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Guilty Pleas – Plea-Withdrawal, Postsentence — Newly Discovered Evidence

State v. Dennis R. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883
For Fosnow: David D. Cook

Issue: Whether a postconviction diagnosis supporting an NGI defense amounted to newly discovered evidence, where the defendant had pled no contest after receiving unfavorable NGI evaluations.

Holding: The new diagnosis was merely a new appreciation of the importance of evidence previously known but not used and therefore didn’t satisfy the test for newly discovered evidence.

Exams by several experts provided no support for Fosnow’s NGI plea which he then dropped, leading to conviction on no contest pleas. Years later, a prison psychiatrist determined that he suffered from dissociative identity disorder at the time of his offenses. Fosnow argued in a § 974.06 motion that this new opinion was newly discovered evidence entitling him to plea withdrawal. The court of appeals’ rejection of the claim is certainly explicit, but whether it’s on a fact-specific or a more general basis isn’t entirely clear. The court, that is, stresses that the basis for an NGI defense was available before conviction, including Fosnow’s “extensive ‘psychiatric evidence,'” in particular, DID symptomatology. ¶¶16-22. This suggests a limited, fact-specific holding:

¶25 In sum, the examining psychiatrists at the time of his pleas either were aware of or had available the information necessary to evaluate Fosnow’s mental status at the time of the crimes. Fosnow and his trial counsel were aware of a possible DID diagnosis from Dr. Van Dyke’s report and did not choose to obtain additional evaluations that might have supported it in 1989….

But the court doesn’t end on that note; instead, it goes on to suggest that principles of finality generally preclude a new expert opinion from being newly discovered evidence. ¶¶26-28.


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