                                          2015 IL App (3d) 130525

                                  Opinion filed May 6, 2015.
                         Modified upon denial of rehearing July 16, 2015
     _____________________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                  A.D., 2015

     THE PEOPLE OF THE STATE OF                         )      Appeal from the Circuit Court
     ILLINOIS,                                          )      of the 21st Judicial Circuit,
                                                        )      Kankakee County, Illinois,
            Plaintiff-Appellee,                         )
                                                        )      Appeal No. 3-13-0525
            v.                                          )      Circuit No. 10-CM-1213
                                                        )
     JOSEPH A. HOLLAHAN,                                )      Honorable
                                                        )      Ronald J. Gerts,
            Defendant-Appellant.                        )      Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Carter and O'Brien concurred in the judgment and opinion.


                                                 OPINION

¶1          Defendant, Joseph A. Hollahan, appeals his convictions of two counts of domestic battery

     (720 ILCS 5/12-3.2(a)(2) (West 2010)), arguing that the trial court held a bench trial without

     obtaining a proper jury waiver. We affirm defendant's convictions and remand the matter for the

     proper entry of an order for fines, fees, and costs.

¶2                                                  FACTS

¶3          The State charged defendant by information with committing two counts of domestic

     battery against two different women (720 ILCS 5/12-3.2(a)(2) (West 2010)). Thereafter,
     defendant executed a signed jury waiver. In open court, the trial court asked defendant to

     explain the difference between a bench and a jury trial. Defendant replied that a "[b]ench trial is

     presided by a judge, and [a] jury trial is a jury of my peers." The court then asked defendant if

     he wanted a judge to decide his case. Defendant replied that he wanted a bench trial and

     affirmed that he signed the jury waiver.

¶4          Nearly one year later, private counsel withdrew from representation of defendant due to a

     disagreement with defendant. The trial court appointed a public defender. Shortly thereafter,

     during a hearing at which defendant appeared from the jail by videoconference, the trial court

     stated that it would allow defendant to withdraw his jury waiver as it was the court's policy to

     allow a defendant to withdraw a jury waiver when a new attorney takes over the case. Defendant

     asked if he would be able to have a trial the next month if he waived his right to a jury trial. The

     trial court stated that it did have bench trial dates available the next month. The public defender

     asked defendant if he wanted to waive his right to a jury trial to get the cases tried in late

     December. Defendant replied in the affirmative.

¶5          The next day, defendant was physically present in court, and filed a second signed jury

     waiver. The trial court again asked defendant to explain the difference between a bench trial and

     a jury trial. Defendant replied, "A jury trial is a jury of my peers. Bench trial is Your Honor."

     Defendant stated that he signed the jury waiver he filed that day. Then, defendant's public

     defender stated: "I had a conversation with [defendant] about our waiver of right to a jury trial

     and how I did not have discovery today. And [defendant] and I discussed that, and he's

     comfortable waiving his right to a jury without me seeing that." The trial court asked defendant

     if that was true, and defendant replied that it was true.

¶6          Approximately one month after defendant's second jury waiver, defendant pled guilty to


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     one count of domestic battery and was sentenced to incarceration of 226 days, and 2 years'

     domestic violence probation and an assessment of $200 plus court costs. In exchange for

     defendant's plea, the State dismissed the second count of domestic battery. The court asked

     defendant if he understood that by pleading guilty, he was giving up his right to plead not guilty

     and to a trial by jury. Defendant replied that he understood.

¶7           Defendant subsequently filed a motion to withdraw his guilty plea in the instant case, as

     well as in three other cases unrelated to this appeal. A different public defender represented

     defendant at the hearing on his motion to withdraw guilty plea. The trial court granted the

     motion and vacated defendant's conviction.

¶8           The State asked to set all of defendant's cases for trial because it had reached agreements

     with defendant twice in the past and was not going to attempt to reach an agreement with

     defendant again. The trial court found that defendant's jury waiver was not part of the previous

     plea agreement and stated that it would not be withdrawn. The court then set the matter for

     bench trial.

¶9           At the bench trial, Caitlin West testified that defendant was her mother's former

     boyfriend. At the time of the incident in question, defendant lived with West and her mother,

     Odette Heinrich. West was at home in her bedroom when she heard a large crash. She walked

     out of her bedroom and saw Heinrich and defendant standing in the doorway of their bedroom.

     The television set in Heinrich and defendant's bedroom was on the floor. Defendant slapped

     Heinrich in the face. West tried to get in between defendant and Heinrich, and defendant pushed

     her down to the floor. West landed on a vacuum and hurt her back. She got up and called 911.

     Defendant and Heinrich had been drinking that night, but West had not.




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¶ 10          Heinrich testified that she had dated defendant for seven years. At the time of the

       incident, Heinrich and defendant were watching television in their bedroom. Defendant started

       arguing with Heinrich and threw the television set on the floor. Heinrich got up and tried to

       leave the room, and defendant slapped her several times. West walked in as defendant was

       slapping Heinrich. West tried to get Heinrich away from defendant and defendant threw West to

       the floor. West got up and called the police. Heinrich and defendant had both been drinking.

       Heinrich estimated that she had consumed 6 to 10 beers that night.

¶ 11          Defendant testified that on the night of the incident, he and Heinrich had been drinking.

       They began arguing loudly. West ran into the room and grabbed defendant from behind by his

       neck. Defendant instinctively tossed West to the side and she hit the television stand, knocking

       the television over. West ran out of the room screaming. Defendant denied slapping Heinrich.

¶ 12          The trial court found West's testimony to be the most credible since West was the only

       witness who was sober at the time of the incident. Ultimately, the court found defendant guilty

       of both counts of domestic battery and sentenced defendant to concurrent periods of

       incarceration of 90 days and credited him with time served for the entire 90 days. The trial court

       also ordered defendant to pay court costs. The court did not enter a signed order for a specific

       amount of costs. The docket entries show that a "cost" assessment in the amount of $382 and a

       "crim fines/costs" assessment in the amount of $817 were imposed.

¶ 13                                               ANALYSIS

¶ 14                                              I. Jury Waiver

¶ 15          On appeal, defendant argues that his domestic battery convictions should be reversed

       because his right to a jury trial was violated when the trial court did not obtain a subsequent jury

       waiver from defendant after withdrawal of defendant's guilty plea. Because we find that


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       defendant's previous jury waiver was still in effect at the time of his bench trial, we affirm the

       judgment of the trial court.

¶ 16           "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 waive the right

       to a trial by jury if the waiver is knowingly and understandingly made. Id. The validity of a jury

       waiver cannot be determined by the application of a precise formula but rather depends on the

       facts and circumstances of each case. Id. Where, as here, the relevant facts are not in dispute,

       courts review de novo the issue of whether a defendant knowingly and understandingly waived

       his right to a jury trial. Id. at 270.

¶ 17           Initially, the State argues that defendant failed to preserve the jury waiver issue for

       review. Defendant concedes that he failed to preserve this issue, but asks that we review it under

       the plain error doctrine. "Whether a defendant's fundamental right to a jury trial has been

       violated is a matter that may be considered under the plain error rule." Bracey, 213 Ill. 2d at 270.

¶ 18           "The plain-error rule bypasses normal forfeiture principles and allows a reviewing court

       to consider unpreserved claims of error in specific circumstances." People v. Thompson, 238 Ill.

       2d 598, 613 (2010). The first step in plain error review is to determine whether an error occurred

       at all. Id. Because defendant knowingly and voluntarily waived his right to a jury trial, we find

       that no error occurred in this case. On two occasions prior to defendant's guilty plea, defendant

       filed signed jury waivers. On both occasions, defendant was present in court with counsel,

       correctly explained the difference between a jury trial and a bench trial, and affirmed that he

       wished to have a bench trial. At no point did defendant move to withdraw his jury waiver.

¶ 19           We reject defendant's argument that his jury waivers were no longer effective after the

       trial court allowed withdrawal of his guilty plea and vacated the conviction entered as a result of


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       his guilty plea. Defendant cites Bracey, 213 Ill. 2d 265, People v. Mixon, 271 Ill. App. 3d 999

       (1994), and People v. Johnson, 222 Ill. App. 248 (1921) for the proposition that when a

       judgment is vacated or reversed either on appeal or in the trial court and a new trial is ordered, a

       defendant's right to a jury trial is restored for the new trial. Defendant argues that his conviction,

       entered pursuant to his guilty plea, was no different than a conviction entered after a finding of

       guilt at a trial. Citing Bracey, Mixon, and Johnson, defendant concludes his right to a jury trial

       was restored when the trial court vacated his conviction. Thus, defendant believes that since the

       trial court failed to obtain a subsequent jury waiver, the trial court violated his right to a trial by

       jury.

¶ 20           While "the well-established rule is that ' "a waiver of a jury on one trial, is expended by

       that trial" ' " (Bracey, 213 Ill. 2d at 271 (quoting Mixon, 271 Ill. App. 3d at 1002, quoting Town

       of Carthage v. Buckner, 8 Ill. App. 152, 154 (1880))), said rule has not been extended to

       situations where, as here, a defendant waives his right to a jury trial and later pleads guilty, and

       the trial court subsequently allows withdrawal of the defendant's guilty plea and tries the

       defendant without a jury. See People v. Totah, 192 Ill. App. 3d 239, 246 (1989) (holding that the

       defendant's prior jury waiver was not ineffective after the trial court withdrew his guilty plea

       such that the trial court was required to re-admonish the defendant of his right to a jury trial). 1

               1
                   In his petition for rehearing, defendant argues that we mistakenly relied on Totah, 192

       Ill. App. 3d 239, for the proposition that a defendant's right to a jury trial is not revived after a

       defendant withdraws a guilty plea. However, we do not cite Totah as affirmative support for the

       proposition that a subsequent jury waiver is not required after a judgment entered on a guilty plea

       is vacated. Rather, we cite Totah as an example in support of our finding that "the well-

       established rule" that a jury waiver is expended on a first trial and is no longer effective for a


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¶ 21           All of the cases cited by defendant hold that a jury waiver is effective only for a first trial

       and not for a retrial ordered by either the trial court or appellate court. See Bracey, 213 Ill. 2d

       265 (holding that the written jury waiver and admonishments which occurred prior to the

       defendant's first trial were no longer of any effect once the first trial terminated); Mixon, 271 Ill.

       App. 3d at 1001-02 (holding that a jury waiver filed prior to the defendant's first trial applied

       only to the first trial and that the right of trial by jury was available to the defendant for his

       second trial); Johnson, 222 Ill. App. at 251 ("We think that the previous written waiver executed

       by [the defendant] prior to commencement of the first trial was exhausted after that trial had been

       had and a new trial awarded."). Defendant has cited no case holding that the right to a jury trial

       is restored when, as in the instant case, a defendant waives his right to a jury trial and later pleads

       guilty, the court enters a conviction, and, subsequently, the court withdraws the guilty plea and

       vacates the conviction. We decline defendant's invitation to extend the rule that a jury waiver is

       expended on a first trial to such a situation.


       subsequent trial (see Bracey, 213 Ill. 2d at 271) has not been extended to situations where, as

       here, an initial trial was never held.

               Defendant further contends that Totah is distinguishable because, unlike in this case, the

       Totah court withdrew the defendant's guilty plea before a judgment of conviction was entered.

       Totah does not specify whether a judgment of conviction was entered before the defendant's

       guilty plea. Totah, 192 Ill. App. 3d at 246. Even assuming that Totah's silence on the matter

       implies that the court did not enter a conviction, we find the distinction to be without

       consequence because we have rejected defendant's argument that a conviction entered pursuant

       to a guilty plea is no different than a conviction entered following a trial for the purposes of

       determining whether a subsequent jury waiver is required.


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¶ 22           Had defendant's only jury waiver been at the time of his guilty plea, we would agree with

       defendant that his jury waiver was no longer effective after his guilty plea conviction was

       vacated. In that situation, the jury waiver would have been only in contemplation of pleading

       guilty. This would be more analogous to the cases cited by defendant holding that a jury waiver

       executed prior to a first trial is expended on that trial. In this case, however, defendant's jury

       waivers were unrelated to his guilty plea. His first waiver was executed toward the beginning of

       proceedings and the second approximately one month before defendant pled guilty. If defendant

       wished to have a jury trial after his guilty plea was withdrawn, he could have moved to withdraw

       his jury waiver. There is nothing in the trial record to suggest that defendant had any interest in a

       jury trial.

¶ 23           We reject defendant's reliance on People v. McCutcheon, 68 Ill. 2d 101 (1977), for the

       proposition that the vacating of a defendant's guilty plea conviction on review revives the right to

       a trial by jury. Id. at 104, 106-07. In McCutcheon, the defendant had previously pled guilty and

       the appellate court vacated the defendant's conviction. Id. at 104. On remand, a jury trial was

       held, and the defendant was convicted of the charged offenses. Id. While the McCutcheon court

       noted that the defendant obtained a jury trial on remand after his guilty plea conviction was

       vacated by the appellate court, the McCutcheon opinion did not mention whether the defendant

       waived his right to a jury trial before he initially pled guilty in the trial court. Id. at 104, 106-07.

       Unlike in the instant case, the question of whether a prior jury waiver was still in effect after a

       guilty plea conviction was vacated was not at issue in McCutcheon. See id. 2 Thus, we find

               2
                   The issue on appeal in McCutcheon involved whether the defendant was improperly

       convicted after the jury trial of a charge that the State had previously nol-prossed pursuant to the

       prior guilty plea agreement. McCutcheon, 68 Ill. 2d at 105.


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       McCutcheon to be inapposite. 3

¶ 24          Thus, we find that defendant's jury waiver prior to his guilty plea remained in effect after

       the trial court withdrew his guilty plea and vacated his conviction. As such, no error, plain or

       ortherwise, occurred when the trial court failed to obtain an additional jury waiver after

       withdrawing defendant's guilty plea.

¶ 25                                         II. Fines, Fees, and Costs

¶ 26          Defendant argues that this cause should be remanded to the trial court for proper

       itemization of the assessments the court is ordering defendant to pay and for entry of an order for

       fines, fees, and costs. The State concedes that remand is proper in this case.

¶ 27          After reviewing the record, it is unclear to us which assessments were actually imposed

       against defendant and who imposed them. Following his conviction for domestic battery,

       defendant was ordered to pay an undefined amount of court costs. The trial court did not enter a

       signed order enumerating said costs. Instead, the docket sheet shows that a "cost" assessment in

       the amount of $382 and "crim fines/costs" in the amount of $817 were assessed against

       defendant, presumably by the circuit clerk. "Without a sum certain set out in the judgment order,

       we cannot be confident regarding the specific amounts the court intended to order this defendant

       to pay." (Emphasis in original.) People v. Hunter, 2014 IL App (3d) 120552, ¶ 17. We have

       held that "miscalculations with regard to monetary charges are best addressed in the trial court,

       with both parties present." Id.

              3
                  As we have found the holding in McCutcheon to be inapplicable to the instant case, we

       find defendant's reliance on Johnson, 222 Ill. App. at 251-52, for the proposition that the

       McCutcheon holding applies whether a guilty plea conviction is vacated by the appellate court or

       the trial court to be unpersuasive.


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¶ 28          Therefore, based on the State's concession of error, we vacate all of the fines and fees

       previously imposed, and we remand the cause with the following directions: (1) the trial court

       shall expressly impose any and all fines; (2) the circuit clerk shall specifically name each

       individual fee imposed; (3) all of the fines and fees imposed shall be entered in a written order;

       (4) the written order shall not include any codes or abbreviations; (5) the written order shall

       provide statutory authority for each individual fine and fee imposed; and (6) the trial court shall

       calculate and offset the defendant's fines by the appropriate amount of $5-per-day presentence

       incarceration credit. See 725 ILCS 5/110-14 (West 2010).

¶ 29                                             CONCLUSION

¶ 30          For the foregoing reasons, the judgment of the circuit court of Kankakee County is

       affirmed and remanded with directions.

¶ 31          Affirmed and remanded with directions.




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