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Upton v. State

Court of Appeals of Georgia, Fourth Division

June 18, 2019


          DOYLE, P. J., COOMER and MARKLE, JJ.

          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After sentencing, a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice-ineffective assistance of counsel or an involuntary or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.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 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 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 ...

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