State v. B. M. 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.
November 21, 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 Nos.
2025AP1745-CR Cir. Ct. Nos. 2015CF117
2022CM614
2025AP1746-CR 2022CF907
2025AP1747-CR 2023CF295
2023CF481
2025AP1748-CR 2024CF488
2025AP1749-CR
2025AP1750-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

B.M.T.,

DEFENDANT-APPELLANT.

APPEALS from orders of the circuit court for Manitowoc County:
MARK R. ROHRER, Judge. Affirmed.

Before Gundrum, Grogan, and Lazar, JJ.
Nos. 2025AP1745-CR
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2025AP1749-CR
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¶1 LAZAR, J. In these consolidated appeals, B.M.T. seeks review of
involuntary medication orders entered in each of six underlying criminal cases.
The orders authorized the involuntary administration of psychotropic medication
to treat B.M.T.’s schizoaffective disorder with the goal of returning him to
competency to face the charges against him, which span more than a decade and
involve numerous felonies.

¶2 B.M.T. raises two issues relating to the constitutional sufficiency of
the medication orders under Sell v. United States, 539 U.S. 166 (2003). First,
B.M.T. argues that the State lacks an important interest in bringing him to trial,
because between his six criminal cases, he is charged with only two “serious
crime[s],” and because there is a significant “potential” for his future civil
commitment pursuant to either WIS. STAT. ch. 51 or the successful assertion of
WIS. STAT. § 971.15 (2023-24) defenses based on lack of mental responsibility for
his alleged crimes (“NGI”).1 Sell, 539 U.S. at 180. Second, B.M.T. contends that
the medication orders were insufficiently individualized to satisfy the due process
demands articulated in Sell. Id. at 182.

¶3 We disagree on both counts. We hold that the totality of the alleged
criminal conduct may be considered when determining whether the State has an
important interest in bringing a defendant to trial. Thus, when, as here, circuit
courts are presented with alleged “serious crime[s]” coupled with other allegedly
felonious conduct, an examination of the totality of the alleged criminal conduct is

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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in keeping with Sell’s directive to “consider the facts of the individual case in
evaluating the [g]overnment’s interest in prosecution.” Id. at 180.

¶4 We also hold that, under these facts, the possibility of a future WIS.
STAT. ch. 51 commitment or commitments under multiple NGI verdicts do not
constitute special circumstances that diminish the State’s interest in bringing
B.M.T. to trial. A ch. 51 commitment is an uncertain and speculative alternative
where, as has been the case throughout much of B.M.T.’s recent past, there is a
substantial possibility of outpatient treatment and a history of alleged criminal
violations during prior commitments. Also, given the multiple criminal cases
spanning nearly a decade, one or more NGI commitments pursuant to WIS. STAT.
§ 971.17 are also too speculative and uncertain to constitute special circumstances
that diminish the State’s interest in prosecution.

¶5 Finally, we conclude that the treatment plan approved by the circuit
court was sufficiently individualized to satisfy Sell’s due process demands. The
totality of the evidence demonstrates that the treatment plan was prepared after
evaluating B.M.T.’s individual needs and medical history. As we explain in detail
below, the treatment orders were based on a medically informed record. We
therefore affirm the involuntary medication orders.

BACKGROUND

¶6 B.M.T. was first diagnosed with schizoaffective disorder in 1995
and has been hospitalized numerous times, including nine hospitalizations at
Winnebago County Mental Health Institute starting in 2001. He previously
underwent restoration-to-competency treatment in 2006, 2013, and 2014. In 2013

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and 2014, B.M.T. was restored to competency in an inpatient setting after
involuntary medications were ordered.

¶7 B.M.T. resided at the Trempleau County Health Care Center
between 2015 and 2019. He has been committed several times under WIS. STAT.
ch. 51 and received outpatient services between 2019 and 2023. B.M.T.’s most
recent civil commitment ended in March 2024, at which time B.M.T. stopped
participating in psychiatric care and became homeless.

¶8 Over the past decade, B.M.T. has been charged with twenty offenses
across six different criminal cases. Nine of those charges are felonies. The oldest
of these cases is from 2015, when B.M.T. was charged with battery by a prisoner,
disorderly conduct, and two counts of misdemeanor bail jumping based upon
allegations that he had head-butted a corrections officer and had threatened
violence during the altercation.

¶9 After being in institutional care for several years, B.M.T. in 2022
was charged with misdemeanor battery and disorderly conduct, each as an act of
domestic abuse. The criminal complaint alleged that B.M.T. became agitated for
an unknown reason while in the back seat of a car and pulled his sister’s hair and
threatened to strike her with his cell phone. When B.M.T. was later taken into
custody in connection with that incident, he was allegedly found to have
methamphetamine and drug paraphernalia in his possession. He was charged in a
separate case with those offenses, a felony and a misdemeanor, respectively.

¶10 In April 2023, B.M.T. was alleged to have initiated a physical
altercation after a roommate asked him to turn off a light. He allegedly spit at the

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victim and then punched her in the face, necessitating stitches. B.M.T. was
charged with substantial battery and disorderly conduct as acts of domestic abuse,
as well as felony and misdemeanor bail jumping.

¶11 In June 2023, B.M.T. was cited for multiple instances of trespassing
when he stood outside a gas station on several different days asking customers to
buy him cigarettes or give him money. Ultimately, his alleged refusal to cease this
activity garnered a disorderly conduct charge, as well as two additional charges of
felony bail jumping and a single count of misdemeanor bail jumping. B.M.T. was
ordered not to have any further contact with the gas station, but he allegedly did so
again in July 2024, which led to an additional four bail-jumping charges, three of
which were felonies.

¶12 B.M.T. was appointed counsel and his competency was questioned.
Following an evidentiary hearing, B.M.T. was found not competent to assist in his
own defense, and in December 2024, he was committed to the custody and care of
the Department of Health Services (“DHS”) until such time as he could regain
competency. B.M.T. did not appear for a competency review hearing in
April 2025 and was taken into custody on a bench warrant. He was admitted to
the Mendota Mental Health Institute for competency treatment on May 22, 2025.

¶13 DHS filed a competency report the next month foreshadowing a
request for an involuntary medication order. The report noted B.M.T.’s lack of
insight into his mental health diagnoses and his consistent refusal of all
medications when not under circuit court order. Upon his admission to Mendota,
B.M.T. informed clinical staff he did not plan on taking medications. The report

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noted several instances of erratic behavior, including B.M.T.’s statements to staff
that he had undergone physical changes, like growing new tendons in his wrist,
since being admitted to Mendota. A few days later, Dr. Kevin Murtaugh, a
psychiatrist at Mendota, formally moved for an involuntary medication order to
treat B.M.T. to competency. See WIS. STAT. § 971.14(5)(am).

¶14 Murtaugh wrote in his treatment plan that B.M.T. displayed “clear
signs of psychotic illness” since his admission to Mendota. Murtaugh explained
that B.M.T. was unlikely to become competent to stand trial without medication,
as “[a]ntipsychotic medication is the only evidence-based treatment for
schizoaffective disorder.” B.M.T. had refused to engage in any discussion when
Murtaugh attempted to explain the advantages, disadvantages, and alternatives of a
prescribed oral dose of aripiprazole (Abilify). B.M.T. did not ask any questions or
express any specific concerns about the medication; rather, he stated he would not
take any medications.

¶15 In terms of the medications requested, Murtaugh noted that B.M.T.
had “previously responded fairly well to long-acting injectable haloperidol,” but
that B.M.T. had “said he did not like how it made him feel.” Murtaugh’s report
also discussed B.M.T.’s prior treatment with another medication, paliperidone.
Paliperidone had been administered in the long-acting injectable form, but
Murtaugh wrote that it was unclear from the records whether B.M.T. had taken it
long enough to adequately treat his symptoms. Murtaugh noted that B.M.T.
believed “paliperidone was less ‘harsh on [his] system’ than haloperidol.”

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¶16 Murtaugh ultimately recommended a long-acting, 400 mg-per-month
Abilify injection in combination with a 30 mg daily oral dose of Abilify for the
first two or three months of treatment. If B.M.T. refused the oral Abilify,
Murtaugh proposed to administer 5-10 mg of olanzapine daily in combination with
the long-acting Abilify injection. Murtaugh testified that it was likely Abilify
would render B.M.T. competent to stand trial.

¶17 Although Murtaugh provided his opinions to a reasonable degree of
medical certainty, he added that he could not guarantee the medication would
result in restoration to competency. He noted that Abilify was a new medication
for B.M.T., and it was impossible for him to predict the degree of improvement in
any specific patient. However, he explained that he chose Abilify because
haloperidol, while a “helpful medication” for B.M.T. in terms of reducing his
symptoms, caused him not to feel well. Abilify, according to Murtaugh, was a
newer, better medication than haloperidol, and well-tolerated by most patients.
Murtaugh “wanted to give [B.M.T.] an opportunity to take something that I
thought might work well for him and be likely to cause fewer side effects.”

¶18 Murtaugh stated he had no reason to expect adverse reactions to the
medication. He testified B.M.T. was a “generally … healthy man,” and he was
not aware of any other medications or underlying medical conditions that would
preclude the use of any specific psychiatric medication. Murtaugh also offered
that there were no medical concerns or physical characteristics that would
necessitate dose adjustment. He did not have reason to believe B.M.T. would
suffer any side effects from the medication, but he noted that such things could be
difficult to predict given the nature of psychiatric medications. To the extent

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B.M.T. suffered any adverse effects, Murtaugh stated his treatment providers
would either stop the medication or address the symptoms B.M.T. was
experiencing.

¶19 Based upon Murtaugh’s report and testimony, the circuit court
ordered the involuntary administration of psychotropic medication. The court
found that B.M.T. was “incapable of expressing an understanding of the
advantages and disadvantages of accepting medication or treatment and the
alternatives.” See WIS. STAT. § 971.14(3)(dm), (4)(b).

¶20 The circuit court then determined the involuntary administration of
medication was consistent with Sell’s due process protections. First, the court
identified an important governmental interest, namely bringing B.M.T. to trial on
the numerous felony counts. Second, the court concluded that the involuntary
administration of medication would significantly further that interest given the
uncontroverted testimony that the medication would assist in restoring B.M.T. to
competency. Third, the court found that there were no less intrusive treatments
that were likely “to achieve substantially the same result.” Fourth and finally, the
court found that the proposed treatment plan was medically appropriate and in
B.M.T.’s best interest in light of his medical condition. On that point, the court
determined Murtaugh’s proposed treatment plan was sufficiently individualized, in
that it was based on a review of B.M.T.’s medical history, medical conditions, and
risk factors or side effects, and it specified the medications, dosages, and
frequency of administration.

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¶21 B.M.T. filed a notice of intent to pursue postconviction or appellate
relief, triggering an automatic 14-day stay of the medication order pursuant to
WIS. STAT. RULE 809.109(7)(a). B.M.T. moved to continue the stay. This court
denied the motion by order dated August 5, 2025. These appeals were then
consolidated for purposes of briefing and disposition.

DISCUSSION

¶22 The Due Process Clause of the Fourteenth Amendment protects a
defendant’s “significant liberty interest” in “avoiding the unwanted administration
of antipsychotic drugs[.]” Johnson v. Tinwalla, 855 F.3d 747, 748 (7th Cir. 2017)
(quoting Washington v. Harper, 494 U.S. 210, 229 (1990)). Consistent with this
protection, the government is constitutionally permitted to involuntarily administer
antipsychotic drugs to a mentally ill defendant facing serious criminal charges “if
the treatment is medically appropriate, is substantially unlikely to have side effects
that may undermine the fairness of the trial, and taking account of less intrusive
alternatives, is necessary significantly to further important governmental
trial-related interests.” Sell, 539 U.S. at 179.

¶23 Under this standard, the State must demonstrate, by clear and
convincing evidence, that: (1) the State has an important interest in proceeding to
trial; (2) involuntary medication will significantly further that interest;
(3) involuntary medication is necessary to further that interest; and (4) involuntary
medication is medically appropriate. Id. at 180-81; see also State v. Green, 2021
WI App 18, ¶16, 396 Wis. 2d 658, 957 N.W.2d 583, aff’d in part, 2022 WI 30,

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401 Wis. 2d 542, 973 N.W.2d 770. The involuntary administration of medication
is permissible only if each factor is satisfied. Green, 396 Wis. 2d 658, ¶16.

¶24 B.M.T. challenges, under Sell, two aspects of his involuntary
medication orders. First, B.M.T. concedes that he has been charged with two
“serious crimes,” but he argues that the remainder of the charges against him are
unimportant for Sell purposes and that special circumstances—the possibility of
future commitments under WIS. STAT. §§ 51.20 or 971.17—lessen the State’s
interest in prosecuting him, thereby depriving the government of an important
interest under the first Sell factor.

¶25 Second, B.M.T. argues that the involuntary medication orders are
insufficiently individualized and therefore violate his due process rights under
Sell. He argues that the orders are akin to the “general” treatment plans
invalidated in Green, 396 Wis. 2d 658, ¶34. B.M.T. reasons that his treatment
orders are not premised on a sufficient assessment of B.M.T.’s medical condition
or information, including potential side effects. See id., ¶42.

¶26 Before turning to B.M.T.’s two due process arguments, we pause to
address the applicable standard of review to apply in analyzing the Sell factors.
B.M.T. argues courts should review a Sell determination as a matter of
constitutional fact. Such a review requires a two-tier approach, under which
questions of historical fact are resolved by applying the clearly erroneous standard,
while the determination of whether those facts meet the legal standard is reviewed
de novo. See State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733 N.W.2d 634. The

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State argues the standard of review is irrelevant, because the “State prevails under
either a de novo or clearly erroneous standard for all Sell factors.”

I. We need not settle the existing uncertainty regarding the standard of review
applicable to the Sell analysis because the State has satisfied its burden
even applying the most favorable standard of review to B.M.T.

¶27 Wisconsin law is not settled on the standard of review to apply in an
appeal involving a Sell determination. See State v. D.E.C., 2025 WI App 9, ¶35,
415 Wis. 2d 161, 17 N.W.3d 67 (2024), review denied, 2025 WI 16, 23 N.W.3d
216. Three cases—Green, 396 Wis. 2d 658, ¶20; State v. J.D.B., 2024 WI App
61, ¶34, 414 Wis. 2d 108, 13 N.W.3d 525, review granted, 2025 WI 8, 18 N.W.3d
694; and D.E.C., 415 Wis. 2d 161, ¶35—have declined to decide the applicable
standard of review because each concluded the result would have been the same
regardless of which standard of review applied. We take the same approach here.2

II. Special circumstances attendant to B.M.T.’s cases do not diminish the
State’s important interest in bringing B.M.T. to trial.

¶28 Sell recognized the importance of the government’s interest in
bringing to trial an individual accused of a serious crime—regardless of whether
that crime was against a person or against property. Sell, 539 U.S. at 180. Indeed,
the prosecution of serious crimes effectuates “the basic human need for
security[,]” id., and as such the government’s power to bring an accused to trial is
“fundamental to a scheme of ‘ordered liberty’ and prerequisite to social justice and

2
We note that the applicable standard of review may be resolved by our supreme court
as part of the pending proceedings in State v. J.D.B., 2024 WI App 61, 414 Wis. 2d 108, 13
N.W.3d 525, review granted, 2025 WI 8, 18 N.W.3d 694. Oral argument in that case was held on
September 8, 2025.

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peace,” Riggins v. Nevada, 504 U.S. 127, 135-36 (1992) (quoting Illinois v. Allen,
397 U.S. 337, 347 (1970) (Brennan, J., concurring)).

¶29 As a threshold matter, B.M.T. acknowledges that he has been
charged with two serious crimes: battery by a prisoner in 2015 and substantial
battery as an act of domestic abuse in 2023. The former is a Class H felony, WIS.
STAT. § 940.20(1) (2015-16); the latter is a Class I felony, WIS. STAT. § 940.60(2).
We agree with B.M.T.’s concession: these two offenses undoubtedly constitute
serious crimes that B.M.T. is alleged to have committed. See J.D.B., 414 Wis. 2d
108, ¶36 (holding that battery to a law enforcement officer is a “serious crime”
under Sell).

¶30 B.M.T. argues none of his other 18 charges are “serious” in the
context of the first Sell factor. In so arguing, B.M.T. directs us to more than a
dozen Wisconsin statutes that declare particular offenses to be “serious” for one
purpose or another. As justification for this focus on legislative declaration,
B.M.T. appears to rely on J.D.B., which noted that federal circuit courts had not
reached a uniform method for determining whether a crime was “serious” under
Sell. J.D.B., 414 Wis. 2d 108, ¶36. Therefore, the J.D.B. court looked to some
state statutes using that term (including WIS. STAT. § 969.08), as well as the
potential penalties for the alleged crime. See J.D.B., 414 Wis. 2d 108, ¶36. These
matters, together with the violent nature of the offense, convinced the J.D.B. court
that battery to a law enforcement officer was a serious crime. Id.

¶31 The State takes issue with B.M.T.’s approach to the question of
whether he is charged with serious crimes. In the State’s view, that determination

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“does not turn on a canvassing of unrelated statutes.”3 Instead, the State
emphasizes that under Sell we are to “consider the facts of the individual case in
evaluating the [g]overnment’s interest in prosecution.” Sell, 539 U.S. at 180. And
so, the State argues that “being charged with ‘a serious crime’ is sufficient, but not
necessary, to satisfy the first Sell factor, the ultimate touchstone of which is the
importance of the government’s interest in prosecution.” Accordingly, the State
proposes that when a defendant has been charged with a serious crime, the inquiry
ends, and we need not consider whether there are other special circumstances that
diminish the State’s interest in prosecution.

¶32 It is not necessary for us to adopt the State’s categorical rule to
conclude that the first Sell factor is satisfied here. B.M.T.’s concession, coupled
with other aspects of the various criminal cases, lead to the inescapable conclusion
that the State has an important—perhaps even compelling—interest in bringing
B.M.T. to trial.

¶33 The nature of the criminal charges and B.M.T.’s significant criminal
exposure weigh heavily in this analysis. As B.M.T. concedes, the two felony
battery charges are serious matters. The alleged violence permeating B.M.T.’s
criminal history is particularly concerning.

3
In a footnote, B.M.T. observes that substantial battery is not identified as a serious
crime under WIS. STAT. § 969.08(10)(b), which pertains to the revocation of pretrial conditions of
release, though substantial battery is defined as such for some other reporting purposes. See WIS.
STAT. §§ 48.685(1)(c); 50.065(1)(e). So, despite conceding that substantial battery is a serious
crime for Sell purposes, B.M.T. seems somewhat unpersuaded by his own statutory declaration
arguments. At a minimum, B.M.T. seems to acknowledge that a “serious crime” under Sell
cannot depend on the definition adopted by any one existing statute.

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¶34 More generally, the collective twenty charges, nine of which are
felonies, reflect an individual who is allegedly incapable or unwilling to conform
his conduct to the requirements of the law. Although the many bail-jumping
charges are not serious in isolation, the sheer volume of such charges over nearly a
decade speak to the State’s interest in resolving these various criminal matters. As
the State notes, the existing charges expose B.M.T. to a total of more than 50
years’ imprisonment.

¶35 One of the cases on which B.M.T. relies, United States v. White,
620 F.3d 401 (4th Cir. 2010), endorses this collective approach. There, the
defendant was charged with entirely nonviolent crimes, consisting of six total
counts for conspiracy to commit credit card fraud, credit card fraud, and
aggravated identity theft. Id. at 405. Collectively, the crimes were punishable
with up to 37 years’ imprisonment. Id. at 411. Applying Fourth Circuit
precedent, the court concluded that because the defendant was facing more than
ten years’ criminal exposure, she had been charged with “serious” crimes for
purposes of Sell. White, 620 F.3d at 411 (citing United States v. Evans, 404 F.3d
227, 238 (4th Cir. 2005)).

¶36 Sell, White, and J.D.B. collectively counsel that the extent of the
defendant’s criminal exposure—in nature, scope, and penalty—informs the
government’s interest in bringing the defendant to trial. Here, the State’s interest
extends not merely to the two conceded “serious crimes” of battery, but to the
whole panoply of alleged criminal conduct. We therefore accept B.M.T.’s
concession that, as a general matter, the State has demonstrated an important
interest in bringing B.M.T. to trial.

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¶37 B.M.T. argues there are special circumstances attendant to his cases
that diminish the State’s interest in bringing him to trial. B.M.T. correctly notes
that, contrary to the State’s assertion, it is not sufficient under the first Sell factor
that the State generally has an important interest in bringing anyone to trial who is
charged with a serious crime. See J.D.B., 414 Wis. 2d 108, ¶37. “The inquiry is
whether, under the particular circumstances of each individual case, the State has
an important interest in bringing that defendant to trial on that serious charge.” Id.
(first emphasis added).

¶38 In this respect, B.M.T. asserts that there are two related special
circumstances that diminish the State’s interest in prosecution. Seizing on Sell’s
observation that “[t]he potential for future confinement affects, but does not totally
undermine, the strength of the need for prosecution[,]” Sell, 539 U.S. at 180,
B.M.T. argues that there is a significant potential he will be confined through
mechanisms other than a criminal prosecution. Specifically, B.M.T. claims there
is a significant potential of another WIS. STAT. ch. 51 commitment or of his future
successful assertion of WIS. STAT. § 971.15 NGI defenses.4 Neither of these

4
The “significant potential” of these two mechanisms—a WIS. STAT. ch. 51 civil
commitment or a defense asserting lack of responsibility by reason of mental disease or defect—
have been identified by our court as undercutting the State’s interest in bringing a defendant to
trial. See J.D.B., 414 Wis. 2d 108, ¶41. However, as the State notes, a defendant who is
incompetent to stand trial cannot reach the guilt phase of an NGI proceeding, because such a
defendant cannot enter a guilty plea or be tried criminally. See WIS. STAT. § 971.13(1).

(continued)

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mechanisms, however, diminish the State’s important interest in bringing
B.M.T. to trial in this instance.

¶39 Turning first to the potential for a future WIS. STAT. ch. 51
commitment, we conclude such a possibility does not cast doubt on the
government’s interest in moving toward trial on B.M.T.’s pending cases. Prior
ch. 51 commitments have been ineffective at preventing additional alleged
criminal conduct, and B.M.T. provides no reason to believe a future commitment
will accomplish what previous commitments could not.

¶40 On that point, the State notes that WIS. STAT. ch. 51 commitments
are designed to be of short duration. The initial commitment lasts no more than
six months, with subsequent consecutive orders of commitment limited to no more
than a year. See WIS. STAT. § 51.20(13)(g)1. Also, B.M.T. does not dispute the
State’s assertion that some portion of a future commitment might be on an
outpatient basis, consistent with B.M.T.’s most recent experience. Civil
commitment as an outpatient is not the type of civil confinement that Sell
contemplated would diminish the government’s interest in prosecution. See
United States v. Dillon, 738 F.3d 284, 294-95 (D.C. Cir. 2013).

Based on the briefing and oral argument in J.D.B., how to determine whether an alleged
crime is “serious” for Sell purposes, and what “special circumstances” might diminish the
government’s interest in prosecution, appear to be issues that are presently before our supreme
court. For the time being, however, we are obligated to follow existing precedent, see Cook v.
Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), and given the short statutory decision
period in this case, see WIS. STAT. RULE 809.109(5)(d), we do not think it prudent to hold the
case pending our supreme court’s decision in J.D.B.—nor has any party asked us to do so.

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¶41 We are unpersuaded that J.D.B. counsels otherwise. There, the
defendant’s competency proceedings were converted to a civil commitment under
WIS. STAT. ch. 51. J.D.B., 414 Wis. 2d 108, ¶21. The court observed that there
was a “significant potential” for the defendant’s future civil commitment, in part
because the mental health crisis precipitating the alleged offense was being
addressed through the ongoing ch. 51 proceedings. Id., ¶41. Not so here, where
the possibility of further civil commitment for B.M.T. remains “uncertain and
speculative,” see id., ¶40, and previous commitments have been ineffective at
addressing B.M.T.’s alleged criminality.

¶42 Also unlike in J.D.B., the Record here does not demonstrate a
possibility of a future acquittal for B.M.T. based on the successful assertion of an
NGI defense. An NGI acquittal results in, for felony offenses, a period of
commitment to the DHS not to exceed the maximum term of confinement that
could be imposed for the crimes. See WIS. STAT. § 971.17(1)(b). We cannot
deem the possibility of such a commitment anything other than “uncertain and
speculative,” given that B.M.T.’s alleged crimes encompass a wide variety of
criminal activity occurring for nearly a decade. The J.D.B. court did not need to
grapple with our scenario here; that case involved a single offense that occurred on
the same day as the defendant was seen by health professionals for “homicidal
thoughts.” J.D.B., 414 Wis. 2d 108, ¶41.

¶43 The State also argues that reversing the involuntary medication
orders in this case would violate the victims’ constitutional rights under WIS.
CONST. art. I, § 9m(2). Because we conclude on other grounds that the State
adequately satisfied its burden of demonstrating an important interest in bringing

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B.M.T. to trial, we do not decide this issue. See State ex rel. Oitzinger v. City of
Marinette, 2025 WI App 19, ¶76, 415 Wis. 2d 635, 19 N.W.3d 663 (observing the
court of appeals decides cases on the narrowest possible grounds).

III. The involuntary medication order does not violate B.M.T.’s due process
rights because his treatment plan was sufficiently individualized under the
second and fourth Sell factors.

¶44 The second, third, and fourth Sell factors collectively concern the
efficacy of involuntary medication in relation to the State’s interest in prosecution,
as well as the medical appropriateness of the medication. Together, these factors
require the State to put forth an individualized treatment plan that

“[a]t a minimum,” identifies “(1) the specific medication or
range of medications that the [defendant’s] treating
physicians are permitted to use …, (2) the maximum
dosages [of those medications] that may be administered,
and (3) the duration of time that involuntary treatment …
may continue before the treating physicians are required to
report back to the court .…”

Green, 396 Wis. 2d 658, ¶38 (citations omitted).

¶45 B.M.T. argues his treatment plan was “insufficiently particularized”
under the second and fourth Sell factors. On the second factor, B.M.T. contends
the State failed to demonstrate that treatment with Abilify and olanzapine is
“substantially likely” to restore him to competency and “substantially unlikely” to
have side effects that interfere with his defense. See Green, 396 Wis. 2d 658,
¶¶38-39. On the fourth factor, B.M.T. argues the treatment plan is insufficiently
individualized to prove that involuntary medication with Abilify and olanzapine
was “medically appropriate” for him. See id., ¶40.

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¶46 In these respects, B.M.T. argues the treatment plan here fails for
much the same reason as the treatment plan in Green. Green observed that

[t]he defendant’s age and weight, the duration of his or her
illness, his or her past responses to psychotropic
medications, his or her cognitive abilities, other
medications he or she takes, and his or her medical record
may all influence whether [the administration of] a
particular drug given at a particular dosage … is
“substantially likely”

to restore the defendant to competency. Id., ¶38. Such individualized
considerations prevent the State from “simply offer[ing] a generic treatment plan
with a medication and dosage that are generally effective for a defendant’s
condition.” Id., ¶34.

¶47 The treatment plan authorized by the circuit court is not a generic
treatment plan lacking any nexus to B.M.T. When preparing the treatment plan,
Murtaugh reviewed B.M.T.’s records from the current Mendota admission;
Winnebago County Mental Health Institute records from 2023, 2021, and 2020;
and competency evaluations by three different psychologists in 2024 and 2025.
Murtaugh specifically identified two drugs triggering adverse drug reactions in
B.M.T.; neither was proposed as medication for his treatment.

¶48 The Record belies B.M.T.’s assertion that Murtaugh selected Abilify
and olanzapine for treatment without any regard for B.M.T.’s individual
characteristics. Murtaugh’s report and testimony demonstrate that he carefully
considered B.M.T.’s past experience with antipsychotic medications haloperidol
and paliperidone. See D.E.C., 415 Wis. 2d 161, ¶45 (“When someone has such a
history, treatment providers may have a head start in zeroing in on one or more

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antipsychotics (and perhaps also zeroing in on specific dosages) that might be
effective for a patient and not cause significant side effects.”).

¶49 In fact, Murtaugh specifically selected Abilify for treatment because
B.M.T. reported that he did not like how haloperidol made him feel, and B.M.T.’s
records failed to establish that paliperidone had been administered for a sufficient
time to gauge B.M.T.’s response to that medication. As for the method of
administering medication, the treatment plan expressed a preference for a
long-acting injectable given B.M.T.’s poor history of medication compliance.
Further, the plan states that the proposed medications were in appropriate dosages
given B.M.T.’s medical history and individual physical characteristics like height
and weight.

¶50 B.M.T. argues that the Record is incomplete regarding Murtaugh’s
choice of olanzapine as a fallback medication. It is true that there was little
testimony about the selection of olanzapine specifically. But, as set forth above,
that does not make the treatment plan a general one, devoid of any consideration
of B.M.T.’s individual characteristics. Murtaugh’s selection of olanzapine to
accompany the long-acting Abilify injection was presumably informed by the
same health and treatment history considerations that informed the selection of
Abilify. Certainly, Murtaugh’s observation that B.M.T. had no underlying
medical conditions or prescriptions that would preclude the use of any specific
medication applies equally to Abilify and olanzapine.

¶51 We are unpersuaded that under these facts, more detailed
information about olanzapine was necessary for the State to meet its burden. The

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State’s obligation is to show a “‘substantial likelihood’ that the plan will result in
successful treatment based on ‘evidence specific to the individual,’ which does not
require a listing of each and every medical consideration or procedure that a
testifying psychiatrist may testify about.” D.E.C., 415 Wis. 2d 161, ¶51 (quoting
Green, 396 Wis. 2d 658, ¶33). Here, the first-order medication Abilify was,
naturally, the main focus of the testimony, as that was the only drug that would be
administered with certainty.

¶52 On this point, we also note the lack of defense questioning on the
selection of olanzapine, among other things. It is true that, as B.M.T. emphasizes,
the State bears the burden of proving “by clear and convincing evidence that
involuntary medication was ‘substantially likely to render the defendant competent
to stand trial’ and ‘substantially unlikely to have side effects that will interfere
significantly with the defendant’s ability to assist counsel in conducting a trial
defense[.]’” Green, 396 Wis. 2d 658, ¶37 (quoting Sell, 539 U.S. at 181).

¶53 The allocation of that burden on the State does not, however, absolve
the defendant from creating an evidentiary record that supports an appellate
challenge. In D.E.C., for example, the court observed that the defendant “did not
provide the circuit court with a good reason to question whether the treatment plan
would be safely administered[,]” 415 Wis. 2d 161, ¶47, nor did defense counsel
ask “about whether administration of more than one medication at [a] time was
contemplated,” id., ¶53.

¶54 Here, as the State observes, B.M.T.’s decision not to question
Murtaugh about olanzapine “exposed [him] to the risk that the circuit court would

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accept the uncontested representations in the individualized treatment plan.”
Quoting D.E.C., the State continues, “[i]f there was anything in the additional
medications that appeared inappropriate to defense counsel, [Murtaugh] was
available to testify on that topic.” Id., ¶76.

¶55 B.M.T. also highlights Murtaugh’s testimony that he could not be
certain of restoration to competency even following treatment with the proposed
medications, and that he was uncertain precisely how B.M.T. might react to
Abilify. But “the Sell standard does not require certainty.” Green, 396 Wis. 2d
658, ¶33. Sell tolerates some trial-and-error on the part of treating physicians
when a defendant has no experience with a prescribed antipsychotic, both in terms
of assurances of effectiveness and in terms of addressing side effects. See D.E.C.,
415 Wis. 2d 161, ¶45. It is not fatal to the treatment plan here that Murtaugh
could not guarantee Abilify’s effectiveness or predict with perfect accuracy
whether B.M.T. would suffer any side effects.

¶56 D.E.C. confirms that we look to the totality of the evidence before
the circuit court to determine whether the treatment order was based on a
“medically informed record.” Id., ¶75; see also Green, 396 Wis. 2d 658, ¶2. The
treatment plans in Green and J.D.B. failed in this regard, but in those cases—
unlike here—the physician had done little to tailor the plans to the individual
defendant.

¶57 In Green, for example, the testifying physician did no more than
offer an opinion regarding the efficacy of the proposed medication in individuals
with the same psychotic disorder; he had not reviewed Green’s medical records,

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he was not involved in prescribing medication for Green, and no prescription
could be ordered without further face-to-face evaluation and identification of any
comorbidities. Green, 396 Wis. 2d 658, ¶¶21-22, 32.

¶58 Despite the physician in J.D.B. having conducted in-person
evaluations, the resulting treatment plan was defective for reasons that do not
apply to B.M.T. The plan in that case did not specify medication frequency or
sequencing, nor was there any evidence the dose ranges were individualized to the
defendant. J.D.B., 414 Wis. 2d 108, ¶¶56, 58-59. The plan merely contained an
unordered list of seven possible medications. Id., ¶58. Additionally, parts of the
treatment plan were plainly false. Whereas the plan reported that the defendant
had no physical health conditions, in fact he had diabetes and had been prescribed
medication to prevent seizures. Id., ¶60.

¶59 Based on the foregoing, we conclude that the State satisfied its
burden of proof under Sell. The treatment plan approved by the circuit court is
sufficiently individualized to satisfy due process demands.

CONCLUSION

¶60 Pursuant to Sell, when determining whether to authorize the
involuntary administration of psychotropic medication to restore an incompetent
defendant to competency, the circuit court may consider the totality of the alleged
criminal conduct to assess whether the State has an important interest in bringing a
defendant to trial. When, as here, there are “serious crimes” coupled with other
allegedly felonious conduct, a court need not ignore the defendant’s total criminal
exposure when assessing whether there are special circumstances that otherwise

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diminish the State’s interest. Here, the possibility of a future WIS. STAT. ch. 51
commitment order or commitment pursuant to one or more NGI verdicts does not
override the State’s weighty interest in prosecuting B.M.T.

¶61 Finally, the treatment plan approved by the circuit court to restore
B.M.T. to competency was sufficiently individualized to satisfy Sell’s due process
demands because it was based on a medically informed record. The treatment
plan was tailored to B.M.T.’s physical characteristics and mental disorder, and it
took into account his past experience with psychotropic medication and the
possibility of any adverse side effects. Accordingly, we affirm the orders of the
circuit court.

By the Court.—Orders affirmed.

Recommended for publication in the official reports.

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