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NGI Plea Precluded by Late Timing

State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238
For Oswald: James L. Fullin, Jr., SPD, Madison Appellate

Issue: Whether the trial court improperly precluded Oswald from raising an NGI plea.


¶ 49. The decision whether to grant a defendant’s motion to change his or her plea from “not guilty” to “not guilty by reason of mental disease or defect” is within the discretion of the trial court. See State v. Kazee, 192 Wis. 2d 213, 221, 531 N.W.2d 332, 335 (Ct. App. 1995). Thus, we will not disturb that decision as long as it is “consistent with the facts of record and established legal principles.”Id. at 222, 531 N.W.2d at 336 (quoted source omitted). Furthermore, when a defendant makes an eleventh-hour request to change 135*135 his or her plea, he or she has the burden of showing why the plea change is appropriate. See id. In other words, the defendant must make an offer of proof encompassing the elements of the defense as set forth in § 971.15, STATS. See Kazee, 192 Wis. 2d at 222-23, 531 N.W.2d at 336. In addition, the defendant must show why the nonresponsibility plea was not entered earlier. See id. at 223, 531 N.W.2d at 336. Ultimately, when dealing with a request to change a plea at a late stage of the proceedings, the trial court must balance the interests of the defendant with the institutional need to resolve cases in a timely fashion. See id. at 222, 531 N.W.2d at 336.

¶ 50. Oswald made neither of the required threshold showings in this case. First, regarding his offer of proof, Oswald points to a report by Dr. Feinsilver, who had conducted a psychological examination of Oswald. Feinsilver opined that Oswald did suffer from clinically recognized mental disorders. But, Feinsilver went on to conclude that Oswald was aware of the wrongfulness of his conduct. Oswald contends that the “substantial capacity” question was for the jury and thus Feinsilver’s conclusion was irrelevant. He points out that “[a] favorable expert opinion is not an indispensable prerequisite to a finding of mental disease or defect.” But the problem with Oswald’s offer of proof is not the lack of an expert opinion; it is the presence of an uncontested expert opinion that goes contrary to the elements of the defense as set forth in the statute. Second, Oswald makes no attempt to explain the timing of his request. Indeed, at theMachner[7] hearing, 136*136 Oswald’s attorney testified that Oswald had told him that “he didn’t for a second think he was insane and that this [plea] was nothing more than a sham and a manipulation on his part.” Oswald did not dispute that testimony. Given the insufficiency of Oswald’s offer of proof and the timing of his request to change his plea, the trial court’s denial of Oswald’s request was consistent with the facts of this case and relevant legal principles. We will not disturb the decision.

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