APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT FALL RIVER COUNTY, SOUTH DAKOTA THE HONORABLE JEFF W. DAVIS Judge
The opinion of the court was delivered by: 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 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 "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.
[¶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*fn1); see also State v. Thielsen, 2004 S.D. 17, ¶ 15, 675 N.W.2d 429, 433. Manifest injustice 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 ...