OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF
March 22, 2011, a Lafayette police officer, who was
investigating a possible car burglary, stopped defendant, who
was walking down the middle of the road. As the officer
patted him down, defendant told him that he "had a gun
in his hip." The officer determined from his
computerized database system that defendant had prior felony
convictions so he confiscated the gun and arrested him for
being a felon in possession of a firearm.
was charged by bill of information with possession of a
firearm by a person convicted of certain felonies, La.R.S.
14:95.1. He pleaded not guilty. Pursuant to defendant's
pretrial motion, a sanity commission was appointed on January
13, 2013, to determine his competency to proceed as well as
offer an opinion as to his sanity at the time of the offense.
members of the sanity commission agreed that defendant was
competent despite his chronic paranoid schizophrenia. They
noted his history of repeated psychiatric hospitalizations
and his paranoia, grandiosity, and impulsivity. They also
noted his tattoos (which included "insane" on his
right hand and "crazy" on his left) and that he was
presently experiencing auditory hallucinations directing him
to "do bad stuff." They recommended psychiatric
treatment. Nonetheless, they also found that defendant
understood his rights, the proceedings, and the nature of the
charge against him, although one doctor expressed concern
that defendant's current mental condition may interfere
with his ability to assist counsel in his defense. They also
opined that defendant's mental illness did not cause him
to commit the crime and that he appreciated the difference
between right and wrong at the time of the offense. On May
23, 2013, the trial court found defendant competent to
proceed based on these findings.
October 17, 2013, 11 days before the scheduled trial date,
defendant filed a motion to amend his plea to not guilty and
not guilty by reason of insanity. At the same time, defendant
filed a motion to quash the bill of information based on the
unconstitutionality of La.R.S. 14:95.1. The trial court
denied the motion to amend the plea stating that it was filed
too close to the trial date and noting that both members of
the sanity commission had opined that defendant was sane at
the time of the offense. However, the trial court also stayed
the proceedings because review of the constitutionality of
La.R.S. 14:95.1 was pending in this court in another case.
trial ultimately commenced about a year later on September 2,
2014. A Lafayette Parish jury found defendant guilty as
charged. The trial court sentenced defendant to 15 years
imprisonment at hard labor without parole eligibility and
fined him $2, 500.
court of appeal affirmed defendant's conviction and
sentence in a split panel decision. State v. Noel,
15-0617 (La.App. 3 Cir. 12/9/15), 181 So.3d 223. The panel
agreed that defendant's schizophrenia and history of
psychiatric hospitalizations provided "an indicia of
insanity, " i.e. an evidentiary basis for a change in
the plea. The majority, however, found that the motion to
amend the plea was filed too close to the scheduled trial
date (and too long after the sanity commission findings on
which the motion relied). Therefore, "[c]onsidering the
heightened burden that exists the closer to trial a request
to amend the plea is made, " the majority found that
"the trial court did not err in finding no good cause
and denying defendant's request to amend his plea."
Noel, 15-0617, pp. 24-25, 181 So.3d at 238.
Conery dissented from the majority's finding that there
was not good cause to allow defendant to amend his plea. The
dissent found it "clear from the record that counsel did
not file the Moton to Amend as a 'delay tactic' or to
achieve a 'tactical advantage.'" Noel,
15-0617, p. 3, 181 So.3d at 239. Judge Conery also would have
evaluated the motion to amend the plea in the broader context
of the nearly one-year-long delay while waiting until the
constitutionality of La.R.S. 14:95.1 was settled. Therefore,
according to Judge Conery, "[t]he 'timeliness'
of the motion should not have been a deciding factor, as this
case was not going to trial until after [the constitutional
question was resolved]." Noel, 15-0617, p. 4,
181 So.3d at 240. Because refusing to permit defendant to
amend his plea "deprived the defendant of his only
realistic available defense, " Judge Conery would have
found that "the trial court abused its discretion by
denying the defendant an opportunity to amend his plea and
put on a defense." Id. We agree.
Code of Criminal Procedure article 561 provides:
The defendant may withdraw a plea of "not guilty"
and enter a plea of "not guilty and not guilty by reason
of insanity, " within ten days after arraignment.
Thereafter, the court may, for good cause shown, allow such a
change of plea at any time before the commencement of the
court summarized the jurisprudence applying that article in
State v. Miller, 05-1826 (La. 6/29/07), 964 So.2d
911. Notably, that jurisprudence includes State v.
Taylor, 254 La. 1051, 229 So.2d 95 (1970) and State
v. Delpit, 341 So.2d 876 (La. 1977), in which this court
reversed convictions because district courts had not
permitted defendants to amend their pleas despite imminent
trials. This court observed that "in neither
Taylor nor Delpit did this court suggest
that the defense was required to make a threshold
demonstration that the defendant's history of mental
illness manifested itself at the time of the offense in order
for the trial court to grant the motion to change the plea to
include not guilty by reason of insanity."
Miller, 05-1826, p. 19, 964 So.2d at 922 (footnote
omitted). To the extent the district court found the question
of good cause settled by the opinions of the sanity
commission physicians that defendant was not insane at the
time of the offense- while ignoring his extensive psychiatric
history-the district court erred. See Miller,
05-1826, p. 20, 964 So.2d at 923 ("Although an indicia
of insanity at the time of the offense may be a relevant
consideration, such cannot be the sole determinative factor
in deciding whether a defendant may change his plea pursuant
to Article 561. The language of Article 561 does not obligate
the defendant to prove his insanity at the time of the
offense to change his plea. Further, the defense of insanity
at the time of the offense is ultimately an affirmative
defense which must be decided by the factfinder at trial.
LSA-C.Cr.P. art. 652.").
not determine here, however, whether defendant's motion
to amend the plea, which was filed 11 days before the
scheduled trial date, came too late. While it is "the
intent of the article . . . to prevent the defendant from
filing a last minute change of plea so as to gain a
strategical and tactical advantage, " Miller,
05-1826, p. 20, 964 So.2d at 923, no such strategy or tactic
is apparent under the circumstances here. Pending at the same
time as defendant's motion to amend the plea was a motion
to quash based on the unconstitutionality of La.R.S. 14:95.1,
which all parties appeared to agree necessitated suspending
further proceedings until the constitutional question could
be resolved. So while "defendant's burden of showing
good cause for a change of plea logically increases each day
that his trial date nears, " Miller, 05-1826,
p. 20, 964 So.2d at 923, the trial court's decision to
continue the matter pending a long appellate review process
removed any likelihood that defendant was engaging in a
dilatory tactic. The "'good cause' of Article
561 is shown when the defendant produces an indicia of
insanity and shows the plea is not changed as a dilatory
tactic to achieve a strategic advantage."
Miller, 05-1826, p. 21, 964 So.2d at 923. We agree
with the court of appeal that defendant produced an indicia
of insanity and we further agree with Judge Conery that the
district court erred in finding good cause was not shown
because defendant was engaging in a dilatory tactic.
Accordingly, we reverse the court of appeal, vacate the
conviction and sentence, and remand for a new trial.