☢ test - Í

Trial court properly found that counsel “vigorously and thoroughly cross-examined the State's witnesses and numerous photographs were placed in evidence during the trial. Defendant's trial attorney never appeared to be impaired during or not participating in the proceedings. While Defendant's trial attorney was certainly hard of hearing, [he] never hesitated to advise the [c]ourt when he could not hear and, with the [c]ourt's permission, spent much of the trial standing next to the witness stand to make sure that he did not miss any of the proceedings.” Leslie v. State, 292 Ga. 368, 738 S.E.2d 42 (February 4, 2013). Murder and arson convictions affirmed; defendant’s post-conviction claims of ineffective assistance were waived when not “raised at the earliest practicable moment (i.e., in the amended motion for new trial).” Myers v. St. Lawrence, 289 Ga. 240, 710 S.E.2d 557 (May 31, 2011). Pre-trial habeas petition properly denied. “‘When the underlying criminal matter is still pending, an allegation of ineffective assistance of counsel cannot form the basis of a pre-trial petition for habeas corpus. [Cit.]’ Massey v. St. Lawrence, 284 Ga. 780, 671 S.E.2d 834 (2009).” Floyd v. State, 293 Ga.App. 235, 666 S.E.2d 611 (August 5, 2008). “‘The failure to pursue what is not required [here, failure to obtain evidence refuting corroboration, where no corroboration was required] does not constitute ineffective assistance of counsel. [Cit.]’ Defrancisco v. State, 289 Ga.App. 115, 119(1)(e), 656 S.E.2d 238 (2008).” Hargrove v. State, 289 Ga.App. 363, 657 S.E.2d 282 (January 29, 2008). No ineffective assistance in strategic decision to consent to proceeding with 11 jurors. “Attrition in the members of the jury led the trial court to ask permission from both sides to proceed with 11 jurors. Both sides agreed. The court specifically inquired, on the record, if Hargrove had any problem with going forward with 11 jurors, and Hargrove said, ‘No.’ At the new trial hearing, trial counsel testified that he acquiesced in this procedure because it has been his standard practice in twenty-two years as a public defender to use as few as ten jurors, and he feels very comfortable with a smaller jury because it can be easier to convince fewer jurors of the existence of a reasonable doubt. Although, as counsel admitted, the state has to prove guilt, and, as Hargrove points out, it may be harder to convince 12 jurors of guilt than 11, this claim of error provides no basis for reversal. First, the trial court followed the ‘better practice to inquire directly of a defendant if he agrees with [the] tactical decision [ ]’ to proceed with an 11-person jury. Young v. State, 191 Ga.App. 651, 654(3) (382 S.E.2d 642) (1989). Second, this type of tactical decision by counsel in consultation with his client is virtually unchallengeable. Snelson v. State, 286 Ga.App. 203, 204 (648 S.E.2d 647) (2007).” Ruffin v. State, 289 Ga. 87, 656 S.E.2d 140 (January 8, 2008). “[A] criminal defendant has no constitutional right to the same number of attorneys as the prosecution.” Venegas v. State, 285 Ga.App. 768, 647 S.E.2d 422 (June 8, 2007). Fact that trial counsel testified at motion for new trial that his representation prejudiced defendant is not conclusive or binding in deciding whether defendant received ineffective assistance. “The fact that [trial counsel] Pagano testified the trial probably would have been decided differently or that his action was inherently prejudicial is not evidence that the action was actually prejudicial. Pagano does not set the standard; the courts do.” Accord, Hawkins v. State , 236 Ga.App. 346, 512 S.E.2d 59 (February 9, 1999) (counsel’s representation was not ineffective, despite his testimony that he “failed to render effective representation.”). Nichols v. State, 281 Ga. 483, 640 S.E.2d 40 (January 8, 2007). Presumption of effective assistance must be overcome with evidence; counsel’s failure to “have any independent recollection” on the issue (here, of his pretrial investigation related to defendant’s mental condition) was insufficient to overcome this presumption. Accord, State v. Worsley , 293 Ga. 315, 745 S.E.2d 617 (July 1, 2013) (“That trial counsel was unable to recall some details of his discussions with the family is unsurprising, considering that the hearing was held more than a decade after the trial, and it is unavailing to Appellee in any event. As noted earlier, a silent or ambiguous record is not sufficient to overcome the presumption of reasonable performance, and it is Appellee's burden to make a complete and clear record.”). Navarro v. State, 279 Ga.App. 311, 630 S.E.2d 893 (May 11, 2006). “Navarro … argues that his attorney rendered ineffective assistance by failing to advise Navarro of his constitutional rights or the possible penalties he faced. With respect to Navarro’s claim that his attorney failed to tell him the possible penalties he faced, this claim is belied by the record. And although Navarro contends that his attorney failed to inform him of his constitutional rights, he does not clarify what rights were involved or how counsel’s alleged failure harmed him. And ‘[w]ithout a showing of harm, his claim must fail.’ Gary v. State, 259 Ga.App. 136, 140(6) (575 S.E.2d 903) (2003).”