                         No. 3--05--0382
_________________________________________________________________
filed December 7, 2007.
                              IN THE

                         APPELLATE COURT OF ILLINOIS

                               THIRD DISTRICT

                                 A.D., 2007

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 10th Judicial Circuit,
                                ) Peoria County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 04--CF--1020
                                )
AARON S. HOLLEY,                ) Honorable
                                ) James E. Shadid,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

   PRESIDING JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________


     A    jury   found   the   defendant,   Aaron   S.   Holley,   guilty   of

aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1) (West

2004)).    The trial court denied the defendant's pro se motion for

a new trial in which he alleged, among other things, ineffective

assistance of counsel.         The court sentenced the defendant to 24

years of imprisonment.

     On appeal, the defendant argues that (1) the matter should be

remanded for the trial court to determine whether a new attorney

should be appointed to argue his ineffective assistance claim; (2)

his sentence was void because it was not authorized by statute; (3)
the statutory provision under which he should have been sentenced

violates   the    Illinois     Constitution's      prohibition     against

disproportionate penalties; and (4) in imposing the sentence, the

court relied upon an improper factor in aggravation.             The State

contends   that   the   defendant       lacks   standing   to    make   his

proportionate penalties argument.        We (1) remand the matter for a

hearing to determine whether a new attorney should be appointed to

argue the defendant's ineffective assistance claim; (2) vacate the

defendant's sentence, and remand the cause for resentencing; and

(3) rule that the defendant does not have standing to assert his

proportionate penalties argument.

                                  FACTS

     In its indictment, the State charged the defendant with having

committed aggravated criminal sexual assault "by the use of force

or threat of force while displaying a dangerous weapon[,] being a

handgun *** in violation of 720 ILCS 5/12--14(a)(1)" in 2004.           As

the defendant points out, however, section 12--14(a)(1) concerns

commission of the offense while displaying a dangerous weapon

"other than a firearm."      See 720 ILCS 5/12--14(a)(1) (West 2004).

     At the trial, the victim testified that the defendant and

another man sexually penetrated her while threatening her with a

handgun.   The jury found the defendant guilty.




                                    2
       The defendant filed a pro se motion for a new trial in which

he alleged, among other things, ineffective assistance of counsel

for failing to file a motion to dismiss and a motion to suppress.

During the hearing on the defendant's motion, the court asked the

defendant about his motion.       As part of one long, rambling sentence

in which the defendant discussed his attorney's failure to file a

motion to dismiss and a motion to suppress, as well as the lack of

"DNA" evidence in the case, the defendant also said, "I was telling

him that I should have had took a bench trial anyway, and he knows

that, I don't know anything about the law, but he knows that, and

he didn't--he didn't go basically to his law experience and take it

to a bench trial instead of jury trial."         The defendant's reference

to a bench trial was not discussed again during the remainder of

the hearing.    The court denied the defendant's motion.

       The matter then proceeded directly to sentencing.         As part of

the sentencing hearing, the judge said, "The Court is *** required

under the law to sentence to *** a minimum of 16 years because of

the jury's verdict for a violation of 720 ILCS 5/12-14(a)(1), which

sets forth a Class X felony *** for which ten years shall be added

to the term of imprisonment."       Later, the judge stated, "The Court

will sentence Mr. Holley to serve a [prison] term *** of 14 years,

and then by statute, impose an additional ten years as required by

law,   total   sentence   being   24   years."     The   court   denied   the

                                       3
defendant's motion to reconsider the sentence, and the defendant

appealed.

                                ANALYSIS

                      I. Ineffective Assistance

     The defendant submits that the matter should be remanded for

the trial court to determine whether a new attorney should be

appointed to argue his ineffective assistance claim.

     When a defendant presents ineffective assistance claims, the

trial court should first examine the factual basis of the claims.

People v. Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003).          The trial

court is required to appoint new counsel to argue the defendant's

ineffective assistance claims if the court determines that the

underlying   facts   reveal   possible   neglect   on   the   part   of   the

defendant's trial counsel.     Moore, 207 Ill. 2d 68, 797 N.E.2d 631.

Where the trial court fails to rule on a defendant's pro se

posttrial motion, the appellate court must decline to consider the

motion's merits, and must remand the matter to the trial court.

People v. Jackson, 158 Ill. App. 3d 394, 511 N.E.2d 923 (1987).

     In the present case, the defendant presented ineffective

assistance claims as part of his pro se motion for a new trial.

During the hearing on the motion, the defendant stated that he had

asked his attorney about requesting a bench trial.               From the

context of the defendant's statement, we cannot determine whether

                                    4
the defendant discussed a request for a bench trial with his

attorney before or after the trial.        Neither the parties nor the

court sought clarification of this point from the defendant or his

attorney at the hearing.        In any event, although the trial court

denied the defendant's motion generally, the court did not rule on

the defendant's allegation concerning having discussed a

bench    trial   with   his   attorney.1   Therefore,   under   Moore   and

Jackson, we must remand the matter to the trial court for a hearing

to determine the factual basis of the defendant's ineffective

assistance claim concerning requesting a bench trial. If the court

determines that the underlying facts reveal possible neglect on the

part of the defendant's trial counsel regarding the defendant's

request for a bench trial, the court would then be required to

appoint new counsel to argue the defendant's ineffective assistance

claims.    See Moore, 207 Ill. 2d 68, 797 N.E.2d 631.

     We note that, in spite of our supreme court's holding on this

issue in Moore that " '[i]n the absence of a ruling by the trial

court on the defendant's pro se post-trial motion, we decline to



     1
         We observe that the partial dissent erroneously states

that we suggest that the trial court did not rule on the

defendant's ineffective assistance of counsel claim because the

court denied the defendant's motion generally.

                                      5
consider its merits *** ' " (207 Ill. 2d at 81, quoting Jackson,

158   Ill.    App.   3d   at   401),   the   partial   dissent   has   broadly

considered the merits of the defendant's specific ineffective

assistance claim.         It contends that the defendant in this case

could not prevail in his ineffective assistance argument because

although a defendant has a constitutional right to a jury trial, a

defendant does not have a constitutional right to a bench trial,

that is, a constitutional right to waive a jury trial.

      Even if, arguendo, we were to consider this contention, the

Illinois Supreme Court has twice stated that a defendant, after

consulting with his attorney, has the right to decide, among other

things, whether to waive a jury trial.           See People v. Brocksmith,

162 Ill. 2d 224, 642 N.E.2d 1230 (1994); People v. Ramey, 152 Ill.

2d 41, 604 N.E.2d 275 (1992).          According to Brocksmith and Ramey,

the trial attorney in the present case arguably would have provided

ineffective assistance by failing to honor the defendant's wish to

waive a jury trial.

      In support of its argument, the partial dissent cites obiter

dicta from People v. Powell, 281 Ill. App. 3d 68, 666 N.E.2d 365

(1996).      However, the dicta in Powell is, by definition, not the

holding of the case.           The holding in Powell concerned a trial

attorney's erroneous communication with a defendant, whereas the

present case concerned the defendant's communication with the

                                        6
lawyer, which, the defendant argues, the lawyer ignored.         We find

the holding of Powell to be distinguishable from the instant case,

and therefore inapplicable.

     Because   we   cannot    rule   on   the   defendant's   ineffective

assistance issue, our remand of the cause cannot conclude this

matter.   Therefore, we next consider the defendant's sentencing

arguments.

                               II. Sentence

     The defendant contends that he was incorrectly sentenced under

the subsection of the aggravated criminal sexual assault statute

(720 ILCS 5/12--14(a)(1) (West 2004)) that was listed in the

charging instrument.    For the sake of clarity, we note that the

defendant is not arguing that the charging instrument was fatally

flawed, but rather, that the trial court erred in imposing his

sentence. Specifically, the defendant argues that (1) the sentence

the trial court imposed is void because it was not authorized by

subsection 14(a)(1); and (2) the subsection of the statute under

which he should have been sentenced (720 ILCS 5/12--14(a)(8) (West

2004)) violates the Illinois Constitution's proportionate penalty

clause.

                             A. Void Sentence

     The defendant argues that his sentence was void because it was

not authorized by subsection 14(a)(1).

                                     7
     A sentence that does not conform to a statutory requirement is

void.   People v. Thompson, 209 Ill. 2d 19, 805 N.E.2d 1200 (2004).

This issue concerns the interpretation of a statute, which is a

question of law, and therefore our review is de novo.              See People

v. Jones, 223 Ill. 2d 569, 861 N.E.2d 967 (2006).

     The defendant in this case was found guilty of committing

aggravated   criminal   sexual   assault.         Subsection      (a)   of   the

aggravated criminal sexual assault statute states that an "accused

commits aggravated criminal sexual assault if he ***                    commits

criminal sexual assault and any of" 10 enumerated aggravating

factors.    720 ILCS 5/12--14(a) (West 2004).           The defendant in the

present case was sentenced under the first aggravating factor of

subsection    (a),   which   states       that   "the   accused    displayed,

threatened to use, or used a dangerous weapon, other than a

firearm."    720 ILCS 5/12--14(a)(1) (West 2004).

     Aggravated criminal sexual assault is a Class X felony for

which the basic sentencing range is 6 to 30 years.           720 ILCS 5/12--

14(d)(1); 730 ILCS 5/5--8--1(a)(3) (West 2004).            However, certain

subsections of the aggravated criminal sexual assault statute

increase the sentence beyond the Class X sentencing range. See 720

ILCS 5/12--14(d)(1) (West 2004).          With regard to this case, "[a]

violation of subsection (a)(1) is a Class X felony for which 10




                                      8
years shall be added to the term of imprisonment imposed by the

court."    720 ILCS 5/12--14(d)(1) (West 2004).

     In the instant case, the trial court mistakenly sentenced the

defendant under subsection (a)(1) of the aggravated criminal sexual

assault statute.     A sentence under subsection (a)(1) requires that

the defendant committed the crime while he "displayed, threatened

to use, or used a dangerous weapon, other than a firearm."                          720

ILCS 5/12--14(a)(1) (West 2004).              In this case, the record clearly

shows that the weapon displayed by the defendant was a firearm.

The defendant's sentence was void as a matter of law because it did

not conform with the statutory requirement that the dangerous

weapon displayed by the defendant must be a weapon other than a

firearm.      See   Thompson,      209    Ill.        2d   19,   805     N.E.2d    1200.

Therefore, we vacate the defendant's sentence and remand the cause

to the trial court for resentencing.

     Because we have vacated the defendant's sentence, we need not

consider his argument concerning the court's use of an improper

sentencing factor in aggravation.

                        B. Disproportionate Penalty

     The    defendant    submits     that       the    trial     court    should    have

sentenced him under subsection (a)(8) of the aggravated criminal

sexual    assault   statute   (720       ILCS    5/12--14(a)(8)          (West    2004))

because the record shows that he was armed with a firearm while he

                                          9
committed the offense.       The defendant contends that subsection

(a)(8) violates the proportionate penalty clause of the Illinois

Constitution.     He argues that the sentence for subsection (a)(8)

must revert to the sentence under the version of the statute that

was in place before subsection (a)(8) was enacted, which was a

Class X sentence.    The defendant claims, therefore, that we should

order the trial court to impose a Class X sentence on remand.         The

State asserts that the defendant lacks standing to raise this issue

because he was not sentenced under subsection (a)(8).

     Initially, the defendant's argument was based, in part, on

People v. Hampton, 363 Ill. App. 3d 293, 842 N.E.2d 1124 (2005)

(Hampton I). However, during the pendency of these proceedings, in

People v. Hampton, 225 Ill. 2d 238, 867 N.E.2d 957 (2007) (Hampton

II), the Illinois Supreme Court vacated that portion of Hampton I

that had found subsection (a)(8) to violate the proportionate

penalty clause.     We granted the defendant's motion to add Hampton

II as authority.

     A   defendant    does   not   have   standing   to   challenge   the

constitutionality of a sentencing statute under which he was not

sentenced unless he argues that the entire act by which the statute

was enacted is unconstitutional.     People v. Mayberry, 63 Ill. 2d 1,

345 N.E.2d 97 (1976); People v. Sonntag, 238 Ill. App. 3d 854, 605

N.E.2d 1064 (1992).

                                    10
      In this case, the defendant is not arguing that the entire act

under which subsection (a)(8) was enacted is unconstitutional.                      He

is   arguing   that    subsection      (a)(8)     violates    the     proportionate

penalty    clause     of   the   Illinois      Constitution.          However,     the

defendant   was     not    sentenced      under   subsection       (a)(8).    As    we

discussed above, he was improperly sentenced under subsection

(a)(1).     Therefore, we agree with the State and rule that the

defendant does not have standing to raise this issue.

      In further support of our decision, we note that our supreme

court stated in Hampton II that we should not rest our decision on

constitutional grounds if the matter may be resolved on other

grounds.       In   this    case,    we    need   not    reach     the   defendant's

constitutional      argument        because    our      decision    rests    on    the

preliminary issue that the defendant lacks standing to bring such

a constitutional argument.

      Additionally, we observe that in Hampton II the Illinois

Supreme Court reiterated its admonition against issuing advisory

opinions.      Even though on remand it is possible that the trial

court will resentence the defendant under subsection (a)(8), our

consideration of the constitutionality of subsection (a)(8) would

be advisory at this point in the proceedings.                For this additional

reason, we must decline the defendant's invitation to consider his

constitutional argument.

                                          11
                                           CONCLUSION

       We affirm the Peoria County circuit court's                                   judgment of

conviction, vacate the sentence imposed by the court, and remand

the cause for resentencing.                  We also remand the matter for further

proceedings consistent with this order concerning the defendant's

ineffective assistance claim.

       Affirmed        in    part,      vacated        in    part,       and     remanded        with

directions.

       JUSTICE WRIGHT specially concurring:

       I agree that People v. Moore, 207 Ill. 2d 68 (2003), requires the cause be remanded to the

trial court for a hearing to determine the factual basis of defendant’s ineffective-assistance-of-

counsel claim. I also agree that defendant was improperly sentenced in this case. However, I am

concerned that resentencing alone may not cure the sentencing error.

       To analyze the sentencing issue raised in this case, it is necessary first to review the language

of the original charge. The State charged defendant with violating subsection 12--14(a)(1) of the

Criminal Code of 1961 (Code) (720 ILCS 5/1--1 et seq. (West 1998)) for acts committed on

October 5, 2004. Specifically, defendant was charged with committing the offense of aggravated

criminal sexual assault “while displaying a dangerous weapon being a firearm, (emphasis added)”

under a subsection of the current statute that requires the weapon used to other than a firearm.

       Formal, nonsubstantive defects in a charging instrument may be corrected by the State at any

time with a motion to amend the charge. 725 ILCS 5/111--5 (West 2004); People v. Tellez-

Valencia, 188 Ill. 2d 523, 526 (1999). However, a defect caused by charging an offense based on

a statute no longer in effect when the alleged offense occurred is fatal, rendering the entire

                                                 12
instrument invalid, and warranting reversal of a resulting conviction. Tellez-Valencia, 188 Ill. 2d

at 527 (citing People v. Wasson, 175 Ill. App. 3d 851, 854-55 (1988)).

        Importantly, the State did not move to amend the charge at any point during the proceedings.

Under the 1998 version of subsection 12--14(a)(1) of the Code, a Class 1 felony criminal sexual

assault became an aggravated Class X offense when “the accused displayed, threatened to use, or

used a dangerous weapon.” 720 ILCS 5/12--14(a)(1) (West 1998). The 1998 version of the Class

X offense remained in effect only until December 31, 1999.             Nevertheless, the State used the

language of the 1998 statute to charge this defendant with a crime committed with a firearm in 2004.



        A brief history of the evolution of the aggravated criminal sexual assault statute is helpful

to an understanding of the sentencing issue discussed above. The Illinois legislature, adopting an

active approach to deter crimes committed with firearms, amended the Code effective January 1,

2000, by enacting Public Act 91--404. This Act added the graduated “15/20/25-to-life” sentencing

enhancements for many sexual assaults and other felony offenses committed with a firearm.2 The

General Assembly declared its legislative intent as follows:

        “In order to deter the use of firearms in the commission of a felony offense, the General

        Assembly deems it appropriate for a greater penalty to be imposed when a firearm is used

        or discharged in the commission of an offense than the penalty imposed for using other types

        of weapons.” 720 ILCS 5/33A--1(b)(1) (West 2000).




        2
         . See Pub. Act 91--404, sec. 5, eff. January 1, 2000 (amending 720 ILCS 5/8--4 (Attempt), 720
ILCS 5/9--1.2 (Intentional Homicide of an Unborn Child), 720 ILCS 5/10--2 (Aggravated Kidnapping), 720
ILCS 5/12--4.3 (Aggravated Battery of a Child), 720 ILCS 5/12--11 (Home Invasion), 720 ILCS 5/12--14
(Aggravated Criminal Sexual Assault), 720 ILCS 5/12--14.1 (Predatory Crim inal Sexual Assault of a Child),
720 ILC S 5/18--2 (Arm ed Ro bbery), 720 ILC S 5/18--4 (Ag gravated Vehicu lar Hijacking )).

                                                   13
       The same Act created three new categories of aggravated criminal sexual assaults involving

firearms, now labeled subsections 5/12--14(a)(8), (9) and (10) of the Code, which divide these

offenses committed with a firearm into graduated degrees of Class X felonies (720 ILCS 5/12--

14(a)(8), (9), (10), (d)(1) (West 2000). See Pub. Act 91--404, sec. 5, eff. January 1, 2000. When

creating these new categories of aggravated criminal sexual assaults, the legislature omitted all

firearms from subsection 12--14(a)(1) and restricted this subsection to aggravated criminal sexual

assaults committed with weapons other than firearms. 720 ILCS 5/12--14(a)(1) (West 2000).

Consequently, on October 5, 2004, the date of the offense in this case, an aggravated criminal sexual

assault with a firearm should have been charged under subsection 12(a)(8), (9) or (10), but could not

be charged under subsection 12--14(a)(1), because a subsection 12--14(a)(1) offense could only be

committed with a dangerous weapon other than a firearm.

       The legislature also decided the nature of the charge and resulting conviction would

determine the range of punishment a judge must impose. See 720 ILCS 5/12--14(d) (West 2004).

Legislative mandates currently include multiple ranges of punishment which are dependent on multi-

faceted, fact-based nuances tied directly to the numerical subsection of the statute as charged, not

to the title of the offense. Such mandates compound the sentencing judge’s difficulty in fashioning

an appropriate sentence. Under the current scheme, an error in the statutory numerical subsection

of the aggravated criminal sexual assault charged virtually assures the court will commit a

sentencing error.

       Judges now need flow charts to determine proper punishment. Nevertheless, fundamental

fairness demands that full and correct disclosure of mandatory penalties be given to the defendant

in advance of trial. Here, complex legislation enacted by a well-intended legislature has resulted

in an unforeseen difficulty.

                                                14
       In error, the prosecution adopted the language of the 1998 statute to charge this defendant

with a crime committed in 2004. Not only does the defect in the charging instrument raise serious

concerns about the validity of the conviction in this case, the charging error resulted in a sentence

which added a mandatory 10 years, instead of 15 years to defendant’s sentence. While this may

seem to benefit defendant, he could not have been put on notice that his sentence must be increased

by 15 years upon conviction. In my opinion, the record reflects a substantive variance between the

charge and the ultimate sentence imposed based on the charging instrument.

       This variance is further compounded by outdated IPI instructions (Illinois Pattern Jury

Instructions, Criminal, Nos. 11.57 and 11.58 (4th ed. 2000)) given by the court in this case, which

did not require the jury to find that a firearm was used in this offense. Based on the instructions

given, the jury determined defendant used a “dangerous weapon” in the commission of the offense.

A dangerous weapon adds 10 years to a sentence. A firearm adds 15 years. The jury did not find

that a "firearm" was used. See Apprendi v. New Jersey, 530 U.S. 466, 494-95, 147 L. Ed. 2d 435,

458, 120 S. Ct. 2348, 2365 (2000) (holding a criminal defendant is entitled to a jury determination

that he is guilty beyond a reasonable doubt of not only every element of which he is charged, but

also every factor which can be used to enhance his sentence) .

       Finally, I believe it unfair to characterize the sentencing error as the trial court’s mistake.

It is unfortunate error occurred, but it originated with the prosecution’s selection of outdated

language in a “form” indictment which should have been discarded or modified long ago. The judge

understandably relied on the numerical subsection charged when applying the 10-year sentencing

enhancement. Accordingly, I respectfully suggest that on remand, in addition to addressing the

ineffective-assistance-of-counsel issues, the trial court and counsel carefully examine whether the



                                                15
error occasioned by the outdated language of the indictment affected not only the sentence imposed,

but the propriety of defendant’s conviction as well.

       JUSTICE SCHMIDT, concurring in part and dissenting in part:

       I concur with the majority opinion with the exception of

that portion which remands for further proceedings on the

ineffective assistance of counsel claim.                       The trial court

previously satisfied its obligations under Moore.                            The defendant

filed a pro se motion for a new trial alleging, among other

things, that his trial counsel was ineffective for failing to

file a motion to suppress evidence and failing to file a motion

to dismiss.         When asked to address his allegations of ineffective

assistance of counsel, defendant added that, "I was telling him

that I should have had took a bench trial anyway, and he knows

that, I don't know anything about the law, but he knows that, and

he didn't - - he didn't go basically to his law experience and

take it to a bench trial instead of a jury trial."                             There was no

further discussion about this.                   The majority concludes that

somehow a trial attorney could have been guilty of neglect for

trying defendant's case to a jury rather than a single judge.

Neither Moore nor any other case requires remand in this case.

While the defendant's language makes it appear that his comment

to his lawyer about a bench trial was made after the fact, I

believe it is legally irrelevant as to when the comment was made.

                                                16
Assuming for the sake of argument that we remand, and it is

established that defendant did talk to his counsel before trial

and expressed wishes for a bench trial, then what relief could

defendant obtain?   "The argument defendant makes here could be

made in every case in which a defendant is convicted by a jury

and the trial court did not explicitly inquire of defendant,

before or during the jury selection process, whether he in fact

wished to have a jury trial."   People v. Powell, 281 Ill. App. 3d

68, 73, 666 N.E.2d 365, 369 (1996).

     The record clearly shows that defendant was present in the

trial court on October 29, 2004, when his attorney stated, "At

this time, your Honor, my client will enter a plea of not guilty,

waive reading of the charge, and request a jury trial setting and

reciprocal discovery."

     Defendant was also present in court on January 24, 2005,

when the trial in this case commenced by the court stating,

"We're on the record now and the People of the State of Illinois

versus Aaron Holley, 04--CF--1020, the bailiff is going to get

the jurors out of the hallway so that we can begin jury

selection.   Mr. Holley is present in open court with his

attorney, Mr. Morris, Ms. Patton for the People."   (Emphasis

added.)   Once the jury venire was called in, the court introduced

the defendant and his attorney to the venire and defendant

                                17
greeted the venire with a "good afternoon."    On January 24, a

jury was selected, motions in limine were argued, and opening

statements were made in defendant's presence.    The trial

continued on January 25.   The jury began deliberations at

approximately 4:10 p.m. on that date.    The jury returned on

January 26, 2005, for continued deliberations.    The jury returned

a guilty verdict on that date.   Defendant was present with his

counsel for the return of the verdict.    Upon entry of the

verdict, defendant's bond was revoked and sentencing and

posttrial motions were set for March 23, 2005.

     At no time during any of these proceedings did defendant

ever advise the court that he was objecting to proceeding with a

jury trial.   Not when his attorney requested a jury trial; not

when the case was called for jury trial; not during the arguing

of motions in limine; not during voir dire; not during the jury

trial itself; not when the verdict was received.

     As the appellate court pointed out in Powell, "Even at its

most efficient, the process of selecting a jury in a criminal

case takes a considerable amount of time - usually at least an

hour or more.   A defendant sitting in a courtroom watching this

process could hardly be confused as to what is taking place.

Thus, we have no sympathy for this defendant or any other who

sits through that entire process and - while supposedly wishing

                                 18
for a bench trial - says nothing to the trial court even though,

as defendant claims here, his trial counsel has failed to request

a bench trial in accordance with defendant's wishes."       (Emphasis

in original.)      Powell, 281 Ill. App. 3d at 73, 666 N.E.2d at

369.3

        Remanding this case for further inquiry into the issue of

whether defendant wanted a bench trial is a waste of limited

judicial resources.      This cannot be ineffective assistance of

counsel.      Suppose defendant was attempting to obtain a new trial

because he had a bench trial but then argued on appeal that he

was entitled to a new trial based on ineffective assistance of

counsel because he had told his attorney that he wanted a jury

trial.      The result would be clear if defendant, like here, had

sat through pretrial proceedings and the bench trial without

objecting.      See People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195

(1984); People v. Johnson, 347 Ill. App. 3d 442, 807 N.E.2d 693

(2004).      The majority opinion here sets up the untenable

necessity for trial judges to secure bench trial waivers before

jury trials.      This makes no sense.   Under our system, the jury

trial is both the "default mode" and the "gold standard."

        3
      The majority argues that I am citing dicta in Powell. Slip
op. at 6. In the next breath, the majority cites Brocksmith and
Ramey in support of its position. Slip op. at 6. I am content
to let the trial bar decide who is citing dicta in support of his
position.

                                   19
Furthermore, the trial judge did discuss defendant's ineffective

assistance of counsel claim with defendant, fulfilling any

obligations under Moore, at least under the facts of this case.

I, therefore, dissent from that portion of the opinion remanding

this matter for further proceedings on defendant's ineffective

assistance of counsel claim.4




     4
      At pages 4 and 5, Presiding Justice Lytton suggests that
the trial court did not rule on defendant's ineffective
assistance of counsel claim apparently because it "denied
defendant's motion generally." Slip op. at 4. This was a ruling
on defendant's motion and the trial court knew everything it
needed to know to make the ruling. Defendant does not argue that
the trial court did not rule. To the contrary, defendant
complains that the trial court erred in denying his motion.

                                20
