People v. Zirko
| Docket Number | 1-16-2956 |
| Decision Date | 30 December 2021 |
| Citation | 2021 IL App (1st) 162956,196 N.E.3d 1131 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven ZIRKO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Douglas R. Hoff, and Stephen L. Gentry, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Jessica R. Ball, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Defendant-appellant, Steven Zirko, convicted of two counts of first degree murder and one count of solicitation of murder, appeals the second stage dismissal of his postconviction petition. On appeal, Mr. Zirko argues that (1) his postconviction counsel was involved in a conflict of interest with respect to his case where counsel argued his own ineffectiveness, (2) counsel failed to provide a reasonable level of assistance where counsel did not attach supporting documents to the postconviction petition, and (3) the motion for substitution of judge was erroneously denied. For the reasons that follow, we affirm the circuit court of Cook County's judgment denying Mr. Zirko's motion for substitution of judge, but we vacate the circuit court's judgment dismissing Mr. Zirko's postconviction petition. We remand the case for further postconviction proceedings.
¶ 3 On December 13, 2004, Mr. Zirko shot and stabbed his ex-girlfriend and her mother in his ex-girlfriend's home in Glenview, Illinois.1 Mr. Zirko was represented by attorney Stephen Richards at a jury trial, which commenced on June 8, 2009. Mr. Zirko was convicted of two counts of first degree murder and one count of solicitation of murder. After his conviction, Mr. Zirko filed a pro se motion for a new trial based on ineffective assistance of trial counsel. Although the motion was stamped "received" by the clerk of the circuit court, the court never ruled on the motion. Meanwhile, defense counsel filed a motion for a new trial, which was denied. Mr. Zirko was sentenced to two natural life sentences for the murders and a concurrent 30-year sentence for solicitation of murder.
¶ 4 On direct appeal, Mr. Zirko was represented by appointed counsel from the Office of the State Appellate Defender (OSAD). His counsel argued, inter alia , that trial counsel was ineffective for requesting that the murder and solicitation of murder charges be joined. People v. Zirko , 2012 IL App (1st) 092158, ¶ 57, 364 Ill.Dec. 83, 976 N.E.2d 361. This court found that argument meritless and affirmed Mr. Zirko's conviction. Id. ¶¶ 60, 74.
¶ 5 On October 3, 2013, Mr. Zirko, through his original trial counsel Stephen Richards, filed a postconviction petition. A little over one month later, on November 14, 2013, Mr. Zirko moved for substitution of judge for cause. In the motion, he argued that the trial judge had not been impartial during the trial. He then highlighted that the judge had chastised defense counsel for "laughing" and "smirking" during the trial but did not comment on or chastise the assistant state's attorney's similar behavior. In addition, Mr. Zirko alleged that the trial judge commented, in front of the jury, that he needed to "lecture" defense counsel. Therefore, he did not want the original trial judge to hear his postconviction petition.
¶ 6 In response to the motion for substitution of judge, which was heard by a different judge, the trial judge who was the subject of the motion proffered a signed document, purporting to be an affidavit although it was not notarized. In the document, the judge stated that he could be fair and impartial to Mr. Zirko. The judge also denied denigrating defense counsel in front of the jury and further denied that he "allow[ed] laughter and smiles from one side and not the other."
¶ 7 On December 20, 2013, the trial court denied Mr. Zirko's motion for substitution of judge.
¶ 8 On February 18, 2016, attorney Richards filed the second amended postconviction petition at issue here. The petition raised 10 claims of ineffective assistance of appellate counsel, including a claim that appellate counsel failed to argue that the trial court was biased in favor of the State. Additionally, the petition raised six claims of ineffective assistance of trial counsel. On May 6, 2016, the State moved to dismiss the second amended petition.
¶ 9 In October 2016, following arguments on the State's motion, the court granted the motion to dismiss the second amended petition. Mr. Zirko timely appealed on October 26, 2016.
¶ 10 On appeal, Mr. Zirko continued to be represented by attorney Richards, his initial trial counsel. In his brief, attorney Richards argued several claims of ineffective assistance of appellate counsel as well as five claims of ineffective assistance of trial counsel (himself) on behalf of Mr. Zirko. Specifically, as to trial counsel, attorney Richards argued that trial counsel was ineffective for failing to (1) bring Mr. Zirko's pro se posttrial claims of ineffective assistance of counsel to the trial court's attention, (2) keep the victims’ family members out of the courtroom by subpoenaing them as witnesses and moving to exclude them from the courtroom, (3) investigate and develop a theory of an alternative suspect, (4) introduce photographs of Mr. Zirko's hands following the murder to prove that the cuts on his hands were caused by eczema
, and (5) elicit exculpatory evidence from the State's forensic expert. In addition, attorney Richards argued on behalf of Mr. Zirko that he (attorney Richards) provided unreasonable assistance in postconviction proceedings, where he failed to investigate Mr. Zirko's actual innocence and failed to raise additional claims of ineffective assistance of himself as trial counsel.
¶ 11 After the completion of appellate briefing in this court, on the court's own motion, we requested supplemental briefing on the issue of whether attorney Richards had a conflict of interest in that he was arguing his own ineffectiveness. Attached to attorney Richards's supplemental brief was an affidavit from Mr. Zirko asking for new counsel to be appointed to represent him in this court instead of attorney Richards. In light of Mr. Zirko's affidavit requesting new counsel, we did not reach the issue of whether attorney Richards had a conflict of interest and, instead, granted Mr. Zirko's request to appoint new counsel to represent him on appeal. We appointed OSAD to represent Mr. Zirko and further ordered appointed counsel to either supplement or stand on attorney Richards's original appellate brief.
¶ 12 OSAD supplemented attorney Richards's brief, arguing that attorney Richards did not provide reasonable assistance because (1) he had a conflict of interest and (2) he failed to attach supporting documentation to Mr. Zirko's postconviction petition. OSAD also argued that the trial court erred in denying Mr. Zirko's motion for substitution of judge. In addition to supplemental briefing in order to resolve this matter, we also entertained oral argument by the parties.
¶ 14 We note that we have jurisdiction to review this matter, as Mr. Zirko timely appealed the dismissal of his postconviction petition. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).
¶ 15 Mr. Zirko presents the following issues on appeal: (1) whether his postconviction counsel (attorney Richards) labored under a conflict of interest, (2) whether his postconviction counsel (again, attorney Richards) provided unreasonable assistance, and (3) whether the trial court erred in denying his motion for substitution of judge. We take each issue in turn.
¶ 16 The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a penitentiary to challenge his conviction or sentence for violations of his federal or state constitutional rights. 725 ILCS 5/122-1 (West 2016) ; see also People v. Whitfield , 217 Ill. 2d 177, 183, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005). The Act establishes a three-stage process for adjudicating a postconviction petition. See 725 ILCS 5/122-1 et seq. (West 2016). During the first stage, the trial court must independently review the petition, taking the allegations as true, in order to determine whether the petition is frivolous or patently without merit. People v. Tate , 2012 IL 112214, ¶ 9, 366 Ill.Dec. 741, 980 N.E.2d 1100 ; 725 ILCS 5/122-2.1(a)(2) (West 2016). If the petition survives dismissal at this stage, it advances to the second stage, where counsel may be appointed and the State may move to dismiss the petition. People v. Harris , 224 Ill. 2d 115, 126, 308 Ill.Dec. 757, 862 N.E.2d 960 (2007). At the second stage, the defendant must make a substantial showing of a constitutional violation in order to proceed to the third and final stage of the postconviction process and obtain an evidentiary hearing. Id. (citing 725 ILCS 5/122-6 (West 2016) ).
¶ 17 Mr. Zirko argues that his retained postconviction counsel, attorney Stephen Richards, operated under a conflict of interest and/or provided unreasonable assistance where he did not attach the necessary documents or affidavits to support Mr. Zirko's postconviction claims. Mr. Zirko claims, therefore, he is entitled to a new second-stage proceeding because his counsel labored under a conflict and could not represent him fairly.
¶ 18 There is no constitutional right to counsel in postconviction proceedings, and as such, a postconviction petitioner cannot claim sixth amendment ineffective assistance of counsel rights in such proceedings. People v. Flores , 153 Ill. 2d 264, 276, 180 Ill.Dec. 1, 606 N.E.2d 1078 (1992). Instead, a petitioner is only entitled to the level of assistance of counsel provided by the Act. Id. That assistance has been defined by Illinois courts as a reasonable level of assistance of counsel. Id. ; see also People v. Schlosser , 2012 IL App (1st) 092523,...
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... ... We emphasize that our ruling ... here is limited to holding that defendant is entitled new ... postplea proceedings with new counsel; we make no finding, ... nor prediction, as to the ultimate outcome of the proceedings ... or to the merits of her underlying claim. See People v ... Zirko , 2021 IL App (1st) 162956, ¶ 26, 196 N.E.3d ... 1131. Because we vacate and ... ...