2018 WI 74

                  SUPREME COURT              OF      WISCONSIN
CASE NO.:               2016AP2017-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Andre L. Scott,
                                  Defendant-Appellant.

                               ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED:          June 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          March 14, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Jeffrey A. Kremers

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant, there were briefs filed and an
oral    argument        by   Colleen    D.   Ball,    assistant    state   public
defender.


       For the plaintiff-respondent, there was a brief filed by
Luke N. Berg, deputy solicitor general, with whom on the brief
were Brad D. Schimel, attorney general, and Ryan J. Walsh, chief
deputy solicitor general.          There was an oral argument by Luke N.
Berg, deputy solicitor general.
                                                                      2018 WI 74
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.    2016AP2017-CR
(L.C. No.   2009CF136)

STATE OF WISCONSIN                          :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                   FILED
      v.
                                                              JUN 20, 2018
Andre L. Scott,
                                                                 Sheila T. Reiff
            Defendant-Appellant-Petitioner.                   Clerk of Supreme Court




      APPEAL from an order of the Circuit Court for Milwaukee

County.     Reversed and remanded.


      ¶1    SHIRLEY S. ABRAHAMSON, J.       This is an appeal from an

order of the Circuit Court for Milwaukee County, Jeffrey A.

Kremers, Judge.          The circuit court ordered         Andre Scott, the

defendant,    to   be    involuntarily   medicated      to    competency        for

purposes of participating in postconviction proceedings after

the circuit court found that he was not competent to proceed

with his postconviction motion for relief and was not competent

to refuse medication and treatment.
                                                                     No.     2016AP2017-CR



      ¶2      The    defendant     petitioned        this    court    to     bypass    the

court of appeals1 and decide his appeal of the circuit court

order requiring involuntary medication.2                    This court granted the

petition, bypassing the court of appeals.

      ¶3      We reverse the order of the circuit court and remand

the cause to the circuit court for proceedings consistent with

this opinion.

      ¶4      The facts underlying the circuit court order that the

defendant be involuntarily medicated to competency for purposes

of assisting with his postconviction proceedings are simple and

undisputed.

      ¶5      Several    years        after       being    convicted       of     battery,

disorderly conduct, and kidnapping, the defendant, Andre Scott,

sought to pursue postconviction relief.                      Having concerns about

the       defendant's     ability        to       assist     with      postconviction

proceedings,         defendant's       counsel       asked     for     a        competency

evaluation.

      ¶6      In response to defense counsel's request, the circuit
court     held   a   hearing     on    the    defendant's      competency.            After

taking testimony, the circuit court ordered the defendant to be

involuntarily         medicated        to     competency       for         purposes     of

participating in postconviction proceedings.



      1
          See Wis. Stat. § (Rule) 809.60 (2015-16).
      2
       The circuit court stayed its involuntary medication order
for 30 days so that the defendant could seek appellate relief.


                                              2
                                                                          No.    2016AP2017-CR



       ¶7     The     State    initially             defended    the      circuit      court's

involuntary medication order.                  Thereafter, the State argued that

the involuntary medication order should be vacated because it

was premature.             The State acknowledged that the circuit court

had failed to follow the procedure this court set forth in State

v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), for how

to    resolve      competency       issues       at    the   postconviction           stage   of

criminal proceedings.

       ¶8     We     conclude,      as   the     State       urges,    that     because       the

circuit court did not follow the mandatory procedure set forth

in Debra A.E., the circuit court's order that the defendant be

involuntarily medicated to competency for purposes of assisting

with postconviction proceedings was issued prematurely and is

invalid.

       ¶9     Accordingly, we reverse the order of the circuit court

and    remand        the    cause     to     the       circuit       court      for    further

proceedings consistent with this opinion.

       ¶10    The instant case presents us with four questions:
            1. May    a    circuit       court        require    a     non-dangerous          but

              incompetent defendant to be involuntarily treated to

              competency         in        the        context        of      postconviction

              proceedings, and if so, is Wis. Stat. § 971.14(4)(b)

              (2015-16)3 unconstitutional on its face because it does



       3
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                                 3
                                                                     No.       2016AP2017-CR



      not comport with the requirements announced in Sell v.

      United States, 539 U.S. 166 (2003)?

  2. Is      a    circuit      court          order       finding        the     defendant

      incompetent to proceed and requiring the defendant to

      be involuntarily treated to competency a final order

      for purposes of appellate review?

  3. Did     the      court    of    appeals            erroneously        exercise     its

      discretion when it denied a motion for relief pending

      appeal without explaining its reasoning?

  4. Should involuntary medication or treatment orders be

      automatically stayed pending appeal?

¶11   We answer the questions presented as follows:

  1. Before a circuit court can require a non-dangerous but

      incompetent defendant to be involuntarily treated to

      competency         in         the         context         of       postconviction

      proceedings,           the     circuit            court    must         follow    the

      procedure        this    court          established       in   State       v.    Debra

      A.E.,      188 Wis. 2d 111,            523 N.W.2d 727        (1994).        If
      Debra A.E. is applied properly, an order finding the

      defendant        incompetent            to   seek    postconviction             relief

      ordinarily        will       not    need      to     include       an     order   for

      involuntary         medication               or     treatment         to     restore

      competency.            The circuit court erred in the instant

      case       by    failing       to        comply      with      the       procedures

      established in Debra A.E.

  2. The     proceeding        to    determine           whether     a     defendant      is
      competent         is     separate             and     distinct           from     the
                                          4
                                                                 No.      2016AP2017-CR



             defendant's underlying criminal proceeding.                     Thus, an

             order that the defendant is not competent to proceed

             (and in the instant case, that the defendant should be

             medicated and treated to competency) is a final order

             issued in a special proceeding for purposes of appeal.4

           3. The   court      of    appeals    erroneously         exercised        its

             discretion when it denied the defendant's motion for

             relief pending appeal without explaining its reasoning

             for its discretionary denial decision.

           4. Involuntary      medication      orders    are     subject        to    an

             automatic      stay    pending    appeal,   which      can    be   lifted

             upon a successful motion by the State.

      ¶12    Because     we    reverse   the   circuit   court      order       on   the

ground that the circuit court did not comply with Debra A.E., we

need not address the effect of Sell v. United States, 539 U.S.
166       (2003),   on        the    constitutionality         of      Wis.      Stat.

§ 971.14(4)(b).        We adhere to the doctrine of constitutional




      4
       Both the State and the defendant agree that that an
involuntary   medication   order   is   immediately   appealable.
However, the parties propose alternative paths the court may
take to hold that an involuntary medication order is immediately
appealable. The defendant argues that an involuntary medication
order is a final order that is appealable as a matter of right
under Wis. Stat. § 808.03(1).     The State argues that appeals
from   involuntary  medication   orders   should   be  taken   as
interlocutory appeals.     For the reasons set forth in this
opinion, we agree with the defendant.


                                         5
                                                                         No.    2016AP2017-CR



avoidance:       A court ordinarily resolves a case on available non-

constitutional grounds.5

                                                 I

     ¶13      The facts, for purposes of this review, are simple and

undisputed.          In 2009, the defendant, Andre Scott, was convicted

of battery, disorderly conduct, and kidnapping.

     ¶14      In 2015, the defendant's counsel expressed concerns

about the defendant's ability to assist with the postconviction

proceedings         and    to     make    decisions      committed       by    law   to   the

defendant      to     a    reasonable      degree       of    rational     understanding.

Defense       counsel       asked    for     a       competency    evaluation        of   the

defendant, and            the circuit court granted the request.

     ¶15      During        the     competency          evaluation,       the     evaluator

testified that he did not consider the defendant dangerous or

threatening; that although the defendant is not competent to

proceed,       the    defendant's          symptoms      are      treatable;      that    the

defendant refused medication because he lacked insight into his

illness and his need for treatment; and that it was likely that
the defendant's competence to proceed could be restored with

psychotropic treatment.

     ¶16      Defense counsel explained that the defendant was never

found    to    be    dangerous       to    himself       or    anyone    else;    that    the


     5
       "This court does not normally decide constitutional
questions if the case can be resolved on other grounds." Adams
Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶91, 294
Wis. 2d 441, 717 N.W.2d 803 (quoting Labor & Farm Party v.
Elections Bd., 117 Wis. 2d 351, 354, 344 N.W.2d 177 (1984)).


                                                 6
                                                                         No.       2016AP2017-CR



defendant did not want an involuntary medication order; and that

the   defendant         likely     would    not     have   pursued       an       appeal     if   a

medication order were required.

      ¶17     Nevertheless,          the     circuit       court        issued       an     order

directing        involuntary        treatment          after     concluding          that     the

defendant        was    not   competent      to     proceed      with     his      motion     for

postconviction relief and not competent to refuse medication and

treatment.         However, the circuit court stayed its involuntary

medication order for 30 days so that the defendant could pursue

appellate relief.

      ¶18     The defendant filed a petition for leave to appeal the

circuit court order.               Wis. Stat. § (Rule) 809.50.                    The court of

appeals denied the defendant's petition for leave to appeal and

lifted the circuit court's stay of the involuntary medication

order.

      ¶19     The defendant then appealed the involuntary medication

order as an appeal as a matter of right, Wis. Stat. § 808.03(1),

and   filed      an     emergency     motion      to    stay     the    medication          order
pending appeal.            The court of appeals denied the stay of the

medication order but allowed the direct appeal to proceed.                                    The

court of appeals did not explain why it denied the defendant's

motion      to    stay     the     medication       order.         As        a    result,     the

Department of Health Services began medicating the defendant.

      ¶20     The      circuit     court     concluded     that        the       defendant    was

competent        to     proceed      after     approximately            seven       months        of

treatment,        and    he   is    no     longer      subject     to    the       involuntary
medication        order.         However,      the      circuit        court       warned     the
                                              7
                                                                           No.    2016AP2017-CR



defendant that it could order him to submit to treatment again

if he stops taking his medication and becomes incompetent.

                                                  II

       ¶21    First,        we     address        the     circuit        court    order    for

involuntary         medication         and    treatment       of   the     defendant.       We

conclude that the circuit court erred by failing to follow the

mandatory procedure this court established in Debra A.E. for a

circuit      court      to       require      a       non-dangerous        but   incompetent

defendant         to   be    involuntarily            treated     to    competency    in   the

context of postconviction proceedings.

       ¶22    Under Debra A.E., the circuit court order that the

defendant is incompetent for purposes of appeal need not have

included      an       order      for        treatment       to        restore    competency.

Ordinarily, the defendant is not needed to assist counsel in

some   or     all      issues      involved        in    postconviction          proceedings.

Debra A.E., 188 Wis. 2d at 130.

       ¶23    Indeed, the court noted in Debra A.E., 188 Wis. 2d at

130, that instances in which a defendant may be involuntarily
medicated to competency for purposes of appeal will be rare.

The record in the instant case does not support the conclusion

that the instant case is one of those rare instances in which

the defendant may be involuntarily medicated to competency for

purposes of appeal.

       ¶24    Debra A.E. fashioned a mandatory process for managing

postconviction relief of allegedly incompetent defendants.                                 The

process      is    designed       to    balance        the   interests      of   incompetent
defendants in meaningful postconviction relief and the interest
                                                  8
                                                                          No.     2016AP2017-CR



of the public in expediting postconviction relief and reaching a

final determination of the merits.                     Debra A.E., 188 Wis. 2d at

119, 129-35.        Furthermore, the Debra A.E. court concluded that

if this process were followed, a court order for treatment to

restore    competency         will    ordinarily             be    unnecessary        because

"[m]eaningful postconviction relief can be provided even though

a defendant is incompetent."6

     ¶25       The process established by Debra A.E. is as follows:

          • As    soon   as    there    is       a    good       faith    doubt    about    the

               defendant's competency to seek postconviction relief,

               defense counsel should promptly advise the appropriate

               court of this doubt (on the record) and move for a

               ruling on competency.7

          • The court shall honor defense counsel's request when

               there is reason to doubt a defendant's competency.8

          • To     determine        competency,            the    court     may     order    an

               examination and hold a hearing.9

          • The      test      for     competency                during     postconviction
               proceedings     is    whether         the    defendant      "is     unable    to

               assist counsel or to make decisions committed by law



     6
       State v. Debra A.E., 188 Wis. 2d 111, 130, 523 N.W.2d 727
(1994).
     7
         Id. at 131.
     8
         Id.
     9
         Id. at 131-32.


                                             9
                                                                  No.     2016AP2017-CR



       to the defendant with a reasonable degree of rational

       understanding."10

     • When the issues in a postconviction proceeding rest on

       the record in the circuit court and involve no risk to

       the    defendant,            defense      counsel     can     proceed         with

       postconviction relief on a defendant's behalf even if

       the defendant is incompetent.11

     • When the issues in a postconviction proceeding involve

       some risk to the defendant, these issues require the

       defendant's decision-making because whether to file an

       appeal    and     the        objectives     to     pursue    are     decisions

       committed by law to the defendant.12

     • If the defendant's assistance is needed for decision-

       making      and        the     defendant      is     likely        to      attain

       competency        in    the    near      future,    defense       counsel      may

       move for a continuance or an enlargement of time for

       filing      the        necessary          notices     or         motions      for

       postconviction relief or may seek the appointment of a
       guardian to make the decisions that the law requires

       the defendant to make.13                 If the defendant's assistance

       is    needed    to      develop      a   factual     foundation         and   the


10
     Id. at 126.
11
     Id. at 130.
12
     Id. at 126, 133-34.
13
     Id. at 135.


                                       10
                                                                   No.     2016AP2017-CR



             defendant is not likely to attain competency in the

             near future, these issues can be raised at a later

             proceeding      in   a   § 974.06     motion     if     the     defendant

             regains competency.14

      ¶26    Because the procedure mandated by this court in Debra

A.E. was not followed in the instant case, we conclude, as did

the   State,    that   the    involuntary     medication      order        was   issued

prematurely and is invalid.                Specifically, the circuit court

acted prematurely by ordering that the defendant be medicated to

competency     without       determining     whether   and     to        what    extent

postconviction         proceedings      could       continue         despite        the

defendant's     incompetency.         As     we   explained    in        Debra    A.E.,

"[m]eaningful postconviction relief can be provided even though

a defendant is incompetent[,]" and the process through which

circuit courts and counsel manage the postconviction relief of

incompetent defendants will not ordinarily need to include a

court order for treatment to restore competency.                         Debra A.E.,
188 Wis. 2d at 129-30.15

      14
           Id. at 135.
      15
       Because we reverse the circuit court order on the ground
that the circuit court did not adhere to the procedures set
forth in Debra A.E., we need not address the effect of Sell v.
United States, 539 U.S. 166 (2003), on the constitutionality of
Wis. Stat. § 971.14(4)(b).    As we stated previously, a court
avoids a decision regarding the constitutionality of a statute
when the court can decide the case on non-constitutional
grounds.   Adams Outdoor Advert., Ltd. v. City of Madison, 2006
WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803 (quoting Labor &
Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344
N.W.2d 177 (1984)).


                                        11
                                                                              No.     2016AP2017-CR



                                                III

     ¶27     The second issue we address is whether the circuit

court order finding the defendant incompetent to proceed and

requiring     the           defendant      to      be        involuntarily          treated       to

competency is a final order for purposes of appellate review.

     ¶28     The status of an order as a final order for purposes

of   appeal       is    a       question     of        law   that    this       court     decides

independently          of    the    circuit       court       or   court      of    appeals    but

benefitting from their analyses.16

     ¶29     The       State        argues      that         appeals     from       involuntary

medication orders should be taken as interlocutory appeals.                                    The

defendant     argues         that    these      appeals        should    be     brought      as    a

matter of right under Wis. Stat. § 808.03(1) as an appeal of a

final     order    of       a    special     proceeding.17              For     the     following

reasons, we agree with the defendant.

     ¶30     A final circuit court order is appealable as of right.

Wis. Stat. § 808.03(1).18               A final circuit court order is defined


     16
       Admiral Ins. Co. v. Paper Converting Mach. Co., 2012 WI
30, ¶22, 339 Wis. 2d 291, 811 N.W.2d 351.
     17
        The defendant and the State agree that the court should
rule   that   involuntary  medication   orders  are   immediately
appealable.   They point out that, as a practical matter, if an
order that the defendant be treated to competency is not
immediately reviewable, the order is effectively unreviewable
because the defendant will have already been forced to undergo
involuntary medication or treatment while the appeal proceeds.
     18
       A non-final circuit court order is not appealable as of
right but only on leave of the court of appeals.    Wis. Stat.
§ (Rule) 809.50.


                                                  12
                                                                           No.     2016AP2017-CR



in Wis. Stat. § 808.03(1) as "a judgment, order or disposition

that disposes of the entire matter in litigation as to one or

more of the parties . . . ."

    ¶31        The    order     of    the    circuit      court      in     the     competency

proceeding at issue disposed of the entire matter in litigation

between    the       parties,    namely       the     question       of    the     defendant's

competency      to     assist    with       postconviction        proceedings           and   the

defendant's competency to refuse medication or treatment.                                         An

appeal of an involuntary medication order is best classified as

a final order from a special proceeding.

    ¶32        In Voss v. Stoll, 141 Wis. 267, 124 N.W. 89 (1910), we

explained that "[t]he test to be applied in determining the

nature    of    any     judicial      remedy,       as   regards          whether      it    is   a

special proceeding, is whether it is a mere proceeding in an

action,    or        one   independently            thereof     or        merely       connected

therewith."          Voss, 141 Wis. at 271 (emphasis added).

    ¶33        The     competency       proceeding         is     not        part       of    the

defendant's          underlying       criminal        proceeding;          it     is     "merely
connected" to it.             The competency proceeding resolves an issue

separate       and     distinct       from      the      issues      presented          in    the

defendant's      underlying          criminal       proceeding.           Thus,     while     the

criminal proceeding and the competency proceeding are "related"19

or "connected"20 to one another, the competency proceeding is

    19
          Ernst v. The Steamer "Brooklyn", 24 Wis. 616, 617 (1869).
    20
       Voss v. Stoll, 141 Wis. 267, 271, 124 N.W. 89 (1910);
Witter v. Lyon, 34 Wis. 564, 574 (1874).


                                              13
                                                                No.    2016AP2017-CR



properly "treated as being commenced independently of any other

action or proceeding."               State v. Alger, 2015 WI 3, ¶76, 360
Wis. 2d 193, 858 N.W.2d 346.

     ¶34   Thus,        we    conclude     that       the    order    determining

incompetency     and,    in    the    instant    case,   mandating    involuntary

medication or treatment to restore competency is a final order

issued in a special proceeding and is appealable as of right

pursuant to Wis. Stat. § 808.03(1).21

                                         IV

     ¶35   The    third       issue    relates   to    the   court    of   appeals'

denying the defendant's motion for a stay of the involuntary

medication order pending appeal.22
     21
       Concluding that involuntary medication orders are final
orders from special proceedings does not contradict our holding
in State v. Alger, 2015 WI 3, 360 Wis. 2d 193, 858 N.W.2d 346.
The Alger case involved petitions to discharge involuntary
commitments under Chapter 980. The Alger court held that those
petitions did not commence "actions" or "special proceedings"
because those petitions were continuations of the initial
underlying commitment proceeding.   Alger, 360 Wis. 2d 193, ¶26.
The Alger decision did not overrule Voss v. Stoll, 141 Wis. 267,
124 N.W. 89 (1910); in fact, Alger partially relied on Voss.
Alger, 360 Wis. 2d 193, ¶¶29, 76.

     In the instant case, the competency proceeding is not a
continuation of the defendant's underlying criminal case.
Indeed,   the   defendant's   postconviction   proceedings   were
suspended during the pendency of the competency proceeding. The
competency proceeding in the instant case, unlike the discharge
petitions in Alger, resolved an issue separate and distinct from
the   issues   presented  in   the   defendant's   postconviction
proceedings.
     22
       See Wis. Stat. § 808.07, § (Rule) 809.12 (enabling the
court of appeals to grant relief from a circuit court order
pending appeal).


                                         14
                                                           No.     2016AP2017-CR



     ¶36    In determining whether to grant relief pending appeal,

the court of appeals exercises its discretion.                   An appellate

court reviews a circuit court's order on a motion for stay for

an erroneous exercise of discretion.             Weber v. White, 2004 WI
63, ¶18, 272 Wis. 2d 121, 681 N.W.2d 137.

     ¶37    In the instant case, the court of appeals did not

explain its reasons for exercising its discretion to deny the

defendant's    motion   for   a   stay    of   the   involuntary   medication

order pending appeal.

     ¶38    Our   jurisprudence    governing     the    proper   exercise    of

circuit court discretion is instructive in determining whether

the court of appeals must explain the reasons underlying its

discretionary decision-making.            The case law is clear that a

circuit court's discretionary decision "is not the equivalent of

unfettered decision-making."23           When a circuit court exercises

its discretion, it must explain on the record its reasons for

its discretionary decision "to ensure the soundness of its own

decision making and to facilitate judicial review."24
     ¶39    The circuit court's explanation on the record of its

exercise of discretion must demonstrate that the circuit court

examined the relevant facts, applied a proper standard of law,

and used a rational process to arrive at a conclusion that a


     23
       Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16
(1981); see also Klinger v. Oneida Cty., 149 Wis. 2d 838, 846,
440 N.W.2d 348 (1989).
     24
          Klinger, 149 Wis. 2d 838, 847, 440 N.W.2d 348 (1989).


                                     15
                                                                           No.       2016AP2017-CR



reasonable judge would make.25                    If a circuit court fails to

explain    its    exercise      of     discretion            on    the    record,        it    has

erroneously exercised its discretion.26

     ¶40    The parties have not offered any case (and we have

found none) that requires the court of appeals to explain the

reasons underlying its discretionary decisions.                                  However, the

justification       that     this    court       has    relied       upon       to    require    a

circuit     court      to    explain     its      discretionary             decision-making

applies equally to the court of appeals.                            The court of appeals

should explain its discretionary decision-making to ensure the

soundness    of     that     decision-making           and    to     facilitate         judicial

review.

     ¶41    We    therefore         conclude      that        the       court    of     appeals'

failure to explain its exercise of discretion in the instant

case is an erroneous exercise of discretion.

                                             V

     ¶42    Before      concluding,      we       address         the    fourth       and     final

issue:     whether involuntary medication orders should be stayed
automatically pending appeal as suggested by Scott.

     ¶43    Pursuant to Article VII, Section 3 of the Wisconsin

Constitution, this court has superintending authority "that is

indefinite        in        character,        unsupplied                with         means     and


     25
       Weber v. White, 2004 WI 63, ¶18, 272 Wis. 2d 121, 681
N.W.2d 137.
     26
       State ex rel. Johnson v. Williams, 114 Wis. 2d 354, 356-
57, 338 N.W.2d 320 (1983).


                                             16
                                                                      No.       2016AP2017-CR



instrumentalities,         and   limited       only       by   the    necessities         of

justice."        Arneson    v.   Jezwinski,         206 Wis. 2d 217,          225,   556
N.W.2d 721 (1996).         Pursuant to that authority, we hereby order

that involuntary medication orders are subject to an automatic

stay pending appeal.

    ¶44     The     reasoning      for     our        decision         is       simple——if

involuntary       medication     orders    are        not      automatically         stayed

pending appeal, the defendant's "significant" constitutionally

protected     "liberty       interest"         in     "avoiding           the      unwanted

administration of antipsychotic drugs" is rendered a nullity.

Sell, 539 U.S. at 177 (quoting Washington v. Harper, 494 U.S.
210, 221 (1990)).

    ¶45     The State shall have the opportunity to move to lift

the stay, and the merits of the State's motion shall be governed

by the legal standard set forth in State v. Gudenschwager, 191
Wis. 2d 431, 529 N.W.2d 225 (1995), as modified by the instant

opinion.

    ¶46     In    Gudenschwager,     we    explained           that   a     stay    pending
appeal is appropriate where the moving party:

    (1)     makes a strong showing that it is                          likely       to
            succeed on the merits of the appeal;

    (2)     shows that, unless a stay is granted, it will
            suffer irreparable injury;

    (3)     shows that no substantial harm will come to other
            interested parties; and

    (4)     shows that a stay will do no harm to the public
            interest.



                                          17
                                                                No.    2016AP2017-CR



Gudenschwager, 191 Wis. 2d at 440.               However, because involuntary

medication orders are automatically stayed pending appeal, these

factors must be slightly modified to accurately explain what the

State must show in its motion to lift the stay.

      ¶47   On a motion to lift an automatic stay pending appeal

of an involuntary medication order, the State must:

      (1)   make a strong showing that it is likely to succeed on

            the merits of the appeal;

      (2)   show that the defendant will not suffer irreparable

            harm if the stay is lifted;

      (3)   show    that      no   substantial    harm   will    come    to    other

            interested parties if the stay is lifted; and

      (4)   show that lifting the stay will do no harm to the

            public interest.

      ¶48   Whether to grant the State's motion is a discretionary

decision, and as we explained above, the court of appeals must

explain its discretionary decision to grant or deny the State's

motion.
                                        VI

      ¶49   Because the procedure mandated by this court in Debra

A.E. was not followed in the instant case, we conclude, as did

the   State,     that   the    involuntary   medication      order      was   issued

prematurely and is invalid.           We reverse the order of the circuit

court and remand the cause to the circuit court for proceedings

consistent with this opinion.

      ¶50   By    the   Court.—The      order     of   the   circuit     court    is
reversed and the cause remanded.
                                        18
    No.   2016AP2017-CR




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