People v. Dockery

• Decision Date: 23 April 1998
• Docket Number: No. 1-97-1790,1-97-1790
• Citation: 230 Ill.Dec. 630,694 N.E.2d 599,296 Ill.App.3d 271
• Parties: , 230 Ill.Dec. 630 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnie DOCKERY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 599

694 N.E.2d 599

296 Ill.App.3d 271, 230 Ill.Dec. 630

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnie DOCKERY, Defendant-Appellant.

No. 1-97-1790.

Appellate Court of Illinois,

First District, Fourth Division.

April 23, 1998.

[230 Ill.Dec. 631] [296 Ill.App.3d 272] Michael J. Pelletier, State Appellate Defender, Nan Ellen Folley, Asst. Appellate Defender, for Plaintiff-Appellee.

Richard A. Devine, State's Atty., County of Cook (Renee Goldfarb, Linda Woloshin, Hareena Meghani-Wakely, Asst. State's Attys., of counsel), for Plaintiff-Appellee.

Justice WOLFSON delivered the opinion of the court:

When a trial judge takes 60 seconds or so to obtain a valid jury waiver from a defendant in open court the issue we confront in this case does not arise.

We are called on to determine whether this defendant is entitled to an evidentiary hearing on his post-conviction claim that his constitutional right to a jury trial was violated. The trial court denied the defendant's petition, holding no evidentiary hearing was required. We reverse the trial court's decision and remand this cause for an evidentiary hearing under the Post-Conviction Hearing Act.

FACTS

On March 7, 1990, Ronnie Dockery (Dockery) was arrested and charged with possession with intent to deliver phencyclidine (PCP). The case was called for trial on June 3, 1991. There were three defendants-Dockery, his brother, Gregory Dockery, and Thomas Almore. The Dockery brothers were represented by privately retained attorney Maurice Scott. Defense counsel for Almore was Cheryl Ingram. The colloquy:

"THE COURT: Bench or jury, Mr. Scott? Miss Ingram?

MS. INGRAM: Judge, bench for me. However, there is a motion pending. We are not a party to the motion.

THE COURT: All right. Mr. Scott, you have a motion pending?

MR. SCOTT: Yes.

THE COURT: We will hear the motion and go into the trial."

After learning the prosecution would need a short period of time, the Court said:

"If you are going to be five minutes, we will put it over to 1:30. Where is Mr. Scott? Mr. Scott, 1:30?

MR. SCOTT: Your Honor, at any rate can I sit down with my client?

THE COURT: Sure. You can talk to them."

When the case was called again, Scott said:

"Your Honor, the State indicated they were going to combine the motion and trial simultaneously.

THE COURT: Are you agreeable to it, Miss Ingram?

MS. INGRAM: Yes, Judge.

THE COURT: Fine.

MR. SCOTT: I have got the jury waivers here.

THE COURT: Thank you. Be seated at counsel table. Call your first witness."

And the trial began.

Dockery was convicted of the PCP charge. Because he had two prior armed robbery convictions he was sentenced to life imprisonment as an habitual criminal.

In his direct appeal, Dockery contended (1) the trial judge found him guilty of simple possession, not possession with intent to deliver; (2) his trial lawyer labored under a conflict of interest by jointly representing both him and his brother; and (3) the State failed to prove he knowingly possessed a controlled substance with intent to deliver. Each contention was rejected and the conviction affirmed. People v. Dockery, 248 Ill.App.3d 59, 187 Ill.Dec. 757, 618 N.E.2d 348 (1993). No issue concerning the jury waiver was raised on direct appeal.

In the post-conviction proceeding, Dockery first filed a pro se petition, then, with the aid of appointed counsel, an amended pro se petition. Counsel then filed an amended supplemental post-conviction petition, along with a Rule 651(c) certificate. See 134 Ill.2d R. 651(c).

The only issue raised in this appeal concerns Dockery's claim that his jury waiver was invalid. In his affidavit in support of the post-conviction petition, Dockery said:

"(a) That attorney Maurice Scott Jr. was retained by my brother who was a co-defendant in the instant case, to represent the two of us.

(b) That during attorney Scott's representation, there was never a discussion with me, nor directed towards me in regard to admonishments, stipulations and my defense at trial.

(c) That I was deprived of a jury trial, this deprivation derived from believing that my brother (co-defendant) decision [sic] to have a bench trial would not affect me, I was under the impression that our case would be separated and I would have a jury trial.

(d) My brother's decision to have a bench trial was prompted by his inability to pay attorney Scott the fee wanted for a jury trial.

(e) That no one explained to me that I did not have to submit to a bench trial or whether the selection of a bench trial was voluntarily or intelligently agreed upon * * *." (Emphasis in original.)

The rest of Dockery's affidavit has nothing to do with his jury trial claim.

The State filed a motion to dismiss Dockery's petition. It submitted an affidavit from attorney Scott, which said:

"[B]ased upon my customary practices at the time of Ronnie Dockery's trial in 1991, I definitely would not have submitted a jury waiver on behalf of my client, unless I first advised my client that he has a right to a trial by jury and discussed a jury waiver with the client and unless my client agreed to waive his right to a trial by jury and elected to proceed by way of a bench trial. I definitely would not have submitted a jury waiver on behalf of my client unless my client authorized me to submit a jury waiver on his behalf."

The post-conviction judge, who had not tried Dockery's case, granted the State's motion to dismiss Dockery's petition. There was no evidentiary hearing. The court relied, at least in part, on: (1) the undisputed fact that a written jury waiver was filed; (2) the half sheet and the official trial transcript reflected a written jury waiver; and (3) the affidavit of Scott, "who indicates in that affidavit that he did review with the defendant his right to a trial by jury * * *."

We note the written jury waiver does not appear in the record before us. We do have the half-sheet entry by the trial judge, noting

"D[efendant] sign [sic] Jury Waiver[.] Bench trial * * *." Defendant does not dispute the existence of his signed jury waiver. Neither do we.

DECISION

The Post-Conviction Hearing Act (see 725 ILCS 5/122-1 et seq. (West 1994)) provides a remedy to a criminal defendant who demonstrates a substantial violation of his or her constitutional rights. People v. Franklin, 167 Ill.2d 1, 212 Ill.Dec. 153, 656 N.E.2d 750 (1995). In a post-conviction proceeding, the court does not redetermine the defendant's innocence or guilt, but rather re-examines constitutional issues which escaped earlier review. People v. Eddmonds, 143 Ill.2d 501, 161 Ill.Dec. 306, 578 N.E.2d 952 (1991). Consequently, a post-conviction petition is not an appeal, but a collateral attack on the defendant's conviction. People v. Steidl, 177 Ill.2d 239, 226 Ill.Dec. 592, 685 N.E.2d 1335 (1997).

The trial court must conduct an evidentiary hearing where the record or accompanying affidavits support the defendant's claim that his constitutional rights were violated. People v. Owens, 129 Ill.2d 303, 308, 135 Ill.Dec. 780, 544 N.E.2d 276 (1989).

An issue which could have been, but was not, raised on direct appeal, is waived for the post-conviction stage. People v. Orange, 168 Ill.2d 138, 213 Ill.Dec. 589, 659 N.E.2d 935 (1995). However, this court has relaxed the waiver rule when: (1) the facts relating to the defendant's claim do not appear in the original appellate record; (2) fundamental fairness so requires; or (3) the defendant's arguments stem from the incompetency of the original appellate counsel. People v. Hayes, 279 Ill.App.3d 575, 580, 216 Ill.Dec. 359, 665 N.E.2d 419 (1996).

Here, Dockery makes two arguments to overcome the waiver rule. First, Dockery contends fundamental fairness requires this court to consider the constitutional rights implicated by his allegedly invalid jury waiver. Second, Dockery contends his appellate counsel was ineffective by failing to raise his invalid jury waiver claim before this court on direct appeal. Because we find the first issue disposes of this issue, we do not address Dockery's ineffective appellate counsel claim.

A criminal defendant's right to trial by jury is "fundamental to the American scheme of justice * * *." Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491, 496 (1968). Both the United States Constitution and the Illinois Constitution provide for jury trials in criminal cases. See U.S. Const. amends. VI & XIV; Ill. Const.1970, art. 1, §§ 8, 13. The Code of Criminal Procedure of 1963 provides: "All prosecutions * * * shall be tried by the court and a jury unless the defendant waives a jury trial in writing." 725 ILCS 5/115-1 (West 1992).

Because of the importance of the right to a jury trial, Illinois courts have consistently elected to review invalid jury trial waiver claims in the name of fundamental fairness. See People v. Tooles, 177 Ill.2d 462, 464-65, 227 Ill.Dec. 125, 687 N.E.2d 48 (1997); People v. Stokes, 281 Ill.App.3d 972, 976, 217 Ill.Dec. 511, 667 N.E.2d 600 (1996); People v. Mueller, 281 Ill.App.3d 1, 3, 217 Ill.Dec. 246, 666 N.E.2d 915 (1996); People v. Hall, 221 Ill.App.3d 864, 867, 164 Ill.Dec. 500, 583 N.E.2d 54 (1991); but see People v. Price, 144 Ill.App.3d 949, 952, 99 Ill.Dec. 136, 495 N.E.2d 517 (1986) ("As to defendant's argument concerning waiver of his right to a jury trial, we find that the issue should have been raised on direct appeal and is inappropriate in a postconviction proceeding.").

Ultimately, only the defendant can decide whether to give up a jury trial. People v. Ramey, 152 Ill.2d 41, 54, 178 Ill.Dec. 19, 604 N.E.2d 275 (1992). The Code of Criminal Procedure provides: "Every person accused of an offense shall have the right to a trial by jury unless * * * understandingly waived by defendant in open court * * *." 725 ILCS 5/103-5 (West 1992). The defendant may forego this fundamental right only by a waiver "made expressly and understandingly." People v. Smith...