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Cotner v. Liwski

Court of Appeals of Arizona, Second Division

August 16, 2017

Amy Elizabeth Cotner, Petitioner,
Hon. Danelle B. Liwski, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

         Special Action Proceeding Pima County Cause No. CR20164468001

          Joel Feinman, Pima County Public Defender By Lisa M. Surhio, Assistant Public Defender, Tucson Counsel for Petitioner.

          Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Real Party in Interest.

          Presiding Judge Staring authored the opinion of the Court, in which Judge Espinosa and Judge Kelly [1] concurred.



         ¶1 In this special action, petitioner Amy Cotner challenges the respondent judge's order requiring the forced administration of antipsychotic medication pursuant to A.R.S. §§ 13-4511(1) and 13-4512(E), and Rule 11.5(b)(3), Ariz. R. Crim. P., after finding Cotner incompetent in the underlying criminal proceeding and committing her to an in-custody restore-to-competency (RTC) program. Cotner contends the respondent abused her discretion by misinterpreting and incorrectly applying the standard for issuing involuntary medication orders, as established in Sell v. United States, 539 U.S. 166 (2003). For the reasons that follow, we accept jurisdiction of this special action and grant Cotner relief.

         Factual and Procedural Background

         ¶2 At the outset, we note that both below and before this court, real party in interest State of Arizona has expressly taken no position in this matter. We therefore base our recitation of the facts and procedural history on Cotner's special-action petition and the record she has provided this court.

         ¶3 In January 2016, Tucson police officers responded to a report of a disturbance on a public bus. When they arrived, it appeared Cotner was experiencing an acute episode of mental illness. Although Cotner stated she recognized one of the officers and agreed to talk to him, another officer attempted to restrain her and place her in handcuffs. She struggled with the officers, kicking them and inflicting minor cuts on one officer's hands. The Pima County Attorney's Office initially refused to file felony charges against Cotner, and the officers filed misdemeanor charges in Tucson City Court. The city prosecutor later dismissed those charges and Cotner was charged by indictment with three counts of aggravated assault of a peace officer, one class four and two class five felonies, in violation of A.R.S. § 13-1204(A)(8)(a).

         ¶4 In December 2016, Cotner's counsel filed a motion for mental competency examination, pursuant to Rule 11, Ariz. R. Crim. P., stating Cotner had sustained a serious head injury in a February 2016 automobile accident that "may have affected her cognitive functioning." Counsel also stated that she and Cotner's behavioral health caseworker believed Cotner's condition was deteriorating while she was in the Pima County Jail, and they questioned whether the medications she had been taking were working properly. In January 2017, the respondent appointed psychiatrist Stephen Streitfeld, M.D., and psychologist Sergio Martinez, Ph.D., to examine Cotner and provide opinions about whether she was competent to stand trial.

         ¶5 Streitfeld concluded Cotner was not competent to stand trial but was restorable. Martinez opined Cotner was competent, but only if medicated. After a February 28 hearing, the respondent found Cotner was not competent and ordered her to participate in Pima County's out-of-custody RTC program. On June 3, Cotner was arrested on a new charge and, two days later, the respondent ordered her to participate in the in-custody RTC program. The respondent found Cotner was "incompetent to refuse treatment and should be subject to involuntary treatment pursuant to A.R.S. §§ 13-4511 and 13-4512(E)."[2] Cotner filed an objection the following day, arguing that ordering her to take antipsychotic medication without making the findings required by Sell violated her due process rights under the Arizona and United States Constitutions.

         ¶6 After a June 9 hearing, at which the state took no position and deferred to the trial court, the respondent nevertheless entered Sell findings, denied Cotner's request for an evidentiary hearing, and ordered her to take medication. The respondent also denied Cotner's request for a stay of the order while she sought special-action relief in this court. We subsequently granted Cotner's request for a stay pending our consideration of this special action.

         Special-Action Jurisdiction

         ¶7 We have broad discretion in determining whether to accept special-action jurisdiction. See State v. Campoy,220 Ariz. 539, ¶ 2, 207 P.3d 792, 795 (App. 2009). Here, the challenged order is interlocutory and Cotner has no equally plain, speedy and adequate remedy by appeal. See Ariz. R. P. Spec. Act. 1(a); see also Potter v. Vanderpool,225 Ariz. 495, ¶ 7, 240 P.3d 1257, 1260 (App. 2010). Also, whether the respondent misapplied Sell is a question of law, which lends itself to review by special action. See State v. Bernini, 222 Ariz. 607, ¶ 8, 218 P.3d 1064, 1068 (App. 2009) ("questions of law . . . appropriately reviewed by special action"). Further, the issue of whether to compel the medication of criminal defendants with antipsychotics in the context of Rule 11 proceedings is likely to recur, and we are not aware of any published opinions in Arizona regarding the application of Sell. See Lear v. Fields,226 Ariz. ...

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