Peo in Interest of Hilberman

26CA0876 Peo in Interest of Hilberman 10-15-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 26CA0876
Boulder County District Court No. 25MH363
Honorable J. Keith Collins, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of Mika Hilberman,
Respondent-Appellant.
ORDER REVERSED
Division V
Opinion by JUDGE GROVE
Tow, C.J., and Lum, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 15, 2026
Benjamin Pearlman, County Attorney, Azucena Rascón, Assistant County
Attorney, Katherine Power, Assistant County Attorney, Boulder, Colorado, for
Petitioner-Appellee
Tezak Law, P.C., Mary Tezak, Florence, Colorado, for Respondent-Appellant

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¶ 1 Mika Hilberman appeals the district court’s order authorizing
(1) a six-month certification for long-term mental health treatment
under section 27-65-110, C.R.S. 2026; and (2) the involuntary
administration of nine medications. Because we are not convinced
that Hilberman knowingly and intelligently waived her statutory
right to counsel, we reverse.
I. Background
¶ 2 Hilberman has a long history of mental illness and psychiatric
hospitalizations. In October 2025, she was admitted to Boulder
Community Hospital after a period of not eating or drinking and
exhibiting disorganized, delusional, agitated, and aggressive
behaviors. The district court certified her for short-term mental
health treatment and authorized the involuntary administration of
antipsychotic medications. Hilberman later transferred to the
Colorado Mental Health Hospital in Fort Logan (the hospital).
¶ 3 After extending the short-term certification, the People
petitioned for a long-term certification for mental health treatment,
alleging that Hilberman was gravely disabled. On Friday, April 24,
2026, a district court held a hearing, at which Hilberman and Dr.
Cecilia Vigil, one of Hilberman’s treating physicians, testified. At

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the beginning of the hearing, the court informed Hilberman that her
lawyer had suffered an injury and could not be present. The court
told Hilberman that it could “have the hearing today without a
lawyer, or we [could] continue everything . . . and you get a new
lawyer” at a rescheduled hearing the following Wednesday.
Hilberman asked whether a newly assigned attorney would be able
to meet with her in person, and the court said it did not know.
Hilberman then said she would “prefer to just proceed today” if the
court would “allow [her] time to testify” because she had “prepared
a statement” and did not think it would “give a big benefit to have a
lawyer assigned today to go on Wednesday.” The court then asked
Hilberman a few additional questions intended to shed light on her
mental state and her understanding of her rights. Based on that
colloquy, the court found that she waived her right to counsel for
the hearing. After hearing the evidence, the court found that
Hilberman was gravely disabled and granted the request for long-
term certification and involuntary administration of
• four antipsychotic medications: Prolixin (fluphenazine),
Haldol (haloperidol), Invega (paliperidone), and Risperdal
(risperidone);

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• two mood stabilizing medications: Vraylar (cariprazine)
and Ativan (lorazepam); and
• three side effect medications: Symmetrel (amantadine),
Cogentin (benztropine), and Benadryl (diphenhydramine).
¶ 4 Hilberman appeals, arguing primarily that she did not
knowingly and intelligently waive her right to counsel. She also
asserts that the evidence was insufficient to support continued
long-term certification or to establish elements one, three, and four
of the test set forth in People v. Medina, 705 P.2d 961, 973 (Colo.
1985). Because we agree that Hilberman did not validly waive her
statutory right to counsel, we reverse the order.
II. Hilberman’s Waiver of Counsel Is Defective
¶ 5 An indigent, involuntarily committed patient has a statutory
right to counsel at hearings involving certification for mental health
treatment and nonconsensual medication treatment. § 27-65-
109(5), C.R.S. 2026 (“The respondent has the right to an attorney
for all proceedings . . . .”); Medina, 705 P.2d at 972. A patient may
validly waive the right to counsel if he or she “makes a knowing and

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intelligent waiver in front of the court.” § 27-65-109(5); People in
Interest of Ofengand, 183 P.3d 688, 693 (Colo. App. 2008).1
¶ 6 Hilberman contends the district court erred by allowing her to
waive her right to counsel because she did not make a knowing and
intelligent waiver. We agree.
¶ 7 First, it appears that the district court applied the wrong legal
test to determine that Hilberman waived her right to counsel. After
discussion of her options and questioning by the court, including
whether she was being pressured or forced to proceed with the
hearing, the court made the following ruling:
Okay . . . the Court does find that Ms.
Hilberman . . . has articulated that she
understands her options here today, and
choices of either continuing this matter until
next week and to have representation at that
time, or to proceed today without
representation. She is able to articulate
reasons why she wanted to go forward today,
and is making that decision knowingly and
voluntarily.
1 Hilberman was certified for long-term care and treatment
pursuant to section 27-65-110, C.R.S. 2026. Although that statute
does not address the respondent’s right to counsel, the parties
appear to agree that the “knowing and intelligent” standard in
section 27-65-109(5), C.R.S. 2026, applies to Hilberman’s alleged
waiver.

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(Emphasis added.)
¶ 8 Recall that section 27-65-109(5) allows a respondent in a
mental health certification proceeding to waive counsel only if the
waiver is “knowing and intelligent.” (Emphasis added.) Compare
§ 27-65-109(5) (requiring waiver of counsel in mental health
proceedings to be “knowing and intelligent”), with People in Interest
of B.H., 2021 CO 39, ¶ 69 (waiver of statutory right to counsel in a
dependency and neglect proceeding must be voluntary, but need
not be knowing and intelligent), and People v. Arguello, 772 P.2d 87,
94 (Colo. 1989) (waiver of constitutional right to counsel in a
criminal proceeding must be knowing, intelligent, and voluntary).
Indeed, several of the court’s questions focused on whether
Hilberman was being pressured or forced to proceed, indicating that
the district court believed Hilberman needed to waive the right to
counsel voluntarily, rather than intelligently.
¶ 9 Nor do Hilberman’s statements at the hearing convince us that
her waiver was made intelligently. For example, after the court
asked her if she had any questions about her “rights regarding
being represented by a lawyer,” Hilberman responded as follows:

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Well, my question is that I’m already under a
certification and — a short-term certification
and court-ordered medication. And I know
that presents an infringement of my rights,
and I have patient rights, but I do believe that
should not infringe upon my Constitutional
rights to the law of life, the law of liberty, and
the law of pursuit of happiness, and to the –
the judiary [sic] of the Constitution, liberty and
justice for all.
¶ 10 Other statements indicate that Hilberman did not express a
full understanding of the purpose or consequences of the
proceedings. At the beginning of the hearing, which was held via
Webex, the following colloquy occurred:
THE COURT: And it looks like I have
Respondent Mika Hilberman present. Are you
able to hear me?
MS. HILBERMAN: Hilberman.
THE COURT: Let me unmute you. There we
go.
MS. HILBERMAN: Badge 98108998, Badge
728, Badge 720, Badge 424. I have quite a few
badges that I’d like to be referenced on.
THE COURT: Okay.
MS. HILBERMAN: Badge 1.
¶ 11 To be sure, at times during the hearing, Hilberman advocated
for herself, objecting to Dr. Vigil’s designation as an expert based on

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her length of practice as a doctor and the fact that she had been
treating Hilberman for only a very short time. But at other times
she provided less coherent statements, such as the following:
In all the hearings, Mental Health has
maintained that I am deluded for believing I
am a Seal Marine. But I am a very true
SEAL — SEAL — SEAL — SEAL — SEAL —
SEAL — SEAL Marine, and I have been in the
military service for a very long time. I am the
soldier of the war, and all of this identifies with
me and identifies on my identification.
¶ 12 Later, she said:
And this feels like only an end in my 50th
year, just as I’m to celebrate my 50th birthday,
having lived through all I have. Not choosing
suicide, not choosing to kill myself because I
do not believe in it for myself. Because I
believe in my accomplishment. I believe in my
achievement. I believe in what I provide in this
world. I believe in what I do for people. I
believe in all I do as a true badge. And I am a
true badge. Like a badge — badge — badge.
My badge of medicine is 995. My badge in
justice is 987. My reference badge 789 as well.
My badge as a SEAL marine is 13579.97531. I
have excellent numbers and I know why.
¶ 13 Moreover, in apparent response to Dr. Vigil’s testimony that
Hilberman did not believe her behavior was caused by a mental
illness, but instead by brain tumors and “something with her spinal

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rod or column” that should be treated with “half and half and
potato salad,” Hilberman stated:
So they keep bringing up half and half and
potato salad, and those are excellent ways to
help with a broken back. And my back is very
broken. Every vertebra — I have films of
them — every vertebra, every space in between
many times over.
¶ 14 Considering all the evidence in the record, including
Hilberman’s own statements and the court’s ruling that Hilberman
had waived her right to counsel “knowingly and voluntarily,” we are
not convinced that Hilberman knowingly and intelligently waived
her right to counsel. Cf. Arguello, 772 P.2d at 96 (determination of
whether a defendant validly waived the right to counsel is
accomplished by examining the totality of the circumstances in the
entire record).
III. The Defect Undermined Confidence in the Fairness and
Outcome of the Certification Proceedings
¶ 15 Having determined that there was a defect in Hilberman’s
waiver of counsel, we next consider “whether the defect concerns a
failure to comply with essential statutory provisions grave enough
to ‘undermine confidence in the fairness and outcome of the
certification proceedings.’” Ofengand, 183 P.3d at 693-94 (quoting

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Gilford v. People, 2 P.3d 120, 126 (Colo. 2000)). “This inquiry
includes (1) the evaluation of ‘the gravity of the deviation from
statutory provisions, including a consideration of due process
concerns’; and (2) a determination of ‘any prejudice to the
respondent caused by the deviation.’” Id. at 693 (citation omitted).
¶ 16 First, we evaluate the gravity of the defect in the waiver.
Mental health treatment certifications and involuntary medication
proceedings intrude significantly on a patient’s bodily integrity. Id.;
Medina, 705 P.2d at 968-69. And the statutory right to counsel,
which can only be waived knowingly and intelligently, is essential
because it alleviates the need for other procedural safeguards at
treatment hearings. Ofengand, 183 P.3d at 694. Considering the
totality of the circumstances, the court’s failure to ensure that
Hilberman had the capacity to intelligently make legal decisions is
particularly unfair where the petition itself contended — and the
court subsequently found — that she lacked the mental capacity to
make critical medical decisions on her own behalf. See id.
¶ 17 With respect to prejudice, the People argue that Hilberman did
not ask for counsel to “petition for the least restrictive setting” until
after the court had made its findings and orders, with which

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Hilberman disagreed. But during the hearing, Hilberman explained
that she objected to the hospital’s plan of transitioning her to
Boulder Post Acute and told the court that she had “other options
to consider” and “thought [her] attorney could have helped present
on [those options] today.” Indeed, after making its ruling, the court
appointed Hilberman a new attorney to help explore options for
treatment facilities going forward.
¶ 18 Overall, we conclude that the district court deviated from the
statutory requirements when it found Hilberman waived her
counsel “knowingly and voluntarily” rather than “knowingly and
intelligently.” See § 27-65-109(5); Medina, 705 P.2d at 972.
Further, after considering the gravity of the deviation and the
resulting prejudice, we conclude that this deviation concerned a
failure to comply with essential statutory provisions grave enough
to undermine confidence in the fairness and outcome of the
treatment hearing. See Ofengand, 183 P.3d at 693-94. The
deviation is thus reversible error. See id. at 694.

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IV. Disposition
¶ 19 The order approving Hilberman’s long-term certification and
the involuntary administration of the nine medications listed above
is reversed.
CHIEF JUDGE TOW and JUDGE LUM concur.