COURT OF APPEALS DECISION DATED AND FILED May 12, 2009
David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v.
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Leon Tart appeals a judgment, entered upon a jury’s verdicts, convicting him of three offenses: false imprisonment, first-degree sexual assault with use of a dangerous weapon, and first-degree recklessly endangering safety. Tart also appeals an order denying his motion for postconviction relief. He argues the trial court erred by denying his requests to allow him to enter a plea of not guilty by reason of mental disease or defect, and to adjourn the trial. We reject these arguments and affirm the judgment and order.
Background
¶2 An Amended Information charged Tart with false imprisonment, first-degree sexual assault with use of a dangerous weapon and attempted first-degree intentional homicide. Following his arrest, Tart was represented by four different trial attorneys. The first attorney withdrew due to a conflict of interest. Tart requested replacement of the second attorney, resulting in adjournment of the scheduled trial. The third appointed attorney’s subsequent motion to withdraw was granted a few days before the rescheduled trial. That trial was therefore continued. Approximately one day before trial, Tart’s fourth appointed defense attorney learned Tart had “an extensive mental health history” and consequently telephoned the trial court to inform it of his discovery and the possibility that Tart may desire to enter an NGI plea.[1]
¶3 On the morning of trial, Tart moved to enter an NGI plea and adjourn the trial to allow an examination of his mental status. The motions were denied and the trial proceeded. Tart was convicted upon a jury’s verdicts finding him guilty of false imprisonment, first-degree sexual assault with use of a dangerous weapon and the lesser-included offense of first-degree recklessly endangering safety. The court imposed consecutive sentences totaling fifty and one-half years’ initial confinement and twenty-eight years’ extended supervision.
¶4 Tart filed a postconviction motion seeking to “vacate” the judgment on grounds of ineffective assistance of trial counsel. After a Machner[2] hearing, Tart’s motion for postconviction relief was denied. This appeal follows.
Discussion
¶5 On appeal, Tart has abandoned his claim of ineffective
assistance of counsel but nevertheless argues the trial court erred by refusing
his requests to enter an NGI plea and to adjourn the trial for a mental
evaluation. The decision to grant or
deny a defendant’s request to change his or her plea to not guilty by reason of
mental disease or defect is within the trial court’s discretion. State v. Oswald, 2000 WI App 3, ¶49,
232
¶6 Tart argues the trial court’s denial of his motions to enter
an NGI plea and adjourn the trial violated his Fourteenth Amendment due process
right “to be heard in defense.”
Specifically, Tart claims that because there is an “intent” element in
the criminal violations for which he was found guilty, he should have been
allowed to enter an NGI plea and adjourn the trial in order to negate that
intent. We are not persuaded. There is no federal or state constitutional
right to enter an NGI plea—it is purely a statutory right. State v. Francis, 2005 WI App 161,
¶¶19-21, 285
¶7 When, as here, a defendant makes an eleventh-hour request to
change a plea, the defendant has the burden of showing why the plea change is
appropriate. Oswald, 232
¶8 In the present case, the motions to enter an NGI plea and
adjourn the trial were made on the morning of Tart’s scheduled trial. The trial had already been postponed at least
twice and Tart had contributed to one of those delays by seeking substitution
of counsel. By the time of the scheduled
trial, the case had been pending for more than a year and there was a jury pool
waiting. Moreover, Tart contributed to
the delay in requesting to enter an NGI plea by failing to mention any prior
mental problems until the day before trial.
Defense counsel explained that the issue of Tart’s mental health had not
surfaced in Tart’s interactions with his previous three defense attorneys. Trial counsel learned of Tart’s mental health
history only after asking Tart “about how he responded to questioning.” Counsel stated that when prodded, Tart told
him about an episode in
¶9 In denying Tart’s motions, the court noted the motions were
being presented at the “eleventh hour and 59th minute prior to the
commencement of the trial.” Although the
court acknowledged there are provisions for a late plea change to occur, it
concluded the information presented did not adequately support that request. Defense counsel offered no evidence to
corroborate Tart’s claim about the
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The insanity defense provides that a person is not responsible for criminal conduct “if at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law.” Wis. Stat. § 971.15. All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] State
v. Machner, 92