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Young v. Kelchner

January 25, 2007

JAMES CHARLES YOUNG, PETITIONER
v.
DONALD KELCHNER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Petitioner, James Charles Young, an inmate presently confined at the State Correctional Institution at Camp Hill, Pennsylvania ("SCI-Camp Hill"), filed, pro se, the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his 2001 conviction and sentence in the Dauphin County Court of Common Pleas ("trial court") on fourteen (14) counts of criminal solicitation and one (1) count of criminal use of a communication facility. (Doc. 1.) Specifically, Petitioner contends that his decision to proceed to trial pro se was not knowing, intelligent, and voluntary, and, thus, in violation of his right to counsel under the Sixth Amendment to the United States Constitution. Consequently, Petitioner is requesting the court vacate his sentence and remand to the trial court for a new trial with appointed counsel. This court has jurisdiction to entertain the habeas corpus petition under 28 U.S.C. § 2241, and this matter is now ripe for consideration. For the reasons that follow, the petition will be denied.

I. Factual and Procedural Background

The following factual background is extracted from the Pennsylvania Superior Court's opinion affirming the judgment of sentence. (Doc. 11-10, Ex. 14, Superior Court of Pennsylvania Opinion dated April 28, 2005.)*fn1

The testimony adduced at the time of trial established that in March of 2001, Young began posting messages on an Internet chat room. Young initiated communications in the chat room with an undercover law enforcement officer, Agent Dennis Guzy. Agent Guzy was posing as the father of two imaginary minor girls, ages nine and twelve years old. Young solicited a sexual encounter proposal with the two minors to Agent Guzy. Thereafter, Young proposed to Agent Guzy a meeting with him and his daughters, with the intent to engage in sexual acts with the two young girls. On March 20, 2001, Young appeared at the agreed upon location, at which time Agent Guzy identified himself as the Pennsylvania Child Sexual Exploitation Task Force lead investigator. Young was subsequently arrested on March 29, 2001. (Id. at 2.)

Petitioner was charged with fourteen (14) counts of criminal solicitation in violation of 18 Pa. Const. Stat. Ann. § 902(a) and one (1) count of criminal use of communication facility in violation of 18 Pa. Const. Stat. Ann. § 7512. The case was scheduled for trial in September 2001, and again in October 2001, but was then placed on the hold list. On November 6, 2001, the case was called to trial before the Honorable John F. Cherry, at which time Petitioner was represented by private counsel, Attorney John Glace.

However, that day Attorney Glace requested a continuance in order to allow Petitioner to satisfy his financial obligations to him. Petitioner had failed to remit the attorney's fees associated with the trial; however, the parties reached an agreement as to forthcoming payment. Specifically, Petitioner agreed to tender a partial payment of fees by Friday, November 9, 2001, and would pay in full the balance on or before November 26, 2001. Attorney Glace informed the trial court that should Petitioner fail to remit full payment he would petition the court to withdraw as counsel. Petitioner stated that he understood this arrangement. (Doc. 11-4, Ex. 1, Notes of Testimony of Continuance Proceeding dated November 6, 2001 at 3.)

After Attorney Glace set forth the financial arrangement, the following exchange between Attorney Glace and Petitioner occurred:

Attorney Glace: And do you understand that your case, notwithstanding if you have counsel or not, will be called December 3rd in Judge Evans' courtroom?

[Petitioner]: That is correct.

Attorney Glace: You will proceed to trial. By November 26th I will either be counsel or not counsel.

[Petitioner]: That is correct.

Attorney Glace: . . . You have to remit to my office those two payments as I have stated. If I don't have those things [on November 26, 2001] at 9:00 o'clock, I will walk over here with an order saying that I am withdrawing as counsel and there will not be replacement counsel. You will represent yourself pro se.

[Petitioner]: That is correct. (Id. at 3-5.) Following this exchange, the trial court stated:

The Court: All right. I think he understands. . . .

We are going to continue this matter upon motion of the defense attorney until December 3rd, 2001 at 8:30 a.m. . . . Sir, this may be your only notice. You must be present and sign in by 8:30 a.m. on December 3rd on the first floor. Do you understand that?

[Petitioner]: Yes, sir. (Id. at 5.) Thereafter, the Commonwealth's attorney conducted the following colloquy with Petitioner:

Mr. Barker: [Y]ou understand you do have a right to an attorney?

[Petitioner]: That is correct.

Mr. Barker: If you can't afford one, one would be appointed by the Court?

[Petitioner]: That is correct.

Mr. Barker: Have you reviewed these offenses and different elements of it as well as the penalties with Mr. Glace?

[Petitioner]: Yes.

Mr. Barker: Now, if you appear without an attorney, there are certain things that you may end up giving up without knowing it. For instance, there are constitutional rights that have to be asserted, defenses that have to be asserted. Objections that may have to be raised and there are motions that may be made by an attorney who would know better how to do that. The [Pennsylvania] Rules of Criminal Procedure and [Pennsylvania] Rules of Evidence would apply to you. Do you understand all of that?

[Petitioner]: Yes, sir. (Id. at 5-6.) Finally, the trial court concluded:

The Court: Just so you understand, you get no breaks because you are representing yourself. Do you understand that?

[Petitioner]: Yes, sir.

The Court: You have a highly competent and skilled attorney here. I would make sure that you do what you have to do to be prepared for December 3rd.

[Petitioner]: I shall. (Id. at 6.)

Petitioner did not satisfy his agreement with Attorney Glace, and as a result, Attorney Glace filed a motion to withdraw as counsel on November 23, 2001. In his motion, filed prior to Petitioner's November 26th deadline,*fn2 Attorney Glace verified that he had neither been paid by Petitioner, nor had Petitioner contacted him to make further arrangements for payments. In fact, Attorney Glace had not been contacted by Petitioner at all since the November 6, 2001 hearing, despite Attorney Glace's repeated efforts to contact Petitioner by written correspondence, telephone calls, and electronic mail. (Doc. 11-8, Ex. 4, Motion to Withdraw filed by counsel for Petitioner, John M. Glace, Esq., on November 23, 2001 at 2.) Attorney Glace noted that he had formerly expressed to Petitioner his availability and willingness to work with new legal counsel to assure optimal transfer of representation. (Id.) He also contacted the Dauphin County Public Defender's office to advise that they may be contacted by Petitioner. (Id. at 3.) The trial court granted Attorney Glace's motion to withdraw on November 27, 2001.

On December 3, 2001, Petitioner appeared for trial before the Honorable Scott A. Evans without counsel. As a preliminary matter, the trial court reviewed the proceedings of November 6, 2001, before Judge Cherry. Specifically, Judge Evans stated:

We note, beginning on Pages 5 and 6, Mr. Barker, who was Assistant District Attorney, explained to [Petitioner] his right to have an attorney present, and if he could not afford one, one would be appointed by the Court; and, further, explained to the defendant that if he fails to acquire counsel, either by appointment or by contracting with an attorney, that he will be appearing as counsel for himself, which he is permitted to do, but he ...


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