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Fink v. Banks

Court of Appeals of Illinois

September 11, 2013

Michael FINK, Plaintiff-Appellant,
v.
Sheldon BANKS, Defendant-Appellee.

Page 170

Alexander Hattimer Loftus, of Fichera & Miller, P.C., of Chicago, for appellant.

Donald J. Brown, Jr., of Donohue Brown Mathewson & Smyth LLC, of Chicago, for appellee.

[374 Ill.Dec. 723] OPINION

HYMAN, Justice.

¶ 1 This is a legal malpractice action against the criminal defense attorney who had represented plaintiff at trial for attempted first degree intentional homicide in the shooting of his girlfriend. The incident and the trial occurred in Wisconsin. A jury convicted plaintiff, Michael Fink, and the trial court sentenced him to 10 years in prison and 6 years' extended supervision. Defendant, Sheldon Banks, an Illinois attorney, represented Fink with the assistance of local Wisconsin counsel. Fink's conviction was later vacated on the basis of ineffective assistance of trial counsel, and a new trial was ordered. Wisconsin authorities then charged Fink with first degree recklessly endangering safety, a lesser included offense of attempted first degree intentional homicide. After a bench trial, Fink was convicted of second degree recklessly endangering safety and given a stayed sentence of five years of [374 Ill.Dec. 724]

Page 171

initial confinement plus three years of extended supervision.

¶ 2 Fink filed a two-count legal malpractice complaint against Banks alleging: (i) negligent representation in the first criminal trial and (ii) breach of fiduciary duty for failing to refund money to retain a firearms expert who was never hired. Banks filed a motion to dismiss count I on the grounds that Fink's second conviction precludes him from establishing his actual innocence, which is a prerequisite for a criminal legal malpractice claim, and count II on the grounds that it is barred under the statutes of limitations and repose. Fink moved for partial summary judgment arguing Wisconsin law should apply to the issue of actual innocence because Wisconsin had a more significant relationship with the case. On July 13, 2012, the trial court entered an order granting Banks' motion to dismiss with prejudice and denying Fink's motion for partial summary judgment.

¶ 3 The trial court properly dismissed Fink's complaint alleging legal malpractice against Banks by reason of Fink's inability to establish his actual innocence of the underlying criminal charge. We therefore affirm.

¶ 4 BACKGROUND

¶ 5 On April 8, 2004, the State of Wisconsin charged Fink with attempted first degree intentional homicide (now Wis.Stat. §§ 939.32(1)(a) and 940.01(1) (2012)) for shooting his girlfriend in the face. The prosecution claimed Fink aimed the gun at her face and pulled the trigger. The bullet grazed the woman's cheek and, the State asserted, would have entered her skull had she not propitiously turned her head. Fink contended he fired the gun by accident. The criminal trial took place in Wood County, Wisconsin, and Fink's father, a resident of Illinois, retained Illinois attorney Banks to represent Fink alongside local counsel. A jury found Fink guilty of attempted first degree intentional homicide. The trial court sentenced him to 10 years in prison and 6 years' extended supervision.

¶ 6 Fink hired new counsel to file a postconviction petition. Fink asserted ineffective assistance of counsel. On May 4, 2009, the trial court granted Fink's ineffective assistance of counsel claim, vacated the conviction for attempted first degree intentional homicide, and ordered a new trial. The trial court then heard arguments on the admissibility of Fink's statements and several items of evidence that were addressed in the postconviction motion. Certain statements and evidence that were admitted at the first trial were ordered suppressed.

¶ 7 On June 25, 2010, the State of Wisconsin filed a new criminal complaint against Fink alleging first degree recklessly endangering safety. The next month, the trial court conducted a bench trial and convicted Fink of second degree recklessly endangering safety. Fink received probation.

¶ 8 Fink appealed his conviction of second degree recklessly endangering safety on statute of limitations grounds. The Wisconsin Court of Appeals affirmed, finding that under Wisconsin law, " endangering safety is a lesser-included offense of attempted first-degree intentional homicide" and that the initiation of the first prosecution for attempted intentional homicide tolled the statute of ...


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