Action Proceeding Pima County Cause No. CR20164468001
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
Presiding Judge Staring authored the opinion of the Court, in
which Judge Espinosa and Judge Kelly  concurred.
STARING, PRESIDING JUDGE.
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.
and Procedural Background
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
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. §
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.
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)." 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.
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
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. ...