People v. Brzowski

• Decision Date: 18 May 2015
• Docket Number: Nos. 3–12–0376,3–12–0477.,s. 3–12–0376
• Citation: 32 N.E.3d 1152
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Walter J. BRZOWSKI, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

32 N.E.3d 1152

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Walter J. BRZOWSKI, Defendant–Appellant.

Nos. 3–12–0376

3–12–0477.

Appellate Court of Illinois, Third District.

May 18, 2015.

Jeffrey Svehla (argued), of State Appellate Defender's Office, of Chicago, for appellant.

James Glasgow, State's Attorney, of Joliet (Thomas D. Arado (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant Walter Brzowski was charged with two counts of unlawful violations of an order of protection for sending mail to his two sons. Three months later, he was charged with an additional two counts of unlawful violations of an order of protection for sending mail to his ex-wife. Two separate trials were held. Defendant represented himself at both trials. Defendant was convicted of all four charges. He was sentenced to one year in prison on the first two charges of unlawful violations of an order of protection and two concurrent three-year terms of imprisonment on the latter two charges. Defendant appeals, arguing that (1) he was not proven guilty beyond a reasonable doubt, (2) he was not adequately informed of the contents of the order of protection, (3) the order of protection was invalid, (4) he was not properly instructed regarding his waiver of counsel, (5) he was improperly denied his right to counsel, and (6) the court allowed improper arguments and inadmissible evidence at his trials. We reverse and remand, finding that the trial court failed to instruct defendant regarding his waiver of counsel and denied him his right to counsel at both trials.

¶ 2 FACTS

¶ 3 On April 12, 2007, the circuit court of Will County granted an emergency order of protection to Laura Brzowski, a/k/a Laura Zasadny, on her own behalf and on behalf of her children, E.B. and B.B. The order provides in part: “[Defendant] is ordered to stay ____ away from Petitioner and/or other protected person(s).” The order further provides: “ ‘Stay away’ means for the respondent to refrain from both physical presence and nonphysical contact with the petitioner whether direct, indirect (including, but not limited to, telephone calls, mail, email, faxes, and written notes), or through third parties who may or may not know about the order of protection.” The order states that it “shall be effective until May 3, 2007.”

¶ 4 On May 3, 2007, the court entered a plenary order of protection extending the emergency order of protection “on the same terms and conditions” as the prior order of protection until May 1, 2009. Defendant was present in court on May 3, 2007, and served with the plenary order.

¶ 5 On May 1, 2009, the trial court extended the plenary order of protection until April 28, 2011. Defendant was not in court on May 1, 2009. However, an “Order of Protection Short Form Notification” was served on defendant on June 26, 2009. The notification form referred to the case number for the emergency order of protection entered against defendant on April 12, 2007.

¶ 6 In September 2010, defendant was charged with two counts of unlawful violation of an order of protection. 720 ILCS 5/12–30(a) (West 2010). Count I alleged that defendant intentionally committed an act prohibited by an order of protection “by making contact with B.B., a minor and protected party, by mail.” Count II alleged that defendant violated the order of protection “by making contact with E.B., a minor and protected party, by mail.”

¶ 7 In December 2010, defendant was charged with two additional counts of unlawful violation of an order of protection. 720 ILCS 5/12–30(a) (West 2010). The counts alleged that defendant intentionally committed an act in violation of the 2009 order of protection by “making contact with Laura A. Zasadny, a protected party, by mail” on November 27, 2010, and December 1, 2010.

¶ 8 Two separate trials were held. The first trial was held on the September 2010 charges for defendant sending mail to B.B. and E.B. The second trial was held on the December 2010 charges for defendant sending mail to Zasadny.

¶ 9 An assistant public defender was assigned to represent defendant at his first trial. That attorney filed a motion for a fitness hearing to determine defendant's fitness prior to trial. A different assistant public defender, Edward Jaquays, represented defendant in the fitness proceeding. Defendant was evaluated by Dr. Syed Ali in June 2011. In an interview with Dr. Ali, defendant stated that he was charged with two violations of an order of protection, which were serious charges “[b]ecause they invoke the felony status.” He also stated that, if found guilty, he “could be sentenced up to between 1 and 3 years in a State Correctional Facility.” At defendant's fitness hearing, the trial judge referred to Dr. Ali's report and found defendant fit.

¶ 10 In August 2011, defendant filed a “Motion for Reassignment of Counsel.” A hearing was held on the motion two weeks later. At the hearing, defense counsel presented a letter from the Will County public defender that stated:

“With regard to the Brzowski matter, our position is that he can remove our office at any time and go forward pro se or hire private counsel, but once he discharges our office he does not get another assistant public defender. He will not choose who his appointed lawyer will be. If he wants the services of our office then he must keep the excellent attorney that he already has.”

The court then informed defendant that he had three options: (1) keep his assigned public defender, (2) represent himself, or (3) hire another attorney. Defendant informed the court that he was choosing to represent himself but also asked for time to hire counsel. The trial court gave defendant time to obtain counsel, but defendant never did.

¶ 11 Prior to trial, the trial court sua sponte appointed Jaquays as standby counsel for defendant. At trial, Zasadny testified that on September 10, 2010, she found two envelopes in her mailbox addressed to her sons. She recognized defendant's handwriting on the envelopes, as well as his return address. She opened the envelopes and found cards, a letter, and a check for each son. Her sons were not present when she opened the cards, and she never showed the cards to them.

¶ 12 Vito Anguiolo, a lieutenant in the court services department of the Cook County sheriff's office, testified that he served defendant with an order of protection short form notification on June 26, 2009. According to the form and Anguiolo's testimony, Anguiolo told defendant the restrictions placed on him including that he “must not abuse, harass, intimidate or harm the petitioner or other protected parties” and “must stay away from petitioner and protected parties at additional locations.” Anguiolo told defendant that the short form was not the entire order but that he could obtain the full order at the Will County Courthouse.

¶ 13 After the State presented its witnesses, defendant asked that his standby counsel be allowed to represent him for the remainder of the case. The State objected. The trial court denied defendant's request. Defendant then argued a motion for directed verdict, which the trial court denied. After both parties rested and the jury instruction conference was complete, the trial court excused Jaquays as standby counsel.

¶ 14 The jury found defendant guilty of both counts against him. Defendant filed a motion for a new trial in which he argued that he was not proven guilty beyond a reasonable doubt, that the court erred in denying his motion for a directed verdict, and that the court erred in not allowing Jaquays to represent him at trial. The court denied defendant's motion and sentenced defendant to one year in prison.

¶ 15 Before defendant's second trial, defendant indicated that he wanted to be represented by Jaquays. The trial judge told defendant that the public defender “has at this point refused to have anything further to do with this issue in your case.” The judge told defendant that Jaquays could represent him only if he paid Jaquays or Jaquays agreed to represent him pro bono.

¶ 16 One week before defendant's second trial was set to begin, defendant again requested that he be represented by Jaquays. The judge told defendant that he had the following choices: (1) hire his own attorney, (2) get someone to represent him for free, or (3) represent himself. Defendant proceeded pro se.

¶ 17 At trial, Zasadny testified that on November 27, 2010, she found a number of documents from defendant addressed to her in her mailbox at her home. On December 1, 2010, she found another set of documents in her mailbox from defendant. She recognized defendant's handwriting on the envelopes.

¶ 18 Kevin Spencer, a sheriff's deputy, testified that he met with Zasadny on November 27, 2010. She showed him the documents she found in her mailbox, and Spencer “verified” with “dispatch” that there was a valid order of protection in place. James Martin, another sheriff's deputy, testified that he met with Zasadny on December 10, 2010. She showed him the documents she found in her mailbox, and Martin “verified” with “dispatch” that there was a valid order of protection in place.

¶ 19 Anguiolo testified that he served defendant with a “short form” notification of the 2009 order of protection on June 26, 2009. Anguiolo told defendant the restrictions placed on him, including that he “must not abuse, harass, intimidate or harm the petitioner or other protected parties” and “must stay away from petitioner and protected parties at additional locations.”

¶ 20 The jury found defendant guilty of both counts against him. Defendant filed a motion for a new trial, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the court erred in allowing certain jury instructions, (3) the prosecutor made improper statements in closing argument, and (4) he was denied his sixth amendment right to counsel. The...