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                               Appellate Court                             Date: 2017.03.06
                                                                           09:34:41 -06'00'




                   People v. West, 2017 IL App (1st) 143632



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ESAU WEST, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-14-3632



Filed             January 17, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-1930; the
Review            Hon. Neil J. Linehan, Judge, presiding.



Judgment          Affirmed; mittimus corrected.



Counsel on        Michael J. Pelletier, Patricia Mysza, and Carolyn R. Klarquist, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Whitney Bond, and Radhika Lohia, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             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.

¶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.”
¶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


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       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.

¶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 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

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       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 constitutions—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 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 case to unassailable admonishments, but case law is clear that there are


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       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
       Card Act (FOID Card 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

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       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. 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 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

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       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 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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