J-A18003-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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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