UPTON v. the STATE.
UPTON v. the STATE.
Opinion
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After sentencing, a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice-ineffective assistance of counsel or an involuntary or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
,
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 *794 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
,
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
,
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
,
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.
*795 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
,
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, Upton told the trial court that he was not guilty, but he would "just take it." The trial court then advised him that he should only enter a guilty plea if he was in fact guilty, and continued its questioning. Upton again confirmed that he was guilty of each charge, understood the nature of the evidence against him, and that he was giving up his right to a jury trial. The trial court found on the record that Upton's plea was entered freely and voluntarily, and then pronounced sentence. After the sentence pronouncement, the trial court explicitly offered Upton an opportunity to withdraw his plea at that time. Upton responded that he wanted his plea to stand.
The record from the plea transcript shows that Upton fully understood the nature of the charges against him, the rights he was relinquishing, and the consequences of his plea. Thus, the State has met its burden of demonstrating that the plea was intelligently and voluntarily entered. Upton's testimony at his motion to withdraw hearing that he felt pressured and intimidated, and did not understand the plea proceedings, was a matter of witness credibility, which the trial court was authorized to decide against him.
See
Gower v. State
,
3. Despite our conclusion that Upton's plea itself was validly entered into, we must vacate his sentence for rape, both counts of aggravated sodomy, and both counts of aggravated sexual battery because the trial court imposed a sentence that the law does not allow.
See
Smith v. State
,
*796 Each of the statutes for rape, aggravated sodomy, and aggravated sexual battery provide the same punishment options for a sentencing court: (a) life imprisonment, or (b) a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life. See OCGA § 16-6-1 (b) ; OCGA § 16-6-2 (b)(2) ; OCGA § 16-6-22.2. 2
Here, on each of Upton's convictions for rape, aggravated sodomy, and aggravated sexual battery, the trial court imposed the same sentence: "Life with 25 Years in Confinement." Although the trial court may have intended to comply with the statutory sentencing scheme by imposing "a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life," the language used in the final disposition does not reflect such a sentence. We construe the sentence on each count as written here to impose a life sentence in prison, probated to serve 25 years. Our interpretation of the sentence on each count is buttressed by the "sentence summary" portion of the final disposition. In that portion, the trial court indicated that the aggregate sentence it was imposing was "Life with the possibility of parole with the first 25 years to be served in confinement and the remainder to be served on probation[.]"
We first note that life imprisonment, with the first 25 years in confinement is not a statutorily permitted sentence for any of these convictions; the sentences are therefore void.
See
Daniels v. State
,
Because Upton was unlawfully sentenced on counts 1, 2, 3, 6, and 7, we vacate those sentences and remand to the trial court for further proceedings on those counts.
See
Daniels
,
Judgment affirmed in part; sentence vacated in part, and case remanded.
Doyle, P. J., and Markle, J., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.