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                                 Appellate Court                         Date: 2017.10.02
                                                                         12:17:37 -05'00'




                   People v. Gatlin, 2017 IL App (1st) 143644



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



District & No.    First District, Fourth Division
                  Docket No. 1-14-3644



Filed             June 8, 2017



Decision Under    Appeal from the Circuit Court of Cook County, Nos. 14-CR-4615,
Review            14-CR-4616; the Hon. Joseph M. Claps, Judge, presiding.



Judgment          Affirmed in part; reversed and remanded in part.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Brett C. Zeeb, of the State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Marci Jacobs, and Marna Bolger, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Presiding Justice Ellis and Justice McBride concurred in the judgment
                  and opinion.
                                              OPINION

¶1       Following a bench trial, which joined together two of his separate, but related, criminal
     cases, defendant George Gatlin was found guilty of aggravated battery in case No. 14 CR 4615
     and aggravated battery in case No. 14 CR 4616. The trial court subsequently sentenced him to
     concurrent terms of four years’ imprisonment. On appeal, defendant contends that (1) his right
     to a jury trial was violated in both cases because the trial court failed to adequately ensure he
     made a knowing waiver of this right and (2) even if the trial court adequately ensured that he
     knowingly waived his right to a jury trial, that waiver only applied to case No. 14 CR 4616 and
     not to case No. 14 CR 4615. For the reasons that follow, we reverse and remand for a new trial
     in case No. 14 CR 4615, but affirm defendant’s conviction in case No. 14 CR 4616.

¶2                                          I. BACKGROUND
¶3       On March 17, 2014, the State charged defendant in case No. 14 CR 4615 with aggravated
     battery and unlawful restraint for his alleged actions against Migdalia Castro. That same day,
     in case No. 14 CR 4616, the State charged defendant with robbery, aggravated battery, and
     unlawful restraint for his alleged actions against Chauncey Roberts. All of the charges against
     defendant were in connection with a series of incidents occurring on February 23, 2014.
¶4       Defendant’s arraignment in both cases occurred on March 25, 2014. The court read the
     charges against him in case No. 14 CR 4615, and after it read the charges against him in case
     No. 14 CR 4616, the court informed him that the charges were “Class 2, 3 and 4 offenses for
     which [he had] the right to a trial, a right [to] a trial by a jury.” Defendant asked the court to
     repeat the charges against him in case No. 14 CR 4616. After doing so, the court again told him
     that “[t]hese are charges for which you have a right to a trial, a right to trial by jury. Do you
     know what a trial by jury is?” Defendant replied, “[y]es, sir.” The court continued the matter.
¶5       At the next court date, the State elected to proceed on case No. 14 CR 4616. At subsequent
     court dates, the parties discussed various matters, including outstanding discovery. On August
     14, 2014, the trial court set case No. 14 CR 4616 for a bench trial and continued case No. 14
     CR 4615 for a status date, both for September 30, 2014.
¶6       On September 30, 2014, the parties appeared in court, and the following colloquy
     occurred:
                  “THE COURT: Are we ready? This case is set for trial, [defendant]. Do you want a
             trial by jury or a trial by judge?
                  THE DEFENDANT: Trial by judge.
                  THE COURT: Okay. You know what a trial by jury is?
                  THE DEFENDANT: Yes, sir.
                  THE COURT: Your desire at this time is to waive your trial by jury and have me
             hear this case?
                  THE DEFENDANT: Yes, sir.
                  THE COURT: Is this your signature on the document entitled Jury Waiver?
                  THE DEFENDANT: Yes, sir.”
     The record contains a written jury waiver signed by defendant and dated September 30, 2014,
     specifically referencing case No. 14 CR 4616.


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¶7          The State subsequently told the trial court that, because both of the defendant’s cases had
       arisen from “one continuing incident,” it wanted to join the cases. After the State and the court
       discussed the allegations and the State’s witnesses, defense counsel objected to the joinder.
       The court granted the State’s motion to join both cases and asked defense counsel if she needed
       additional time to prepare because “there [were] now two, not one, offenses set for trial.”
       Counsel responded that defendant’s “witnesses [were] here on the other case as well so . . .”
       and did not request additional time. The State informed the court that it was ready for trial, and
       the court stated “we’ll try them both together over [defendant’s] objection.” Defendant’s bench
       trial immediately commenced.
¶8          At trial, the evidence showed that, during the afternoon of February 23, 2014, Migdalia
       Castro was talking with a friend near the intersection of Lockwood and Chicago Avenue in
       Chicago when she saw defendant, whom she knew from the neighborhood, walking down the
       street. Defendant came over to them and pushed Castro’s friend. Defendant then put his hands
       in Castro’s face and pushed her to the ground. Castro got up, went to her nearby residence, and
       told her fiancé, Chauncey Roberts, what happened. Roberts left their residence while Castro
       initially stayed behind and called the police. Roberts, who also knew defendant, went to the
       intersection of Lockwood and Chicago Avenue, observed defendant, and approached him.
       Roberts asked defendant why he pushed Castro and told him he was calling the police. As
       Roberts walked away, holding his cell phone in his hand, defendant came up from behind and
       began hitting him with a belt buckle. During the beating, Roberts dropped his cell phone.
       Defendant picked it up, asked Roberts “who you going to call now?” and ran away. Both
       Castro and Roberts spoke to the police and identified defendant as the offender.
¶9          The trial court found defendant guilty of aggravated battery in case No. 14 CR 4615 and
       aggravated battery in case No. 14 CR 4616, but not guilty on the remaining counts. Following
       defendant’s unsuccessful motion for a new trial, the court sentenced him to concurrent terms of
       four years’ imprisonment. This appeal followed.

¶ 10                                            II. ANALYSIS
¶ 11        Defendant first contends that his right to a jury trial was violated in both cases because the
       trial court failed to adequately ensure that his waiver of this right was knowingly made. He
       argues that, despite affirmatively responding to the court’s jury waiver admonishments, the
       “cursory exchange” between him and the court cannot support a valid waiver because the
       admonishments never included questions as to whether he truly understood his right to a jury
       trial and the ramifications of waiving the right. The State responds, arguing that the
       circumstances establish that defendant knowingly waived his right to a jury trial.
¶ 12        Initially, defendant acknowledges that he did not raise the issue in the trial court and
       therefore has forfeited the claim of error on appeal. See People v. Hood, 2016 IL 118581, ¶ 17.
       However, he argues we may review the claim of error for second-prong plain error, which
       allows review of a forfeited claim of error if the error is clear or obvious and “so serious that it
       affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,
       regardless of the closeness of the evidence.” People v. McDonald, 2016 IL 118882, ¶ 48.
       Before determining whether there is plain error, we must first determine whether an error
       actually occurred. Id.
¶ 13        The right to a jury trial is a fundamental right afforded to criminal defendants by both our
       federal and state constitutions. People v. Bannister, 232 Ill. 2d 52, 65 (2008) (citing U.S.

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       Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13). A defendant also has the right to
       waive a trial by jury, but any such waiver must be knowingly and understandingly made in
       open court. 725 ILCS 5/103-6 (West 2014); People v. Bracey, 213 Ill. 2d 265, 269 (2004).
       Although it is the trial court’s duty to ensure that the defendant’s waiver is made “expressly
       and understandingly,” it is not required to give a specific admonition to the defendant.
       Bannister, 232 Ill. 2d at 66. The validity of each waiver must be evaluated on a case-by-case
       basis rather than by an exact formula. Bracey, 213 Ill. 2d at 269.
¶ 14        Although not dispositive of a valid waiver, a written waiver may provide evidence that the
       defendant knowingly relinquished his right to a jury trial. Id. at 269-70. Similarly, a present
       defendant’s silence when his defense counsel requests a bench trial may provide evidence that
       he knowingly relinquished his right to a jury trial. People v. Reed, 2016 IL App (1st) 140498,
       ¶ 7. “The crucial determination is whether the waiving defendant understood that his case
       would be decided by a judge and not a jury.” Id. The defendant bears the burden of establishing
       that his jury waiver was invalid. Id. Where the facts are not in dispute, as is the case here, our
       review proceeds de novo. In re R.A.B., 197 Ill. 2d 358, 362 (2001).
¶ 15        In the present case, the circumstances show that the trial court fulfilled its duty to ensure
       that defendant knowingly and understandingly waived his right to a jury trial in case No. 14
       CR 4616, and he has failed to demonstrate otherwise.1 Prior to his scheduled trial in that case,
       the court asked defendant several questions concerning whether he wanted a bench trial or jury
       trial. In particular, after defendant informed the court that he wanted a “[t]rial by judge,” it
       asked him whether he knew the meaning of a jury trial. Defendant responded affirmatively.
       The court, however, followed up and asked defendant if he wanted “to waive [his] trial by
       jury” and allow the court to “hear this case.” Defendant again responded affirmatively.
       Furthermore, defendant signed a written jury waiver, indicating that he did not want to have a
       jury trial and instead wanted the court to hear the case. The court also confirmed with
       defendant that his signature appeared on the written jury waiver. Given these facts, the trial
       court made sure that defendant understood that his case would be decided by it rather than a
       jury, the critical question in resolving whether the trial court fulfilled its duty to ensure a
       knowing and understanding waiver. See Reed, 2016 IL App (1st) 140498, ¶ 7.
¶ 16        Furthermore, at the time defendant waived his right to a jury trial, he had an adult criminal
       history consisting of three felony convictions, which suggests a familiarity with the criminal
       justice system and the right to a jury trial and belies any notion that he did not understand the
       ramifications of his waiver in case No. 14 CR 4616. See People v. Turner, 375 Ill. App. 3d
       1101, 1109 (2007) (finding a defendant’s criminal history consisting of two criminal
       convictions and multiple traffic convictions “demonstrate[d] a familiarity with the criminal
       justice system and, thus, a familiarity with her right to a trial by jury and with the ramifications
       of waiving that right”); Reed, 2016 IL App (1st) 140498, ¶ 8 (same).
¶ 17        Nevertheless, defendant compares his case to People v. Sebag, 110 Ill. App. 3d 821 (1982).
       In Sebag, the defendant represented himself and signed a written jury waiver. Id. at 828-29.
       The trial court’s jury waiver admonishments consisted of the following:
                    “ ‘THE COURT: You are entitled to have your case tried before a jury or judge.
                    DEFENDANT SEBAG: Judge.

           1
            Although defendant argues that he did not knowingly waive his right to a jury trial in both cases, as
       will be discussed later, his jury waiver did not apply to case No. 14 CR 4615.

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                    THE COURT: Jury waiver. Do you understand that by waiving a jury at this time
                that you cannot reinstate it; do you understand that?
                    DEFENDANT SEBAG: Yes.’ ” Id. at 829.
       In finding that the defendant’s jury waiver was invalid, the appellate court found “[t]he
       defendant was without the benefit of counsel, and it does not appear that he was advised of the
       meaning of a trial by jury nor does it appear that he was familiar with criminal proceedings.”
       Id. Here, unlike in Sebag, defendant had the benefit of counsel, he had a criminal background,
       and he expressly acknowledged to the trial court that he knew the meaning of a jury trial. For
       these reasons, Sebag is clearly distinguishable.
¶ 18       Defendant further argues that, prior to accepting his waiver, the trial court did not
       determine whether he truly knew the meaning of a jury trial and failed to ask him such
       questions as whether he knew his right was constitutional in nature or whether his decision was
       voluntary. As previously discussed, the court was not required to give a specific set of
       admonishments to defendant before allowing him to waive his right to a jury trial. Bannister,
       232 Ill. 2d at 66. The critical question was whether defendant understood that his trial would be
       decided by the trial court and not a jury. See Reed, 2016 IL App (1st) 140498, ¶ 7. The record
       shows such a comprehension, and defendant fails to point to any hesitation or confusion on his
       part to demonstrate otherwise.
¶ 19       In sum, the trial court fulfilled its duty to ensure defendant knowingly and understandingly
       waived his right to a jury trial in case No. 14 CR 4616. As the court did not commit any error,
       there can be no plain error. See McDonald, 2016 IL 118882, ¶ 48.
¶ 20       Defendant next contends that, even if the trial court adequately ensured that his waiver of
       his right to a jury trial was valid in case No. 14 CR 4616, that waiver cannot apply to him in
       case No. 14 CR 4615. He argues that, after he waived his right in case No. 14 CR 4616, the
       State moved to join both of his cases, which the court granted. However, defendant asserts that
       the court never admonished him about waiving his right to a jury trial in case No. 14 CR 4615
       and his signed jury waiver did not mention that case. Defendant concludes that case No. 14 CR
       4615 was outside the scope of his jury waiver in case No. 14 CR 4616.
¶ 21       The State responds, arguing that defendant’s jury waiver applied to both cases because he
       was represented by counsel and, during arraignment, the trial court informed him that he had a
       right to a jury trial in both cases. The State additionally asserts that both cases stemmed from
       the same sequence of events and involved the same witnesses, and although defense counsel
       objected to the cases being joined, once the court granted the State’s request, she stated she was
       ready for trial. The State posits that, from defendant’s “silent acquiescence, it can be inferred
       that [his] counsel intended to try both cases before the court in a bench trial.”
¶ 22       As in his first contention, defendant forfeited this claim of error for review, but argues that
       we review it for second-prong plain error. As before, we must first determine whether an error
       actually occurred. See McDonald, 2016 IL 118882, ¶ 48.
¶ 23       Instructive is People v. Bracey, 213 Ill. 2d 265, 267 (2004), where the State charged a
       defendant with aggravated battery. Prior to trial, and after executing a written jury waiver and
       being admonished by the trial court about his right to a jury trial, the defendant waived his right
       to one. Id. The court found the defendant guilty, but later granted him a new trial in front of a
       different trial judge after determining that he did not knowingly and voluntarily waive his right
       to testify. Id. at 267-68. During a discussion to schedule the new trial date, the court clerk


                                                    -5-
       informed the parties that “ ‘[w]e are changing the date of the bench trial.’ ” Id. at 268. On the
       scheduled trial date, the new trial judge called the defendant’s case and stated: “ ‘Cause comes
       on for bench trial. I just verified to be sure that there was a jury waiver taken, and I see that
       there was by Judge Frobish back on March 20 of 2002. So anything, [prosecutor], before we
       start with the evidence?’ ” Id. Neither defense counsel nor the State raised any issues, the trial
       began, and the trial court ultimately found the defendant guilty of aggravated battery. Id.
¶ 24       On appeal, the defendant contended that the jury waiver he made prior to his first trial was
       not valid with respect to his second trial and the trial court erred when it failed to determine
       whether he wished to waive that right prior to his second trial. Id. Our supreme court initially
       found that the defendant’s written waiver and the trial court’s admonishments to him ceased to
       have “any effect once [his] first trial terminated” and thus could not apply to his new trial
       conducted months later. Id. at 271. Given the invalidity of the written waiver and
       admonishments, our supreme court observed that “[t]he question, then, is whether statements
       made in defendant’s presence prior to his second trial provide a sufficient basis for finding that
       defendant knowingly and voluntarily waived his right to a jury at his retrial.” Id. at 272. The
       court noted that “everything in the record indicates that [the] defendant was led to believe that
       his jury waiver *** obligated him to a bench trial once again.” Id. It observed that the new trial
       judge “simply relied upon” the defendant’s earlier written waiver and never determined
       whether he wanted to waive his right to a jury trial at his new trial. Id. Furthermore, defense
       counsel never made any statements in the defendant’s presence indicating that he “was
       electing, once again, to give up his right to trial by jury.” Id. at 273. In light of these facts, our
       supreme court held that the defendant’s “silent acquiescence” to the second bench trial was
       insufficient to support a knowing waiver. Id.
¶ 25       Similar to Bracey, where the defendant’s jury waiver prior to his first trial had no effect on
       his second trial, in the present case, the trial court’s admonishments to defendant and his signed
       written jury waiver in case No. 14 CR 4616 had no effect on case No. 14 CR 4615. First,
       defendant’s written jury waiver only referenced case No. 14 CR 4616. This makes sense
       because, on September 30, 2014, the day he signed and filed the written waiver, only case No.
       14 CR 4616 had been scheduled for a bench trial. Case No. 14 CR 4615 had merely been
       scheduled for a status date on September 30. Second, the court’s jury waiver admonishments to
       defendant also only concerned case No. 14 CR 4616. Only after these admonishments did the
       State move to join both of defendant’s cases and did case No. 14 CR 4615 go from being
       scheduled merely for a status date to a bench trial. Therefore, given the content of the written
       waiver and the timing of the admonishments, it is clear that defendant’s waiver in case No. 14
       CR 4616 did not encompass case No. 14 CR 4615. As in Bracey, the question becomes
       whether statements made in defendant’s presence prior to his combined trial provide a
       sufficient basis for finding that he knowingly and understandingly waived his right to a jury in
       case No. 14 CR 4615.
¶ 26       After the trial court allowed the joinder of defendant’s cases over his objection, it asked
       defense counsel if she needed additional time to prepare because there were two “offenses set
       for trial” rather than one. Counsel did not request additional time because defendant’s
       witnesses for case No. 14 CR 4616 were already present. After the State informed the court
       that it was ready for trial, defendant’s combined bench trial immediately ensued. Just as in
       Bracey, the court never informed defendant that he also had a right to a jury trial in case No. 14
       CR 4615 and apparently relied upon his earlier written waiver and the admonishments in case

                                                     -6-
       No. 14 CR 4616. Furthermore, defense counsel never made any statements in defendant’s
       presence indicating that he was electing to give up his right to a jury trial in case No. 14 CR
       4615. Although the trial court informed defendant of his right to a jury trial in both cases
       during arraignment, which occurred six months prior to trial, we cannot find this makes up for
       the lack of an express discussion by the court with defendant or his defense counsel more
       contemporaneously with his bench trial with respect to case No. 14 CR 4615. See Bannister,
       232 Ill. 2d at 66 (stating that, although the trial court need not give a set admonishment to the
       defendant prior to allowing him to waive his right to a jury trial, it must ensure that the waiver
       is made “expressly and understandingly”).
¶ 27        We cannot assume that defendant still knew he had a right to a jury trial in case No. 14 CR
       4615 after he waived this right in case No. 14 CR 4616. See People v. Campbell, 2015 IL App
       (3d) 130614, ¶ 21 (absent evidence that a defendant knew his right to a jury trial “was again
       available after he withdrew his [guilty] plea,” the appellate court would not assume he was
       aware of his right). Consequently, although defendant was silent at the commencement of his
       combined bench trial, his silent acquiescence was insufficient to support a knowing and
       understanding waiver of his right to a jury trial in case No. 14 CR 4615.
¶ 28        Nevertheless, the State argues the situation in People v. Frey, 103 Ill. 2d 327 (1984), is
       more instructive to the resolution of this appeal than the one in Bracey. In Frey, the State
       charged the defendant with two counts of reckless homicide stemming from an automobile
       accident. Id. at 329. Later, the trial court entered an order, which had been “approved by
       defense counsel, stating that ‘the defendant’s attorney indicates the defendant will waive a jury
       trial in this case.’ ” Id. Subsequent trial court orders showed that the case was set for a bench
       trial. Id. Additionally, defense counsel filed a motion, stating that “ ‘[d]efendant has waived
       jury trial so that the cause will be tried by the court’ ” and requesting the trial judge “ ‘as trier
       of the facts’ view the scene of the accident.” Id. Thereafter, the State filed an information
       charging defendant with driving while under the influence of intoxicating liquor, which was
       added as “ ‘Count III’ ” and stemmed from the same automobile accident. Id. at 329-30.
¶ 29        Because two breathalyzer tests that the defendant took were only admissible at his trial for
       driving under the influence, the parties agreed that the counts of reckless homicide would be
       tried first. Id. at 330. They also “stipulated that most of the evidence presented in the
       reckless-homicide trial could be considered by the judge in the subsequent
       driving-under-the-influence trial.” Id. A subsequent trial court order showed that the defendant
       had a bench trial scheduled. Id. However, “[a]pparently no record was made of the discussions
       between court and counsel on the numerous occasions when counsel was in court prior to trial”
       and thus it was unclear what the content of those discussions were and whether the defendant
       had been present. Id. Despite this uncertainty, a prosecutor’s unrebutted testimony during a
       posttrial motion in the defendant’s presence demonstrated that he “was present on occasions
       when the matter of a bench trial was discussed, and at some point was advised of his right to
       trial by a jury or by the court.” Id. On the day of the defendant’s trial, the court announced that
       “ ‘these causes were set today for purposes of bench trial and the issues presented by all three
       counts pending against this defendant.’ ” (Emphasis omitted.) Id. at 331. The trial court
       ultimately convicted the defendant of driving under the influence, but acquitted him of reckless
       homicide. Id.
¶ 30        On appeal, our supreme court had to decide whether the defendant had knowingly and
       understandingly waived his right to a jury trial on the charge of driving under the influence. Id.

                                                     -7-
       at 331-32. The court observed that it was “entirely clear from this record that both court and
       counsel had understood *** that the case would be heard without a jury.” Id. at 332-33. It noted
       that, although the charge of driving under the influence was not filed until later in the
       proceedings, an order entered by the trial court afterward showed that a bench trial had been
       scheduled. Id. at 333. Our supreme court went on and stated:
                “[D]efense counsel’s willingness to stipulate in that case to the use of evidence
                presented to the judge on the reckless-homicide charges further reflects counsel’s
                intent to try the case before the court. It also appears from the record that defendant was
                aware of his right to a jury trial and was present at some point prior to trial when the
                jury waiver was discussed.” Id.
       In light of these facts, our supreme court found that the defendant’s “silent acquiescence” to
       the trial court’s statement that his case was set for a bench trial on all counts demonstrated that
       his jury waiver had been made knowingly. Id.
¶ 31        In Frey, based on defense counsel’s various representations and the trial court’s orders, the
       record plainly demonstrated that the defendant was going to have a bench trial on all of the
       charges against him. Furthermore, all three charges against defendant were contained within
       one case against him. Additionally, the prosecutor’s statements after trial demonstrated that the
       defendant had been advised of his right to a jury trial and his bench trial had been discussed in
       his presence. In the present case, unlike in Frey, defendant had two cases, one where there was
       a valid jury waiver and another where there was absolutely no discussion with him about his
       right to a jury trial absent a brief statement by the trial court during arraignment six months
       prior to his trial. Therefore, Frey is inapposite.
¶ 32        Because the right to a jury trial is a fundamental right afforded to criminal defendants by
       both our federal and state constitutions (Bannister, 232 Ill. 2d at 65), it should not be deemed
       lightly waived. Critically, a defendant can only waive this right if he does so “knowingly and
       understandingly.” Bracey, 213 Ill. 2d at 269. And here, while defendant knowingly and
       understandingly waived his right to a jury trial in case No. 14 CR 4616, the same cannot be said
       for case No. 14 CR 4615. Given that an error occurred in this case, we must determine whether
       that error arose to the level of a plain error. It is well settled that, when a defendant’s right to a
       jury trial has been violated, such an error may be deemed a plain error under the second prong
       of the plain-error doctrine. See id. at 270; Campbell, 2015 IL App (3d) 130614, ¶ 22.
       Accordingly, we reverse defendant’s conviction in case No. 14 CR 4615 and remand for a new
       trial.

¶ 33                                       III. CONCLUSION
¶ 34       For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in
       case No. 14 CR 4616, but reversed and the cause remanded in case No. 14 CR 4615.

¶ 35       Affirmed in part; reversed and remanded in part.




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