People v. Hart

No. 3--05--0228
Filed February 23, 2007.
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
)
) No. 03--CM--2134
v. )
)
JILL D. HART, ) Honorable
) Stephen Kouri,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________

Defendant, Jill D. Hart, was convicted by the trial court of

battery (720 ILCS 5/12--3(a)(2) (West 2004)). The trial court

sentenced Hart to 12 months' probation. Hart appeals, arguing

that she did not knowingly and intelligently waive her right to a

jury trial. We affirm.

BACKGROUND

We note that the record does not contain a transcript of any

of the trial court proceedings. Further, although the common law

record also lacks the trial court's docket sheet, it appears from

the written orders of the court that the following proceedings

occurred: (1) Hart made her initial court appearance on November
4, 2003; (2) on January 8, 2004, she was appointed counsel; (3)

on June 8, 2004, the court set a pretrial hearing for September

14, 2004; (4) on September 14, 2004, the court set the matter for

a jury trial on September 29; and (5) on September 29, the court

ordered a bench trial to be held on December 6, 2004.

With regard to the jury waiver, the record only contains a

written jury waiver form, signed by Hart. In the top right

corner of this form, the date "12/6" was handwritten. There was

no file stamp on the written waiver. There was no other

reference to a jury waiver in the record.

Hart provided an agreed statement of facts with regard to

the bench trial that was conducted on December 6, 2004. The

statement covered only the evidence adduced at the trial,

although it referred to a motion to exclude witnesses just prior

to the commencement of the trial.

Hart appeals her conviction.

ANALYSIS

On appeal, Hart seeks remand for a new trial on the basis

that the record fails to show that she understandingly waived her

right to a jury trial in open court.

Initially, the State argues that Hart waived this issue on

appeal for failure to preserve it in the trial court. Hart

concedes that she did not raise this issue below. However, a

defendant's failure to question the validity of the jury waiver

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in the trial court, by both a timely objection and a posttrial

motion, does not result in a forfeiture of the issue on appeal.

People v. Bracey, 213 Ill. 2d 265, 821 N.E.2d 253 (2004). A

criminal defendant has a fundamental right to a trial by jury,

and the issue of whether that right has been violated may be

considered under the plain error rule. Bracey, 213 Ill. 2d 265,

821 N.E.2d 253.

On the merits, because Hart was charged with an offense

punishable by a term of imprisonment in excess of six months, she

had a right to a trial by jury under the sixth and fourteenth

amendments to the United States Constitution (U.S. Const.,

amends. VI, XIV). Codispoti v. Pennsylvania, 418 U.S. 506, 41 L.

Ed. 2d 912, 94 S. Ct. 2687 (1974). A defendant validly waives

her right to a jury trial only if she does so (1) understandingly

and (2) in open court. 725 ILCS 5/103--6 (West 2004); People v.

Scott, 186 Ill. 2d 283, 710 N.E.2d 833 (1999). It is the trial

court's duty to ensure that a defendant's waiver of her right to

a jury trial is made understandingly. People v. Smith, 106 Ill.

2d 327, 478 N.E.2d 357 (1985). However, the validity of a jury

waiver cannot rest on any precise formula but, rather, depends on

the facts and circumstances of each particular case. In re

R.A.B., 197 Ill. 2d 358, 757 N.E.2d 887 (2001). Where the facts

are not in dispute, the question of whether a defendant validly

waived her right to a jury trial is one of law subject to de novo

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review. R.A.B., 197 Ill. 2d 358, 757 N.E.2d 887.

A suitable report of the proceeding in which the waiver is

supposed to have occurred is essential to a review of whether a

defendant made a valid jury waiver. Smith, 106 Ill. 2d 327, 478

N.E.2d 357. The party alleging error is responsible for

preserving and presenting an adequate record of the asserted

error. People v. Stewart, 179 Ill. 2d 556, 689 N.E.2d 1129

(1997). Where a defendant claims that he or she did not waive

the right to a jury trial in open court or that the waiver was

not understandingly made, the record should be sufficient to

cover all proceedings which involved the waiver. Smith, 106 Ill.

2d 327, 478 N.E.2d 357; People v. Oatis, 47 Ill. App. 3d 229, 361

N.E.2d 1146 (1977). Deprived of an adequate record, the

reviewing court "must assume that the record indications of a

jury waiver are indeed based on a valid waiver." Smith, 106 Ill.

2d 327, 478 N.E.2d 357.

In the instant case, Hart has presented an incomplete

record. The only facts relating to the issue on appeal in the

record are that: (1) on September 29, 2004, the court scheduled a

bench trial; (2) Hart signed a written jury waiver; and (3) a

bench trial was conducted on December 6, 2004. Because the

record does not contain any of the court's docket entries, we

cannot determine on what day the jury waiver was made in court,

if that occurred at all. Even if we were able to determine the

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date the jury waiver was made, the agreed statement of facts

reveals only the evidence adduced at trial. It does not cover

any of the pretrial proceedings.

Due to an insufficient record, we are unable to make any

determination with regard to the jury waiver. Therefore, we must

assume that the written jury waiver and bench trial were based on

a valid waiver. Smith, 106 Ill. 2d 327, 478 N.E.2d 357 (the

defendant failed to provide a record of proceedings for the date

on which his alleged jury waiver was made); Oatis, 47 Ill. App.

3d 229, 361 N.E.2d 1146 (the defendant's conviction after a bench

trial was affirmed where he claimed that the record failed to

show that he understandingly waived his right to a jury trial in

open court, but the record was insufficient because it did not

cover any proceeding prior to the bench trial).

CONCLUSION

For the reasons stated, we affirm the judgment of the

circuit court of Peoria County.

Affirmed.

CARTER and O'BRIEN, JJ., concur.

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