2023 IL App (4th) 220399 FILED NO. 4-22-0399 April 10, 2023 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County TYJUAN L. BROWN, ) No. 21CF107 Defendant-Appellant. ) ) Honorable ) Michael L. Stroh, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Harris and Steigmann concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial in the circuit court of Woodford County, the court found
defendant guilty of aggravated fleeing or attempting to elude a peace officer (aggravated fleeing)
(625 ILCS 5/11-204.1(a)(1) (West 2020)) and two counts of aggravated assault (720 ILCS
5/12-2(b)(4.1)(i) (West 2020)). The court found defendant not guilty of obstructing justice (720
ILCS 5/31-4(a) (West 2020)). For aggravated fleeing, the court sentenced defendant to 30 months’
probation, 180 days in jail, 300 hours of community service, a $500 fine, and court costs. The court
fined defendant $100 for both counts of aggravated assault and assessed court costs. Defendant
appeals, arguing (1) the court improperly required him to prove his affirmative defense of necessity
and (2) defendant did not knowingly waive his right to a jury trial on the aggravated assault
charges. We affirm.
¶2 I. BACKGROUND ¶3 On July 23, 2021, Woodford County Sheriff’s Deputy Sarah Lamlech observed
defendant’s car traveling 78 miles per hour in a 55-mile-per-hour zone. Lamlech initiated a traffic
stop. Defendant, accompanied by his 16-year-old nephew in the front passenger’s seat, pulled into
a parking lot. Lamlech decided to search defendant’s car based on the odor of marijuana coming
from the vehicle and her observation of marijuana in an ashtray. Before telling defendant that she
intended to search the car, Lamlech requested assistance from another deputy. Deputy Thomas
McGuire responded to the scene. Squad car video footage with accompanying audio shows that
defendant’s encounter with Lamlech was nonconfrontational up to this point.
¶4 Lamlech then approached defendant’s driver’s side window, and McGuire went to
defendant’s passenger’s side window. Video evidence shows that McGuire occasionally moved
his hand toward where his gun was holstered, but he did not immediately withdraw his gun.
Lamlech asked defendant to exit the car because of the marijuana she smelled. Defendant instead
offered to “pour out” his marijuana. Lamlech again asked defendant if he would exit the car on his
own so she could search the car. Defendant said “no,” put his car in reverse, and began driving
away. As Lamlech backed away from defendant’s car and shouted “no” and “stop,” McGuire
briefly drew his weapon before putting it back into the holster.
¶5 Defendant drove out of the parking lot and onto a public road. Lamlech and
McGuire entered their respective vehicles and pursued defendant at up to 120 miles per hour,
portions of which were through a residential area. Lamlech and McGuire were unable to catch up
with defendant, and they eventually ended the pursuit. Lamlech then went back to check on drivers
who had been driven off the road during the pursuit. A warrant was issued for defendant’s arrest,
and he was arrested in Peoria on September 8, 2021.
-2- ¶6 The State initially charged defendant by information with two Class 4 felonies:
aggravated fleeing (count I) and obstructing justice (count II). The State also charged defendant
with two Class A misdemeanor counts of aggravated assault for nearly hitting Lamlech and
McGuire as he backed up his car (counts III and IV). Counts III and IV contained errors, or at least
ambiguities, on their face. Specifically, those counts alleged that Lamlech and McGuire,
respectively, were “peace officer[s]” acting in the performance of their official duties. Such
allegations seemingly implicated section 12-2(b)(4.1)(i) of the Criminal Code of 2012 (Code) (720
ILCS 5/12-2(b)(4.1)(i) (West 2020)), which addresses aggravated assault against a peace officer
performing his or her official duties. A violation of that subsection is a Class 4 felony. 720 ILCS
5/12-2(d) (West 2020). However, counts III and IV alleged that defendant committed Class A
misdemeanors by violating section 12-2(b)(4)(i) of the Code (720 ILCS 5/12-2(b)(4)(i) (West
2020)). A violation of that subsection of the statute is indeed a Class A misdemeanor. 720 ILCS
5/12-2(d) (West 2020). However, section 12-2(b)(4)(i) of the Code addresses assaults against
community policing volunteers, private security officers, and utility workers. A grand jury
subsequently returned a true bill realleging the felony counts of aggravated fleeing and obstructing
justice.
¶7 On January 11, 2022, defendant—both orally and in writing—waived his right to a
jury trial and elected a bench trial. Specifically, when defense counsel informed the court that
defendant wished to waive his right to a jury trial, the court first reviewed the charges with
defendant. In explaining the charges, the court said that the two aggravated assault counts were
Class A misdemeanors. After reviewing the charges, the court noted it had been tendered a written
jury waiver. The court confirmed that defendant’s signature was on the jury waiver and that
-3- defendant had reviewed the document with counsel before signing it. The court then explained
defendant’s rights:
“Now you have an absolute right to a jury trial in this case. If you had a jury
trial, 12 citizens of Woodford County would sit over there, they would listen to the
evidence and they would determine your guilt or innocence and their decision on a
verdict must be unanimous. You also have the right to a bench trial, and if you had
a bench trial, I would listen to the evidence and I would make that determination,
but if you plead guilty today, you will not have a trial of any kind either by a jury
or by me. Do you understand that?”
Defendant said he understood. The court then told defendant that if he waived his right to a jury
trial, he had a right to a bench trial, but he could not “ask for [his] right to a jury trial back.”
Defendant indicated he understood this. Defendant then confirmed with the court that he had
discussed this matter with counsel, he was satisfied with counsel’s representation, and he had
enough time to talk to counsel about this decision. Defendant also told the court that nobody made
any promises to get him to waive his right to a jury trial and nobody forced, threatened, or coerced
him. Defendant acknowledged he was “doing this of [his] own free will.” The court asked
defendant, “Do you waive your right to a jury trial?” Defendant responded, “Yes, Judge.” The
court accepted defendant’s jury waiver and set the matter for a bench trial on February 22, 2022.
¶8 On the day of trial, defendant filed a notice of intent to assert necessity as an
affirmative defense. See 720 ILCS 5/7-13 (West 2020) (establishing a defense of necessity where
“the accused was without blame in occasioning or developing the situation and reasonably believed
such conduct was necessary to avoid a public or private injury greater than the injury which might
reasonably result from his own conduct”). At the beginning of trial, the court again told defendant
-4- his two aggravated assault charges were Class A misdemeanors and that the other charges were
Class 4 felonies. The court also informed defendant he did not “have to prove anything,” he was
“presumed to be innocent,” and “the burden is on the State to prove [him] guilty.”
¶9 The State introduced video footage and testimony from Lamlech and McGuire
consistent with our recount of the evidence above (supra ¶¶ 3-5). After the State concluded its
case-in-chief, the prosecutor asked to amend counts III and IV to cite section 12-2(b)(4.1)(i) of the
Code (720 ILCS 5/12-2(b)(4.1)(i) (West 2020)), which addresses aggravated assaults against peace
officers. The prosecutor asserted this amendment would correct a “typo” and would “conform with
the facts that were elicited.” Defense counsel responded, “That does appear to make more sense,
Judge.” Defense counsel indicated he had no objection to the amendments. Defense counsel added,
“And, just for the record, I’ve always known who Deputy Sarah Lamlech is and Deputy McGuire
[is],” “[a]s far as law enforcement.” The parties and the court never discussed that these
amendments could change the classification of the offenses charged in counts III and IV to Class
4 felonies. The record shows the parties and the court operated under the belief that the amended
charges were still Class A misdemeanors.
¶ 10 Defendant testified on his own behalf. He admitted to speeding, possessing
marijuana, and resisting the search of his vehicle. He also acknowledged pulling away from the
deputies and leading them on a high-speed chase. Essentially, defendant testified his actions were
justified because he believed the deputies were going to shoot him or his nephew for resisting a
search of the car. To that end, defendant testified he saw Lamlech trying to pry the car door open
and McGuire reaching for a gun. Defendant also saw his nephew “balled up” in a “fetal position.”
Defendant believed he had a “right to privacy,” such that he could resist a search that lacked
probable cause.
-5- ¶ 11 The court found defendant not guilty of obstructing justice, reasoning that the
evidence did not “line[ ] up” with the State’s theory on that charge. The court found defendant
guilty of the other three offenses. As it pertains to this appeal, the court first explained that “[t]he
State has the burden of proof” on the aggravated fleeing charge. After reciting the elements the
State must prove for that charge, the court said, “In a nutshell, that has been proven beyond a
reasonable doubt.” The court then addressed and rejected defendant’s claim he committed this
offense due to necessity. The court asserted, “First off, the defense needs to show that the accused
in this situation, [defendant], was without blame in occasioning or developing the situation.”
Because defendant was validly stopped for driving 23 miles per hour over the limit, the court
concluded that “we can’t say that the defendant was without blame in occasioning or developing
the situation.” The court further found that the videos introduced by the State showed that Lamlech
“was polite and professional throughout the stop.” According to the court, irrespective of whether
defendant agreed with the law, Lamlech had probable cause to search defendant’s vehicle based
on the odor of marijuana coming from inside the car. The court noted that defendant almost hit
two deputies, “peel[ed] out of a parking lot,” traveled 120 miles per hour down a public highway,
and ran “multiple vehicles off the road.” The court said that defendant “did not reasonably believe”
his conduct was necessary to avoid a greater injury than what his conduct could have caused. Thus,
in the court’s view, “[y]our defense of necessity fails to establish even one element of necessity.”
¶ 12 Although defendant “only raised” a defense of necessity, the court noted that
defendant’s testimony suggested he believed he needed to defend himself from being shot. The
court determined that video footage showed McGuire did not reach for his gun until defendant
“almost hit [McGuire] with a car.” Thus, the court found that self-defense did not apply.
-6- ¶ 13 The court also mentioned that defendant had no right to resist a peace officer, even
if defendant believed the officer acted unlawfully. According to the court, defendant’s redress for
any constitutional violation would be to bring a legal challenge, not to “put other people in harm’s
way” on the street. In the court’s view, the video evidence showed the deputies’ behavior “in no
way, shape, or form could be construed to be threatening” to defendant. Accordingly, the court
found defendant guilty of aggravated fleeing.
¶ 14 The court then said the same reasoning applied to the two aggravated assault
charges. The court identified the elements that “the State is obligated to prove” with respect to
aggravated assault. The court found that the video evidence established defendant’s guilt on those
counts beyond a reasonable doubt.
¶ 15 At the sentencing hearing, the prosecutor asserted that defendant faced sentencing
for one Class 4 felony (aggravated fleeing) and two Class A misdemeanors (aggravated assault).
The State requested a sentence of two years in prison for the felony and a $1000 “fine on the two
misdemeanors.” Defense counsel asked for a probation sentence with 100 hours of public service.
If the court determined that “some loss of freedom is necessary to get the point across,” defense
counsel urged the court to impose “jail time” rather than a prison sentence.
¶ 16 For aggravated fleeing, the court sentenced defendant to 30 months’ probation, 180
days in jail, 300 hours of community service, a $500 fine, and court costs. Defense counsel then
asked, “Judge, what about the misdemeanors?” The court responded, “The misdemeanors are
going to be a $100 fine and costs and convictions on each one of those. Fines will be due within
one year of today’s date.” The court clarified there would be no jail time on the misdemeanor
convictions.
-7- ¶ 17 Defendant never filed a posttrial motion or a motion to reconsider the sentence.
Defendant filed a notice of appeal within 30 days of the sentencing hearing.
¶ 18 II. ANALYSIS
¶ 19 A. Burden of Proof Regarding the Necessity Defense
¶ 20 Defendant argues the trial court erroneously failed to require the State to disprove
the necessity defense beyond a reasonable doubt. According to defendant, the court’s comments
show that the court improperly shifted the burden of proof to him. The State responds that
defendant did not meet his initial burden with respect to the necessity defense, so the burden never
shifted to the prosecution to disprove that defense.
¶ 21 Defendant recognizes he forfeited this issue for review by failing to raise it below.
To circumvent forfeiture, defendant relies on the second prong of the plain-error doctrine, which
applies where “a clear or obvious error is so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process.” People v. Jackson, 2022 IL 127256, ¶ 19.
“[E]rrors that fall under the purview of the second prong of the plain error rule are rare” (Jackson,
2022 IL 127256, ¶ 27), and “the defendant has the burden of persuading the court to excuse his
forfeiture” (Jackson, 2022 IL 127256, ¶ 19). The initial step in our analysis is “to determine
whether a clear or obvious error occurred.” Jackson, 2022 IL 127256, ¶ 21.
¶ 22 A necessity defense has two elements: “(1) the person claiming the defense was
without blame in occasioning or developing the situation, and (2) the person reasonably believed
that his conduct was necessary to avoid a greater public or private injury than that which might
reasonably have resulted from his conduct.” People v. Janik, 127 Ill. 2d 390, 399 (1989). “[U]nless
the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue,
must present some evidence thereon.” 720 ILCS 5/3-2(a) (West 2020). Once an affirmative
-8- defense is raised, “the State must sustain the burden of proving the defendant guilty beyond a
reasonable doubt as to that issue together with all the other elements of the offense.” 720 ILCS
5/3-2(b) (West 2020).
¶ 23 Here, immediately before trial started, the court told defendant: “You don’t have to
prove anything. You are presumed to be innocent, and the burden is on the State to prove you
guilty.” After the parties presented closing arguments, the court began its ruling by asserting that
“[t]he State has the burden of proof” on the aggravated fleeing charge. After reciting the elements
of aggravated fleeing the State had to prove, the court said, “In a nutshell, that has been proven
beyond a reasonable doubt.” Later, the court identified the elements “the State is obligated to
prove” with respect to the aggravated assault charges. The court then found that the video evidence
introduced by the State “establishes that *** without a doubt.”
¶ 24 In arguing the trial court applied an improper burden of proof, defendant
emphasizes two comments the court made when addressing the necessity defense. One comment
was “First off, the defense needs to show that the accused in this situation, [defendant], was without
blame in occasioning or developing the situation.” The other comment was “Your defense of
necessity fails to establish even one element of necessity.” Defendant contends the court instead
should have required the State to disprove the necessity defense beyond a reasonable doubt.
¶ 25 We determine defendant has not shown a clear or obvious error. “The trial court is
presumed to know the law regarding the burden of proof and to apply it properly.” People v.
Cameron, 2012 IL App (3d) 110020, ¶ 28. Such presumption is rebutted only where “the record
contains strong affirmative evidence to the contrary.” Cameron, 2012 IL App (3d) 110020, ¶ 28.
Here, considering the entirety of the court’s ruling, the most reasonable interpretation is that the
court found defendant did not meet his initial burden to present even “some evidence” to raise a
-9- necessity defense. Thus, the State never had the burden to disprove that defense beyond a
reasonable doubt. See 720 ILCS 5/3-2(b) (West 2020) (establishing that the State must disprove
an affirmative defense if the defense is raised).
¶ 26 The State’s case-in-chief provided no evidence supporting a necessity defense.
Defendant then testified that he fled the traffic stop because he feared the deputies would shoot
him or his nephew for resisting a search of the car. Notably, the record contains no evidence that
even arguably could support the first element of the necessity defense—that defendant was
“without blame in occasioning or developing the situation.” Janik, 127 Ill. 2d at 399. The State
introduced uncontradicted evidence that Lamlech lawfully stopped defendant’s vehicle for
speeding 23 miles per hour over the posted limit. The State also introduced uncontradicted
evidence that Lamlech smelled marijuana in defendant’s car and observed, in plain sight, what
defendant admitted was marijuana. Unquestionably, those facts gave Lamlech the right to search
defendant’s car. See People v. Hall, 2023 IL App (4th) 220209, ¶ 24 (holding that probable cause
existed to search a vehicle where an officer smelled cannabis and a passenger of the vehicle
admitted to possessing cannabis). There was no evidence at trial that defendant was blameless
when he sped and had unsealed marijuana in plain sight.
¶ 27 There also was no evidence supporting the second element of the necessity
defense—that defendant “reasonably believed that his conduct was necessary to avoid a greater
public or private injury than that which might reasonably have resulted from his conduct.” Janik,
127 Ill. 2d at 399. A necessity defense requires that “the threat of harm was immediate and
defendant’s conduct was the sole option to avoid injury.” People v. Boston, 2016 IL App (1st)
133497, ¶ 39. Here, defendant testified he believed the deputies would shoot him or his nephew
for resisting a search of the vehicle. However, nearly running over the deputies and then driving
- 10 - away at high speeds obviously was not defendant’s sole option to avoid injury. Defendant could
have avoided injury simply by allowing the deputies to search the car.
¶ 28 As the record contained no evidence even arguably supporting either element of a
necessity defense, the burden never shifted to the State to disprove that defense. Thus, the
comments defendant references from the trial court’s ruling do not indicate that the court
misapplied the burden of proof. Rather, the comments suggest the court appropriately determined
the burden never shifted to the State.
¶ 29 In his reply brief, defendant proposes the trial court found he produced some
evidence supporting his necessity defense. Defendant cites the court’s comment that defendant had
“not raised self-defense” but had “only raised a necessity” defense. Defendant reads too much into
this comment. In context, the court seemingly used the word “raised” not in any technical sense
but in the sense that defendant only argued necessity. Even if this isolated comment could be
deemed a finding that the record contained some evidence supporting a necessity defense, the court
also found that the State’s video evidence contradicted the defense. Thus, the record does not
contain “strong affirmative evidence” that the court applied an improper standard. Cameron, 2012
IL App (3d) 110020, ¶ 28.
¶ 30 Defendant cites cases where the appellate court reversed trial courts for applying
incorrect burdens of proof. For example, in People v. Devine, 295 Ill. App. 3d 537, 544 (1998),
the trial court incorrectly said in its ruling that the defense (1) had to establish reasonable doubt
and (2) had to rebut the State’s prima facie case. Unlike Devine and other cases defendant cites,
the record here does not support, much less compel, a conclusion that the trial court misapplied
the burden of proof.
- 11 - ¶ 31 Because we determine that defendant has not demonstrated a clear or obvious error,
we hold that he has not sustained his burden under the plain-error doctrine.
¶ 32 B. Validity of the Jury Trial Waiver
¶ 33 Defendant also contends he did not knowingly waive his right to a jury trial on the
aggravated assault charges. Defendant reasons that (1) the trial court said before trial that
defendant’s jury waiver was irrevocable, (2) the midtrial amendments elevated the aggravated
assault charges from Class A misdemeanors to Class 4 felonies, and (3) the court never sought a
valid jury waiver as to those enhanced charges. Defendant recognizes he did not preserve this
issue, but he invokes the second prong of the plain-error doctrine.
¶ 34 The State responds that there was no clear or obvious error. The State notes—and
defendant acknowledges in his reply brief—that the trial court sentenced defendant on the
aggravated assault counts as if they were misdemeanors. However, defendant points out that the
State could file a mandamus action to correct the statutorily unauthorized sentences.
¶ 35 Both the federal and state constitutions protect the right to a jury trial. People v.
Bracey, 213 Ill. 2d 265, 269 (2004). A defendant may waive that right, so long as such waiver is
“knowingly and understandingly made.” Bracey, 213 Ill. 2d at 269. Section 115-1 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-1 (West 2020)) contemplates defendants executing
written jury waivers. Nevertheless, a written jury waiver is merely “one means by which a
defendant’s intent may be established.” Bracey, 213 Ill. 2d at 269. There is no precise formula for
determining whether a defendant knowingly and understandingly waived the right to a jury trial,
and each case turns on its own facts and circumstances. People v. Frey, 103 Ill. 2d 327, 332 (1984).
¶ 36 Here, defendant was charged with one count of aggravated fleeing (count I), one
count of obstructing justice (count II), and two counts of aggravated assault (counts III and IV).
- 12 - Counts I and II were charged as Class 4 felonies. Counts III and IV contained errors, or at least
ambiguities, on their face. Counts III and IV alleged that the victims of the assaults were “peace
officer[s]” acting in the performance of their official duties—which seemingly would mean the
charges were Class 4 felonies pursuant to section 12-2(b)(4.1)(i) of the Code (720 ILCS
5/12-2(b)(4.1)(i) (West 2020)). However, counts III and IV alleged that defendant committed Class
A misdemeanors by violating section 12-2(b)(4)(i) of the Code (720 ILCS 5/12-2(b)(4)(i) (West
2020)), which addresses assaults against community policing volunteers, private security officers,
and utility workers. No one brought these issues to the trial court’s attention before trial.
¶ 37 On January 11, 2022, defendant—both orally and in writing—waived his right to a
jury trial and elected a bench trial. As detailed above (see supra ¶ 7), there is no doubt defendant
knew and understood he was waiving his right to a jury trial on all four charges, at least as those
charges were alleged at the time. Defendant maintains it was misleading for the trial court to tell
him on January 11, 2022, that he could not ask for reinstatement of his right to a jury trial, as courts
have discretion to allow defendants to withdraw a jury waiver. See People v. McIntyre, 2022 IL
App (2d) 200535, ¶ 9 (labeling it “misleading” for a judge, when accepting a jury trial waiver, to
tell a defendant he could not change his mind and take back the waiver). Nevertheless, a comment
of this nature does not constitute second-prong plain error (McIntyre, 2022 IL App (2d) 200535,
¶ 12), and our supreme court has upheld jury waivers even where the trial court suggested the
waiver was irrevocable (People v. Tooles, 177 Ill. 2d 462, 471 (1997)).
¶ 38 Defendant’s bench trial proceeded on February 22, 2022. Once trial starts, a
defendant no longer may request to withdraw a jury waiver. See People v. Catalano, 29 Ill. 2d
197, 203 (1963) (“[T]he authorities are uniform to the effect that a motion for withdrawal of waiver
made after the commencement of the trial is not timely and should not be allowed.”). If events at
- 13 - a bench trial generate doubt as to whether a jury waiver was knowing and voluntary, the
defendant’s recourse is to request a mistrial. People v. Williams, 2016 IL App (3d) 130901, ¶ 26;
People v. Norris, 62 Ill. App. 3d 228, 232-33 (1978).
¶ 39 Here, after the State rested its case-in-chief, the prosecutor sought to amend counts
III and IV to correct a “typo” and to “conform with the facts that were elicited.” See 725 ILCS
5/111-5 (West 2020) (authorizing amendments to the charging instrument “at any time” to correct
formal defects). Specifically, the prosecutor requested to cite the subsection of the aggravated
assault statute pertaining to peace officers. Rather than objecting to the amendments or moving for
a mistrial, defense counsel responded, “That does appear to make more sense, Judge.” Defense
counsel also indicated he had no objection to the amendments. Defense counsel added, “And, just
for the record, I’ve always known who Deputy Sarah Lamlech is and Deputy McGuire [is],” “[a]s
far as law enforcement.”
¶ 40 On appeal, defendant does not argue ineffective assistance of counsel for agreeing
to the amendments. Defendant instead maintains that, after the trial court allowed the amendments,
the court committed plain error by failing to procure a jury-trial waiver from defendant as to the
amended counts III and IV.
¶ 41 Defendant relies heavily on People v. Hernandez, 409 Ill. App. 3d 294 (2011). In
that case, the appellate court held that a defendant’s November 2008 jury-trial waiver as to
domestic battery charges did not extend to two counts of obstructing a peace officer that were
added immediately before trial started in April 2009. Hernandez, 409 Ill. App. 3d at 295-96. Part
of the appellate court’s reasoning was that “[c]ommon sense says that a person must be at least
generally aware of the charges he or she faces before he or she can knowingly and intelligently
decide whether guilt for those charges should be determined by a jury or a judge.” Hernandez, 409
- 14 - Ill. App. 3d at 297. The court also deemed it “axiomatic that a waiver can apply only to existing
charges.” Hernandez, 409 Ill. App. 3d at 298.
¶ 42 Hernandez’s rule does not directly apply here, as the State did not add any charges
after defendant validly waived his right to a jury trial. The question, then, is whether Hernandez’s
reasoning should be extended to the facts of this case. We determine Hernandez’s reasoning does
not apply here. The key fact in Hernandez was that the defendant could not have known the State
would add charges after he waived his right to a jury trial. Thus, the Hernandez court determined
the defendant should have been given the opportunity to decide whether he still wanted a bench
trial in light of the additional charges. Here, by contrast, when defendant waived his right to a jury
trial, he knew that Lamlech and McGuire were peace officers, as that was alleged in the original
charging instrument. Later, with defense counsel’s approval, the State amended charges during
trial to cite a subsection of the applicable statute that was implicated by the original charging
instrument’s allegations. The factual and procedural differences between our case and Hernandez
militate against applying Hernandez’s reasoning here. We reiterate that defendant may obtain
plain-error relief only if “a clear or obvious error occurred.” Jackson, 2022 IL 127256, ¶ 21.
Hernandez is distinguishable, so the trial court did not commit a clear or obvious error by failing
to procure another jury-trial waiver from defendant after the State amended counts III and IV.
¶ 43 Defendant emphasizes that the amendments to counts III and IV elevated the
offenses from Class A misdemeanors to Class 4 felonies. Defendant also suggests the State could
seek mandamus relief to increase his sentences. These arguments do not change our analysis of
whether the trial court committed a clear or obvious error by failing to procure another jury-trial
waiver from defendant after the State amended counts III and IV. The parties and the court
assumed, albeit erroneously, that the amended counts III and IV were still Class A misdemeanors.
- 15 - The court ultimately fined defendant $100 on both counts III and IV, which would be unauthorized
sentences for felony convictions. See 730 ILCS 5/5-4.5-15(b) (West 2020) (“Neither a fine nor
restitution shall be the sole disposition for a felony, and either or both may be imposed only in
conjunction with another disposition.”). Thus, defendant was sentenced for misdemeanors, not
felonies, on counts III and IV.
¶ 44 Moreover, any error in sentencing does not render defendant’s sentences void. See
People v. Castleberry, 2015 IL 116916, ¶ 19 (holding that a statutorily unauthorized sentence is
not void). Ordinarily, if the State wants to increase an unauthorized sentence, the State may seek
a writ of mandamus from our supreme court. Castleberry, 2015 IL 116916, ¶¶ 26-27. Here,
however, we see no realistic possibility of the State filing a mandamus petition, as the State admits
in its brief that it induced the trial court to impose misdemeanor convictions on counts III and IV
(“Defendant presently stands convicted of aggravated assault as Class A misdemeanors, as induced
by the prosecution, with only $100 fines.”).
¶ 45 Irrespective of the confusion below as to sentencing, our supreme court has
explained that improper admonishments regarding sentencing consequences do not invalidate a
jury waiver, as sentencing “ ‘is not a consequence of the election to waive a jury trial.’ ” People v.
Bannister, 232 Ill. 2d 52, 69 (2008) (quoting Horsman v. State, 570 A.2d 354, 357 (Md. Ct. Spec.
App. 1990)). “When a defendant waives the right to a jury trial, the pivotal knowledge that the
defendant must understand—with its attendant consequences—is that the facts of the case will be
determined by a judge and not a jury.” Bannister, 232 Ill. 2d at 69. Here, the record confirms
defendant knew and understood on January 11, 2022, when he waived his right to a jury trial on
all four charges, that his case would be tried before a judge rather than a jury. Defendant also knew
at that time that the State was alleging Lamlech and McGuire were peace officers. Pursuant to
- 16 - Bannister, improper admonishments as to potential sentencing consequences did not invalidate
defendant’s jury-trial waiver.
¶ 46 In his reply brief, defendant cites People v. Zajac, 244 Ill. App. 3d 42 (1991), for
his assertion that the amendments to counts III and IV “substantially altered the nature of the
charges.” Unlike the defendant in Zajac, defense counsel here did not object to the amendments
as being improper substantive changes to the charging instrument. Rather, defense counsel said
the amendments made sense, and he had no objection. Defense counsel confirmed he had “always
known” that Lamlech and McGuire were “law enforcement” personnel. Again, defendant does not
argue ineffective assistance of counsel for agreeing to the amendments to counts III and IV. Thus,
the issue of whether the amendments effectuated formal versus substantive changes is not before
us.
¶ 47 In closing, we note our puzzlement that defendant, who is represented by counsel,
seeks a new trial that would subject him to harsher penalties—including imprisonment—if he were
convicted. The video evidence of defendant fleeing from a traffic stop at high speeds seemingly
would negate any defense to the charges of aggravated assault in the amended counts III and IV.
Defendant received sentences of small fines and court costs on counts III and IV. It is not apparent
why defendant would want a new trial on those counts, potentially exposing himself to a prison
sentence, where he benefitted from the mistakes made below. We recognize that defendant presents
a nonfrivolous argument that Hernandez’s reasoning could be extended to the facts of this case.
However, we see no positive rationale for defendant raising that argument under these
circumstances.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the trial court’s judgment.
- 17 - ¶ 50 Affirmed.
- 18 - People v. Brown, 2023 IL App (4th) 220399
Decision Under Review: Appeal from the Circuit Court of Woodford County, No. 21-CF- 107; the Hon. Michael L. Stroh, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Edward J. Wittrig, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant:
Attorneys Gregory Minger, State’s Attorney, of Eureka (Patrick Delfino, for David J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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