People v. West, 1–14–3632

• Decision Date: 17 January 2017
• Docket Number: No. 1–14–3632,1–14–3632
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Esau WEST, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 143632

70 N.E.3d 771

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Esau WEST, Defendant–Appellant.

No. 1–14–3632

Appellate Court of Illinois, First District, SECOND DIVISION.

January 17, 2017

Michael J. Pelletier, Patricia Mysza, and Carolyn R. Klarquist, of State 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.

OPINION

JUSTICE MASON delivered the judgment of the court, with 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 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, 290 Ill.Dec. 202, 821 N.E.2d 253 (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, 290 Ill.Dec. 202, 821 N.E.2d 253 ; 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, 227 Ill.Dec. 125, 687 N.E.2d 48 (1997) (citing 725 ILCS 5/103–6 (West 1992), and People v. Smith , 106 Ill.2d 327, 334, 88 Ill.Dec. 42, 478 N.E.2d 357 (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, 290 Ill.Dec. 202, 821 N.E.2d 253. 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, 290 Ill.Dec. 202, 821 N.E.2d 253 ; People v. Tye , 141 Ill.2d 1, 24, 152 Ill.Dec. 249, 565 N.E.2d 931 (1990). Indeed, there is no precise formula to apply to determine whether a jury waiver is valid. Bracey , 213 Ill.2d at 269, 290 Ill.Dec. 202, 821 N.E.2d 253. 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, 327 Ill.Dec. 450, 902 N.E.2d 571 (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, 290 Ill.Dec. 202, 821 N.E.2d 253. West bears the burden of establishing that his jury waiver was invalid, which is an issue we review de novo . People v. Reed , 2016 IL App (1st) 140498, ¶ 7, 400 Ill.Dec. 341, 48 N.E.3d 290.

¶ 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 constitution—an issue properly considered under a plain error analysis. Bracey , 213 Ill.2d at 270, 290 Ill.Dec. 202, 821 N.E.2d 253. 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, 327 Ill.Dec. 570, 902 N.E.2d 691 (2009) (initial step in plain error analysis is to determine whether error occurred at all); People v. Smith , 372 Ill.App.3d 179, 181, 310 Ill.Dec. 178, 865 N.E.2d 502 (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...