MILLER, Presiding Judge.
After Joshua Johnson was indicted for armed robbery (OCGA § 16-8-41), aggravated assault (OCGA § 16-5-21), and misdemeanor obstruction of a law enforcement officer (OCGA § 16-10-24), defense counsel requested an evaluation of Johnson's competency. The trial court ordered a psychological evaluation, held a hearing as required by Sell v. United States, 539 U.S. 166 (123 S.Ct. 2174, 156 LE2d 197) (2003), and ordered Johnson be involuntarily medicated in order to make him competent to stand trial. Johnson now appeals, arguing that the trial court failed to follow the test under Sell. For the reasons that follow, we agree and vacate the trial court's order and remand the case for further proceedings.
(Citations and footnote omitted.) Id.
So viewed, the evidence shows that Johnson was indicted in October 2015. On February 1, 2016, at the request of defense counsel, the trial court ordered the Georgia Department of Behavioral Health and Developmental Disabilities ("Department of Behavioral Health") to conduct an evaluation of Johnson's competency to stand trial as well as his criminal responsibility at the time of the alleged acts.
A psychiatrist, Deepti Vats, interviewed Johnson in February 2016 and determined that Johnson is incompetent to stand trial. Notably, Dr. Vats reported that when Johnson was first brought into the jail he had "slurred and scarce speech with a tangential thought process. He responded by giving inappropriate answers and making inappropriate expressions. [H]e had a history of being on medications, but was not currently prescribed any medications."
Dr. Vats diagnosed Johnson with schizophrenia spectrum and other psychotic disorders, and he reported that Johnson had taken the anti-psychotic medications Haldol and Risperdal in the past. Dr. Vats also reported that Johnson has delusions of grandeur and symptoms of mental illness characterized by his delusions; his symptoms seriously impair his competency to stand trial; and he lacks the ability to assist his attorney because he cannot provide an accounting of his actions with respect to the charged crimes. Dr. Vats concluded that, "to a reasonable degree of medical certainty," Johnson is not competent to stand trial. Dr. Vats also found that nothing during the interview suggested that Johnson was malingering or faking either incompetence or insanity.
More than six months after Dr. Vats determined that Johnson was incompetent to stand trial, the trial court held the Sell hearing at issue in this case. At the hearing, the State presented the testimony of two witnesses, Psychologist Amy Gambow and Psychiatrist Kelly Coffman Neither Dr. Vats nor Dr. Koster testified at the Sell Hearing.
Dr. Gambow is a post-doctoral fellow in clinical psychology. Although Dr. Gambow is not yet Board Certified or licensed to practice as a psychologist in Georgia, the trial court allowed her to testify as an expert over defense counsel's objection. Dr. Gambow testified that she works for the psychiatry and law service, which runs the "in-jail restoration program within the Fulton County jail" (hereinafter the "Program"), and she provides clinical services to inmates, like Johnson, who are found incompetent to stand trial.
Dr. Gambow first met with and examined Johnson beginning in March 2016, she reviewed his medical records from the jail, and she determined that Johnson was a good candidate for the Program. Johnson entered the Program on April 27, 2016, and participated in group sessions for the first two days, however, Johnson refused to participate in the Program after that time, so he was transferred out of the Program on June 1, 2016. Johnson refused to take any antipsychotic medications through this time. Dr. Gambow testified that Johnson is schizophrenic, but she could not answer the State's question regarding the type of medication Johnson should be given because medication is not her area of expertise.
Dr. Coffman, the only other witness who testified at the Sell hearing, is a Board certified psychiatrist and assistant professor at Emory University, specializing in forensic psychiatry. Dr. Coffman serves as the medical director of the Program, she performs court-ordered evaluations for Fulton County, and she supervises the forensic psychiatry fellows in their medical treatment of inmates in the Program.
While Johnson was in the Program, Dr. Coffman periodically and briefly checked-in with Johnson. Dr. Coffman also met with Johnson for about 25 minutes on September 15, just a few days before the Sell hearing. Prior to that meeting, Dr. Coffman had not seen Johnson in "quite some time." Dr. Coffman testified that Johnson is schizophrenic, he is not competent to stand trial, and he will not become competent to stand trial without medication.
Dr. Coffman opined that antipsychotic drugs would likely improve Johnson's symptoms. Nevertheless, Dr. Coffman testified that Johnson has not taken any medication for at least a year, and Dr. Coffman admitted that she did not know whether Johnson has done well on medication in the past or what medications he had previously taken because Johnson did not give the doctors in the Program permission to look at his hospital records. Dr. Coffman also admitted that without Johnson's medication history there was no way to know whether Johnson was at risk of having any side effects, and that the administration of antipsychotic medications could not be justified on any grounds other than competency.
Although Dr. Coffman testified that there are several medications used to treat schizophrenia, she did not provide any testimony regarding a proposed treatment plan for Johnson, such as the proper dosages of these medicines, how long each medications should be tried, what should be done if Johnson developed side effects from any of the medications, or whether certain medications are medically appropriate for Johnson.
Following the Sell hearing, the trial court entered an order (hereinafter the "First Order") in which it found that Johnson is not competent to stand trial and ordered that he be involuntarily medicated. In its order, the trial court adopted an unsigned and unauthenticated two-page "Proposed Treatment Plan" which is not otherwise a part of the record on appeal and was not admitted at the Sell hearing.
Johnson filed an appeal of the First Order, which forms the basis of the appeal in Case No. A17A0611. He also sought an emergency stay of that order, which this Court granted. Thereafter, upon the State's motion, and without holding a new hearing, the trial court entered a revised order (hereinafter the "Revised Order"), providing that Johnson be forcibly medicated to restore his competency for trial.
Upon a thorough review of the limited record in both of these appeals, we find that the Revised Order is wholly insufficient under Sell to support the trial court's conclusion that Johnson can be involuntary medicated for the sole purpose of making him mentally competent to stand trial.
In Case No. A17A0783, Johnson argues that the trial court failed to follow the four-part Sell test in its Revised Order when it ordered that he be forcibly medicated to restore his competency for trial.
(Citations and punctuation omitted.) Warren, supra, 297 Ga. at 830 (3) (b). Consequently, before the State can obtain an order to involuntarily medicate a defendant,
(Citation omitted.) Id. at 812 (1).
With regard to the first element of the Sell test,
(Citation and punctuation omitted.) Warren, supra, 297 Ga. at 826 (3) (a). With regard to the second element of the test, the trial court
(Citation and punctuation omitted; emphasis supplied.) Id. at 828 (3) (b).
((Citation and punctuation omitted.) Warren, supra, 297 Ga. at 833-834 (3) (c).
"The fourth and final part of the Sell test requires the trial court to conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition." (Citation and punctuation omitted.) Id. at 837 (3) (d).
Here, the record shows that the State has fundamentally failed to meet its burden under the four-part Sell test. Warren, supra, 297 Ga. at 812 (1). Moreover, the trial court's Revised Order again fails to properly evaluate the four factors necessary to overcome Johnson's constitutionally protected liberty interest.
Notably, the record merely shows that Johnson is schizophrenic, and he has reportedly taken the anti-psychotic medications Haldol and Risperdal in the past. The record contains no evidence regarding the proposed medications and dosages recommended to restore Johnson's competency, other than the unsigned and unauthenticated appendix to the Revised Order, which was apparently prepared by a fellow in the Program who did not testify at the Sell hearing. See Warren, supra, 297 Ga. at 828 (3) (b). Moreover, the Proposed Treatment Plan does not set forth the duration for which the specified medications would be tried, except to state that the proposed protocol will be enforced involuntarily at 90 day intervals. Finally, there is no evidence or testimony in the record that the administration of specific medications is medically appropriate for Johnson or linking specific possible side effects to specific medications. See Warren, supra, 297 Ga. at 828 (3) (b).
We therefore conclude that the Revised Order in Case No. A17A0783 is legally insufficient to justify Johnson's involuntary medication for the sole purpose of making him mentally competent to stand trial. Warren, supra, 297 Ga. at 838 (4). Consequently, we vacate the trial court's Revised Order and remand the case for further proceedings consistent with this opinion, including a new Sell hearing if the State elects on remand to pursue its motion for involuntary medication. See id. In A17A0611, we dismiss the appeal as moot.
Judgment vacated and case remanded in A17A0783. Appeal dismissed as moot in A17A0611. Doyle, C. J., and Reese, J., concur.