               IN THE SUPREME COURT, STATE OF WYOMING

                                       2013 WY 137

                                                       OCTOBER TERM, A.D. 2013

                                                                  October 31, 2013

TIMOTHY JAMES RUSSELL,

Appellant
(Defendant),

v.                                                   S-13-0044

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Natrona County
                       The Honorable Catherine E. Wilking, Judge

Representing Appellant:
      W. Keith Goody, Cougar, Washington.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jeffrey Pope, Assistant Attorney General.


Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Timothy James Russell was charged with one count of conspiracy to deliver
methamphetamine. Pursuant to a plea agreement with the State, Mr. Russell entered a
plea of nolo contendere to the charge. The district court accepted the plea and scheduled
a sentencing hearing. Thereafter, Mr. Russell retained new counsel who filed a motion to
withdraw the plea. After a hearing, the district court denied the motion. Mr. Russell
appealed, claiming the district court abused its discretion when it denied his motion to
withdraw his plea. We find no abuse of discretion and affirm.

                                          ISSUE

[¶2] The issue for this Court’s determination is whether the district court abused its
discretion when it denied Mr. Russell’s motion to withdraw his plea.

                                         FACTS

[¶3] In June of 2012, the Natrona County district attorney’s office charged Mr. Russell
and eighteen other individuals with conspiracy to possess methamphetamine with intent
to deliver in violation of Wyo. Stat. Ann §§ 35-7-1031(a)(i) and 35-7-1042 (LexisNexis
2013). Mr. Russell and the State subsequently reached a plea agreement pursuant to
which Mr. Russell agreed to enter a nolo contendere plea to the conspiracy charge and the
parties agreed to an eight to fourteen year prison sentence. Mr. Russell entered his plea at
a hearing in September of 2012. The district court accepted the plea and scheduled the
matter for sentencing.

[¶4] Before the sentencing, a new attorney entered an appearance on Mr. Russell’s behalf
and filed a motion to withdraw the nolo contendere plea. In support of the motion,
counsel cited W.R.Cr.P. 32(d) and Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo.
2012). He asserted the motion should be granted because it was made before sentence
had been imposed and was for a fair and just reason in that Mr. Russell was innocent of
the acts the State alleged he had committed. He further argued the district court was
required under Starrett to allow Mr. Russell to withdraw his plea because it had not given
the advisements required by Wyo. Stat. Ann. § 7-11-507 (LexisNexis 2013) at the plea
hearing. Section 7-11-507 provides:

                (a) No judgment of conviction shall be entered upon a plea
              of guilty or nolo contendere to any charge which may result
              in the disqualification of the defendant to possess firearms
              pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and
              924(a)(2) or other federal law unless the defendant was
              advised in open court by the judge:



                                             1
                       (i) Of the collateral consequences that may arise from
                that conviction pursuant to the provisions of 18 U.S.C. §§
                921(a)(33), 922(g)(1), (9) and 924(a)(2); and

                       (ii) That if the defendant is a peace officer, member of
                the armed forces, hunting guide, security guard or engaged in
                any other profession or occupation requiring the carrying or
                possession of a firearm, that he may now, or in the future,
                lose the right to engage in that profession or occupation
                should he be convicted.

[¶5] After a hearing, the district court denied the motion. Relying on Dobbins v. State,
2012 WY 110, 298 P.3d 807 (Wyo. 2012), the district court concluded the denial of a
motion to withdraw a plea is proper even when a defendant provides a fair and just reason
for withdrawing his plea if the advisements required by W.R.Cr.P. 11 were given before
the plea was accepted. The district court reviewed the transcript of the plea hearing and
concluded it had complied with Rule 11 and Mr. Russell had entered his plea voluntarily
and with full knowledge of the consequences.

[¶6] The district court also analyzed the factors articulated in Frame v. State, 2001 WY
72, ¶ 7, 29 P.3d 86, 89 (Wyo. 2001):

                (1)Whether the defendant has asserted his innocence; (2)
                whether the government would suffer prejudice; (3) whether
                the defendant has delayed in filing his motion; (4) whether
                withdrawal would substantially inconvenience the court; (5)
                whether close assistance of counsel was present; (6) whether
                the original plea was knowing and voluntary; and (7)
                whether the withdrawal would waste judicial resources.

The district court in essence concluded: (1) Mr. Russell had asserted his innocence; (2)
the State had demonstrated some prejudice; (3) Mr. Russell did not delay in filing his
motion; (4) the withdrawal would not substantially inconvenience the court; (5) close
assistance of counsel was present; (6) the original plea was entered knowingly and
voluntarily; and (7) judicial resources would not be wasted by allowing withdrawal.

[¶7] The district court also considered Mr. Russell’s claim that it failed to give the
advisements required by § 7-11-507. It concluded § 7-11-507 was inapplicable because
Mr. Russell was already disqualified from possessing firearms by a conviction prior to
entry of his plea in this case.1

1
 During the plea hearing, the district court advised Mr. Russell that he would lose “the right to possess
and bear firearms….” On appeal, Mr. Russell does not pursue his claim that he was not properly advised


                                                   2
[¶8] Finally, the district court considered W.R.Cr.P. 32(d) which provides as follows:

                       (d) Plea Withdrawal. – If a motion for withdrawal of a
                plea of guilty or nolo contendere is made before sentence is
                imposed, the court may permit withdrawal of the plea upon a
                showing by the defendant of any fair and just reason. At any
                later time, a plea may be set aside only to correct manifest
                injustice.

Finding Mr. Russell’s assertion of innocence to be speculative and conclusory, the district
court concluded he had not met his burden of proving that a fair and just reason existed
for allowing him to withdraw his plea. Accordingly, the district court entered an order
denying his motion and the case proceeded to sentencing. After a hearing, the district
court entered a judgment convicting Mr. Russell of conspiracy to possess
methamphetamine with intent to deliver and sentenced him to serve eight to fourteen
years in prison with credit for 121 days served. Mr. Russell timely appealed.

                                   STANDARD OF REVIEW

[¶9] We review a district court decision on a motion to withdraw a plea for abuse of
discretion. Dobbins, ¶ 30, 298 P.3d at 815. The core of our inquiry focuses upon the
reasonableness of the district court’s decision. Jackson v. State, 2012 WY 56, ¶ 6, 273
P.3d 1105, 1107 (Wyo. 2012). The findings of fact leading to denial of a motion to
withdraw a plea are subject to the clearly erroneous standard of review. Dobbins, ¶ 30,
298 P.3d at 815.

                                           DISCUSSION

[¶10] Mr. Russell asserts the district court’s conclusion that he failed to meet his burden
of proving a fair and just reason for allowing him to withdraw his nolo contendere plea is
unreasonable. He contends the district court’s factual findings on the Frame factors
weighed heavily in his favor; therefore, his motion should have been granted. He argues
his claim of innocence considered alone constituted fair and just reason for allowing the
withdrawal. When combined with the findings on the other factors, he asserts the totality
of the circumstances supported allowing him to withdraw his plea. If the circumstances
in his case did not present “a fair and just reason” for allowing withdrawal, he argues, no
circumstance will satisfy the standard and Rule 32(d) as it was intended to apply to pre-
sentence motions is functionally dead.

under § 7-11-507 and we do not address it. We presume, however, that district courts will comply with §
7-11-507 in light of our holdings in Starrett, and more recently in Balderson v. State, 2013 WY 107, 309
P.3d 809 (Wyo. 2013).



                                                   3
[¶11] The State asserts the district court’s ruling denying the motion was reasonable.
Citing Dobbins, the State argues that a district court may deny a motion upon finding that
the requirements of W.R.Cr.P. 11 were met when the plea was accepted. Because those
requirements were met in this case, the State contends the district court had
“unfettered discretion to deny [Mr.] Russell’s motion without analyzing the issue
further.” The State further asserts the district court reasonably concluded Mr. Russell
failed to meet his burden of proving “a fair and just reason” under Rule 32(d).

[¶12] In numerous cases, this Court has said:

                     A defendant does not enjoy an absolute right to
             withdraw a plea of guilty prior to the imposition of sentence.
             The trial court is vested with discretion to determine whether
             to grant a motion to withdraw a plea of guilty made prior to
             sentencing, and it does not abuse that discretion by denying
             the withdrawal of the plea so long as the requirements of
             W.R.Cr.P. 11 were complied with at the time the plea was
             accepted. Even when the defendant provides a plausible or
             just and fair reason for withdrawal of the plea of guilty, the
             denial of the defendant’s motion does not amount to an abuse
             of discretion if the trial court conducted a careful hearing
             pursuant to W.R.Cr.P. 11 at which the defendant entered a
             plea or pleas of guilty that was knowing, voluntary, and
             intelligent.

Dobbins, ¶ 11, 298 P.3d at 811, citing McCard v. State, 2003 P.3d 142, ¶ 6, 78 P.3d 1040,
1042 (Wyo. 2003). See also Bear Cloud v. State, 2012 WY 16, ¶ 18, 275 P.3d 377, 385
(Wyo. 2012); Demeulenaere v. State, 2008 WY 147, ¶ 13, 197 P.3d 1238, 1241 (Wyo.
2008); Hirsch v. State, 2006 WY 66, ¶ 14, 135 P.3d 586, 592-93 (Wyo. 2006); Van Haele
v. State, 2004 WY 59, ¶ 14, 90 P.3d 708, 712-13 (Wyo. 2004); Major v. State, 2004 WY
4, ¶ 12, 83 P.3d 468, 473 (Wyo. 2004); Stout v. State, 2001 WY 114, ¶ 8, 35 P.3d 1198,
1203 (Wyo. 2001); Nixon v. State, 4 P.3d 864, 868-869 (Wyo. 2000); Triplett v. State,
802 P.2d 162 (Wyo. 1990); Osborn v. State, 672 P.2d 777, 788 (Wyo. 1983); Schmidt v.
State, 668 P.2d 656, 660 (Wyo. 1983). In some of these cases, when asked to decide
whether a motion to withdraw a plea was properly denied, this Court limited its inquiry to
whether the district court complied with Rule 11. Those cases generally involved a
motion to withdraw a plea specifically based on a claim that the plea resulted from a
district court’s failure to comply with Rule 11. In Nixon, 4 P.3d at 869, for example, the
defendant moved to withdraw his plea claiming that the district court improperly failed to
advise him at the plea hearing of the mandatory minimum sentence for first degree
murder. This Court concluded the district court complied with Rule 11 and the
defendant’s motion to withdraw his plea was properly denied. See also Stout, ¶ 14, 35


                                            4
P.3d at 1205, where the defendant claimed the Rule 11 hearing transcript showed he did
not knowingly, voluntarily or intelligently enter his plea and we concluded the district
court correctly found the Rule 11 requirements were satisfied. In the context of a plea
withdrawal motion based upon an assertion that Rule 11 was not followed, the quote
from Dobbins is an accurate statement of Wyoming law.

[¶13] In cases where the plea withdrawal motion was not related to the Rule 11
advisements, however, this Court generally has not limited the focus of our inquiry to
Rule 11 but has considered other factors when reviewing a district court denial of a
motion to withdraw a plea. In Osborn, 672 P.2d at 789, for example, the defendant
sought to withdraw his plea claiming that he was under the influence of drugs at the time
he entered it. He did not claim that the district court failed to inquire at the plea hearing
whether he was under the influence of drugs and he was not asserting a lack of
compliance with Rule 11. In considering his claim on appeal that the district court
abused its discretion when it denied his motion to withdraw his plea, this Court carefully
reviewed not only what occurred at the plea hearing but also the evidence presented at the
change of plea hearing, including the testimony of three witnesses who either observed
the defendant around the time of his plea or had specialized knowledge concerning the
medications he took. Their testimony was to the effect that the defendant showed no
signs of being impaired and had not taken dosages sufficient to cause impaired reasoning.
Id. at 790-91. Based upon what occurred before, during and after the defendant entered
his plea, including the evidence presented at the hearing on the motion to withdraw, the
Court concluded there was no abuse of discretion. Because the defendant’s motion was
not based upon a claim of noncompliance with Rule 11, the Rule 11 advisements were
not the focus of this Court’s inquiry.

[¶14] In Schmidt, 668 P.2d at 659, the defendant sought to withdraw his guilty plea after
obtaining new evidence supporting a defense of mental illness or deficiency. While
agreeing the evidence presented a fair and just reason for withdrawal of his plea, this
Court reviewed what occurred at the hearing when the plea was accepted and concluded
the defendant was advised in accordance with Rule 11 (then Rule 15), there was no
indication the guilty plea was not voluntary, there was a factual basis and the defendant
understood the consequences of pleading guilty. The Court stated:

              Withdrawal of a plea of guilty before sentencing is not an
              absolute right. Denial by the district court is within its sound
              discretion and there must be a plausible reason for
              withdrawal. [citations omitted] Where an exhaustive voir
              dire of defendant before accepting plea makes it abundantly
              clear that the plea was entered voluntarily, with full
              understanding of its consequences, and there is a factual
              basis, there is no abuse of discretion.



                                             5
Id., quoting Ecker v. State, 545 P.2d 641, 642 (Wyo. 1976). However, the Court went on
to consider other circumstances besides the district court’s compliance with Rule 11.

             The trial court twice had ordered that Schmidt be examined
             on the issue of mental illness or deficiency. It had before it a
             third report from the Wyoming State Hospital, a fourth report
             from Dr. Yost, and a report made some years earlier in Iowa.
             The case had been filed in the district court for almost a year.
             Similar proceedings had been conducted in a neighboring
             county. The State of Wyoming had prepared its case for trial
             on two occasions, and on one of those the jury panel actually
             had reported for duty. Because abuse of discretion is the
             standard we do not require that the State establish prejudice,
             but on the state of this record we could not as a matter of law
             negate a conclusion by the district court that prejudice had
             been shown.

Schmidt, 668 P.2d at 661.

[¶15] Osborn and Schmidt were decided before Frame, 2001 WY 72, 29 P.3d 86, in
which this Court adopted the seven part test for reviewing a district court’s exercise of
discretion in ruling on a motion for plea withdrawal. As reflected in Osborn and
Schmidt, even before adoption of the Frame factors, this Court’s review was not limited
to whether the Rule 11 advisements were given when the plea was entered; rather, this
Court considered all of the relevant circumstances. Likewise, in Frame, the defendant
did not contend the district court failed to comply with Rule 11; rather, he asserted he
was forced to plead guilty by his attorney. Frame, ¶ 8, 29 P.3d at 89. It was in that
context that we adopted the seven factor test for reviewing a district court’s exercise of
discretion to deny a motion for plea withdrawal. As in earlier cases, we reviewed all of
the circumstances including the defense attorney’s performance throughout the case, the
evidence the State had against the defendant and the defendant’s extensive criminal
history. We concluded the defendant’s claim of coercion was without merit based upon
all of the circumstances and did not limit our review to whether the Rule 11 advisements
were properly given at the plea hearing.

[¶16] Since Frame, this Court has continued to consider all of the relevant circumstances
when reviewing district court rulings relating to plea withdrawals. See Doles v. State,
2002 WY 146, ¶ 11, 55 P.3d 29, 32 (Wyo. 2002), where the defendant sought to
withdraw his plea claiming his counsel was ineffective in that she coerced him into
pleading guilty and upon review of the Frame factors we concluded denying the motion
for plea withdrawal was not an abuse of discretion; Herrera v. State, 2003 WY 25, 64
P.3d 724 (Wyo. 2003) in which we held the defendant presented a fair and just reason for


                                            6
withdrawing his plea where the prosecutor breached the plea agreement; McCard, ¶ 7, 78
P.3d at 1043-44, where after considering the Rule 11 advisements and the Frame factors,
we concluded the defendant did not posit a fair and just reason for withdrawing his plea;
Major, ¶ 13, 83 P.3d at 473, where we concluded the record demonstrated compliance
with Rule 11 at the plea hearing and the defendant failed to show a fair and just reason
for withdrawing his plea. See also Dobbins, ¶ 53-71, 298 P.3d at 821-25; Jackson, ¶ 10,
273 P.3d at 1109; Kruger v. State, 2012 WY 2, ¶ 25, 268 P.3d 248, 254 (Wyo. 2012);
Miller v. State, 2006 WY 92, ¶¶ 7-11, 138 P.3d 688, 690-691 (Wyo. 2006); Hirsch, ¶¶
15-23, 135 P.3d at 593-595; Van Haele, ¶ 33, 90 P.3d at 717.

[¶17] Given the plethora of cases in which this Court has considered all the
circumstances surrounding entry of an initial plea and the reasons for withdrawing a plea,
the State is incorrect in its assertion that the district court had unfettered discretion to
deny the motion upon finding the Rule 11 requirements were met at the hearing when Mr.
Russell entered his plea of nolo contendere. To the extent the district court’s ruling
suggests that compliance with Rule 11 when the plea was entered was grounds in and of
itself to deny the motion to withdraw, it was likewise incorrect. When lack of
compliance with Rule 11 is not the sole basis for a defendant’s motion to withdraw a
plea, the court’s inquiry in determining whether to grant the motion is broader than Rule
11, encompassing the Frame factors and whether the defendant has presented a fair and
just reason for the motion within the meaning of Rule 32.

[¶18] We turn to consideration of whether the district court abused its discretion when it
denied Mr. Russell’s motion. In the motion and at the hearing, defense counsel argued
that Mr. Russell made no admissions at the hearing when he entered his nolo contendere
plea and was now asserting his innocence. Defense counsel further asserted that the
information and supporting affidavit, which together were over twenty pages long,
mentioned Mr. Russell in only three of eighty-five paragraphs:

                     37. On November 21, 2011, text messages and calls
              were intercepted whereby Tim Russell agreed to put $100.00
              in [co-defendant] Frederick’s [bank] account because
              Frederick was stranded out of state.
                     ....
                     71. On December 18, 2011, Frederick met with . . .
              Russell according to communications that were intercepted
              by agents.

                      72.    Subsequently on December 18, 2011, agents
              intercepted a telephone call from Frederick to [co-defendant]
              Lewis. Frederick said that he looked in the shed and it did
              not look like he had enough methamphetamine for Lewis.
              Frederick said that he only found “8” of them. Lewis said she


                                             7
             wanted one. Frederick said that they were “small ones,”
             indicative of grams rather than ounces. Shortly thereafter,
             Lewis called Frederick. Frederick said that he would bring “it
             back” in ten minutes and wanted to know if Lewis got her
             money together. Shortly after that, Frederick called Lewis
             and said that he was going to bring Lewis’ “shit” to her
             house. The two then argued and that call ended. Minutes
             later, Lewis called Frederick. Frederick asked if Lewis was
             just going to “give it all away.” Several minutes later, Lewis
             called Frederick and wanted to know if it was possible to get
             more “stuff” to sell. Frederick said he had enough, but
             wanted Lewis to pay for what Frederick gave her the previous
             day. Later that evening, Frederick called Lewis. Frederick
             wanted to come over to see Lewis. Lewis said that she
             wanted more of that “one thing.” Frederick said that he had
             to meet with Russell and get some methamphetamine from
             Russell. Lewis said that she did not want to deal with
             Russell, she only wanted to deal with Frederick. The two
             argued, then discussed what to eat for dinner. Frederick said
             that he would bring Lewis some methamphetamine after he
             met with Russell.

(Emphasis added.)

[¶19] Addressing the allegations in these three paragraphs, defense counsel asserted
there were plausible explanations having nothing to do with illegal drugs for why Mr.
Russell might be willing to send Frederick money and in any event Mr. Russell never
sent the money. Defense counsel argued the conversation between Lewis and Frederick
was hearsay and could not be used to prove a conspiracy and there were other possible
explanations for Frederick mentioning Mr. Russell, such as perhaps wanting to get Lewis
off his back by diverting her attention elsewhere. Defense counsel argued the case
against Mr. Russell was thin at best and Mr. Russell’s assertion that he was innocent was
by itself a “fair and just reason” for allowing him to withdraw his plea.

[¶20] Under Frame, a defendant’s assertion of innocence is one factor considered in
deciding whether to grant a motion for plea withdrawal. Frame, ¶ 7, 29 P.3d at 89.
Addressing all of the factors, we have said:

             Our intention in setting out the list of factors in Frame was to
             provide guidance to the trial courts in making the
             determination of whether a defendant has presented a fair and
             just reason in support of the motion to withdraw his guilty
             plea. The factors were also intended to assist us in reviewing


                                            8
                the district court’s decision . . . . We emphasize, however,
                that the factors were offered in Frame as a guide to the
                considerations that may be relevant in determining a motion
                to withdraw and consideration on the record or each specific
                factor by the court is not mandatory. No single factor is
                dispositive, and the ultimate determination on the motion is
                based upon whether the defendant has carried his burden of
                establishing a fair and just reason for withdrawal.

Dobbins, ¶ 53, 298 P.3d at 822, quoting Major, ¶ 14, 83 P.3d at 473. Thus, an assertion
of innocence does not by itself establish a fair and just reason for allowing plea
withdrawal.

[¶21] Mr. Russell’s assertion of innocence came through his attorney by way of written
motion and oral argument. Mr. Russell did not testify at the hearing on his motion nor
did he submit an affidavit setting forth evidence supporting his claim of innocence. The
district court concluded the assertion was speculative, conclusory and based upon defense
counsel’s admittedly incomplete review of discovery.

[¶22] This Court has not previously addressed the issue of what a defendant must show
in order to meet his burden of proving a fair and just reason exists for withdrawing his
plea based upon an assertion of innocence. Other courts that have addressed the issue,
however, require more than a bare assertion of innocence. In United States v. Byrum, 567
F.3d 1255, 1264-1265 (10th Cir. 2009), for example, where the defendant sent a letter to
the court immediately before the sentencing hearing in which he claimed his innocence,
the appellate court upheld the denial of the motion for plea withdrawal in part because the
defendant failed to “make [any] factual argument that supports a legally cognizable
defense.” The Court stated:

                While an assertion of innocence may, in some cases, satisfy
                the first Yazzie2 factor, the “mere assertion of a legal defense
                is insufficient; the defendant must present a credible claim of
                legal innocence.” United States v. Hamilton, 510 F.3d 1209,
                1214 (10th Cir. 2007); see also United States v. Hickok, 907
                F.2d 983, 985 n.2 (10th Cir. 1990) (“[T]he assertion of a
                defendant’s subjective belief in his own innocence does not
                mandate allowing him to withdraw his plea of guilty.”
                (quotation and alteration omitted)).


2
 United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005), in which the Tenth Circuit reiterated the
seven factors set out in United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir. 2000) which this
Court adopted in Frame.


                                                    9
Id. (Footnote added.) Other courts likewise require a defendant to support his claim of
innocence with more than a bald assertion. See United States v. Hodges, 259 F.3d 655,
661 (7th Cir. 2001), a defendant must present credible evidence beyond a naked claim of
innocence; United States v. McCoy, 215 F.3d 102, 106 (D.C. Cir. 2000), the defendant’s
“general denial” is not enough; he must “affirmatively advance an objectively reasonable
argument that he is innocent”; United States v. Ludwig, 972 F.2d 948 (8th Cir. 1992), a
mere assertion of innocence, absent a substantial supporting record, will not be sufficient
to overturn a denial of a motion to withdraw; State v. Cherry, 691 S.E.2d 40 (N.C. 2010),
where a defendant failed to offer evidence to support his claim of innocence, his motion
to withdraw his nolo contendere plea was properly denied.

[¶23] In the present case, no evidence was presented in support of Mr. Russell’s claim of
innocence. Rather, his attorney suggested there might be innocent explanations.
Addressing the first allegation against Mr. Russell, defense counsel stated: “And there’s
lots of innocent explanations for the hundred dollars. Like for instance, Frederick was a
friend, and they knew each other since . . . they were children.” Addressing the last
allegation, defense counsel stated:

             [T]here’s all kinds of innocent explanations even for that
             statement.

                    One of the explanations I can conceive of – I’m just
             speculating here – but it might be, Well, here you have an
             addict, Lewis, bugging her boyfriend for methamphetamine.
             He wants to get rid of her; he just tells her, Hey, go ask
             Russell. He could have said ask Jones or ask Smith or ask
             anybody. But – and then there isn’t any proof, that I’m aware
             of anywhere – now I may be wrong … I’m not fully
             informed, as I sit here today, because I haven’t gotten any of
             the discovery.

                    There’s no proof anywhere, that I’m aware of, that
             Russell even had methamphetamine at the time that Frederick
             said that.

Counsel’s hypothetical explanations of the allegations against his client are not evidence
and do not give rise to a credible claim of innocence. The district court reasonably
concluded Mr. Russell’s assertion of innocence did not constitute a fair and just reason
for allowing him to withdraw his plea.

[¶24] Mr. Russell next contends that considered together the Frame factors weighed
heavily in his favor. Of the seven factors, he asserts only two weighed against allowing


                                            10
him to withdraw his plea—whether he had close assistance of counsel and whether his
original plea was knowing and voluntary. He concedes those factors, but claims the other
factors weighed heavily in favor of allowing him to withdraw his plea and go to trial. His
argument focuses on his assertion of innocence and the contention that he made a mistake
when he entered a plea. Again, an assertion of innocence based on admittedly
speculative explanations unsupported by any evidence is not sufficient to show a fair and
just reason for allowing a plea withdrawal. We also have said that a change of mind or
belated misgivings about entering a plea do not constitute a fair and just reason for
allowing a plea withdrawal. Winsted v. State, 2010 WY 139, ¶ 16, 241 P.3d 497, 501
(Wyo. 2010). Mr. Russell did not carry his burden of establishing a fair and just reason
for withdrawal of his plea. The district court did not abuse its discretion in denying the
motion.

[¶25] Affirmed.




                                           11
