                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Warnock, 2013 IL App (2d) 120057




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    RICHARD D. WARNOCK, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-0057


Filed                      March 20, 2013


Held                       Defendant’s conviction and sentence for domestic battery following a
(Note: This syllabus       bench trial were reversed and the cause was remanded for a new trial
constitutes no part of     where defendant did not validly waive a jury trial, despite the presence of
the opinion of the court   a purported jury waiver in the common-law record, since there was no
but has been prepared      explicit reference to the waiver of a jury trial or to conducting a bench
by the Reporter of         trial, the court proceeded to a bench trial without referring to defendant’s
Decisions for the          waiver of a jury trial, defense counsel never waived a jury, and there was
convenience of the         nothing in the record showing defendant was in open court when any type
reader.)
                           of jury waiver was discussed.


Decision Under             Appeal from the Circuit Court of McHenry County, No. 11-CF-226; the
Review                     Hon. Sharon L. Prather, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Louis A. Bianchi, State’s Attorney, of Woodstock (Lawrence M. Bauer
                           and Barry W. Jacobs, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE HUDSON delivered the judgment of the court, with opinion.
                           Justices Zenoff and Schostok concurred in the judgment and opinion.




                                              OPINION

¶1          Following a bench trial, defendant, Richard D. Warnock, was convicted of domestic
        battery (720 ILCS 5/12-3.2(a)(1) (West 2010)) and sentenced to two years’ imprisonment.
        He appeals, contending that he did not validly waive his right to a jury trial. We reverse and
        remand.
¶2          On July 26, 2011, the parties appeared in court and defense counsel asked the court to
        set a trial date. The trial court responded, “The court would set the matter for jury trial
        October 3rd at 10:00 o’clock.”
¶3          On October 3, the case was called for trial. The State asked that the trial be held over two
        days because one of its witnesses was unavailable that day because “he understood this to
        be a jury trial.” Defense counsel objected “for the record.” The trial court ruled that “over
        objection” the State would be allowed to present its remaining witness the following day.
        The court then conducted a bench trial.
¶4          The common-law record contains a jury waiver purportedly signed by defendant. His
        name is handwritten in the caption but the case number is blank. Two spaces apparently
        intended for the defendant’s name are also blank.
¶5          Although the alleged victim testified and denied that defendant hit her, the trial court
        found defendant guilty based on the victim’s prior statements to police. The court sentenced
        him to two years in prison, and defendant timely appealed.
¶6          Defendant contends that the record does not show that he validly waived his right to a
        jury trial. He notes that, although the record contains a purported jury waiver, the subject of
        waiving a jury trial was never discussed in open court, and thus the purported waiver is
        invalid. We agree.
¶7          “The right to a trial by jury is a fundamental right guaranteed by our federal and state
        constitutions.” People v. Bracey, 213 Ill. 2d 265, 269 (2004). A defendant may, of course,
        waive the right to a jury trial, but any such waiver, to be valid, must be knowing. 725 ILCS

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       5/103-6 (West 2010); In re R.A.B., 197 Ill. 2d 358, 364 (2001). A written waiver, as required
       by section 115-1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-1 (West
       2010)), is one means by which a defendant’s intent can be established. However, adherence
       to this provision, while recommended, does not necessarily establish a valid waiver. See
       People v. Scott, 186 Ill. 2d 283, 285-86 (1999). Generally, an oral waiver is valid if it is made
       by defense counsel in the defendant’s presence in open court, without an objection by the
       defendant. See People v. Murrell, 60 Ill. 2d 287, 290 (1975); People v. Sailor, 43 Ill. 2d 256,
       260 (1969). Where, as here, the facts are not in dispute, the sufficiency of a waiver is a
       question of law, which we review de novo. R.A.B., 197 Ill. 2d at 362.
¶8          This case is virtually indistinguishable from Scott and R.A.B., two cases in which alleged
       jury waivers were found invalid. In Scott, the defendant executed a written jury waiver.
       When the case was called for trial, defense counsel said that “ ‘we would proceed to the
       bench trial today.’ ” Scott, 186 Ill. 2d at 284. The supreme court held that the defendant’s
       acquiescence when his counsel referred to proceeding with a bench trial was not a valid
       waiver. Id. at 285. The court stated, “We 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.” Id.
¶9          Here, there was no explicit reference to waiving a jury trial or to conducting a bench trial.
       When the case was called on July 26, the court set it for a jury trial. On October 3, the parties
       proceeded to a bench trial, with no reference to defendant having waived a jury trial. If
       anything, the State’s case for a valid waiver is even weaker here than it was in Scott. There,
       defense counsel at least mentioned a bench trial. Here, there was no explicit reference to a
       bench trial at all.
¶ 10        Similarly, in R.A.B., neither the right to a jury trial nor a jury waiver was ever discussed
       in open court. On appeal, the court held that vague references to a bench trial by the
       respondent’s attorney, the prosecutor, and the trial court, without objection by the
       respondent, did not amount to a valid jury waiver where the record was devoid of any
       mention of the respondent’s right to a jury trial. R.A.B., 197 Ill. 2d at 367.
¶ 11        The State cites People v. Frey, 103 Ill. 2d 327, 332 (1984), for the proposition that the
       supreme court has “given effect to jury waivers made by defense counsel in defendant’s
       presence where defendant gave no indication of any objection to the court hearing the case.”
       The obvious problem with this argument is that defense counsel here never waived a jury
       trial and, indeed, Scott distinguished Frey on that basis. Scott, 186 Ill. 2d at 285.
¶ 12        The State makes much of the fact that defendant did not say anything when his attorney
       objected to the State proceeding over two days. The State argues that “the written waiver, in
       conjunction with the defendant’s silent acquiescence to proceeding as a bench trial over the
       course of two days,” was a valid waiver. Scott rejected essentially the same argument. As
       noted, in that case there was at least an explicit reference to a bench trial. Here, the
       prosecutor’s reference to a witness’s belief that there was to be a jury trial does, by negative
       inference, imply that the matter was to proceed to a bench trial, but if an explicit reference
       to a bench trial is insufficient to waive a defendant’s right to a jury trial, such a tenuous
       inference surely cannot suffice.


                                                  -3-
¶ 13       Here, the record does not show any occasion on which “defendant was *** present in
       open court when a jury waiver, written or otherwise, was at least discussed.” Id. The State
       does not suggest that there were additional proceedings–not transcribed–at which a waiver
       might have occurred. See People v. Hart, 371 Ill. App. 3d 470, 472 (2007). Thus, we reverse
       defendant’s conviction and remand the cause for a new trial. See Scott, 186 Ill. 2d at 286.

¶ 14      Reversed and remanded.




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