Considered on Briefs August 27, 2013.
As Amended June 4, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE CRAIG A. PFEIFLE, Judge.
MARTY J. JACKLEY, Attorney General, MATT NAASZ, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
TERRY L. PECHOTA, Rapid City, South Dakota, Attorney for defendant and appellant.
WILBUR, Justice. GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and SEVERSON, Justices, concur.
[¶1] Mark Outka appeals the magistrate court's denial of his post-sentencing motion to withdraw his guilty plea.
FACTS AND PROCEDURAL HISTORY
[¶2] Outka was charged by information with alternative counts of simple assault for an altercation involving his live-in girlfriend, Jillian Anderson. Although the caption of the information included the words " domestic abuse," the rest of the information made no reference to domestic abuse. The only statute referenced in the information was SDCL 22-18-1, the simple assault statute.
[¶3] The State and Outka, who was represented by counsel, entered into a plea agreement whereby Outka pleaded guilty to simple assault under SDCL 22-18-1(4). Outka admitted that he yelled at Anderson and threatened to kick her out of the house. Outka did not contest the " domestic abuse" notation in the caption of his information before entering his guilty plea. Nor did he challenge whether the assault involved domestic abuse. Additionally, Outka's attorney acknowledged at Outka's preliminary hearing that Outka would plead guilty to simple assault (domestic abuse). The magistrate court sentenced Outka to 360 days in jail, with all 360 days suspended, and one year of probation.
[¶4] Outka subsequently appealed his conviction to circuit court. The circuit court remanded the matter to the magistrate court to allow Outka to move to withdraw his guilty plea. The magistrate court, in its denial of Outka's motion to withdraw the plea, determined that the information was sufficient and that Outka knowingly and voluntarily pleaded guilty to simple assault (domestic abuse). Outka appealed to circuit court, which affirmed the decision of the magistrate court.
[¶5] Outka appeals to this Court, arguing that he should have been allowed to withdraw his plea because the charging information (1) was insufficient, (2) failed to conform to pleading requirements, and (3) failed to inform him of the charges against him. Outka further argues that SDCL 25-10-34 is unconstitutional. Finally, he contends that he did not knowingly and voluntarily plead guilty to simple assault.
STANDARD OF REVIEW
[¶6] " When a defendant moves to withdraw his guilty plea after [a] sentence has been imposed, the trial court will set aside the judgment of conviction and permit the defendant to withdraw his plea only to correct manifest injustice." State v. McColl, 2011 S.D. 90, ¶ 8, 807 N.W.2d 813, 815 (quoting State v. Lohnes, 344 N.W.2d 686, 687-88 (S.D. 1984)); see also SDCL 23A-27-11. A defendant seeking withdrawal of a plea on the grounds of manifest injustice must " show entitlement to relief by clear and convincing evidence." McColl, 2011 S.D. 90, ¶ 9, 807 N.W.2d at 816 (citation ...