P. J., COOMER and MARKLE, JJ.
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After sentencing, a guilty plea may only be withdrawn if the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).
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).
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.
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
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. He timely filed a motion to withdraw his
guilty plea which was denied after a hearing. This appeal
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.C.
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 (citation and punctuation
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 omitted)).
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