(dissenting).
Based upon an application of the facts in this case to the holding in United States v. Sands, 908 F.2d 304 (8th Cir.1990) I respectfully dissent. Essentially, at the sentencing hearing, the State made an allegation against Wabasha that Wabasha (State “feels”) was one of two people who were never apprehended in a strong arm robbery at a gun shop in Sioux Falls. Wabasha had no notice that this “other crime” would be considered and was not afforded due process with respect thereto. Wabasha was not given an opportunity to respond nor an opportunity to rebut contested factual information relied upon by the sentencing court through a hearing. Attached hereto and by this reference made a part hereby is a copy of the ORDER DENYING PETITIONER’S REQUEST FOR HABEAS CORPUS. Note that the request “... is denied without hearing.” This is a requirement under United States v. Catch The Bear, 727 F.2d 759, 761 (8th Cir.1984). The Catch The Bear case arose from this Court. In Catch The Bear at 761, the Eighth Circuit held “Factual matters considered [at sentencing] must have some minimal indicium of reliability beyond mere allegation.”
As one can note in the first paragraph of the majority opinion, the circuit court issued a certificate of probable cause, by virtue of SDCL 21-27-18.1, on the 30th day of September, 1991, which was limited to a procedural question• this question was: Did the circuit court err, in denying Waba-sha’s application for a writ of habeas corpus after court appointed counsel’s motion to withdraw, without granting Wabasha a hearing? I maintain that Wabasha was denied due process. Wabasha is entitled, in my opinion, to raise his constitutional claims in a successive habeas application under SDCL 21-27-16.1 (1987). This can only be asserted if the court “... finds grounds for relief asserted which for reasonable cause were omitted or inadequately raised in the original application.” In addition to this statute, see Gregory v. Solem, 449 N.W.2d 827, 830 (S.D.1989), as supporting authority. State contends because Wa-basha had an opportunity to address the trial court that, per its brief, “... nothing in the record ... would even remotely support Petitioner’s [Wabasha’s] contention that, had he denied his involvement in this matter, the trial court would not have afforded him a procedure designed to elicit the truth.” If you will read the trial court’s remarks in open court, it is obvious that those remarks directly contradict the state’s appellate advocacy. It is my belief that United States v. Sands, 908 F.2d 304 (8th Cir.1990) supports Wabasha’s position.
*614In Sands, in open court, the trial court asked him about bringing cocaine into South Dakota, how many times, etc. At this time, the district court, on the record, following the previous colloquy to which I have referred, then stated that by the previous sentence the district court knew that Sands had brought cocaine, by the same procedure [into the state] a number of times. Here, the circuit court followed the same procedure as in Sands. In Sands, the federal district court relied upon evidence obtained from an independent proceeding, without giving Sands notice. Same here — no notice to Wabasha. In the state’s brief, it condemns Wabasha for not responding to the circuit court’s allegation. In effect, it denounces Wabasha for not objecting — for not saying something. Not fair. It was his lawyer’s duty to speak out, object, and represent his client, Wabasha! Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). His lawyer was the professional; Wabasha was an Indian male with little education. In both his lawyer’s plea and Wabasha’s plea, I noted arguments of the State that Waba-sha was stereotyped as a drunk and lazy, was later countered by pointing out (1) the Presentence Investigation revealed that the State Penitentiary expressed he was a good prisoner (2) that Wabasha embraced Jesus Christ and wanted to amend his life. He said: “In the name of Jesus [I] throw myself on the mercy of the Court.” Later, he expressed he stopped using drugs and alcohol. Again, he said: “My faith in Jesus, you know, I didn’t come instantly holy. You know, takes a while adjusting to that faith, you know. It’s a narrow road that you’ve got to walk. But this is what I have choose and this is what I have learned from being in jail.” (Emphasis supplied mine). It is difficult for any man to change his entire way of life and it is particularly difficult for a man to change his religion. Native Americans believe in the Great Spirit. Wakan-Tonka. Judge Kean, the trial court judge, expressed that he could not gauge the degree of sincerity of Wabasha. Neither can I. But I desire to express that we have before us a man, who for all intents and purposes, has (a) recognized the need to change (b) has changed as demonstrated by his prison record and (c) wants to turn his life around to constructive activities. He expresses, as he stands before Judge Kean, that he wants to take training and turn his life around. Can Wabasha be rehabilitated? I don’t know. But he has certainly taken positive steps to do so. His ultimate amount of imprisonment is with the Board of Charities and Corrections— not the judiciary; but, before the long solitary years of confinement set in — there is one legal concept I cannot escape: Waba-sha, under the law I have written above, is assuredly entitled to a due process hearing and I abide by the dictates of Catch The Bear, Gregory, Sands, and Townsend.
Here, the circuit court relied on mere allegation without any offered indicia of reliability. Thus, this case should be remanded to the circuit court for an eviden-tiary hearing. I cannot join the majority opinion. Further, it appears to me that since Wabasha first filed his pro se habeas application in May 1990, South Dakota has yet to file a pleading in Wabasha’s case. Rather than to see this case reversed by the Eighth Circuit Court of Appeals, I supplicate my Brothers on this Court because of procedural deficiencies and a major substantive error, to remand this case to the circuit court so that Wabasha has an opportunity to respond to the circuit court’s reliance on evidence taken at another sentencing hearing.
ATTACHMENT STATE OF SOUTH DAKOTA :SS COUNTY OF MINNEHAHA IN CIRCUIT COURT SECOND JUDICIAL CIRCUIT Elroy L. Wabasha, Petitioner, vs. Walter Leapley, Warden of the South Dakota Penitentiary, Respondent,
CIV. 90-1251
ORDER DENYING PETITIONER’S REQUEST FOR HABEAS CORPUS
Based upon the foregoing Findings of Fact and Conclusions of Law together with *615all of the documents filed in this matter together with the matters that the Court has taken judicial notice of, it is hereby ordered that
1. That the petitioner’s request for Writ of Habeas Corpus is hereby denied without a hearing.*
2. That the petitioner shall be detained in custody to serve the former imprisonment under the commitment and sentence previously mentioned by the Court herein.
3.That court appointed counsel’s further representation of the petitioner in this case is terminated.
Dated at Sioux Falls, South Dakota this 24th day of July, 1991.
BY THE COURT:
/s/Gene Paul Kean Circuit Court JudgeEmphasis supplied mine.