People v. Wolf , 2022 IL App (3d) 190784-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190784-UOrder filed March 3, 2022
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IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Kankakee County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0784
v. ) Circuit No. 18-CF-701
)
MILTON C. WOLF, ) Honorable
) Clark E. Erickson,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE HAUPTMAN delivered the judgment of the court.
Justices Daugherity and Schmidt concurred in the judgment.
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ORDER
¶1 Held: Defendant knowingly and voluntarily waived his right to a jury trial.
¶2 Defendant, Milton C. Wolf, appeals his conviction for criminal trespass to a residence.
He argues that the Kankakee County circuit court violated his right to a jury trial where it
accepted his jury waiver without properly admonishing him and ensuring he expressly and
understandingly waived his right to a jury trial. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with criminal trespass to a residence (720 ILCS 5/19-4(a)(2)
(West 2018)) and battery (id. § 12-3(a)(1)). Prior to trial, defendant signed a written jury waiver
which stated, “I hereby waive a jury trial in the above entitled cause and consent to trial before
the court.” On that same day, while defendant was present in court, defense counsel stated
“We’re signing a jury waiver. *** My client’s requesting bench trials on both those cases.” The
court stated, “We’re just gonna show in both—17-CM-980 and 18-CF-701—in both cases he
waives jury.” Counsel replied “Yes.” After informing defendant of the trial date of Friday,
July 12, it stated “We got to go to Fridays on jury trial weeks for bench trials—significant bench
trials. So it’s 2 o’clock July 12.” Defendant replied, “Thank you, Your Honor.” Defendant never
objected to the waiver of the jury trial and the setting of a bench trial. Additionally, defendant
did not raise any issue regarding the validity of the jury trial waiver in the circuit court.
¶5 The court ultimately held a bench trial and found defendant guilty of criminal trespass to
a residence and not guilty of battery. The matter proceeded to sentencing. The presentence
investigation report indicated that, as an adult, defendant had two prior felony convictions and
various traffic convictions. The court sentenced defendant to three years’ imprisonment.
Defendant appeals.
¶6 II. ANALYSIS
¶7 Defendant argues that the court erred in accepting his jury waiver without admonishing
him as to the difference between a jury and bench trial. He argues that the record does not show
that he expressly or understandingly waived the right to a jury trial.
¶8 As an initial matter, defendant acknowledges that he forfeited the right to challenge his
jury waiver because he did not raise this issue below (see People v. Enoch, 122 Ill. 2d 176, 186
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(1988)), but he requests relief through the plain error doctrine. The first step in applying the plain
error doctrine is to determine if an error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565
(2007).
¶9 To be valid, a jury waiver must be knowingly and understandingly made. People v.
Bracey, 213 Ill. 2d 265, 269 (2004). “[W]hile the circuit court must insure that a defendant’s jury
waiver is understandingly made, no set admonition or advice is required before an effective
waiver of that right may be made.” People v. Tooles, 177 Ill. 2d 462, 469 (1997). Whether a jury
waiver is valid depends on the particular facts and circumstances of each case. Id. “[J]ury
waivers are valid when made in open court by defense counsel ‘in defendant’s presence where
defendant gave no indication of any objection.’ ” People v. Turner, 375 Ill. App. 3d 1101, 1108
(2007) (quoting People v. Frey, 103 Ill. 2d 327, 332 (1984)). Courts have given effect to such
waivers because an accused typically speaks and acts through his attorney. Frey, 103 Ill. 2d at
332. Additionally, “the existence of a written waiver supports a finding of a knowing waiver
when accompanied by defense counsel’s request for a bench trial made in open court and in the
defendant’s presence.” Turner, 375 Ill. App. 3d at 1108.
¶ 10 In People v. Johnson, 347 Ill. App. 3d 442, 443-45 (2004), this court found a valid jury
waiver where the record did not contain a written waiver and the record did not contain a
transcript of the hearing wherein the jury was waived, but a docket entry indicated that defendant
was present in open court when defense counsel informed the court that defendant was waiving a
jury trial. There was no indication that the defendant in Johnson objected. Id. at 444-45.
Additionally, the court stated that “the presentencing investigation report disclose[d] that the
defendant was familiar with the criminal justice system” because she had a prior criminal
conviction and several traffic convictions as an adult. Id. at 445.
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¶ 11 Similarly, in Turner, defendant was present in court when counsel waived defendant’s
right to a jury trial, defendant orally assented to the bench trial date, and defendant executed a
written waiver. Turner, 375 Ill. App. 3d at 1102. This court found that the waiver was made
knowingly and noted that “[a]lthough the trial court did not explicitly discuss the waiver with the
defendant, she did not express any objection.” Id. at 1109. Like Johnson, the court stated that
defendant’s two prior criminal convictions and multiple traffic convictions added additional
support for finding a knowing waiver because they demonstrated a familiarity with the criminal
justice system. Id.
¶ 12 In this matter, defendant was present in court when counsel waived his right to a jury trial
and requested a bench trial. Defendant did not object. Further, defendant signed a jury waiver
which further indicates that he made a knowing waiver. See Id. at 1108. Finally, like the
defendants in Johnson and Turner, defendant has prior convictions, indicating his familiarity
with the criminal justice system. Viewing these facts together, we conclude that defendant
knowingly and voluntarily waived his right to a jury trial. Therefore, we find no error, and thus,
no plain error.
¶ 13 Although we find the waiver here was knowingly and voluntarily made, we note that the
better practice for circuit courts to follow is to expressly ensure, on the record, that defendant
understands the difference between a bench and a jury trial, defendant understands he or she has
the right to be tried by a jury, no one forced defendant to waive that right, and defendant, in fact,
wants to waive that right.
¶ 14 III. CONCLUSION
¶ 15 The judgment of the circuit court of Kankakee County is affirmed.
¶ 16 Affirmed.
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