#25885-a-SLZ

2011 S.D. 90

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

BUCKLY MCCOLL,                              Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  FALL RIVER COUNTY, SOUTH DAKOTA

                                 ****

                      THE HONORABLE JEFF W. DAVIS
                                Judge

                                 ****

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


PAUL R. WINTER of
Skinner & Winter, Prof. LLC
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.

                                 ****

                                            CONSIDERED ON BRIEFS
                                            ON NOVEMBER 14, 2011

                                            OPINION FILED 12/21/11
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ZINTER, Justice

[¶1.]        Former Fall River County Deputy Sheriff Buckly McColl entered into a

plea agreement to plead guilty to one count of third-degree rape. In exchange, the

State dismissed other charges and agreed to not release an analysis of McColl’s use

of the Sheriff’s Department’s computers. More than one year after McColl was

sentenced, he moved to withdraw his plea, asserting that the State violated the plea

agreement by “leaking” the computer analysis. The circuit court denied the motion.

McColl moved for reconsideration and a hearing to present witnesses who would

testify they heard information about the computer analysis. The circuit court also

denied that motion. McColl argues that the circuit court erred in not allowing a

hearing to present evidence that the State breached the plea agreement. We affirm.

                           Facts and Procedural History

[¶2.]        McColl, a Fall River County Deputy Sheriff, was charged with three

counts of third-degree rape and one count of false reporting to authorities. Based on

evidence discovered in investigating the rapes, the State’s Attorney obtained a

search warrant for work computers McColl used or could have used in his capacity

as a deputy sheriff. After finding child pornography on the computers, the search

widened to include all Sheriff’s Department’s computers. Four computers were

confiscated requiring deputies to share computers.

[¶3.]        McColl subsequently entered into a plea agreement. Under the

agreement, he agreed to plead guilty to one count of third-degree rape. Another

part of the plea agreement was sealed and captioned as a “Plea Bargain Agreement

(Supplement).” The supplemental agreement prohibited the State’s Attorney from


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releasing the results of the analysis of McColl’s use of the Sheriff’s computers.

McColl entered a guilty plea on October 15, 2009, and he was sentenced on October

23, 2009.

[¶4.]        On February 16, 2010, and May 14, 2010, McColl and his wife sent

letters to the court indicating that they knew of witnesses who were aware of the

sealed portion of the plea agreement and that pornography and McColl’s work

computer were involved. McColl indicated that he had entered into the plea

agreement to avoid publication of his use of the Sheriff’s computers.

[¶5.]        On December 2, 2010, McColl formally moved to withdraw his plea,

asserting a violation of the plea agreement. McColl’s showing was limited to the

assertion that: “Numerous persons have indicated knowledge of the sealed portion

of the plea agreement. The first indications of the information being leaked were

almost immediately following the sentencing hearing.” The circuit court denied the

motion. The court reasoned that “[a]llegations of rumors circulating in the

community do not equate to a breach of the plea agreement by the State.” The court

noted that “no evidence has been shown to establish any such disclosure [of the

computer analysis] by the State.”

[¶6.]        McColl moved to reconsider and allow an evidentiary hearing to

present witnesses who would testify to hearing about the computer information.

McColl’s motion was supported only by the assertion that he “intended to call

witnesses who would describe hearing of the information derived from the computer

analysis on the day he pled guilty pursuant to the plea agreement and the

supplement thereto.” The circuit court denied that motion again because


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“testimony or allegation[s] of rumors circulating in the community [did] not

establish a breach by the State of a non-disclosure agreement.” McColl appeals,

raising one issue: whether the circuit court erred in not granting a hearing to

present evidence that the State breached the plea agreement.

                                      Decision

[¶7.]        McColl notes that “[o]nce an accused agrees to plead guilty in reliance

upon a prosecutor’s promise to perform a future act, the accused’s due process rights

demand fulfillment of the bargain.” Vanden Hoek v. Weber, 2006 S.D. 102, ¶ 14, 724

N.W.2d 858, 863. McColl argues that he was deprived of his right to due process

because he had no opportunity to present evidence demonstrating that the State

breached the plea agreement. The State responds that McColl’s showing was

insufficient to warrant a hearing. The State emphasizes that McColl failed to

identify any specific facts even suggesting that the State’s Attorney was the source

of the unidentified witnesses’ information.

[¶8.]        “When . . . a defendant moves to withdraw his guilty plea after

sentence has been imposed, the trial judge will set aside the judgment of conviction

and permit [the] defendant to withdraw his plea only to correct manifest injustice.”

State v. Lohnes, 344 N.W.2d 686, 687-88 (S.D. 1984) (citing SDCL 23A-27-11*); see

also State v. Thielsen, 2004 S.D. 17, ¶ 15, 675 N.W.2d 429, 433. Manifest injustice


*       SDCL 23A-27-11 provides:

             A motion to withdraw a plea of guilty or nolo contendere may be
             made only before sentence is imposed or imposition of sentence
             is suspended; but to correct manifest injustice a court after
             sentence may set aside a judgment of conviction and permit the
             defendant to withdraw his plea.

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occurs when a plea is entered on a plea agreement that is not fulfilled because the

plea is not considered voluntary. See Lohnes, 344 N.W.2d at 688; see also State v.

Rock, 92 Wis. 2d 554, 558, 285 N.W.2d 739, 741-42 (1979) (noting that withdrawal

of plea is permitted under the “manifest injustice” test when a plea agreement is

breached by the prosecution).

[¶9.]        We have not had occasion to consider the showing necessary to

withdraw a plea following sentencing, but the Wisconsin Supreme Court has

provided guidance on this issue. A defendant seeking to withdraw a guilty plea

after sentencing on the ground of manifest injustice must ultimately show

entitlement to relief by clear and convincing evidence. State v. Bentley, 201 Wis. 2d

303, 311, 548 N.W.2d 50, 54 (1996). To obtain a hearing on the motion, the facts

supporting a plea withdrawal “must be alleged in the petition and the defendant

cannot rely on conclusory allegations, hoping to supplement them at a hearing.” Id.

at 313, 548 N.W.2d at 54.

             [I]f the defendant fails to allege sufficient facts in his motion to
             raise a question of fact, or presents only conclusory allegations,
             or if the record conclusively demonstrates that the defendant is
             not entitled to relief, the trial court may in the exercise of its
             legal discretion deny the motion without a hearing.

Id. at 309-10, 548 N.W.2d at 53. “A defendant must [also] do more than merely

allege that he would have pled differently; such an allegation must be supported by

objective factual assertions.” Id. at 313, 548 N.W.2d at 54. “The nature and

specificity of the required supporting facts will necessarily differ from case to case.

However, a defendant should provide facts that allow the reviewing court to

meaningfully assess his or her claim.” Id. at 313-14, 548 N.W.2d at 55.


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[¶10.]       South Dakota follows similar requirements in assessing the sufficiency

of habeas corpus petitions. Allegations that are “unspecific, conclusory, or

speculative” are insufficient to state a claim for relief. See Jenner v. Dooley, 1999

S.D. 20, ¶ 13, 590 N.W.2d 463, 469; see also Sweeney v. Leapley, 487 N.W.2d 617,

618 (S.D. 1992) (stating that an evidentiary hearing is unwarranted where no

substantial factual issues exist). Even though habeas corpus involves a collateral

attack on a conviction, we believe that the foregoing requirements are applicable

here because a motion to withdraw a plea following a conviction is similar: “a

defendant who has pleaded guilty no longer enjoys the presumption of innocence

and, on a motion to withdraw the plea, bears the burden of production and

persuasion.” Thielsen, 2004 S.D. 17, ¶ 19, 675 N.W.2d at 434. We therefore agree

with the Wisconsin Supreme Court that a defendant attacking a guilty plea

following sentencing must plead non-conclusory, specific facts to allow the court to

meaningfully assess the claim. See Bentley, 201 Wis. 2d at 313-14, 548 N.W.2d at

54-55. Whether a motion alleges facts which, if true, would entitle a defendant to a

hearing and ultimately to the relief requested is a question of law that is reviewed

de novo. Id. at 310, 548 N.W.2d at 53.

[¶11.]       McColl’s motions failed to allege sufficient specific facts to warrant a

hearing on his assertion that the results of the computer analysis had been leaked

by the State’s Attorney in violation of the plea agreement. We first observe that

McColl did not identify any claimed witnesses or what those witnesses would say.

McColl’s showing was nothing more than an unsupported assertion that




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unidentified witnesses had unspecified knowledge about the computer

investigation.

[¶12.]       McColl also alleged no facts to suggest that the unidentified witnesses

gained knowledge of the computer investigation through a post-plea agreement

disclosure by the State’s Attorney. That omission is significant because McColl was

publicly charged with rape, and before his plea agreement, his computer usage was

the subject of a pornography investigation that involved all of the computers in the

Sheriff’s Department. Thus, McColl’s public charges and the pornography

investigation involving the entire Sheriff’s Department made evidence of McColl’s

computer usage available to many individuals outside the State’s Attorney’s office.

[¶13.]       In light of the pre-plea publicity and the broad Sheriff’s Department

investigation, McColl’s assertion that unidentified witnesses heard of unidentified

computer information from unidentified sources was nothing more than mere

speculation that the State’s Attorney “leaked” the computer analysis to

unauthorized persons after the plea agreement had been reached. Because McColl

failed to allege specific facts which, if true, would entitle him to withdraw his plea,

the circuit court was not required to hold a hearing to determine if the plea

agreement had been breached.

[¶14.]       Affirmed.

[¶15.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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