GILBERTSON, Chief Justice.
[¶ 1.] In her second appeal to this Court,
[¶ 2.] At approximately 2:00 a.m. on July 10, 2010, after an evening of consuming alcohol, Kvasnicka caused a fatal automobile accident by driving her vehicle southbound in the northbound lane of Interstate 229 near Sioux Falls. Although Kvasnicka was not seriously injured, one passenger in the car she struck died at the scene and another passenger suffered a serious injury to his arm. The alcohol content in Kvasnicka's blood was as high as 0.225 at 3:44 a.m. and still at least 0.200 at 4:47 a.m.
[¶ 3.] A jury convicted Kvasnicka of first-degree manslaughter by means of a dangerous weapon, vehicular homicide, vehicular battery, and driving under the influence. Kvasnicka admitted to two habitual-offender informations alleging that she had been previously convicted twice for driving under the influence and once for second-degree burglary. The circuit court sentenced Kvasnicka to 70 years in prison with 18 years suspended. Among other things, Kvasnicka appealed the circuit court's admission of expert testimony regarding the kinetic energy of Kvasnicka's vehicle. After determining the challenged testimony was prejudicial and not relevant, this Court reversed and remanded for a new trial.
[¶ 4.] A second trial was scheduled for August 20, 2013. However, the State and Kvasnicka entered into a plea agreement. Under the agreement, Kvasnicka pleaded guilty to one count of first-degree manslaughter and one count of vehicular battery. In exchange for her plea, the State agreed to seek a sentence of 37.5 years and restitution in the amount of $199,111. The circuit court held a plea hearing on August 15, 2013. At the hearing, the circuit court explained Kvasnicka's constitutional rights, the charges against her, and the terms of the plea agreement. The court then had the following discussion with Kvasnicka:
Following this discussion, the court had the State recite the factual basis for the guilty plea, and Kvasnicka agreed with the State's rendition of the facts.
[¶ 5.] On February 26, 2014 — the day before the scheduled sentencing — defense counsel informed the State that Kvasnicka might want to withdraw her plea. Kvasnicka did not file a motion to withdraw her plea until June 12, 2014. The court held a hearing on the motion on August 13, 2014. At the hearing, the State indicated it was unable to locate a witness, Christopher Jones, whom the State expected to testify that Kvasnicka used her automobile as a dangerous weapon on July 10, 2010, by driving the wrong way on the interstate at 80 miles per hour and that she did not attempt to avoid colliding with the other vehicle. Jones did not testify during the first trial because the State had lost contact
[¶ 6.] Kvasnicka appeals, raising one issue: Whether the circuit court abused its discretion by denying her motion to withdraw her guilty plea.
[¶ 7.] "The decision to allow a defendant to withdraw a guilty plea is a matter solely within the discretion of the trial court and is reviewed under an abuse of discretion standard." State v. Pentecost, 2015 S.D. 71, ¶ 9, 868 N.W.2d 590, 593 (quoting State v. Goodwin, 2004 S.D. 75, ¶ 4, 681 N.W.2d 847, 849). "An abuse of discretion `is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.'" Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (quoting Arneson v. Arneson, 2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 910).
[¶ 8.] SDCL 23A-27-11 permits a defendant who has pleaded guilty to make a "motion to withdraw a plea of guilty ... before sentence is imposed or imposition of sentence is suspended[.]" The grant or denial of a motion to withdraw a guilty plea is within the discretion of the circuit court. State v. Schmidt, 2012 S.D. 77, ¶ 15, 825 N.W.2d 889, 894. Although "a court should exercise its discretion liberally in favor of withdrawal[,]" State v. Olson, 2012 S.D. 55, ¶ 18, 816 N.W.2d 830, 836, a defendant does not have "an automatic right to withdraw a guilty plea[,]" id. (quoting State v. Thielsen, 2004 S.D. 17, ¶ 15, 675 N.W.2d 429, 433); United States v. Heid, 651 F.3d 850, 853 (8th Cir.2011). After a defendant pleads guilty pursuant to a plea agreement, she "may not withdraw [her] plea unless [she] shows a `fair and just reason'" for doing so. United States v. Hyde, 520 U.S. 670, 671, 117 S.Ct. 1630, 1631, 137 L.Ed.2d 935 (1997); Schmidt, 2012 S.D. 77, ¶ 16, 825 N.W.2d at 894.
[¶ 10.] Kvasnicka does not dispute that her plea was voluntary or that she understood her constitutional rights at the time she pleaded guilty. Instead, she asserts the circuit court abused its discretion by denying her motion to withdraw her guilty plea because her "decision to plead guilty stemmed from her own fear of going forward to a jury trial" and because "she had no recollection as to how she was handling the vehicle she was driving on the night of July 10, 2010." Under the circumstances of this case, Kvasnicka has not presented a fair and just reason for withdrawing her plea.
[¶ 11.] Kvasnicka's assertion that she should have been allowed to withdraw her guilty plea because she was unable to recall the events of July 10, 2010, is meritless. At the August 15, 2013 plea hearing, the court asked the State to recite the factual basis for Kvasnicka's plea. Among other things, the State said:
After the State concluded its recitation of the facts, the court had the following discussion with Kvasnicka:
Despite the foregoing, Kvasnicka now claims that she could not remember the details of July 10, 2010, even while she was representing to the court that she did remember the same. In essence, then, Kvasnicka asserts that lying to a court constitutes a fair and just reason for later withdrawing a guilty plea.
[¶ 12.] The United States Court of Appeals for the District of Columbia Circuit decided a similar case in United States v. Shah, 453 F.3d 520 (D.C.Cir.2006). Shah pleaded guilty to charges of importing heroin, conspiring to possess heroin with the intent to distribute, and conspiring to distribute heroin. Id. at 521. Before sentencing, Shah sought to withdraw his plea, but the district court denied the motion. Id. On appeal, Shah did not dispute that the plea proceedings fully complied with required procedures. Id. at 522. Instead, Shah "asserted that the plea agreement `improperly inflated and enhanced [his] role' in the conspiracy and that `there was little or no factual basis in the government's proffer.'" Id. The court of appeals concluded that "Shah's argument ... amounts to a claim that the defect in the taking of his plea consisted of his committing perjury when, under oath, he acknowledged the truth of the factual recitals in the plea agreement and in the government's proffer." Id. at 523. Thus, when faced with the same argument that Kvasnicka now offers to this Court, the court of appeals held, "Lying to a court is not a `fair and just reason' for allowing a plea to be withdrawn." Id. (citation omitted); see also United States v. Vargas-Gutierrez, 464 Fed.Appx. 492, 496 (6th Cir.2012); United States v. Peterson, 414 F.3d 825, 827 (7th Cir.2005).
[¶ 13.] We agree with Shah. "[A] motion that can succeed only if the defendant committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a compelling explanation for the contradiction." Peterson, 414 F.3d at 827. Here, Kvasnicka has offered no such explanation.
Kvasnicka's brief to this Court similarly states: "Having previously sat through a jury trial on the same case, [her] biggest concern was avoiding having to drag everyone through a trial once again, not whether or not she was actually guilty of Manslaughter in the 1st Degree." Therefore, we are left to conclude that the fear to which Kvasnicka refers is simply the fear of going to trial a second time.
[¶ 14.] There are several problems with Kvasnicka's argument. First, Kvasnicka already appealed the outcome of her first trial. Among other things, she sought reversal because of the admission of expert testimony that she alleged was inadmissible. Kvasnicka succeeded in convincing this Court that a new trial was necessary, and she can hardly now claim to be afraid of the result of that success — a new trial. Second, Kvasnicka does not dispute that her plea was voluntary in the constitutional sense; therefore, the degree of fear under consideration here necessarily was not so great as to deprive Kvasnicka of a meaningful decision.
[¶ 15.] A number of additional factors support the conclusion that Kvasnicka has not stated a fair and just reason to withdraw her plea. The transcript of the plea hearing firmly establishes that the circuit
[¶ 16.] In addition to the foregoing factors, the State also asserts that granting Kvasnicka's motion to withdraw her guilty plea would have prejudiced the State's prosecution of the case. Deputy State's Attorney Ryan Sage testified during the August 13, 2014 hearing that he was unable to locate Christopher Jones, who testified before the grand jury but not at trial, after Kvasnicka sought to withdraw her plea. Jones testified before the grand jury that he was travelling south on Interstate 229 in the southbound lane at approximately 65 miles per hour when he observed Kvasnicka travelling south in the northbound lane. The State expected Jones to testify during the second trial that he estimated Kvasnicka was traveling at 80 miles per hour, that she was accelerating faster than his own vehicle, and that she did not attempt to deviate from her course prior to the collision.
[¶ 17.] Kvasnicka asserts the State's prosecution would not have been prejudiced because Jones did not testify during the first trial and other witnesses were available to testify regarding Kvasnicka's driving. Considering our decision in Kvasnicka's first appeal, her argument here is unavailing. In her first appeal, this Court held that the State's expert witness's testimony regarding the kinetic energy of Kvasnicka's vehicle was not relevant, in part, because the expert witness did not know or base his calculations on the actual speed of Kvasnicka's vehicle. State v. Kvasnicka, 2013 S.D. 25, ¶¶ 32-33, 829 N.W.2d 123, 131. This Court further held that the circuit court's admission of this evidence prejudiced Kvasnicka — i.e., that without such evidence, the jury would have likely acquitted Kvasnicka of the charge. Id. ¶ 33, 829 N.W.2d at 131. The implication of that holding is that on retrial, the absence of the excluded evidence would likely result in Kvasnicka's acquittal. Although other individuals witnessed the accident, Kvasnicka has not directed our
[¶ 18.] Lying to a plea-taking court does not support a fair and just reason for later withdrawing a guilty plea, and Kvasnicka's fear in proceeding to trial — a fear that was not so great as to make her plea involuntary — is not a compelling reason sufficient to justify such falsehood. Even if it did, Kvasnicka does not assert that her plea was not knowing and voluntary, she does not claim to be innocent, she waited at least four months and as many as ten months to attempt to withdraw her plea, the State's prosecution would be prejudiced if she were allowed to withdraw her plea, and she entered her plea with the guidance of competent counsel. Under these facts, we cannot conclude that the circuit court abused its discretion by denying Kvasnicka's motion to withdraw her guilty plea. Therefore, we affirm.
[¶ 19.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.