State v. McColl, No. 25885.

CourtSupreme Court of South Dakota
Writing for the CourtZINTER
Citation2011 S.D. 90,807 N.W.2d 813
Docket NumberNo. 25885.
Decision Date21 December 2011
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Buckly McCOLL, Defendant and Appellant.

2011 S.D. 90
807 N.W.2d 813

STATE of South Dakota, Plaintiff and Appellee,
v.
Buckly McCOLL, Defendant and Appellant.

No. 25885.

Supreme Court of South Dakota.

Considered on Briefs Nov. 14, 2011.Decided Dec. 21, 2011.


[807 N.W.2d 814]

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.

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

[807 N.W.2d 815]

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...

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2 practice notes
  • State v. Outka, No. 26599.
    • United States
    • Supreme Court of South Dakota
    • 26 Febrero 2014
    ...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 alsoSDCL 23A–27–11. A defendant seeking withdrawa......
  • Jas Enters., Inc. v. BBS Enters., Inc., Nos. 26414
    • United States
    • Supreme Court of South Dakota
    • 17 Julio 2013
    ...defendants to personal jurisdiction absent substantial compliance with’ the governing service-of-process statute.” 2011 S.D. 86, ¶ 17, 807 N.W.2d at 813 (quoting Wagner, 1998 S.D. 9, ¶ 9, 574 N.W.2d at 629). [¶ 15.] After JAS initiated this suit in 2004, BBS and the Statons filed an answer ......
2 cases
  • State v. Outka, No. 26599.
    • United States
    • Supreme Court of South Dakota
    • 26 Febrero 2014
    ...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 alsoSDCL 23A–27–11. A defendant seeking withdrawa......
  • Jas Enters., Inc. v. BBS Enters., Inc., Nos. 26414
    • United States
    • Supreme Court of South Dakota
    • 17 Julio 2013
    ...defendants to personal jurisdiction absent substantial compliance with’ the governing service-of-process statute.” 2011 S.D. 86, ¶ 17, 807 N.W.2d at 813 (quoting Wagner, 1998 S.D. 9, ¶ 9, 574 N.W.2d at 629). [¶ 15.] After JAS initiated this suit in 2004, BBS and the Statons filed an answer ......

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