Upton v. State

350 Ga.App. 535

829 S.E.2d 791

UPTON

v.The STATE.

A19A0024

Court of Appeals of Georgia.

June 18, 2019

James Allan Rogers, Trenton, for Appellant.

Layla H. Zon, District Attorney, Amber R. Bennett, Assistant District Attorney, for Appellee.

Coomer, Judge.

Adolphus Upton appeals the trial court's order denying his motion to withdraw his guilty plea. He contends that his plea counsel provided ineffective assistance, and that he did not knowingly and voluntarily enter the plea. Although we find that Upton's plea was freely and voluntarily entered into and that he did not receive ineffective assistance of counsel, we nonetheless vacate five of his sentences, as detailed below, because the sentence imposed on each of those counts is unlawful.

After sentencing, a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice ineffective assistance of counsel or an involuntary or unknowingly entered guilty plea. The trial court is the final arbiter of all factual issues raised by the evidence, and its refusal to allow a withdrawal will not be disturbed absent a manifest abuse of discretion.

Green v. State , 324 Ga. App. 133, 133–34, 749 S.E.2d 419 (2013) (citations and punctuation omitted).

The record shows that in February 2018, a Newton County grand jury indicted Upton on one count of rape ( OCGA § 16-6-1 ), two counts of aggravated sodomy ( OCGA § 16-6-2 (a) (2) ), two counts of aggravated child molestation ( OCGA § 16-6-4 (c) ), two counts of aggravated sexual battery ( OCGA § 16-6-22.2 ), one count of incest ( OCGA § 16-6-22 ), one count of child molestation ( OCGA § 16-6-4 (a) ), and one count of influencing a witness ( OCGA § 16-10-93 ).

At the plea hearing, the State proffered that if this case had proceeded to trial, the evidence would have shown that in May 2017 Upton's biological daughter, A.U., who was 13 years old, went to the hospital fearing that she had sexually transmitted diseases. Although she did not, in fact, have any sexually transmitted diseases, she made an outcry at that time that her father had been sexually abusing her for the previous two years.

She then participated in a forensic interview in which she further detailed her allegations. In that interview, she said that Upton had anal and vaginal sex with her and also placed his fingers in her vagina and anus. Later, after charges were filed against Upton, A.U. told investigators that he would call her from jail asking her to say that she lied about the allegations.

Upton entered a negotiated guilty plea to all counts and was sentenced in the aggregate to life imprisonment with the first twenty-five years in confinement followed by life on probation.¹ He timely filed a motion to withdraw his guilty plea which was denied after a hearing. This appeal followed.

1. Upton contends he received ineffective assistance of counsel because counsel failed to speak with certain witnesses, and failed to share certain portions of discovery with him prior to his plea. These arguments lack merit.

In the context of an ineffective assistance of counsel claim, in order to withdraw a guilty plea, the defendant must satisfy both parts of the two-part test applied by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show (1) that counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) that the defendant was prejudiced because, but for the deficient performance, there was a reasonable probability the defendant would not have pleaded guilty and would have insisted on going to trial. A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court's factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.

Green , 324 Ga. App. at 134 (1), 749 S.E.2d 419 (citation and punctuation omitted).

(a) Upton testified at his motion to withdraw hearing that he asked counsel to speak with his mother, sister, and nephew. Counsel confirmed that Upton did make these requests and she attempted to speak with these potential witnesses, but was unable to do so. Pretermitting whether counsel's performance was deficient, Upton's claim fails because he did not call his mother, sister, or nephew at his motion to withdraw hearing, or otherwise make a proffer as to what they would have testified to at a trial. See Domingues v. State , 277 Ga. 373, 374 (2), 589 S.E.2d 102 (2003) (Appellant could not show prejudice under Strickland "with regard to his assertions that counsel failed to fully investigate the case and call essential witnesses because he made no proffer as to what a thorough investigation would have uncovered or what the essential witnesses would have said." (citation omitted)); Smith v. State , 296 Ga. 731, 733 (2), 770 S.E.2d 610 (2015) ("Failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong." (citation and punctuation omitted)).

b. Upton also argues that counsel provided ineffective assistance by failing to furnish him with certain portions of discovery. Specifically, he complains that although counsel did provide him with most of his discovery, he had difficulty listening to certain audio recordings contained on discs. In addition, he asked for, but was never provided with, copies of A.U.’s school records.

Similar to Upton's complaint about his counsel's failure to speak with his relatives, this claim also fails because Upton did not proffer the contents of the discovery he allegedly was unable to review. Upton's failure to proffer the contents of these items renders it impossible for him to establish a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. See Herrington v. State , 285 Ga. App. 4, 6 (b), 645 S.E.2d 29 (2007) ("The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant." (citation, punctuation and footnote omitted)). Not only can Upton not meet his burden based on his lack of an evidentiary proffer, the record is wholly devoid of any evidence that Upton would have insisted on a trial if he had been able to review these audio recordings and A.U.’s school records. Accordingly, because Upton has not met his burden under the second prong of the Strickland test, this claim of ineffective assistance of counsel also fails. Smith , 296 Ga. at 733, 770 S.E.2d 610.

2. In his second enumeration of error, Upton asserts that he should be permitted to withdraw his plea because it was not knowingly and voluntarily entered. We disagree.

To determine whether a guilty plea is valid, the record must show that the defendant understands the plea and the constitutional rights that he is relinquishing. The State has the burden on direct review of establishing that the plea was entered intelligently and voluntarily. The State may meet this burden "by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary." After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court's discretion, and withdrawal of the plea is allowed only when necessary to correct a manifest injustice.

Wright v. State , 292 Ga. 825, 826 (1), 742 S.E.2d 468 (2013) (citations omitted).

To support this claim, Upton relies on his own testimony at the motion to withdraw hearing. At that hearing, he testified that during the plea proceedings, he felt pressured and intimidated to plead guilty, did not understand all of the trial court's questions, and generally "did not understand what was going on." A complete examination of the record, however, supports the conclusion that Upton knowingly and voluntarily entered his plea.

Prior to his plea hearing, Upton completed an "Acknowledgment and Waiver of Rights" form with his attorney. On that form he indicated that no one had threatened him, he was not under the influence of medications or alcohol, he understood he could have a jury trial and no one could make him say, sign, or do anything to show his guilt. He also indicated on the form that he was in fact guilty.

Once the hearing began, the State questioned Upton on the record. In answering the State's questions, he said that he understood the charges against him, that he was facing a maximum punishment of seven life sentences plus 75 years, and that he was foregoing his right to a jury trial in which he would have the opportunity to testify and to call witnesses on his behalf.

The trial court then questioned Upton. In his initial responses,...