                                          2017 IL App (1st) 143632

                                                                                    SECOND DIVISION
                                                                                       January 17, 2017

     No. 1-14-3632

     THE PEOPLE OF THE STATE OF ILLINOIS,                      )               Appeal from the
                                                               )               Circuit Court of
            Plaintiff-Appellee,                                )               Cook County
                                                               )
     v.                                                        )               12 CR 1930
                                                               )
     ESAU WEST,                                                )               Honorable
                                                               )               Neil J. Linehan,
            Defendant-Appellant.                               )               Judge Presiding.


            JUSTICE MASON delivered the judgment of the court, with opinion.
            Presiding Justice Hyman and Justice Neville concurred in the judgment and opinion.

                                                  OPINION

¶1          Following a bench trial, defendant Esau West was convicted of (1) armed habitual

     criminal (AHC), (2) aggravated unlawful use of a weapon (AUUW), and (3) unlawful use of a

     weapon (UUW) by a felon. The trial court imposed a six-year imprisonment term for each

     conviction, to be served concurrently. On appeal, West claims that (1) his jury waiver was

     invalid because the trial court failed to adequately admonish him, (2) the AHC statute is facially

     unconstitutional, and (3) his AUUW conviction must be vacated because it was based on the

     same physical act—possession of a loaded firearm—as his AHC conviction. Because we find no

     merit in West’s claims regarding the invalidity of his jury waiver and the facial

     unconstitutionality of the AHC statute, we affirm West’s AHC and UUW by a felon convictions

     and sentences. But, as the State concedes we should, we vacate the less serious AUUW

     conviction as violating the one-act, one-crime rule and direct the clerk of the circuit court to

     correct the mittimus accordingly.
     No. 1-14-3632


¶2                                            BACKGROUND

¶3          Because the police found West in possession of a 9-millimeter semiautomatic handgun

     loaded with 13 rounds of ammunition, the State charged him with (1) one count of AHC, (2) four

     counts of AUUW, and (3) two counts of UUW by a felon. After the trial court denied West’s

     motion to dismiss, his case proceeded to trial.

¶4          Before his trial began, West signed a written jury waiver form, which was tendered to the

     trial court. The written jury waiver form stated that “I, the undersigned, do hereby waive the jury

     trial and submit the above entitled cause to the Court for hearing.” Thereafter, the following

     colloquy occurred between the trial court, defense counsel, and West.

                “THE COURT: All right. And your client has executed a Jury Waiver, is that correct?

                MR. GREENBERG [Defense Attorney]: Yes.

                THE COURT: Mr. West, is this your signature on this document?

                THE DEFENDANT: Yes.

                THE COURT: Understand that by signing that document and handing it to me, you’re

            indicating that you wish to waive your right to a jury trial?

                THE DEFENDANT: Yes.

                THE COURT: Do you understand by tendering that document to me, I’ll hear the

            evidence rather than a jury, is that what you wish to have happen?

                THE DEFENDANT: Yes.

                THE COURT: All right, Jury Waiver will be accepted, made a permanent part of the

            record.”




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¶5          The facts of West’s bench trial are largely undisputed and of limited relevance to the

     issues he raises on appeal and so, we only briefly summarize them. On January 10, 2012, at

     approximately 10:40 p.m., officer Derouin of the Chicago police department responded to a call

     of a “man with a gun,” who was later identified as West, located in a gangway at 89th Street and

     Woodlawn Avenue in Chicago. After the police vehicle arrived in the area and turned down an

     alley, officer Derouin saw West walking down the alley in the opposite direction. The police

     vehicle began to chase West, who fled on foot, and when West was about four or five residences

     away, he attempted to jump over a three-foot tall chain-link fence but fell over it, landing on the

     other side. Officer Derouin exited the police vehicle and yelled “Police.” By that point, West was

     already on the ground, and officer Derouin saw him throw a handgun, which landed on the

     ground a couple of feet away. Officer Derouin jumped the same fence, apprehended West, and

     recovered the handgun, which was a 9-millimeter semiautomatic Smith & Wesson handgun

     loaded with 13 rounds of ammunition.

¶6          The State also introduced evidence that West had never been issued a firearm owners

     identification (FOID) card and that he had been convicted of attempted murder on August 10,

     1998, and UUW by a felon on April 3, 1996. The trial court denied West’s motion for a directed

     finding, and the defense rested without presenting any evidence.

¶7          The trial court found West guilty of (1) AHC (a Class X felony), (2) AUUW with a

     previous conviction (a Class 2 felony), and (3) UUW by a felon (a Class 2 felony). West was

     sentenced to concurrent terms of six years’ imprisonment for each conviction. West filed a

     motion for a new trial asserting that he was not proved guilty beyond a reasonable doubt because

     the State offered no proof that the recovered item was, in fact, a firearm. After the trial court

     denied West’s motion, he timely appealed.


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¶8                                                    ANALYSIS

¶9               West first challenges the validity of his jury waiver, claiming that (1) the trial court’s

       admonishments failed to adequately inform him of the difference between a jury and bench trial

       and (2) he did not understandingly waive his right to a jury trial. Specifically, West contends that

       his waiver was not valid because the trial court failed to ensure that he understood (1) how a jury

       was selected, (2) his right to cross-examine the State’s witnesses and present his own witnesses

       and evidence in a jury trial, (3) that a jury’s decision regarding his guilt must be unanimous, and

       (4) that the State had the burden of proof in either a jury or bench trial. West claims that his

       convictions should be reversed and his case remanded for a new trial due to his invalid jury

       waiver.

¶ 10             Our federal and state constitutions guarantee the right to a jury trial. People v. Bracey,

       213 Ill. 2d 265, 269 (2004); U.S. Const., amends. VI, XVI; Ill. Const. 1970, art. I, §§ 8, 13. But a

       defendant may waive that right. Bracey, 213 Ill. 2d at 269; 725 ILCS 5/103-6 (West 2012). For a

       jury waiver to be valid, the defendant must understandingly waive his right to a jury trial in that

       the waiver is both knowing and voluntary. People v. Tooles, 177 Ill. 2d 462, 468 (1997) (citing

       725 ILCS 5/103-6 (West 1992), and People v. Smith, 106 Ill. 2d 327, 334 (1985)). A written jury

       waiver is one means by which a defendant may waive his right, but a written waiver is not

       conclusively a valid waiver. Bracey, 213 Ill. 2d at 269-70. A court need not give any specific

       admonishment or advice for a waiver to be effective; instead, the determination of whether a jury

       waiver is valid depends on the facts and circumstances of a particular case. Id. at 269; People v.

       Tye, 141 Ill. 2d 1, 24 (1990). Indeed, there is no precise formula to apply to determine whether a

       jury waiver is valid. Bracey, 213 Ill. 2d at 269. In essence, for a jury waiver to be effective, the

       trial court must ensure that the defendant knows that the facts of his case would be determined


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       by a judge and not a jury and the resulting consequences of that decision. People v. Bannister,

       232 Ill. 2d 52, 69 (2008). A jury waiver is generally valid where defense counsel waives that

       right in open court and the defendant does not object to the waiver. Bracey, 213 Ill. 2d at 270.

       West bears the burden of establishing that his jury waiver was invalid, which is an issue we

       review de novo. People v. Reed, 2016 IL App (1st) 140498, ¶ 7.

¶ 11          West acknowledges that he did not raise the validity of his jury waiver in the trial court

       but contends that his forfeited claim is reviewable under the plain error doctrine because his

       claim entails a violation of his fundamental right to a jury trial guaranteed by our federal and

       state constitution—an issue properly considered under a plain error analysis. Bracey, 213 Ill. 2d

       at 270. Of course, the precursor to a discussion of plain error is the determination that an error

       occurred in the trial court. People v. Walker, 232 Ill. 2d 113, 124 (2009) (initial step in plain

       error analysis is to determine whether error occurred at all); People v. Smith, 372 Ill. App. 3d

       179, 181 (2007) (without error there can be no plain error). The State concedes that West’s claim

       is reviewable for plain error but contends that there is no error.

¶ 12          Given the facts here, we agree with the State that there was no error because West

       understandingly waived his right to a jury trial. Importantly, West does not dispute that he

       tendered a signed written jury waiver form to the trial court and was present in open court when

       the trial court addressed that jury waiver. West, rather, asserts that the waiver’s language was too

       cursory, offering no explanation of the difference between a jury and bench trial and that the trial

       court failed to adequately admonish him regarding his right to a jury trial and waiver of that

       right. But as demonstrated by the record, the trial court adequately admonished West that by

       signing the waiver form and tendering it to the court, he would be waiving a jury trial and that

       the court, and not a jury, would hear the evidence. Consequently, the trial court adequately


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       conveyed to West that his case would not be heard by a jury. The fact that the trial court did not

       inquire into whether West’s waiver was the product of any promise or threat is an insufficient

       basis to undermine his otherwise valid waiver. Significantly, at no point did West object to his

       case proceeding to a bench trial despite his presence in court; instead, he affirmatively indicated

       that he understood he was waiving his right to have a jury hear the evidence in his case.

¶ 13            West’s criminal history reinforces our conclusion that his jury waiver was valid. West

       had multiple prior felony convictions (seven adult felony convictions) and extensive experience

       with the judicial system, creating the reasonable presumption that he knew what a jury trial was

       and understood his right to a jury trial but chose not to exercise that right. See Bannister, 232 Ill.

       2d at 71. West’s prior experience with the judicial system belies any claim that he did not know

       or understand judicial proceedings and, in particular, the difference between a bench and jury

       trial.

¶ 14            West claims that the admonishments in his case were inadequate when compared to those

       in People v. Tooles, 177 Ill. 2d 462, 469-70 (1997). Although we recognize that the

       admonishments in Tooles were more expansive, the Tooles court explicitly stated that while a

       trial court must ensure that a defendant’s waiver of his right to a jury trial is understandingly

       made, “no set admonition or advice is required before an effective waiver of that right may be

       made.” Id. at 469. Likewise, West’s reliance on People v. Sebag, 110 Ill. App. 3d 821, 829

       (1982), is misplaced because although the trial court’s admonishments were found inadequate for

       failing to inquire into whether the defendant understood what a jury trial was, the defendant in

       Sebag, unlike West, was unfamiliar with criminal proceedings and was not represented by

       counsel. In essence, West is urging this court to compare the trial court’s admonishments in his




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       No. 1-14-3632


       case to unassailable admonishments, but case law is clear that there are no set admonishments

       that must be given to find a jury waiver valid. Tooles, 177 Ill. 2d at 469.

¶ 15          Although we conclude that West validly waived his right to a jury trial, we note that 40

       years ago our supreme court observed that trial courts could avoid any claimed error on this point

       by providing a defendant with the following admonishments and eliciting a response from the

       defendant reflecting that he (1) understands he is entitled to a jury trial, (2) understands what a

       jury trial is, and (3) wishes to be tried by a jury or by the court without a jury. People v.

       Chitwood, 67 Ill. 2d 443, 448-49 (1977); People v. Bell, 104 Ill. App. 2d 479, 482 (1969).

       Moreover, trial courts should ensure a defendant wishing to waive his right to a jury trial

       executes a written jury waiver. “ ‘This simple procedure incorporated in the record will reduce

       the countless contentions raised in the reviewing courts about jury waivers.’ ” Chitwood, 67 Ill.

       2d at 449 (quoting Bell, 104 Ill. App. 2d at 482).

¶ 16          Here, taking into account the trial court’s admonishments coupled with the signed jury

       waiver, West’s representation by counsel, his presence in court, his verbal assent to waive a jury

       trial, and his prior exposure to the criminal justice system, we conclude that West

       understandingly waived his jury trial. People v. Clay, 363 Ill. App. 3d 780, 791 (2006). Because

       there was no error relating to West’s jury waiver, there can be no plain error, and we need not

       consider this issue further.

¶ 17          West next challenges the constitutionality of the AHC statute, contending it violates due

       process because it criminalizes both the lawful and unlawful possession of a firearm with the

       potential effect of criminalizing innocent conduct. West claims that the AHC statute is facially

       unconstitutional because it criminalizes the possession of a firearm by a felon twice convicted of

       statutorily enumerated offenses even though the Firearm Owners Identification Act (FOID Card


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       No. 1-14-3632


       Act) does not criminalize that same possession, since a twice-convicted felon may qualify for a

       FOID card in limited circumstances under that Act. 430 ILCS 65/5, 8, 10 (West 2012). Simply

       put, West claims that only the possession of a firearm without a FOID card is illegal under

       Illinois law, but the AHC statute criminalizes possession of firearm by a repeat felon even if he

       possesses a valid FOID card. Thus, West asserts that the AHC statute is facially unconstitutional

       because it criminalizes a twice-convicted felon’s possession of a firearm regardless of the fact

       that he may have a valid FOID card and lawfully possess the firearm.

¶ 18          The Criminal Code of 2012 defines the offense of AHC as being a person who “(a) ***

       receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or

       more times of any combination of the following offenses: *** (2) unlawful use of a weapon by a

       felon; aggravated unlawful use of a weapon; aggravated discharge of a firearm.” 720 ILCS 5/24-

       1.7(a)(2) (West 2012).

¶ 19          Under section 8 of the FOID Card Act (430 ILCS 65/8(c) (West 2012)), a convicted felon

       may have his or her FOID card revoked and seized or application denied. But under section

       10(c), (430 ILCS 65/10(c) (West 2012)), a convicted felon who is prohibited from acquiring a

       FOID card may apply to the Director of State Police or the circuit court, as applicable, requesting

       relief from that prohibition. The director or court may grant the requested relief in specific

       enumerated instances, including where “the applicant has not been convicted of a forcible felony

       *** within 20 years of the applicant’s application for a [FOID] Card, or at least 20 years have

       passed since the end of any period of imprisonment imposed in relation to that conviction.” 430

       ILCS 65/10(c)(1) (West 2012). Basically, section 10 provides guidelines for the individual

       review of a felon’s application for a FOID card. Based on this “individual review,” West

       contends that a person convicted under the AHC statute could lawfully possess a FOID card.


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       No. 1-14-3632


       Thus, West claims that the AHC statute criminalizes potentially innocent conduct and has no

       rational relationship to the statute’s intended purpose.

¶ 20           As an initial matter, West does not contend that he had applied for a FOID card and was

       denied one. But West does not raise an “as applied” challenge to the constitutionality of the AHC

       statute; instead, he mounts a facial challenge arguing that the statute violates due process because

       it is unenforceable against anyone. People v. Fulton, 2016 IL App (1st) 141765, ¶ 19.

       Consequently, because West claims that he was convicted under a facially unconstitutional

       statute, he has suffered an injury and has standing to challenge the AHC statute’s

       constitutionality. Id.

¶ 21           Notably, an attack on a statute as facially unconstitutional is the most difficult challenge

       to mount. People v. Davis, 2014 IL 115595, ¶ 25. Only where there are no circumstances in

       which the statute could be validly applied is a statute facially unconstitutional. Id. A statute is not

       facially invalid merely because it could be unconstitutional in some circumstances. Id.

       Accordingly, a facial challenge cannot succeed if any circumstance exists where the statute could

       be validly applied. Id. The constitutionality of a statute is a question of law we review de novo.

       Id. ¶ 26.

¶ 22           A facial unconstitutionality challenge to the AHC statute on grounds identical to those

       raised by West has been previously considered and rejected by two different panels of this court

       in People v. Johnson, 2015 IL App (1st) 133663, and People v. Fulton, 2016 IL App (1st)

       141765. West urges this court not to follow Johnson and Fulton because those cases were silent

       regarding the required individualized consideration of a person’s right to possess a firearm as

       recognized in Coram v. State of Illinois, 2013 IL 113867, ¶ 58. But Johnson and Fulton found

       Coram inapposite because it analyzed a prior version of the FOID Card Act (pre-2013


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       amendments) in upholding the individualized consideration of a person’s right to possess a

       firearm. Johnson, 2015 IL App (1st) 133663, ¶ 29; Fulton, 2016 IL App (1st) 141765, ¶ 24.

       Fulton further found Coram distinguishable because it did not address the constitutionality of the

       AHC statute. Fulton, 2016 IL App (1st) 141765, ¶ 24. We find no basis to invalidate the

       substantial authority upholding the constitutionality of the AHC statute and adopt the soundly

       reasoned decisions in Johnson and Fulton. Accordingly, we reject West’s claim that the ACH

       statute is facially unconstitutional as a violation of due process.

¶ 23          Finally, West contends that his conviction for AUUW must be vacated on the basis that it

       violates the one-act, one-crime rule because it encompasses the same physical act leading to his

       conviction for AHC. Specifically, West claims that his possession of a single 9-millimeter

       handgun containing 13 rounds of ammunition improperly lead to his convictions for both

       AUUW and AHC.

¶ 24          The one-act, one-crime rule prohibits convictions for multiple offenses based on the same

       single physical act. People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66 Ill. 2d 551,

       566 (1977). Under the one-act, one-crime rule, a court should impose a sentence on the more

       serious offense and vacate the less serious offense. People v. Smith, 233 Ill. 2d 1, 20 (2009);

       People v. Artis, 232 Ill. 2d 156, 170 (2009).

¶ 25          The State acknowledges that West’s convictions for AHC and AUUW are both based on

       West’s possession of the same loaded 9-millimeter handgun and concedes that his less serious

       conviction of AUUW must be vacated. We agree with the parties that West’s convictions for

       AHC and AUUW violate the one-act, one-crime rule because they arose out of the same physical

       act—possession of the same loaded firearm. Because West’s AUUW conviction is a Class 2

       felony (720 ILCS 5/24-1.6(d)(3) (West 2012)) and his AHC conviction is a Class x felony (720


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       ILCS 5/24-1.7(b) (West 2012)), we vacate the less serious offense of AUUW and direct the clerk

       of the circuit court to correct West’s mittimus by vacating the AUUW conviction. We affirm the

       trial court’s judgment in all other aspects.

¶ 26                                              CONCLUSION

¶ 27          Finding West’s jury waiver valid and the AHC statute facially constitutional, we affirm

       West’s convictions and sentences for AHC and UUW by a felon. But we vacate West’s

       conviction for AUUW for violating the one-act, one-crime rule and order West’s mittimus

       corrected accordingly.

¶ 28          Affirmed; mittimus corrected.




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