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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JONATHAN GARRETT UPTON
Appellant No. 1309 WDA 2016
Appeal from the Judgment of Sentence January 14, 2016
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000114-2015
BEFORE: BOWES, LAZARUS, AND OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 1, 2017
Jonathan Garrett Upton appeals from the judgment of sentence of ten
to twenty years incarceration imposed after he pled guilty to statutory
sexual assault, indecent assault, incest, endangering the welfare of a child,
and corruption of minors. We affirm.
This matter arose after Appellant’s then-fourteen-year-old daughter,
D.U., reported to police and child services that Appellant had engaged in
sexual intercourse with her on numerous occasions dating back to when she
was eight years old. On March 5, 2015, Appellant was arrested and charged
with rape of a child and various other related offenses. While being
interviewed by police, Appellant made inculpatory statements, including that
he once awoke to find D.U. performing oral sex on him, and that he had
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once shown her pornography because she was purportedly curious about
sexual intercourse.
On the date of jury selection, Appellant elected to plead guilty.
Appellant tendered an open guilty plea to the above-listed offenses, and the
court nolle prossed the remaining charges. The trial court conducted the
mandatory colloquy, wherein Appellant confirmed that he understood his
rights and the maximum penalties for his offenses, and that no one had used
force or coercion to induce him to enter a plea. Further, Appellant verified
that he had sufficient time to discuss the case with his attorney. The court
then reviewed the nature, factual basis, maximum penalties, and reporting
requirements for the charges brought against Appellant. At one point in the
colloquy, Appellant consulted with his lawyer and the trial court to ensure
that the factual basis for his plea was solely oral sexual intercourse.
The elements of each crime were set forth in the record, and Appellant
pled guilty based on his concession that he had oral sexual intercourse with
his daughter, who was less than thirteen years old, on more than one
occasion, and that he showed her pornography. The court accepted
Appellant’s guilty plea as knowingly, intelligently, and voluntarily made. It
then deferred sentencing so that a sexually violent predator (“SVP”)
evaluation could be conducted by the Sexual Offender Assessment Board
(“SOAB”). In furtherance of the assessment, Appellant provided a
preliminary interview to a SOAB investigator on October 19, 2015, wherein
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he reiterated inculpatory statements regarding the basis of the charges.
During this interview, Appellant averred that D.U. had once performed oral
sex on him, and that, on another occasion, he showed her pornography.
Following the entry of his guilty plea, Appellant’s counsel filed a motion
to withdraw from her representation. On December 23, 2015, current
counsel entered his appearance and filed a motion to withdraw guilty plea
asserting that Appellant was innocent of the crimes charged, and that he
was pressured by prior counsel into entering a plea. The trial court held a
hearing on the motion wherein Appellant testified on his own behalf and
offered the testimony of his sister in support of his position. The trial court
found this testimony to be incredible, and, accordingly, denied Appellant’s
motion. On January 14, 2016, the court, relying on the SOAB’s assessment,
found Appellant to be an SVP and sentenced him to an aggregate term of
ten to twenty years incarceration with credit for time served.
Appellant filed a post-sentence motion to modify and reduce his
sentence. Before the court could rule on that motion, however, Appellant
filed a notice of appeal to this Court. We quashed that appeal, and
remanded to the trial court for disposition of the outstanding post-sentence
motion. The trial court then denied Appellant’s post-sentence motion, and
he again filed a timely notice of appeal to this Court. Appellant complied
with the trial court’s order to file a Rule 1925(b) concise statement of errors
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complained of on appeal, and the court authored its Rule 1925(a) opinion.
This matter is now ready for our review.
Appellant lodges two complaints for our consideration:
[1] Did the Trial Court err in denying Appellant’s Motion to
Withdraw Guilty Plea where Appellant has claimed he is
innocent of the charges against him and has asserted that
he was pressured by prior counsel to accept a plea?
[2] Did the Trial Court abuse its discretion in sentencing
Appellant to an aggravated sentencing range based on
consideration of impermissible factors and unsubstantiated
assertions?
Appellant’s brief at 4.
Appellant’s first issue challenges the trial court’s denial of his motion to
withdraw his guilty plea. Under the rules of criminal procedure, a trial court
may, in its discretion, permit a defendant to withdraw a guilty plea at any
time before sentence is imposed. Pa.R.Crim.P. 591(A). While there is no
absolute right to withdraw a guilty plea, if a motion to withdraw is filed prior
to sentencing, such motions are to be granted liberally. Commonwealth v.
Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015) (citing Commonwealth
v. Forbes, 292 A.2d 268, 271 (Pa. 1973)).
Our standard of review in this context is well settled:
A trial court’s decision regarding whether to permit a guilty plea
to be withdrawn should not be upset absent an abuse of
discretion. An abuse of discretion exists when a defendant
shows any fair and just reasons for withdrawing his plea absent
substantial prejudice to the Commonwealth.
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Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa.Super. 2013) (internal
citations and quotation marks omitted). Formerly, a bare assertion of
innocence was considered a fair and just reason to permit the presentence
withdrawal of a guilty plea. See Forbes, supra. However, in Carrasquillo,
supra, our High Court articulated that “a bare assertion of innocence is not,
in and of itself, a sufficient reason to require a court to grant” a presentence
request to withdraw a guilty plea. Carrasquillo, supra at 1285. The
Supreme Court determined that “a defendant’s innocence claim must be at
least plausible to demonstrate, in and of itself, a fair and just reason for
presentence withdrawal of a guilty plea.” Id. At 1292. Hence, it ruled that
“broadly, the proper inquiry on consideration of such a withdrawal motion is
whether the accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would promote
fairness and justice.” Id.
In denying Appellant’s motion to withdraw his guilty plea, the trial
court found that his claims amounted to a bare assertion of innocence. Trial
Court Opinion, 11/9/16, at 4.1 The court noted that Appellant only
proclaimed his innocence twice during the plea withdrawal hearing, and both
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1
The trial court authored two 1925(a) opinions, one after Appellant first
appealed to this Court, which we subsequently quashed, and a second
following this appeal. In its second opinion, filed on November 9, 2016, the
court relies heavily on its previously filed opinion, dated March 7, 2016.
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times it was in response to a question from counsel. Id. At 3-4. It
highlighted that, when asked why he wanted to withdraw his plea, Appellant
did not expound upon his innocence, but rather, he stated that he was
unfamiliar with the process and that he had been pressured by his attorney.
Id. at 4.
In addition, the trial court found the timing of Appellant’s motion to
withdraw to be significant. It noted that Appellant waited to file his motion
to withdraw his guilty plea until after he received the SOAB report on
November 23, 2015, and just weeks prior to sentencing. It observed that
Appellant testified that he desired to withdraw his plea the day he entered it
on September 1, 2015, yet he was thwarted in this endeavor by prior
counsel. In light of this extended timeframe, and Appellant’s failure to bring
any supposed problems with prior counsel to the court’s attention, the court
found Appellant’s explanation incredible. Further, the court was not
persuaded by Appellant’s testimony that D.U. had recanted her allegations,
finding no evidence of record to support that assertion. Finally, the court
found Appellant’s claims that he “felt pressured” to enter the guilty plea
implausible. Id. at 6. Rather, the court stated, Appellant had ample time
prior to jury selection to consult with his attorney, and that he “was alert, he
was calm, and he appeared to be at ease during the [plea] proceeding.” Id.
Thus, the court concluded that Appellant had not made a plausible assertion
of innocence.
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We find that the trial court did not abuse its discretion in denying
Appellant’s motion to withdraw. In addition to proclaiming his innocence,
Appellant relies on two claims to bolster his position: that the victim has
since recanted her allegations, and that Appellant was coerced into entering
his plea by prior counsel. Upon review of the certified record, we find no
support for either of these claims. First, the record is devoid of any
indication that the victim has renounced her allegations. Second, although
Appellant asserts that prior counsel failed to meet with him, return his
communications, or advocate zealously on his behalf, he has not produced
evidence in support of those allegations beyond his testimony, and the
testimony of his sister, which the trial court did not credit.
For example, at the withdrawal hearing, Appellant testified that his
sister attempted to contact prior counsel regarding his request to withdraw
his guilty plea. N.T. Hearing, 1/8/16, at 12-13. Appellant’s sister, Tara
Vanderhoof, echoed this statement and averred that she attempted to
contact prior counsel “several times” by phone and email to express
Appellant’s wish to withdraw his guilty plea. Id. at 25. Neither claim
supports Appellant’s contention that his guilty plea counsel was coerced by
counsel. Furthermore, Appellant did not offer phone records, or any other
evidence, to support these claims. Moreover, during the plea colloquy,
Appellant acknowledged that he understood his rights, that he was satisfied
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with prior counsel’s representation, and that he was entering his plea
voluntarily. N.T. Guilty Plea, 9/1/15, at 9-12.
In light of the inculpatory statements Appellant made to the police and
the SOAB investigator, we find that Appellant failed to make a plausible
claim of innocence. Accordingly, we conclude that Appellant did not
establish a colorable demonstration that withdrawal of his plea would
promote fairness and justice. Carrasquillo, supra; Cf. Commonwealth v.
Islas, 156 A.3d 1185 (Pa.Super. 2017) (finding defendant had made
plausible assertion of innocence where he made no inculpatory statements,
maintained innocence throughout course of investigation, demonstrated
implausibility of allegations, and asserted that victim had motive to fabricate
charges). No relief is due.
In his second issue, Appellant raises a challenge to the discretionary
aspects of his sentence, contending that the trial court abused its discretion
by sentencing him in the aggravated range based on its consideration of
impermissible factors and unsubstantiated assertions. It is well-settled that
“[s]entencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa.Super. 2014) (citation omitted). Furthermore, “the right to appellate
review of the discretionary aspects of a sentence is not absolute, and must
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be considered as a petition for permission to appeal.” In order to invoke this
Court’s jurisdiction:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the
issues were properly preserved at sentencing or in a motion to
reconsider and modify sentence; (3) whether appellant’s brief
has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Id.
Herein, Appellant filed a timely notice of appeal, a timely post-
sentence motion to modify his sentence, and included a Rule 2119(f)
statement in his appellate brief. Further, we find that Appellant has raised a
substantial question for our review. Commonwealth v. Shugars, 895 A.2d
1270, 1274-75 (Pa.Super. 2006) (finding substantial question were
appellant argued trial court relied on “impermissible factors,” as reason for
increased sentence).
After pleading guilty to the aforementioned offenses, Appellant was
sentenced at five counts to an aggregate sentence in the aggravated range
of one-hundred-twenty to two-hundred-forty months imprisonment. The
trial court had the benefit of a presentence investigation report and set forth
its reasoning for sentencing Appellant in the aggravated range as follows:
I am aggravating the sentences at count two, nine, and
twelve for the following reasons. You are the victim’s father and
sole caregiver at all times of your assault. You used your
position as her sole caregiver to repeatedly victimize her. You
violated that parental trust.
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Second reason is that the harm you have inflicted upon
your daughter is substantial and permanent. She is in
counseling now. She probably will be for a long time. And,
walking through life knowing what your father perpetrated upon
you is an unfathomable burden for her to carry.
The third reason, you failed to accept any responsibility for
your actions and you are a poor candidate for rehabilitation. In
your interviews, you blame your daughter. You, basically,
accuse her of being the sexual aggressor of some uncontrollable
attraction to you. Because of your pedophilia, your paraphilia, a
lifetime condition, you will always be a danger to any young
woman who crosses your path. Part of my observations about
that have been you in the courtroom. I see nothing in your
demeanor or actions that would indicate any type of remorse,
any type of acceptance of responsibility. The sentences at count
ten and count eleven are being aggravated for the second and
third reasons I just identified above.
N.T., 1/14/16, at 42-44.
Appellant’s argument in this regard is multi-faceted. First, he
contends that the trial court failed to consider the sentencing guidelines.
Second, he claims that the trial court abused its discretion by relying on
impermissible factors in sentencing him outside of the guideline ranges. In
fashioning his sentence, Appellant maintains that the court employed
unreliable information, for example, that Appellant had failed to accept
responsibility for his actions. Appellant claims this factor was not relevant
since he had moved to withdraw his guilty plea on the basis that he was
innocent of the crimes committed, and therefore, he should not be expected
to express remorse. He also assails the trial court’s reliance on its
“observations of Appellant,” asserting that the court did not specify what
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those observations entailed, and therefore, there is no means to ascertain
whether they were relevant to the sentencing scheme. Appellant’s brief at
35.
Further, Appellant argues that the trial court utilized “unsubstantiated
claims,” including that he blamed his daughter for his sexual activity, that he
was a pedophile and “always will be,” and that he was a danger to “any
young child in the community who crosses his path.” Id. Next, Appellant
argues that the sentencing court’s reasoning reflects bias towards him. He
notes that the trial court’s statements at the sentencing hearing and during
prior proceedings reflect animosity towards him. Finally, Appellant contends
that his sentence was disproportionate to his crime insofar as it failed to be
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and the community, and his
rehabilitative needs. He alleges that a maximum sentence of twenty years
imprisonment is “more consonant with homicide or a long history of violent
drug trafficking.” Appellant’s brief at 37.
We find that the trial court did not abuse its discretion in rendering
Appellant’s sentence in the aggravated range of the sentencing guidelines.
At the outset, we note that the trial court did not sentence Appellant outside
the sentencing guidelines, but merely in the aggravated range.
Commonwealth v. Bowen, 975 A.2d 1120, 1128 (Pa.Super. 2009) (noting
that sentence, despite falling in aggravated range, still constituted a
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sentence within the guidelines). Thus, our review is limited to determining
whether Appellant’s sentence was “clearly unreasonable.” Id. (citing 42
Pa.C.S. § 9781(c)(2)). Moreover, the trial court had the benefit of a pre-
sentence investigation report, see N.T., 1/14/16, at 34, and therefore, we
presume that the court “is aware of all appropriate sentencing factors and
considerations,” including the protection of the public, the gravity of the
offense as its relates to the impact on the life of the victim and the
community, and the rehabilitative needs of the defendant. Commonwealth
v. Johnson, 167 A.3d 17, 26 (Pa.Super. 2017) (citation omitted); 42
Pa.C.S. § 9721(b).
In determining Appellant’s sentence, the court reviewed the SOAB
report, which included statements Appellant made to the SOAB investigator
on October 19, 2015. Appellant relayed to the investigator that he once
awoke to find his daughter performing oral sex on him, that he showed her
pornography, and that he felt she wanted to engage in sexual intercourse
with him. The SOAB report also revealed that Appellant met the diagnostic
criteria for pedophilic disorder, which is considered a lifetime condition. This
evidence was introduced by the Commonwealth through Brenda Manno, a
licensed clinical social worker for the SOAB. See N.T., 1/14/16, at 7-10, 17-
20. Thus, contrary to Appellant’s position, we find record support that the
court utilized reliable and substantiated information, based upon the facts
and evidence before it.
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Lastly, as noted above, the trial court clearly and extensively set forth
its reasoning for Appellant’s sentence on the record. We do not detect any
bias in the court’s reasoning, and indeed, Appellant did not cite to any
particular incidents of such claimed bias, relying instead on a general
implication of the court’s “repeated instances of animosity.” Appellant’s brief
at 36. Herein, Appellant was sentenced for sexually abusing his minor
daughter, for whom he was the sole caregiver. In light of the deplorable and
egregious nature of these offenses, we do not find that Appellant’s sentence
was clearly unreasonable. 42 Pa.C.S. § 9781(c)(2). Hence, this claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2017
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