{ "id": 847589, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY R. SCOTT, Defendant-Appellant", "name_abbreviation": "People v. Scott", "decision_date": "1997-11-26", "docket_number": "No. 5\u201495\u20140574", "first_page": "241", "last_page": "246", "citations": [ { "type": "official", "cite": "293 Ill. App. 3d 241" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "664 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156780 ], "year": 1996, "pin_cites": [ { "page": "962" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0960-01" ] }, { "cite": "478 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "page": "362" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138824 ], "year": 1985, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0327-01" ] }, { "cite": "583 N.E.2d 54", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "56" }, { "page": "56" } ], "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797722 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "867" }, { "page": "867" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0864-01" ] }, { "cite": "469 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "197" }, { "page": "197" }, { "page": "196" }, { "page": "196" } ], "opinion_index": 0 }, { "cite": "103 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152474 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "332" }, { "page": "332" }, { "page": "330" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0327-01" ] }, { "cite": "465 N.E.2d 1044", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "1045" }, { "page": "1046" }, { "page": "1046" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 284", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633605 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "286" }, { "page": "287" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0284-01" ] }, { "cite": "666 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "917" } ], "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150243 ], "year": 1996, "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0001-01" ] }, { "cite": "177 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317108 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "465" }, { "page": "465" }, { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0462-01" ] } ], "analysis": { "cardinality": 493, "char_count": 9327, "ocr_confidence": 0.765, "pagerank": { "raw": 7.666669039503416e-08, "percentile": 0.45220435631575434 }, "sha256": "ede6db214d7f8487ba6d78ab1beff13b0ddd079e84cda63e1ac278e349486046", "simhash": "1:99bc5cf429678884", "word_count": 1627 }, "last_updated": "2023-07-14T15:37:50.535591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY R. SCOTT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOPKINS\ndelivered the opinion of the court:\nAfter a bench trial, the defendant, Jerry R. Scott, was found guilty of driving under the influence of alcohol. Defendant was sentenced to two years\u2019 probation. On appeal, defendant argues that his conviction must be reversed because he did not waive his right to a jury trial in open court, where the only purported waiver was a document submitted to the court outside his presence and where neither the defendant nor his attorney was addressed upon the right of a trial by jury or the waiver of that right in defendant\u2019s presence.\nIn Illinois, there are two statutes that govern a criminal defendant\u2019s rights to receive or waive a trial by jury. Section 103 \u2014 6 of the Code of Criminal Procedure of 1963 (Code) provides, in relevant part:\n\"Every person accused of an offense shall have the right to a trial by jury unless (i) understandingly waived by defendant in open court ***.\u201d 725 ILCS 5/103 \u2014 6(0 (West 1992).\nSection 115 \u2014 1 of the Code provides for the method by which a defendant may waive his right to a jury trial.\n\"Method of Trial. All prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing.\u201d 725 ILCS 5/115 \u2014 1 (West 1992).\nThe State initially contends that defendant has waived the issue for appeal by failing to make any objection at trial and by failing to file any posttrial motion. Our supreme court recently addressed waiver where the issue is whether the failure to secure a written jury waiver was reversible error. Our supreme court held that the waiver rule is one of administrative convenience and is not jurisdictional. People v. Tooles, 177 Ill. 2d 462, 465 (1997). Our supreme court declined to rule that in every case the failure to secure a written jury waiver warrants review under the plain error rule. Tooles, 177 Ill. 2d at 465. In Tooles, the supreme court noted that section 115 \u2014 l\u2019s written jury waiver requirement does not impact a defendant\u2019s constitutional right to choose whether to have a jury trial, but the writing requirement merely memorializes the decision to exercise this right. Tooles, 177 Ill. 2d at 466. In the case at bar, this court is considering whether that right was knowingly and understandingly waived. Defendant cannot waive the admonishment of his right to a jury trial if he has not been advised in open court as to that right. A lack of a knowingly and understandingly entered waiver of a jury trial has constitutional ramifications. We will consider the merits of the issue. See People v. Mueller, 281 Ill. App. 3d 1, 3, 666 N.E.2d 915, 917 (1996).\nThe following document, filed on December 29, 1994, is contained in the record on appeal:\n\"IN THE CIRCUIT COURT FOR THE 2D JUDICIAL CIRCUIT WAYNE COUNTY, ILLINOIS\nPEOPLE OF THE STATE OF ILLINOIS\nVS.\nJERRY R. SCOTT DEFENDANT\n94 \u2014 TR\u20141937\nWAIVER OF JURY TRIAL\nNow comes Jerry R Scott and states:\n1. I am of legal age and under no legal disability.\n2. I am not under the influence of any legal or illegal drugs[ ] or alcoholic beverages at this time.\n3. I am aware of my right to a jury trial in this cause.\n4. After consultation with my court appointed attorney I have decided to waive my right to jury trial[ ] and have this matter decided in a bench trial.\n5. This waiver is executed on December 15, 1994, in the office of David M. Williams, Attorney at Law, Fairfield, Illinois.\n6. Attorney Williams has advised me that I have until the last Thursday of December[ ] 1994 to revoke this waiver of jury trial; on that date Attorney Williams intends to present this waiver to the judge.\n7.1 am fully aware of the legal consequences of this waiver. Further I say not.\nDated: 12 15 94_ s/ Jerry R, Scott_\nJerry R. Scott\nExecuted before me this 15th day of December, 1994.\ns/ David M. Williams_\nDavid M. Williams[.]\u201d\nOn the same date the jury waiver was filed, the docket entry reads: \"D.W. and S.A. present; jury setting of 1 \u2014 9\u201495 vacated w/o objection!,] on file jury waiver.\u201d\nOn January 3, 1995, when the record indicates that defendant was not in open court, defense counsel stated: \"We have waived our right to a jury trial. Ask that it be set for a bench trial.\u201d\nPrior to the presentation of evidence at defendant\u2019s bench trial, the following colloquy occurred:\n\"MR. WILLIAMS [defense counsel]: And we would proceed to the bench trial today.\nTHE COURT: Okay. Defendant files motion to dismiss. State\u2019s Attorney given two weeks to file responsive pleading. Okay, we\u2019ll proceed to bench trial then?\nMR. WILLIAMS: Yes, Your Honor, the \u2014 the motion refers to two cases, People v. Krizek, K-R-I-Z-E-K and People v. Towns ***.\n* * *\nTHE COURT: Okay, appreciate that, okay. We will then proceed with the bench trial. Mr. Vaughn [State\u2019s Attorney], you may proceed.\u201d\nSection 103 \u2014 6 of the Code is plain on its face and contains two requirements for a valid waiver: (1) that it be in open court and (2) that it be understandingly made. People v. Williams, 125 Ill. App. 3d 284, 286, 465 N.E.2d 1044, 1045 (1984). A jury waiver, to be valid, must be knowingly and understandingly made. People v. Frey, 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197 (1984). That determination cannot rest on any precise formula and necessarily turns on the facts and circumstances of each particular case. Frey, 103 Ill. 2d at 332, 469 N.E.2d at 197. In the case at bar, the jury waiver was filed outside of open court. The record on appeal does not reflect that \"jury trial\u201d was ever mentioned while defendant was present in open court. Even where the waiver had been filed outside of open court, there was more than adequate opportunity at the commencement of the bench trial to confirm it according to statute. Williams, 125 Ill. App. 3d at 287, 465 N.E.2d at 1046. Further, the record here is silent as to whether defendant was aware that proceeding to a bench trial meant foregoing a jury trial. The record shows that although defendant may have signed a jury waiver in his attorney\u2019s presence, there is no evidence that he made a knowing and understanding jury waiver. See People v. Hall, 221 Ill. App. 3d 864, 867, 583 N.E.2d 54, 56 (1991). Defendant\u2019s case was up before the court, but the record never indicates whether defendant was ever personally admonished of his right to a jury trial. See Hall, 221 Ill. App. 3d at 867, 583 N.E.2d at 56. Neither Tooles nor Mueller, which dealt with the issue of the requirement of written jury waivers, changes the requirement that a knowing and understanding waiver of jury trial occur in open court. This court is unaware of an opinion by our supreme court in which waiver has been found by defendant\u2019s mere presence in court while a discussion occurs between the attorneys without full knowledge and understanding by defendant of what he is waiving. The waiver, not being executed or confirmed in open court, violates the statute. See Williams, 125 Ill. App. 3d at 287, 465 N.E.2d at 1046. It is apparent from the record that the requirements of an understanding waiver made in open court were not satisfied, and therefore the cause must be remanded for a new trial. See People v. Smith, 106 Ill. 2d 327, 337, 478 N.E.2d 357, 362 (1985).\nIn addition to arguing waiver, the State argues that the accused typically speaks and acts through his attorney and that courts of review have given effect to jury waivers made by defense counsel in defendant\u2019s presence where defendant gave no indication of any objection to the court hearing the case. See Frey, 103 Ill. 2d at 330, 469 N.E.2d at 196. The State relies on Frey in this case to argue that defendant acquiesced in his counsel\u2019s waiver of a jury trial. Frey is distinguishable from the case at bar, because in Frey the unrebutted testimony of the prosecutor at the hearing on defendant\u2019s posttrial motion was that \"defendant was present on occasions when the matter of a bench trial was discussed, and at some point was advised of his right to trial by a jury or by the court.\u201d (Emphasis added.) Frey, 103 Ill. 2d at 330, 469 N.E.2d at 196. In the case at bar, nothing in the record indicates that defendant was advised in open court of his right to a trial by jury or by the court.\nThe State further relies on People v. Asselborn, 278 Ill. App. 3d 960, 962, 664 N.E.2d 110 (1996), leave to appeal pending, in which the court asked in defendant\u2019s presence, \"Jury waiver[ \u2014 ]Bench or jury?\u201d and defense counsel responded, \"It will be a bench trial[,] your Hon- or.\u201d Asselborn did not object. Asselborn is distinguishable for the same reason as Frey is distinguishable: defendant was not in open court when a jury trial was mentioned and waived.\nFor the foregoing reasons, the judgment of the circuit court is reversed, and this cause is remanded for a new trial.\nReversed and remanded.\nKUEHN, P.J., and CHAPMAN, J\u201e concur.", "type": "majority", "author": "JUSTICE HOPKINS" } ], "attorneys": [ "Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Kevin Kakac, State\u2019s Attorney, of Fairfield (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY R. SCOTT, Defendant-Appellant.\nFifth District\nNo. 5\u201495\u20140574\nOpinion filed November 26, 1997.\nDaniel M. Kirwan and Larry R. Wells, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nKevin Kakac, State\u2019s Attorney, of Fairfield (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0241-01", "first_page_order": 261, "last_page_order": 266 }