People v. Reed

• Decision Date: 27 January 2015
• Docket Number: No. 1-14-0498,1-14-0498
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO REED, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 140498

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ANTONIO REED, Defendant-Appellant.

No. 1-14-0498

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

January 27, 2015

Appeal from the Circuit Court of Cook County.

No. 13 CR 5811

Honorable Thomas J. Hennelly, Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Fitzgerald Smith concurred in the judgment and opinion.

OPINION

¶ 1 Following a bench trial, defendant Antonio Reed was found guilty of possession of a controlled substance with intent to deliver and sentenced to nine years' imprisonment. On appeal, he contends the trial court did not adequately ensure that his waiver of his right to a jury trial was made knowingly. He also contends that various fees assessed against him are in actuality fines, and therefore subject to the $5 per diem credit under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2012)). We affirm and correct the fines and fees order.

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¶ 2 Prior to trial, the trial court appointed counsel for defendant. On August 12, 2013, defense counsel, appearing with defendant, requested a trial date and twice repeated that it would be a bench trial. Defense counsel, alongside defendant, again indicated that there would be a bench trial at a status hearing on September 19, 2013. On the day of trial, the trial court asked whether there would be a bench or jury trial. After defense counsel answered bench, the trial court stated to defendant:

"The Court: Mr. Reed, I have in my hand a document entitled jury waiver which means you want to waive your right to a jury and have the matter submitted to me for trial which is known as a bench trial. Is that your wish?

Defendant Reed: Yes.

The Court: On this document, it's got your name, today's date, the case number and charge and there is a signature on this. Is that your signature on that document, Mr. Reed?

Defendant Reed: Yes.

The Court: Has anyone forced or threatened you or promised you in any way to prevent you from having a jury trial.

Defendant Reed: No.

The Court: Are you making that decision freely and voluntarily?

Defendant: Freely."

The trial court found defendant's jury waiver to be knowingly and voluntarily given.

¶ 3 The evidence at trial established that defendant and Delores Edwards were standing near each other on West Flournoy Street in Chicago on February 27, 2013. Chicago police officer

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Ronald Coleman observed them from a parked unmarked car. On three separate occasions, individuals or a vehicle approached defendant. On each occasion, defendant dropped an item to the ground. Edwards then retrieved the item and gave it to the individual. During one of the transactions, Coleman observed the individual give Edwards cash after receiving the item. Subsequently, Officer Martin Howard, dressed in plainclothes, approached defendant and asked for heroin. Defendant asked Howard how much he wanted. After receiving an answer, defendant dropped a pink baggy containing white powder on the ground and Edwards retrieved it. She handed the baggy to Howard in exchange for $10 in marked bills. Howard left the area and radioed other officers. The other officers arrested defendant and Edwards. The marked bills were recovered from Edwards' jacket. Testing revealed the pink baggy given to Howard contained 0.2 grams of heroin. The trial court found defendant guilty of delivery of a controlled substance. It sentenced him to nine years' imprisonment and assessed fines and fees against him, including a Court System fee, a Public Defender Records Automation fee, and a State's Attorney Records Automation fee. Defendant appeals.

¶ 4 Defendant first contends that the trial court failed to ensure that his waiver of his right to a jury trial was knowingly and voluntarily made. He asserts that the court did not question him on his understanding of that right or the ramifications of waiving it. He also asserts that the trial court did not advise him of the nature of a jury trial, the difference between a bench and a jury trial, or that a judge would decide the facts rather than a jury. He acknowledges that he has failed to preserve his claim on appeal, but argues that issues of jury waiver affect the fundamental right to a jury trial and thus are reviewable under the structural error prong of plain error doctrine.

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¶ 5 The State responds that defendant has forfeited his claim, and it is not reviewable as plain error. It argues alternatively that the record establishes that defendant's waiver was knowing and voluntary, particularly where appointed counsel repeatedly asked for a bench trial and defendant has successfully waived the right to a jury in multiple, prior prosecutions.

¶ 6 Before addressing the merits of defendant's claim, we must determine whether the claim has been properly preserved. Ordinarily, errors not objected to during trial or raised in the post-trial motion are considered waived. In re R.A.B., 197 Ill. 2d 358, 362 (2001). Under plain error doctrine, however, we may review otherwise waived errors in two limited circumstances: "(1) where the evidence is closely balanced; or (2) when the errors are of such magnitude that defendant was denied a fair and impartial trial and remedying the error is necessary to preserve the integrity of the judicial process." People v. Nieves, 192 Ill. 2d 487, 502-03 (2000). Under either prong, a defendant bears the burden of persuasion. People v. Lewis, 234 Ill. 2d 32, 43 (2009). In the present case, defendant only argues that his claim is reviewable under the second prong of plain error analysis. Yet, before considering defendant's claim under either prong, we must first determine whether error has occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

¶ 7 Both our federal and state constitutions guarantee a criminal defendant's right to a trial by jury. U.S. Const., amends.VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. A defendant may waive this right, but the waiver must be knowingly and understandingly made in open court. 725 ILCS 5/103-6 (West 2012); People v. Bracey, 213 Ill. 2d 265, 269-70 (2004). There is no specific admonishment or advice the court must provide before accepting a waiver. People v. Bannister, 232 Ill. 2d 52, 66 (2008). Consequently, the effectiveness of a defendant's waiver depends on the

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facts and circumstances of each particular case. Id. The crucial determination is whether the waiving defendant understood that his case would be decided by a judge and not a jury. Id. at 69. Although a signed jury waiver alone does not prove a defendant's understanding, it is evidence that a waiver was knowingly made. People v. Dockery, 296 Ill. App. 3d 271, 276 (1998). Similarly, a present...