People v. Wolf

2022 IL App (3d) 190784-U

• Court: Appellate Court of Illinois
• Decided: March 3, 2022
• Docket: 3-19-0784
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 190784-U

Order filed March 3, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0784 v. ) Circuit No. 18-CF-701 ) MILTON C. WOLF, ) Honorable ) Clark E. Erickson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HAUPTMAN delivered the judgment of the court. Justices Daugherity and Schmidt concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Defendant knowingly and voluntarily waived his right to a jury trial.

¶2 Defendant, Milton C. Wolf, appeals his conviction for criminal trespass to a residence.

He argues that the Kankakee County circuit court violated his right to a jury trial where it

accepted his jury waiver without properly admonishing him and ensuring he expressly and

understandingly waived his right to a jury trial. We affirm. ¶3 I. BACKGROUND

¶4 The State charged defendant with criminal trespass to a residence (720 ILCS 5/19-4(a)(2)

(West 2018)) and battery (id. § 12-3(a)(1)). Prior to trial, defendant signed a written jury waiver

which stated, “I hereby waive a jury trial in the above entitled cause and consent to trial before

the court.” On that same day, while defendant was present in court, defense counsel stated

“We’re signing a jury waiver. *** My client’s requesting bench trials on both those cases.” The

court stated, “We’re just gonna show in both—17-CM-980 and 18-CF-701—in both cases he

waives jury.” Counsel replied “Yes.” After informing defendant of the trial date of Friday,

July 12, it stated “We got to go to Fridays on jury trial weeks for bench trials—significant bench

trials. So it’s 2 o’clock July 12.” Defendant replied, “Thank you, Your Honor.” Defendant never

objected to the waiver of the jury trial and the setting of a bench trial. Additionally, defendant

did not raise any issue regarding the validity of the jury trial waiver in the circuit court.

¶5 The court ultimately held a bench trial and found defendant guilty of criminal trespass to

a residence and not guilty of battery. The matter proceeded to sentencing. The presentence

investigation report indicated that, as an adult, defendant had two prior felony convictions and

various traffic convictions. The court sentenced defendant to three years’ imprisonment.

Defendant appeals.

¶6 II. ANALYSIS

¶7 Defendant argues that the court erred in accepting his jury waiver without admonishing

him as to the difference between a jury and bench trial. He argues that the record does not show

that he expressly or understandingly waived the right to a jury trial.

¶8 As an initial matter, defendant acknowledges that he forfeited the right to challenge his

jury waiver because he did not raise this issue below (see People v. Enoch, 122 Ill. 2d 176, 186

2 (1988)), but he requests relief through the plain error doctrine. The first step in applying the plain

error doctrine is to determine if an error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565

(2007).

¶9 To be valid, a jury waiver must be knowingly and understandingly made. People v.

Bracey, 213 Ill. 2d 265, 269 (2004). “[W]hile the circuit court must insure that a defendant’s jury

waiver is understandingly made, no set admonition or advice is required before an effective

waiver of that right may be made.” People v. Tooles, 177 Ill. 2d 462, 469 (1997). Whether a jury

waiver is valid depends on the particular facts and circumstances of each case. Id. “[J]ury

waivers are valid when made in open court by defense counsel ‘in defendant’s presence where

defendant gave no indication of any objection.’ ” People v. Turner, 375 Ill. App. 3d 1101, 1108

(2007) (quoting People v. Frey, 103 Ill. 2d 327, 332 (1984)). Courts have given effect to such

waivers because an accused typically speaks and acts through his attorney. Frey, 103 Ill. 2d at

332. Additionally, “the existence of a written waiver supports a finding of a knowing waiver

when accompanied by defense counsel’s request for a bench trial made in open court and in the

defendant’s presence.” Turner, 375 Ill. App. 3d at 1108.

¶ 10 In People v. Johnson, 347 Ill. App. 3d 442, 443-45 (2004), this court found a valid jury

waiver where the record did not contain a written waiver and the record did not contain a

transcript of the hearing wherein the jury was waived, but a docket entry indicated that defendant

was present in open court when defense counsel informed the court that defendant was waiving a

jury trial. There was no indication that the defendant in Johnson objected. Id. at 444-45.

Additionally, the court stated that “the presentencing investigation report disclose[d] that the

defendant was familiar with the criminal justice system” because she had a prior criminal

conviction and several traffic convictions as an adult. Id. at 445.

3 ¶ 11 Similarly, in Turner, defendant was present in court when counsel waived defendant’s

right to a jury trial, defendant orally assented to the bench trial date, and defendant executed a

written waiver. Turner, 375 Ill. App. 3d at 1102. This court found that the waiver was made

knowingly and noted that “[a]lthough the trial court did not explicitly discuss the waiver with the

defendant, she did not express any objection.” Id. at 1109. Like Johnson, the court stated that

defendant’s two prior criminal convictions and multiple traffic convictions added additional

support for finding a knowing waiver because they demonstrated a familiarity with the criminal

justice system. Id.

¶ 12 In this matter, defendant was present in court when counsel waived his right to a jury trial

and requested a bench trial. Defendant did not object. Further, defendant signed a jury waiver

which further indicates that he made a knowing waiver. See Id. at 1108. Finally, like the

defendants in Johnson and Turner, defendant has prior convictions, indicating his familiarity

with the criminal justice system. Viewing these facts together, we conclude that defendant

knowingly and voluntarily waived his right to a jury trial. Therefore, we find no error, and thus,

no plain error.

¶ 13 Although we find the waiver here was knowingly and voluntarily made, we note that the

better practice for circuit courts to follow is to expressly ensure, on the record, that defendant

understands the difference between a bench and a jury trial, defendant understands he or she has

the right to be tried by a jury, no one forced defendant to waive that right, and defendant, in fact,

wants to waive that right.

¶ 14 III. CONCLUSION

¶ 15 The judgment of the circuit court of Kankakee County is affirmed.

¶ 16 Affirmed.