{ "id": 4265209, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE RUIZ, Defendant-Appellant", "name_abbreviation": "People v. Ruiz", "decision_date": "2006-08-15", "docket_number": "No. 1\u201404\u20143410", "first_page": "236", "last_page": "240", "citations": [ { "type": "official", "cite": "367 Ill. App. 3d 236" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "164 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477048 ], "year": 1995, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0382-01" ] }, { "cite": "363 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765919 ], "year": 2006, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0013-01" ] }, { "cite": "103 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152474 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0327-01" ] }, { "cite": "186 Ill. 2d 283", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243894 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "285" }, { "page": "284", "parenthetical": "holding that written jury waivers alone cannot validly waive a defendant's right to a jury trial" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0283-01" ] }, { "cite": "213 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448655 ], "weight": 8, "year": 2004, "pin_cites": [ { "page": "270" }, { "page": "269" }, { "page": "269" }, { "page": "269" }, { "page": "270" }, { "page": "270" }, { "page": "269-70" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0265-01" ] } ], "analysis": { "cardinality": 519, "char_count": 9236, "ocr_confidence": 0.78, "pagerank": { "raw": 5.784959765015926e-08, "percentile": 0.36103687898406434 }, "sha256": "f36cb4d1cef5d0521eafd6eb51237741de3f0c18d86204300c64b5e26f2fda85", "simhash": "1:7beb4c6872eebab2", "word_count": 1541 }, "last_updated": "2023-07-14T20:55:49.400377+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. JOSE RUIZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SOUTH\ndelivered, the opinion of the court:\nFollowing a bench trial, defendant Jose Ruiz was convicted of burglary and sentenced as a Class X offender to 11 years\u2019 imprisonment. On appeal, defendant asserts that the record does not establish a valid jury waiver. Defendant also contends that the compulsory extraction and perpetual storage of his DNA pursuant to section 5 \u2014 4\u20143 of the Unified Code of Corrections (Code) (730 ILCS 5/5\u2014 4 \u2014 3 (West 2004)) violates his constitutional right to be free from unreasonable searches and seizures. We reverse and remand for a new trial.\nThe record contains defendant\u2019s signed jury waiver, filed October 8, 2004, which was the day of defendant\u2019s bench trial. Briefly stated, the following evidence was presented at defendant\u2019s trial. Stephen Pierson testified that about 2:38 p.m. on September 14, 2003, he was working in his garage when he saw defendant walking in a nearby alley. Pierson observed defendant open a partially closed door of a neighboring garage located at 2323 North Jansen Avenue. After Pier-son saw defendant enter the garage, Pierson walked toward defendant\u2019s location. Pierson encountered defendant outside the garage and saw defendant attempting to pull a lock off a bike. Ultimately, defendant ran away from Pierson. Pierson pursued defendant, stopped him, and restrained him until police officers arrived.\nAnna Veluz, the owner of the stolen bike, testified that on September 14, 2003, she lived at 2323 North Jansen Avenue. Veluz testified that she stored her bike inside her garage and kept her bike locked during storage. Veluz did not know defendant and never gave him permission to enter her garage or remove her bike from the garage.\nDefendant testified that he was 57 years old and conceded being in the alley, but denied stealing the bike. According to defendant, he was collecting cans when Pierson told him to stop. Defendant continued to walk through the alley and later stopped to urinate by a garage that had an opened door. After defendant finished, Pierson approached defendant, hit him, called him racial slurs, and knocked him to the ground. Shortly thereafter, police officers arrived and arrested defendant.\nThe trial court found defendant guilty of burglary. The court sentenced defendant as a Class X offender to 11 years\u2019 imprisonment and ordered an extraction of defendant\u2019s DNA pursuant to section 5 \u2014 4\u20143 of the Code.\nOn appeal, defendant contends that he was denied his right to a jury trial when the trial court proceeded with a bench trial without obtaining a valid jury waiver. Defendant observes that the record does not include any statement in open court from defendant or his counsel regarding the waiver.\nInitially, we reject the State\u2019s assertion that defendant waived this issue by failing to object at trial or file a posttrial motion and that defendant\u2019s claim is not subject to plain error review. The issue of a defendant\u2019s waiver of his fundamental right to a jury trial is a matter that we may consider under the plain error rule, despite a defendant\u2019s failure to properly preserve that issue. People v. Bracey, 213 Ill. 2d 265, 270 (2004).\nAn individual\u2019s right to a trial by jury is a fundamental constitutional right. Bracey, 213 Ill. 2d at 269. Although a defendant may waive his right to a jury, in order for that waiver to be valid, it must be made understanding. Bracey, 213 Ill. 2d at 269; People v. Scott, 186 Ill. 2d 283, 285 (1999). This principle has been codified in section 103 \u2014 6 of the Code of Criminal Procedure of 1963, which provides, in pertinent part, that \u201c[e]very person accused of an offense shall have the right to a trial by jury unless *** understandingly waived by defendant in open court.\u201d 725 ILCS 5/103 \u2014 6 (West 2004).\nA reviewing court\u2019s determination of the validity of a jury waiver is not subject to a precise formula, but instead depends upon the particular facts and circumstances of each case. Bracey, 213 Ill. 2d at 269. Generally, we will find valid a jury waiver made by defense counsel in defendant\u2019s presence in open court, without objection by defendant. Bracey, 213 Ill. 2d at 270. Where, as here, the relevant facts are not in dispute, we review de novo the issue of whether a defendant waived his right to a jury trial because it is a question of law. Bracey, 213 Ill. 2d at 270.\nThe State argues that the record establishes that defendant knowingly waived his right to a jury because defendant signed a jury waiver, his trial counsel referenced a bench trial in open court, defendant did not object to the trial court\u2019s statement regarding defendant\u2019s signed jury waiver, and defendant has a criminal history. To support this position, the State directs our attention to the following two collqquies in the record.\nFirst, in a pretrial proceeding on September 3, 2004, the following discussion occurred, in its entirety, as follows:\n\u201cMR. KIRSGHBAUM [Defense counsel]: This is [defendant]. I filed an answer to People\u2019s motion for pretrial discovery. We would seek your Honor to set this for a bench trial. I would suggest to the Court a bench trial date of October 7.\nTHE COURT: Apparently there won\u2019t be any State\u2019s Attorneys here that day.\nMR. KIRSGHBAUM: October 5 or 6.\nTHE COURT: We have three things set. How about the 8th?\nMR. KIRSGHBAUM: That\u2019s okay.\nTHE COURT: [Defendant], 10/8, with [sic] for trial.\u201d\nSecond, on October 8, 2004, immediately preceding defendant\u2019s bench trial, the following exchange occurred, in pertinent part, as follows:\n\u201cTHE CLERK: [Defendant],\nTHE COURT: This case is set for trial.\nMR. KIRSGHBAUM: Yes, Judge, we\u2019re going to be ready. I understand the State is ready. I just need about [five] or ten minutes and I\u2019ll be ready to start.\nTHE COURT: All right. How many witnesses is the State looking at?\nMR. ALBANESE [Assistant State\u2019s Attorney]: Three.\nTHE COURT: I\u2019m ready to go so as soon as you\u2019re ready. Let me know and we\u2019ll start. [Defendant] is before the Court. Both sides are ready for trial?\nMR. ALBANESE: Yes, Judge.\nTHE COURT: Defendant has signed a jury waiver. It\u2019s been tendered to the Court. Any preliminary matters?\nMR. ALBANESE: Motion to exclude.\nMR. KIRSCHBAUM: Motion to exclude witnesses.\nTHE COURT: Motion is granted.\u201d\nWe find that these two instances do not support a finding that defendant\u2019s jury waiver was discussed in open court as required. Most significantly, the transcript of proceedings reveals that there was no discussion of defendant\u2019s waiver of his right to a jury. Instead, the record reveals only that defendant\u2019s trial counsel scheduled a bench trial in September 2004 and the trial court referenced defendant\u2019s signed jury waiver immediately before proceeding to the bench trial. Contrary to the State\u2019s assertions, these two instances are insufficient to constitute a discussion of defendant\u2019s waiver of his right to a jury trial in open court.\nFurthermore, although defendant signed a jury waiver, the existence of a written jury waiver is not dispositive of the issue of whether that waiver is valid. Bracey, 213 Ill. 2d at 269-70; Scott, 186 Ill. 2d at 284 (holding that written jury waivers alone cannot validly waive a defendant\u2019s right to a jury trial). In this case, where there was no discussion in open court of the issue of defendant\u2019s jury waiver, we cannot conclude that defendant validly waived his right to a jury trial. As our supreme court recognized in Bracey, \u201c \u2018[w]e have never found a valid jury waiver where the defendant was not present in open court when a jury waiver, written or otherwise, was at least discussed.\u2019 \u201d Bracey, 213 Ill. 2d at 270, quoting Scott, 186 Ill. 2d at 285. Accordingly, we find that defendant did not validly waive his right to a jury trial and we therefore reverse his conviction.\nThe State\u2019s reliance on People v. Frey, 103 Ill. 2d 327 (1984), is misplaced. Notably, in Frey, unlike here, the supreme court observed that it was apparent from the record in that case that \u201cdefendant was aware of his right to a jury trial and was present at some point prior to trial when the jury waiver was discussed.\u201d Frey, 103 Ill. 2d at 333. Here, the record supports no such conclusion.\nLast, we reject defendant\u2019s constitutional challenge to section 5 \u2014 4\u20143 of the Code regarding DNA extraction because our supreme court recently upheld the constitutionality of section 5 \u2014 4\u20143 in People v. Garvin, 219 |Ill. 2d 104, 125 (2006).\nFor the foregoing reasons, we reverse the judgment of the circuit court and remand for a new trial. Double jeopardy does not prohibit a new trial because the trial evidence was sufficient to support defendant\u2019s conviction for burglary. People v. Washington, 363 Ill. App. 3d 13, 27 (2006), citing People v. Olivera, 164 Ill. 2d 382, 393 (1995).\nReversed and remanded.\nGARCIA, EJ., and WOLFSON, J., concur.", "type": "majority", "author": "JUSTICE SOUTH" } ], "attorneys": [ "Michael J. Pelletier, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James Fitzgerald, Mary L. Boland, and Natosha Cuyler-Sherman, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE RUIZ, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201404\u20143410\nOpinion filed August 15, 2006.\nMichael J. Pelletier, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James Fitzgerald, Mary L. Boland, and Natosha Cuyler-Sherman, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0236-01", "first_page_order": 254, "last_page_order": 258 }