
credit; and (2) the “extensive delay between when [she] was committed and when
she received restorative treatment.”

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¶36 “[T]he possibility that the defendant has already been confined for a
significant amount of time (for which he would receive credit toward any sentence
ultimately imposed …)” is a factor that “affects, but does not totally undermine,
the strength of the need for prosecution.” Id. Mary asserts that, at the time of the
involuntary medication hearing, she had already accumulated over seven months
of sentence credit, which she characterizes as a “significant amount of credit.” As
the State notes, however, the maximum possible sentence credit at that time would
have actually been just over six months—from the time that Mary was arrested on
the bench warrant on December 17, 2024, until the involuntary medication hearing
on June 27, 2025. We agree with the State that this amount of sentence credit “is
not significant in light of [Mary’s] substantial sentencing exposure, given that she
faces multiple Class H felonies, each [of which] has a maximum penalty of six
years[’] imprisonment.” Under these circumstances, the length of Mary’s pretrial
detention does not significantly lessen the State’s interest in prosecuting her for
the charged crimes.

¶37 As for the delay between Mary’s commitment and the onset of
treatment, this court has previously held that a defendant’s “due process rights are
violated if the defendant fails to receive competency restoration treatment within a
reasonable amount of time following the court’s entry of the order of
commitment.” J.D.B., 414 Wis. 2d 108, ¶51. In J.D.B., the defendant “was
ordered committed on October 11, 2022[,] and was to be transported ‘forthwith’ to
the appropriate facility for treatment, but he remained in the county jail until
January 25, 2023, when he was transferred to [MMHI] for treatment.” Id., ¶52.
We concluded that this delay of over three months was “incongruous with
constitutional demands” and that “this unconstitutional detention further lessen[ed]
the importance of the State’s interest in prosecuting” the defendant. Id.

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¶38 Mary argues that the delay in this case was even more egregious
than the delay in J.D.B. because she was committed to DHS custody on
February 7, 2025, but was “not admitted into MMHI to begin competency
restoration treatment until June 13, 2025”—over four months later. This
argument, however, overlooks the fact that Mary was not admitted to MMHI
immediately following her commitment because the circuit court declined to order
inpatient treatment when it found Mary incompetent in February 2025. In
March 2025, the DHS informed the court that Mary was not suitable for
participation in the “Outpatient Competency Restoration Program” but was
eligible to begin receiving “Jail Based Remediation Services.” The DHS further
informed the court that DHS staff would “begin actively working with [Mary] to
establish a remediation plan for her and provide services” while she was in jail.
As noted, Mary was subsequently admitted to MMHI on June 13, 2025. We agree
with the State that these circumstances do not show “that there was any significant
delay in treatment that would weigh against the State’s interest” in prosecuting
Mary. We further agree that the State “should not be faulted for first attempting to
provide [Mary] with treatment on an outpatient basis,” as ordered by the circuit
court.

¶39 For all of these reasons, we conclude that the evidence introduced at
the involuntary medication hearing was sufficient to establish that the State has an
important interest in prosecuting Mary for the charged crimes. Consequently, the
State met its burden with respect to the first Sell factor.

B. Second Sell factor

¶40 The second Sell factor requires a court to determine whether
involuntary medication will significantly further the State’s interest in prosecuting

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the defendant. Sell, 539 U.S. at 181. Under this factor, a court “must find that
administration of the drugs is substantially likely to render the defendant
competent to stand trial” and “is substantially unlikely to have side effects that
will interfere significantly with the defendant’s ability to assist counsel in
conducting a trial defense, thereby rendering the trial unfair.” Id. For the State to
meet its burden under this factor, “[i]t is not enough for the State to simply offer a
generic treatment plan with a medication and dosage that are generally effective
for a defendant’s condition.” Green, 396 Wis. 2d 658, ¶34. Instead,

the circuit court must consider the defendant’s particular
circumstances and medical history to assess the underlying
factual questions of whether a particular medication is
substantially likely to render a particular defendant
competent and substantially unlikely to have side effects
that interfere with that defendant’s ability to participate in
his or her own defense.

Id.

¶41 Mary argues that the State failed to meet its burden under the second
Sell factor because Hume’s proposed individual treatment plan was
“unconstitutionally generic.” More specifically, Mary argues that the treatment
plan was not sufficiently individualized because although Hume “[did] not request
[h]aloperidol, due to perceived side effects from past usage, and [did] request
[a]ripiprazole due to its previous effectiveness,” Hume did not “explain why any
of the other six requested drugs are appropriate given [Mary’s] particular medical
history and treatment needs.”

¶42 We disagree that Hume’s treatment plan was not sufficiently
individualized to Mary. Hume explained that the five alternative antipsychotic
medications listed in the treatment plan were all appropriate for Mary because they
had similar risk and benefit profiles. Hume further explained that Mary would be

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administered only one of those antipsychotics, and if Mary were unwilling or
unable to choose one of them, Hume would choose aripiprazole, as that
medication had caused Mary to become “symptom free” in the past, without any
reported side effects.

¶43 Hume further explained that in patients like Mary who display
“prominent manic symptoms,” it may be necessary to treat with a mood stabilizer,
in addition to an antipsychotic. Hume explained that if an antipsychotic alone
were not sufficient to address Mary’s symptoms, Hume would ask Mary which of
two mood stabilizers she preferred, as both of those medications “are reasonable
treatment options and have comparable risks and benefits.” Hume also noted that
Mary’s records showed that she had taken one of those mood stabilizers, valproic
acid, in the past. On this record, we reject Mary’s argument that Hume failed to
adequately explain why the medications listed in the treatment plan were
medically appropriate for Mary.

¶44 Mary also faults Hume for failing to “individualize any of the listed
dosages to [Mary’s] particular medical information or history.” In the treatment
plan, Hume listed the maximum oral dose for each of the antipsychotics, stating
that those maximum doses “correspond[ed] to a typical maximum dose” of each
medication. Mary asserts, however, that those maximum doses merely
corresponded to “the maximum dosages listed on each drug’s FDA label,” and that
Hume failed to explain why those maximum doses would be safe or appropriate
for Mary, specifically. Mary then cites J.D.B., where this court concluded that the
dose ranges listed in a treatment plan were not sufficiently individualized to the
defendant because they were merely based on “the ranges submitted by the
manufacturer to the FDA,” without any evidence as to why those generic dose
ranges were appropriate for the defendant. J.D.B., 414 Wis. 2d 108, ¶59. “In

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other words, there was no evidence that [the defendant was] a generic patient for
[whom] the generic dose range[s] submitted by the manufacturer to the FDA
would be medically appropriate.” Id.

¶45 This argument is unpersuasive because Hume did provide additional
information explaining why the maximum doses listed in the treatment plan were
medically appropriate for Mary. Specifically, Hume noted that none of the listed
medications “require[d] dose adjustments due to medical issues, individual
physical characteristics (e.g., height, weight) of the subject, or interactions with
other medications.” Thus, unlike in J.D.B., the record here does contain evidence
that Mary is a “generic patient” for whom the generic maximum doses submitted
by the manufacturers to the FDA would be medically appropriate. See id.

¶46 Next, Mary contends that the treatment plan is deficient because it
does not contain any “timeline” for Hume to “report back to the [circuit] court
regarding the medications.” Mary notes that, in Green, this court stated that Sell
“requires an individualized treatment plan that,” among other things,
“identifies … ‘the duration of time that involuntary treatment of the defendant
may continue before the treating physicians are required to report back to the
court.’” Green, 396 Wis. 2d 658, ¶38 (quoting United States v. Chavez, 734 F.3d
1247, 1253 (10th Cir. 2013)). Notably, however, WIS. STAT. § 971.14(5)(b) states
that a defendant who has been committed for treatment to competency must be
“periodically reexamined by [DHS] examiners” and that “[w]ritten reports of
examination shall be furnished to the court 3 months after commitment, 6 months
after commitment, 9 months after commitment and within 30 days prior to the
expiration of commitment.” Mary does not develop any argument “that [DHS]
examiners providing the periodic reviews … as required under § 971.14(5)(b)
would fail to provide the circuit court with a summary of [her] recent medication

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history and responses to medications,” as required by Green. See State v. D.E.C.,
2025 WI App 9, ¶36 n.10, 415 Wis. 2d 161, 17 N.W.3d 67 (2024), review denied,
2025 WI 16, 23 N.W.3d 216.

¶47 For these reasons, we reject Mary’s arguments that the evidence
introduced at the involuntary medication hearing was insufficient to satisfy the
second Sell factor.

C. Fourth Sell factor

¶48 As noted above, under the fourth Sell factor, “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.” Sell, 539 U.S. at
181. Mary contends that the involuntary medication orders in her case failed to
satisfy this factor for three reasons.

¶49 First, Mary notes that the individual treatment plan states that Mary
“would ONLY be administered medication by injection if she refused to take the
medication orally,” and “[i]n the unlikely event that she persistently refuses oral
medications, [Hume] would administer a long-acting injectable to avoid the need
for daily injections.” Mary faults Hume for failing to provide “information about
what medications she would be injecting, what doses or dosages she would be
administering, or whether the selected injections are appropriate given [Mary’s]
medical history.” We reject this argument because Mary cites no legal authority in
support of the proposition that, in cases like this one, where a treatment plan sets
forth a maximum dose for an oral form of a medication, the treatment plan must
also state a maximum dose for the injectable form of that same medication to be
used in the event the patient refuses to take the oral medication. See State v.

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Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments
unsupported by references to legal authority will not be considered.”).

¶50 Second, Mary asserts that Hume “never documented or explained
the most consequential side effects of any of the proposed drugs.” The treatment
plan stated that the medications’ side effects included “weight gain, metabolic side
effects, movement-related side effects, [and] rarely neuroleptic malignant
syndrome.” Moreover, as discussed above, Hume explained during the
involuntary medication hearing that the antipsychotic medications listed in the
treatment plan “can have side effects including things like higher blood sugar,
high cholesterol,” as well as “some potential movement-related side effects like
stiffness.” While Mary asserts that Hume should have also “discuss[ed] the more
serious side effects” of these medications, Mary does not explain what additional
side effects she believes Hume should have addressed. Accordingly, Mary’s
argument on this point is undeveloped, and we decline to address it further. See
id. (noting that this court may decline to address undeveloped arguments).

¶51 Third, Mary asserts that Hume failed to provide sufficient
information about “what dosages would be given to [Mary] for any of the
requested oral medications.” Mary notes that while Hume listed the maximum
daily oral doses for the antipsychotics, “she did not state what particular doses she
would start with, nor did she explain why each starting dose would be medically
appropriate given [Mary’s] medical history and treatment needs.” Mary also notes
that Hume “did not provide any dosages” for the mood stabilizers lithium and
valproic acid, instead stating that the doses for those medications would be
“determined by blood level.”

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¶52 We reject Mary’s arguments that the treatment plan failed to provide
sufficient information about the proposed doses of the medications listed therein.
With respect to the antipsychotics, Hume provided maximum daily doses for those
medications in the treatment plan, and she then explained at the involuntary
medication hearing that her approach is to use “the least possible dose or the dose
that the patient responds to.” This court approved a similar approach in D.E.C.,
where the treating physician expressed an intent to “start with the lowest possible
dose and work upwards.” D.E.C., 415 Wis. 2d 161, ¶47. As for Mary’s argument
regarding the mood stabilizers, we agree with the State that Mary has cited no
legal authority in support of the proposition that

when a medication is contemplated as a back-up
medication that will be administered after other
medications have been tried (like the mood stabilizers here)
that the physician cannot simply explain how maximum
dosages will be calculated instead of providing an absolute
number that may not even be available to the physician
until after the initial medications are administered.

Again, this court need not consider arguments that are unsupported by references
to legal authority. Pettit, 171 Wis. 2d at 646.

¶53 Accordingly, we reject Mary’s argument that the State failed to
present sufficient evidence to satisfy the fourth Sell factor.

II. Ineffective assistance of counsel

¶54 In the alternative, Mary argues that her trial attorney was
constitutionally ineffective in multiple respects at the involuntary medication
hearing. Mary further argues that the circuit court erred by denying her
postdisposition motion alleging ineffective assistance of counsel without an
evidentiary hearing.

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¶55 Whether an attorney rendered ineffective assistance is a mixed
question of fact and law. State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d
466, 634 N.W.2d 325. We will uphold the circuit court’s findings of fact unless
they are clearly erroneous. Id. However, whether the defendant’s proof is
sufficient to establish ineffective assistance is a question of law that we review
independently. Id.

¶56 An evidentiary hearing, commonly referred to as a Machner
hearing, “is a prerequisite for consideration of an ineffective assistance claim.”
State v. Sholar, 2018 WI 53, ¶50, 381 Wis. 2d 560, 912 N.W.2d 89; see also State
v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). “A defendant
is entitled to a Machner hearing only when his motion alleges sufficient facts,
which if true, would entitle him to relief.” Sholar, 381 Wis. 2d 560, ¶50. If the
motion “does not raise facts sufficient to entitle the movant to relief, or presents
only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the discretion to grant or
deny a hearing.” Id. (citation omitted).

¶57 To prevail on an ineffective assistance of counsel claim, a defendant
must typically show both that his or her attorney’s performance was deficient and
that the deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To prove deficient performance, the defendant must
point to specific acts or omissions by counsel that are “outside the wide range of
professionally competent assistance.” Id. at 690. To demonstrate prejudice, the
defendant must show that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the

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outcome.” Id. at 694. If a defendant fails to make a sufficient showing on one
prong of the Strickland test, we need not address the other. Id. at 697.

¶58 Mary argues, however, that under United States v. Cronic, 466 U.S.
648 (1984), we must presume that her trial attorney’s performance was prejudicial.
Cronic held that “if counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing, then there has been a denial of Sixth Amendment
rights that makes the adversary process itself presumptively unreliable,” and
prejudice is presumed for purposes of an ineffective assistance claim. Id. at
659-60.

¶59 This exception to the Strickland analysis, however, is “exceedingly
narrow.” United States v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006). For
instance, in Bell v. Cone, 535 U.S. 685, 691-92, 697-98 (2002), the United States
Supreme Court rejected the defendant’s argument that the Cronic exception
applied when the defendant’s attorney failed to introduce any mitigating evidence
and entirely waived his closing argument at the defendant’s capital sentencing
hearing. The Court explained, “When we spoke in Cronic of the possibility of
presuming prejudice based on an attorney’s failure to test the prosecutor’s case,
we indicated that the attorney’s failure must be complete.” Bell, 535 U.S. at
696-97. The Court continued, “Here, respondent’s argument is not that his
counsel failed to oppose the prosecution throughout the sentencing proceeding as a
whole, but that his counsel failed to do so at specific points,” which was the type
of claim subject to the Strickland analysis. Bell, 535 U.S. at 697-98. “In the
wake of Bell, courts have rarely applied Cronic, emphasizing that only
non-representation, not poor representation, triggers a presumption of prejudice.”
Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007).

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¶60 Mary has not established that her trial attorney completely failed to
test the State’s case at the involuntary medication hearing, such that Cronic, rather
than Strickland, applies to her ineffective assistance claims. Mary’s trial attorney
was present at the involuntary medication hearing and participated in the hearing
by cross-examining Hume and making a closing argument. While Mary criticizes
the manner of counsel’s cross-examination and argues that counsel erred by
making certain concessions and failing to emphasize certain points during his
closing argument, Mary has failed to show that counsel “entirely fail[ed] to subject
the prosecution’s case to meaningful adversarial testing.” See Cronic, 466 U.S. at
659. As such, we apply the Strickland analysis to Mary’s ineffective assistance
claims.7

¶61 Applying the Strickland analysis, we conclude that the circuit court
properly rejected Mary’s ineffective assistance claims without a Machner hearing
because Mary’s postdisposition motion failed to allege sufficient facts to
demonstrate that Mary was prejudiced by counsel’s alleged errors. Stated
differently, Mary’s motion failed to show a reasonable probability that the result
of the involuntary medication hearing would have been different absent the
alleged errors.

¶62 In her postdisposition motion, Mary first challenged the
effectiveness of her trial attorney’s closing argument regarding the first Sell
factor—i.e., whether the State had an important interest in prosecuting Mary

7
Mary also cites McCoy v. Louisiana, 584 U.S. 414 (2018), in support of her claim that
her trial attorney’s conduct was per se prejudicial. We agree with the State that Mary forfeited
any argument based on McCoy by failing to raise it in her postdisposition motion. See Tatera v.
FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810.

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because she had been charged with a serious crime. See Sell, 539 U.S. at 180.
Mary contends that when addressing this factor, her attorney “did not mention the
facts that the felonies charged were low-level Class H felonies; that none of the
allegations against [Mary] included any violent acts whatsoever; and that none of
the alleged crimes were included in Wisconsin’s definition of ‘serious’ crimes in
any statute.”

¶63 These arguments fail because we have already concluded, as a
matter of law, that Mary was charged with a serious crime for purposes of the first
Sell factor. The fact that Mary was charged with “low-level Class H felonies”
does not change our analysis, given the maximum penalties involved and the
seriousness of the underlying conduct. See supra ¶¶31-33. Furthermore, while
Mary’s conduct may not have involved violent acts, Mary fails to acknowledge the
danger posed by her driving behavior and her fleeing in her vehicle from a traffic
stop. Additionally, we have already rejected Mary’s argument that her crimes
were not serious because they are not included in any statutory definition of the
term “serious crime.” Consequently, it is not reasonably probable that the result of
the involuntary medication hearing would have been different had Mary’s attorney
raised these arguments regarding the first Sell factor.

¶64 Mary’s postdisposition motion also alleged that her attorney should
have cited three federal cases to support an argument that Mary was not charged
with any serious crimes. Those cases, however, are either inapt or unpersuasive.
In United States v. Berry, 911 F.3d 354, 362-66 (6th Cir. 2018), the court assumed
without deciding that planting a fake bomb was a serious crime, but it ruled
against the government on the first Sell factor based on other mitigating
circumstances. In United States v. White, 620 F.3d 401, 410-11 (4th Cir. 2010),
the court concluded that the charges against the defendant were, in fact, serious

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Nos. 2025AP2250-CR
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crimes. Additionally, United States v. Dumeny, 295 F. Supp. 2d 131, 132-33
(D. Me. 2004), is materially distinguishable because it involved a single charge of
possession of a firearm by a person previously committed to a mental health
institute, not the multiple charges at issue here. Accordingly, it is not reasonably
probable that the outcome of the involuntary medication hearing would have been
different had Mary’s attorney cited these federal cases.

¶65 Mary also argued in her postdisposition motion that during his
argument regarding the first Sell factor, her attorney should have emphasized that
she had been “confined to jail and [MMHI] since approximately December 17,
2025,” and that there was an “extensive delay between when [she] was committed
and when she received restorative treatment.” We have already concluded,
however, that neither of these considerations lessens the State’s important interest
in prosecuting Mary under the first Sell factor. See supra ¶¶35-38. Consequently,
Mary cannot show that she was prejudiced by her attorney’s failure to raise these
arguments at the involuntary medication hearing.

¶66 Mary’s postdisposition motion further asserted that her trial attorney
was ineffective with respect to the second Sell factor by failing to argue that the
individual treatment plan presented by Hume was too generic and was not
sufficiently individualized to Mary. However, we have already rejected Mary’s
arguments that the treatment plan was not sufficiently individualized. See supra
¶¶41-45.

¶67 Finally, with respect to the fourth Sell factor, Mary’s postdisposition
motion argued that her trial attorney was ineffective by failing to question Hume
“or challenge her conclusions regarding several critical components of her
report”—specifically: (1) Hume’s failure to specify what doses of injectable

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medications would be administered to Mary in the event that she refused oral
medications; (2) Hume’s failure to explain “the most serious side effects” of the
proposed medications; (3) Hume’s failure to specify the starting doses for the oral
medications listed in the treatment plan; and (4) Hume’s statement that the doses
of the mood stabilizers would be determined “by blood level.”

¶68 We have already rejected Mary’s arguments that the individual
treatment plan was required to provide specific doses for the injectable forms of
the listed medications, starting doses for the oral medications, or specific doses for
the mood stabilizers. See supra ¶¶49-52. Additionally, we note that while Mary
argues that the medications listed in the treatment plan have serious side effects
that Hume failed to address, Mary’s postdisposition motion failed to explain what
any of those side effects are. The motion therefore failed to establish a reasonable
probability that the result of the involuntary medication hearing would have been
different had Mary’s attorney questioned Hume regarding these topics.8

¶69 Because Mary’s postdisposition motion failed, as a matter of law, to
establish that Mary was prejudiced by her attorney’s alleged errors at the
involuntary medication hearing, the circuit court properly denied Mary’s
postdisposition motion without an evidentiary hearing.

8
Moreover, we agree with the State that Mary does not account for the very real
possibility that if her attorney had further cross-examined Hume regarding the topics outlined in
Mary’s postdisposition motion, Hume would have provided additional information regarding
those topics that would have remedied any alleged deficiencies in the individual treatment plan.

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By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

29