State v. T. R. T.

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.
June 19, 2025
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 No. 2025AP387-CR Cir. Ct. No. 2021CF793

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

T.R.T.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Monroe County:
RICHARD A. RADCLIFFE, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

¶1 GRAHAM, J. T.R.T., who was charged with various felonies,
appeals a circuit court order that determined that he was incompetent to be tried
and committed him to the custody of the department of health services for
treatment. T.R.T. does not challenge the portion of the order that found him
No. 2025AP387-CR

incompetent, but rather the portion of the order that determined that, through
treatment, it was likely that he would be restored to competency within twelve
months. On appeal, the parties dispute the standard of review that should apply to
this latter determination and whether the circuit court’s determination in this case
should be upheld under that standard. Applying the clearly erroneous standard of
review, we conclude that the circuit court’s determination that T.R.T. would likely
be restored to competency through treatment was not clearly erroneous.
Therefore, we affirm.1

BACKGROUND

¶2 T.R.T. was charged with repeated sexual assault of a child and other
crimes stemming from his alleged conduct between 2017 and 2020. He was
subject to pretrial detention in the Monroe County Jail for more than two years
following his 2021 arrest, until concerns were raised about his competency.

¶3 Under WIS. STAT. § 971.13(1), “[n]o person who lacks substantial
mental capacity to understand the proceedings or assist in his or her own defense
may be tried, convicted or sentenced for the commission of an offense so long as
the incapacity endures,” and a circuit court will order competency proceedings
“whenever there is reason to doubt a defendant’s competency to proceed.” WIS.
STAT. § 971.14(1r)(a); see also § 971.14(2)-(5). If the court determines that a
defendant is not competent but is likely to be restored to competency within a

1
We have prioritized this appeal and expedited our decision pursuant to WIS. STAT.
RULE 809.109(5)(b), which sets shorter deadlines for appellate briefing and imposes a deadline
on our decision in treatment-to-competency cases.

All references to the Wisconsin Statutes are to the 2023-24 version.

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specified timeframe with appropriate treatment, the court “shall suspend the
[criminal] proceedings and commit the defendant to the custody of the department
[of health services] for treatment.” See § 971.14(5)(a)1. At that point, the
department will be given a limited period of time (twelve months in this case) to
attempt to restore the defendant’s competency.

¶4 Here, after defense counsel raised concerns about T.R.T.’s
competency, the circuit court ordered the department to conduct an examination.
The court also scheduled a hearing, at which it would address the following two
questions: (1) whether T.R.T. was incompetent (the “competency determination”);
and (2) if so, whether there was a likelihood that T.R.T. could, with treatment, be
restored to competency within twelve months (the “restorability determination”).
See WIS. STAT. § 971.14(5)(a). In this context, competency means that the
defendant is “capable of understanding the fundamental nature of the trial process
and of meaningfully assisting his or her counsel.” State v. Garfoot, 207 Wis. 2d
214, 217, 558 N.W.2d 626 (1997).

¶5 The circuit court was ultimately presented with the reports and
testimony of Dr. Dileep Borra, who was appointed by the court, and Dr. Steven
Benson, who was the defense examiner retained by T.R.T. As we now discuss at
greater length, Borra opined that T.R.T. was feigning incompetency but was not
actually incompetent, and Borra did not offer an opinion on restorability. Benson,
in contrast, opined that T.R.T. was incompetent and could not be restored to
competency through treatment within the statutory timeframe.

¶6 As explained in Borra’s report, Borra’s opinion that T.R.T. was
competent was based on his psychiatric evaluation of T.R.T., as well as a review
of the court record in this case, information obtained from the nursing staff at the

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jail where T.R.T. had been housed, and a review of T.R.T.’s criminal history.
Borra reported that, during the psychiatric evaluation, T.R.T. frequently responded
“I don’t know” to questions and exhibited an apparent “inability to provide the
most basic information … such as his name, … his date of birth, and his
understanding of where he has been staying for the past 2 years.” In Borra’s
opinion, there was a “significant discrepancy” between T.R.T.’s apparent
“incapacity to interact with [Borra] during [the] evaluation” and T.R.T.’s evident
capacity to interact with the correctional and heath care staff at the jail. Borra
further noted that jail records “indicate [that T.R.T.] ha[d] not reported any
psychiatric symptoms and ha[d] not displayed any psychiatric symptoms … that
would explain the level of impairment” that T.R.T. presented during the
evaluation. Based largely on this discrepancy, Borra believed that T.R.T. was
“feigning impairment” during the evaluation and that the level of impairment that
T.R.T. exhibited in his interactions with Borra was “not consistent with any
psychiatric diagnosis.”

¶7 Turning to Benson’s report, his opinions that T.R.T. was
incompetent and not likely to be restored to competency were based on Benson’s
psychiatric evaluation of T.R.T., as well as psychological testing, a
neurobehavioral status examination, a review of T.R.T.’s mental health and
medical records, interviews with jail corrections staff, and consultation with
defense counsel. Benson diagnosed T.R.T. with intellectual and neurocognitive
disorders, including moderate intellectual disability, and major neurocognitive
disorder due to chronic inhalant abuse and probable traumatic brain injury.
Benson also diagnosed T.R.T. with mental health disorders, including
schizoaffective disorder and PTSD. According to Benson, the primary diagnoses
of major neurocognitive disorder and schizoaffective disorder “have adversely

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affected [T.R.T.’s] ability to learn and retain essential information, and to provide
relevant details to his attorney during legal proceedings.” Benson’s assessment of
T.R.T.’s “significant neurocognitive deficits” was based in large part on the tests
he conducted and were, in Benson’s opinion, “neither reversible nor amenable to
treatment.” Benson’s report did not specifically address the treatability of
T.R.T.’s mental health disorders, but it did note that T.R.T. was refusing to take
antipsychotic medications.

¶8 The circuit court held a hearing, and both doctors gave testimony
that was consistent with their reports. A significant focus of the direct and cross-
examination of Benson was on his reasons for concluding that T.R.T. could not be
restored to competency through treatment due to his severe and permanent major
neurocognitive disorder. Benson acknowledged that the mental health disorders
are treatable, and particularly, that antipsychotic medications are an effective
treatment for schizoaffective disorder. However, Benson opined, T.R.T.’s “brain
damage is permanent,” and “the problematic issue in this case is that [T.R.T.’s]
ability to benefit from treatment is extremely limited by virtue of his extremely
inefficient intellectual functions.”

¶9 Regarding T.R.T.’s major neurocognitive disorder, Benson testified
that the diagnosis was evinced in the tests Benson administered and would
manifest “in terms of not being able to complete activities of daily living, not
being able to hold a job, [and] not being able to benefit from instruction.” Given
the severity of the deficits Benson observed, he did not think that T.R.T. would
benefit from “insight-oriented psychotherapy,” which requires “higher-level
cognitive function[ing].” Instead, Benson testified, “[w]e’re talking about a much
more basic need,” and treatment that would be focused on basic life skills:

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[C]an he maintain his hygiene, can he dress himself, can he
shower on a consistent basis while being cued to do so, can
he choose foods that are going to be nutritious for him, is
he able to keep himself clean so that there’s no smell or is
he able to keep his hair trimmed so that people are able to
see what his face looks like[?]

These are all very basic things that we’re talking
about at this point in time. We’re not talking about higher-
level cognitive functions that are necessary for therapy.

¶10 Throughout his testimony, Benson made clear that his opinion about
restorability was based on the combined effects of the mental health and
neurocognitive disorders which, in his opinion, would make it unlikely that T.R.T.
would benefit from antipsychotic medication. He stated:

[I]f it was schizoaffective disorder without the other
disorders present, that … could be treated, but … this is not
an all-or-none case.

As I testified earlier, we tend to look at things in
black or white terms. This is not a black or white case.
This is a case in which there are significant and severe and
multiple mental disorders and it’s the weight of those
combined mental disorders that form the basis of my
opinion that … these are permanent, they cannot be treated,
and that they are not in any way going to be restorable.

¶11 Benson’s description of T.R.T.’s major neurocognitive deficits stood
in contrast with the testimony of Todd Evers, a correctional officer who worked at
the jail. Evers’ testimony was presented by the State, and it focused on T.R.T.’s
demeanor and ability to care for himself and interact with others in the jail setting.
More specifically, Evers testified that, having interacted with T.R.T. “numerous
times,” he observed T.R.T. exhibit “two different demeanors.” On the days of
T.R.T.’s competency evaluations, T.R.T. would be “very quiet” with his “head
down,” which was consistent with the demeanor T.R.T. exhibited on the days that
he had court proceedings. However, that “was not consistent with the behavior
that [Evers had] seen from [T.R.T.] in the pod housing setting” at the jail. In the

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jail setting, Evers had observed T.R.T. “carr[y] on a normal conversation,”
“interact with other inmates,” and take care of daily hygiene issues without
prompting. T.R.T. had periodically purchased deodorant, soap, and toothpaste
from the canteen. He had also been able to communicate requests to Evers related
to housing and medical needs. Some of T.R.T.’s requests were verbal and
communicated with direct eye contact, and other requests were written and
communicated with coherency, specificity, and proper spelling.

¶12 The circuit court gave an oral ruling in which it determined that
T.R.T. was incompetent to proceed. In so doing, the court stated that it found both
doctors to be credible, but it gave more weight to Benson’s opinion about
competency because Benson had performed a battery of psychological and
psychiatric testing and considered additional information about T.R.T.’s
intellectual functioning. However, the court noted that Benson “did not conduct
any standardized malingering test[s],” and the court did not necessarily reject the
possibility that T.R.T. might be “malingering or … falsely presenting his behavior
for his own purposes.”

¶13 Regarding competency, the circuit court noted that the State had the
burden to prove by a “greater weight of the credible evidence” that T.R.T. had the
present ability to understand the proceedings and participate and assist in his
defense, but here, the court “[could not] make that finding.” To “make that
finding,” the court “would have to totally believe Doctor Borra’s testimony” that
T.R.T. was feigning incompetency “and disregard completely Doctor Benson’s
testimony.” The court reasoned that it could not do so because, in its assessment,
T.R.T. “does suffer from a long history of mental health disorders … as well as
some intellectual functioning disability.” The court further reasoned that it did not
have to determine as a clinical matter whether it was the mental health issues, the

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neurocognitive impairments, or both that were causing T.R.T.’s current functional
limitations in order to find it “clear” that T.R.T. was “not currently able to assist in
his defense.”

¶14 With respect to restorability, the circuit court noted that the statute
does not place the burden on either party, and determined that it was likely that
T.R.T. will become competent within twelve months with treatment. The court
acknowledged Benson’s contrary opinion, but did not find it “to be solely
determinative.” The court relied on the fact that T.R.T.’s mental health disorders
were one significant cause of his incompetency, and the evidence suggesting that
these mental health disorders were treatable. The court also acknowledged
Benson’s testimony about T.R.T.’s neurocognitive impairments, but it rejected
Benson’s opinion that T.R.T.’s “ability to understand will never get any better”
because it failed to account for “the impact upon [T.R.T.’s] mental health that
[treatment for schizoaffective disorder] can provide.” In the court’s view, its
restorability determination was bolstered by the testimony and reports from jail
staff and nursing staff, which suggested that the neurocognitive impairments might
not be as profound as Benson believed.

¶15 The circuit court entered an order for commitment for treatment.
T.R.T. appeals.

DISCUSSION

¶16 We begin by discussing the standard of review that is applicable to
the circuit court’s restorability decision. Our supreme court’s decisions in
Garfoot, 207 Wis. 2d 214, and State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614
N.W.2d 477, provide some guidance on this topic.

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¶17 In Garfoot, the circuit court dismissed the criminal charges against
the defendant after finding that he was incompetent to be tried and not likely to be
restored to competency with treatment. Garfoot, 207 Wis. 2d at 219-20. On
review, our supreme court acknowledged that, in considering a defendant’s
competency, the circuit court must ultimately apply a legal test. Id. at 223. Even
so, the Garfoot majority decided that the circuit court’s competency determination
should be reviewed under the clearly erroneous standard of review. Id. at 222-23,
225. In explaining its reasoning, the Garfoot majority stated:

To determine whether the state has met its burden
of proving a defendant competent, the [circuit] court must
weigh evidence that the defendant is competent against
evidence that he or she is not. The [circuit] court is in the
best position to decide whether the evidence of competence
outweighs the evidence of incompetence.… Although the
court must ultimately apply a legal test, its determination is
functionally a factual one: either the state has convinced the
court that the defendant has the skills and abilities to be
considered “competent,” or it has not.

The [circuit] court’s superior ability to observe the
defendant and the other evidence presented requires
deference to the [circuit] court’s decision that a defendant
is or is not competent to stand trial. Only the [circuit] court
has the opportunity to view the defendant. Only the
[circuit] court can judge the credibility of witnesses who
testify at the competency hearing. Thus, only the [circuit]
court can accurately determine whether the state presented
evidence that was sufficiently convincing to meet its
burden of proving that the defendant is competent to stand
trial.

….

We conclude that the same deference should be
given to the [circuit] court regarding determinations of
competence to stand trial as is given for determinations of
competence to represent oneself. Because the [circuit]
court is in the best position to observe the witnesses and the
defendant and to weigh the credible evidence on both sides,
appellate courts should only reverse such determinations
when they are clearly erroneous.…

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Id. at 222-25 (footnote and citations omitted). The court did not separately
consider what standard of review should apply to the restorability determination
that was also made in that case.

¶18 In concluding that the clearly erroneous standard would apply in an
appeal of a circuit court’s competency decision, the Garfoot majority rejected a
contrary position taken in a concurring opinion. See id. at 229-38
(Abrahamson, J., concurring). More specifically, the Garfoot majority rejected
the position that competency is a question of constitutional fact, and that an
appellate court should review the legal question of competency differently, and
more independently, than how it reviews factual matters regarding credibility and
historical fact. See id. at 231-32 (Abrahamson, J., concurring).

¶19 Several years later, our supreme court revisited its decision
regarding the standard of review of a competency determination in Byrge, 237
Wis. 2d 197. In that case, the defendant, who the circuit court had found
competent to be tried, asked the supreme court to reconsider the Garfoot holding.
Id., ¶¶1, 3. In so doing, the Byrge majority acknowledged that “[c]ompetency to
stand trial constitutes a judicial inquiry, not a medical determination.” Id., ¶31.
Even so, it declined to reconsider the standard of review. According to the Byrge
majority, “a competency hearing presents a unique category of inquiry in which
the circuit court is in the best position to apply the law to the facts.” Id., ¶4. The
majority also observed that the United States Supreme Court “classifies
competency to stand trial within a discrete category in which the resolution of the
legal issue is better left to the [circuit] court.” Id., ¶44. “In the interest of
uniformity and consistency in constitutional decision making,” the Byrge majority
stated, Wisconsin courts should continue to apply the clearly erroneous standard of
review to competency decisions made by the circuit court. Id., ¶45. See also

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State v. Smith, 2016 WI 23, ¶26, 367 Wis. 2d 483, 878 N.W.2d 135 (referring to a
competency determination as “functionally a factual finding”).

¶20 Turning to the present appeal, T.R.T. argues that, unlike
competency, restorability should be treated differently as a mixed question of law
and fact. That is, when reviewing the circuit court’s determination about
restorability, T.R.T. argues that an appellate court should defer to the circuit
court’s findings of fact, but should independently review whether a defendant is
likely to be restored to competency with treatment. T.R.T. points out that the
question of “treatability” of mental health conditions is at issue in civil
commitments under WIS. STAT. § 51.20, and in those cases, the issue is reviewed
as a mixed question of law and fact. See Waukesha County v. J.W.J., 2017 WI
57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783. From that, T.R.T. argues that it would
be appropriate to review the judicial decision of restorability in competency
proceedings under the same standard.

¶21 In response, the State cites the law on involuntary medication orders,
which requires a court to determine that medication is “substantially likely to
render the defendant competent to stand trial.” Sell v. United States, 539 U.S.
166, 181 (2003). The State points out that, although Wisconsin courts have not
decided this issue, a majority of federal appeals courts review that determination
under the clearly erroneous standard of review. See United States v. Diaz, 630
F.3d 1314, 1330-31 (11th Cir. 2011).

¶22 Whatever the merits of these analogies to other legal contexts might
be, when it comes to competency determinations, we are not writing on a blank
slate. Although no Wisconsin case directly addresses the standard of review of a
restorability determination, we find Garfoot and Byrge to be instructive.

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¶23 It is true that the Garfoot court did not specifically state that it was
applying the clearly erroneous standard when reviewing a restorability
determination, but restorability was at issue in Garfoot, and the majority did not
suggest that a standard other than clearly erroneous should apply to restorability.
If we were to conclude that a different standard applied, our conclusion should be
based on some key distinction between the two inquiries.

¶24 T.R.T. does not persuasively identify any such distinction. He
argues that, unlike with a competency determination, an appellate court is in as
good a position as a circuit court to evaluate the record evidence, but this is not
necessarily the case. With regard to restorability, a circuit court must evaluate
how the defendant presents, and must also evaluate the credibility of the medical
testimony about the likelihood that various treatments will be successful, as the
court did in this case.

¶25 T.R.T. also suggests that restorability is more of a
“medical/psychological determination” than a judicial one because it involves a
psychologist’s assessment about whether a defendant’s condition can be improved.
Yet, if that characterization were accurate (and we do not necessarily agree that it
is), it would actually undermine T.R.T.’s argument about the appropriate standard
of review. That is because it would reinforce the conclusion that restorability is a
factual finding that the circuit court is in the best position to make, and that we
would review under the clearly erroneous standard.

¶26 In conclusion with respect to the standard of review, we are not
persuaded that we should review the restorability determination under a different
standard than the competency determination. To do so would introduce a
confusing lack of conformity and consistency in this area of law. Cf. Byrge, 237

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Wis. 2d 197, ¶¶38-45. We therefore conclude that, following the logic of Garfoot
and Byrge, we will apply the clearly erroneous standard to the restorability
determination at issue in this appeal.

¶27 Applying that standard, we conclude that the circuit court’s
restorability determination was not clearly erroneous. Here, as shown above,
supra ¶¶12-14, the court’s determination was based on evidence that was
presented at the hearing, and the court provided reasons for its determination that
are logical and consistent with the record facts. Although the court found that
T.R.T. was not competent, it did not discount the possibility that T.R.T. might be
exaggerating the effects that his various disorders had on his cognition and ability
to understand, process, and remember information. Benson’s testimony provided
evidentiary support for the determination that T.R.T.’s mental health disorders
were, generally speaking, of a kind that are amenable to treatment, and the court
was not persuaded by Benson’s opinion that T.R.T.’s neurocognitive deficits were
so permanent and profound that treatment of the mental health disorders would be
ineffective.

¶28 The circuit court’s reasons for rejecting Benson’s ultimate opinion
on restorability find support in the record. The court had reason to determine that,
with treatment for T.R.T.’s mental health disorders, the only remaining barrier to
competency would be T.R.T.’s neurocognitive disorder. As stated, Benson opined
that T.R.T.’s neurocognitive disorder was untreatable, and that the resulting
deficits were so profound that they would cause T.R.T. to struggle with basic
activities of daily living. Yet, even if the court credited Benson’s testimony that
the neurocognitive disorder was untreatable, the court could also credit Evers’
testimony that T.R.T. could carry on a normal conversation and did not have
trouble maintaining his hygiene, dressing himself, or keeping himself clean in the

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correctional setting. Thus, the court had reason to question the reliability of
Benson’s assessment of the severity of T.R.T.’s neurocognitive deficits, which
was a factual predicate of Benson’s opinion on restorability.2 If the
neurocognitive deficits were less profound than Benson believed, the court could
reasonably determine that, although the neurocognitive disorder could not be
treated, it would not, standing alone, be so profound as to prevent T.R.T.’s
competency from being restored once the mental health disorders were treated.
Accordingly, the court’s determination is not “against the great weight and clear
preponderance of the evidence,” nor is it “totally unsupported by the facts.”3

¶29 T.R.T. makes several related arguments to the contrary, with the
upshot of these arguments being that the circuit court erred when it disregarded
Benson’s opinion about restorability. We are not persuaded.

¶30 First, it appears that T.R.T. may be arguing that the circuit court was
bound to accept Dr. Benson’s opinion on restorability because Benson was the
only expert to offer an opinion on that issue. Yet, restorability is closely tied to
competency, which, as noted, is a judicial determination rather than a medical one.

2
T.R.T.’s appellate briefing seems to misconstrue the import of Evers’ testimony.
T.R.T. asserts: “Sgt. Evers’ testimony was largely intended to indicate that T.R.T. did not suffer
from a mental illness.” Whatever was intended by the testimony, the circuit court could have
reasonably relied on Evers’ testimony to conclude that some of the factual predicates of Benson’s
assessment of the neurocognitive function were incorrect.
3
There appear to be two different formulations of the clearly erroneous standard.
Generally, a finding is clearly erroneous if it is “against the great weight and clear preponderance
of the evidence.” Lowe’s Home Centers, LLC v. City of Delevan, 2023 WI 8, ¶25, 405 Wis. 2d
616, 985 N.W.2d 69. However, our supreme court has applied a different and potentially higher
formulation in the competency-to-stand trial context. See State v. Smith, 2016 WI 23, ¶30, 367
Wis. 2d 483, 878 N.W.2d 135 (providing that a competency determination is clearly erroneous if
it is “totally unsupported by the facts”). We need not determine whether the standard from Smith
also applies to the restorability determination because the circuit court’s determination in this
case is not clearly erroneous under either formulation of the standard.

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See Byrge, 237 Wis. 2d 197, ¶31. Thus, the court was not required to accept
Benson’s opinion on the matter, and here, the court reasonably rejected that
opinion because it was built on a factual predicate about T.R.T.’s level of
functioning that was contradicted by other facts in the record.

¶31 Next, T.R.T. argues that the circuit court was required to accept
Benson’s opinion based on the specific nature of a restorability determination.
Although T.R.T. acknowledges that, generally speaking, a circuit court is not
required to accept the testimony of any expert, see Smith, 367 Wis. 2d 483, ¶55,
T.R.T. asserts that restorability is a matter of “prognosis,” which is uniquely
within the province of medical experts. Therefore, he contends, once the court
accepted Benson’s opinion about T.R.T.’s diagnosis, it was likewise required to
accept Benson’s opinion on prognosis unless there was sufficient evidence to
suggest another outcome.

¶32 There are at least two problems with this argument. First, it appears
that the circuit court did not fully accept Benson’s opinion on diagnosis. That is,
the court credited Benson’s diagnosis of schizoaffective disorder and PTSD, and
also appeared to credit Benson’s determination that T.R.T. had some degree of
“intellectual functioning disability.” However, it did not necessarily credit
Benson’s diagnosis about the severity of the neurocognitive disorder, given what
the court knew about T.R.T.’s ability to function in the jail setting. Second, given
the court’s concerns about the factual predicates on which Benson’s prognosis was
based, it was appropriate for the court to draw its own conclusions about the
likelihood that T.R.T. could be restored with appropriate treatment. In other
words, there were reasons for the court to adopt certain aspects of Benson’s
opinion and to reject others, and here, the court persuasively explained its reasons
for doing so.

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No. 2025AP387-CR

¶33 Finally, T.R.T. contends that the circuit court should not be allowed
to “cherry pick information” in an expert report, but we do not see the court’s
rationale as an example of “cherry-picking.” Rather, as stated, the court examined
the reasons that Benson gave for concluding that T.R.T.’s competency could not
be restored and found them unpersuasive.

¶34 For all of the reasons explained above, we affirm the circuit court’s
decision with respect to T.R.T.’s restorability.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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