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Commonwealth v. Proctor

Superior Court of Pennsylvania

May 22, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANTHONY E. PROCTOR Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order August 27, 2012 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000862-2010

BEFORE: GANTMAN, J., OTT, J., and FITZGERALD, J. [*]

MEMORANDUM

OTT, J.

Anthony E. Proctor appeals pro se[1] from the order entered on August 27, 2012, [2] in the Court of Common Pleas of Erie County, denying, without a hearing, his first petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546, without an evidentiary hearing. Based upon the following, we affirm.

The parties are well acquainted with the facts and procedural history of this case, which the PCRA Court has aptly summarized in its Pa.R.A.P. 1925(a) opinion. See PCRA Opinion, 7/24/2012, at 1–4. Therefore, we simply state that Proctor was convicted by a jury of simple assault and recklessly endangering another person, [3] and was sentenced to serve a term of imprisonment of 12 to 24 months, consecutive to the sentence he was currently serving. In this appeal, Proctor contends the court erred in denying him relief on the first and fourth issues raised in his PCRA petition, namely: whether trial counsel was ineffective for (1) failing to secure a court stenographer for the preliminary hearing, and (2) abandoning Proctor after Proctor refused to sign a Pa.R.Crim.P. 600 waiver. See Proctor's Brief at 2.

The PCRA Court rejected these two claims as follows:
[Proctor] claims that counsel was ineffective for failing to have the preliminary hearing transcribed. According to [Proctor], he was deprived from using the victim's preliminary hearing testimony in a suppression motion and at trial. He further alleges that counsel goaded him into a guilty plea by making [Proctor] feel helpless.
At the time of the preliminary hearing, counsel secured a favorable plea agreement for a misdemeanor charge (which [Proctor] agreed to) and, therefore, had a reasonable basis for not securing a court stenographer for the hearing. Motion to Withdraw, 07/12/10, at ¶5. However, due to [Proctor's] outburst, the plea agreement was terminated by the Commonwealth. Id. Therefore, counsel had a reasonable basis for not securing a court stenographer for the preliminary hearing. Moreover, [Proctor] has failed to show prejudice, i.e., a reasonable probability of the outcome of trial would have been different had the preliminary hearing been transcribed. Accordingly, this Court finds that [Proctor] has failed to satisfy the second and third prongs of the Strickland [v. Washington, 466 U.S. 668 (1984)] test [for ineffectiveness of counsel claims].
[Proctor] claims that defense counsel abandoned him after he refused to sign a Rule 600 waiver. [Proctor] also claims the Court and Commonwealth covered up counsel's "abandonment" and forced him to proceed pro se.
On July 12, 2010, defense counsel visited [Proctor] in the Erie County Prison and asked him to sign a Rule 600 waiver. [Proctor] refused and expressed that he no longer wanted counsel to represent him. Motion to Withdraw, 07/12/10, at ¶4. Moreover, [Proctor's] outburst during the meeting required defense counsel to be immediately escorted by correction officers from the prison interview room. Id. In response, defense counsel appropriately filed a withdrawal motion, which was granted on July [13], 2010.
On July 15, 2010, Judge Dunlavey strenuously encouraged [Proctor] to apply for a public defender or obtain counsel. N.T. Pro Se Colloquy, 07/15/10, at 4–9, 14.[3]
[3] In fact, Judge Dunlavey subsequently contacted the Erie County Public Defender's Office and directed that they contact [Proctor] to discuss representation. N.T. Pro Se Colloquy, 08/19/10, at 3.
After explaining the nature/elements of the charges, the possible ranges of sentence, the implication of his conviction, and the downside of proceeding pro se, [Proctor] was permitted to proceed pro se.
Based [on] the above, this Court finds this claim meritless. It was [Proctor's] voluntary choice to proceed pro se after he expressed his unwillingness to cooperate with defense counsel or any other attorney.

PCRA Court Opinion, supra, at 6, 8–9.

Having carefully reviewed the record, and mindful of our standard of review, [4] we conclude that the PCRA court has properly disposed of the issues raised in this appeal. Therefore, we affirm on the basis of the court's sound rationale set forth above.

Order affirmed.

Judgment Entered.


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