People v. Fox

2023 IL App (1st) 210844-U
No. 1-21-0844

FIRST DIVISION
February 14, 2023

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 11 CR 20340
)
ELEBERT FOX, )
) The Honorable
Defendant-Appellant. ) Diane L. Kenworthy,
) Judge Presiding.

____________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court.
Justices Hyman and Coghlan concur in the judgment.

ORDER

¶1 Held: We affirm the postconviction court’s decision to summarily dismiss defendant’s pro se
postconviction petition where the defendant’s claim is that his trial counsel provided ineffective
assistance of trial counsel by threatening him into waiving his constitutional right to a jury trial.

¶2 Defendant appeals the first-stage dismissal of his pro se postconviction petition in which he

alleged, inter alia, that his trial counsel was ineffective when counsel coerced him into waiving

his right to a jury trial by threatening to abandon him unless he took a bench trial. While defendant

acknowledges that he signed a written jury waiver and was questioned by the trial court regarding
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his decision, he argues that this record is positively rebutted because “the trial court was put on

alert” by defendant’s response when defendant answered affirmatively to the question as to

whether he was threatened or promised anything to make him to choose a bench trial.

Alternatively, defendant argues that his appellate counsel was ineffective for failing to raise this

issue on direct appeal.

¶3 This case arose when defendant was originally charged with multiple counts of first degree

murder in the shooting death of Webster Gater, attempt first degree murder and aggravated battery

with a firearm for the shooting of Twan Fox, as well as unlawful use or possession of a weapon

by a felon. After a bench trial before the Honorable Nicholas Ford, the trial court found defendant

guilty of eight counts of first degree murder, one count of aggravated battery with a firearm, and

two counts of unlawful use or possession of a weapon by a felon. The trial court sentenced

defendant to a total of 90 years’ imprisonment, consisting of consecutive sentences of 50 years’

imprisonment for first degree murder, 30 years’ imprisonment for personally discharging a weapon

that proximately caused the death of Webster Gater, and 10 years’ imprisonment for aggravated

battery with a firearm. The trial court also sentenced defendant to a concurrent sentence of 10

years’ imprisonment for unlawful use or possession of a weapon by a felon.

¶4 In response, the State argues that the postconviction court’s decision to summarily dismiss

defendant’s pro se postconviction petition was proper where defendant did not establish that his

trial counsel was ineffective because the record refutes defendant’s allegation that he involuntarily

waived his right to a jury trial. The State relies upon the trial court’s oral admonishments to

defendant, his signed, written jury waiver, as well as the pre-trial discussions between defense

counsel. We agree and affirm the postconviction court’s decision to summarily dismiss defendant’s

postconviction petition.

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¶5 BACKGROUND

¶6 Defendant’s conviction stems from a shooting that took place during the early morning hours

of October 29, 2011, which led to the death of Webster Gater and injured Twan Fox. Defendant

pointed a gun at Twan, shot him three times in the leg, and ran through the gangway. Defendant

heard someone scream behind him, which startled him, so he turned around, fired his gun again at

Gater, and ran. Gater died from a gunshot wound to the head. After the shooting, Twan was treated

for three gunshot wounds and was diagnosed with a paralyzed foot. A .357 caliber semiautomatic

handgun was recovered from the sidewalk in the gangway. A DNA expert testified that defendant’s

DNA could not be excluded from the DNA profile identified on the recovered handgun.

¶7 Prior to trial, defendant was originally represented by an assistant public defender, but then

private counsel filed an appearance to represent him. Subsequently, during a pre-trial status

hearing, the trial court asked defense counsel if defendant sought “Bench or jury[,]” and defense

counsel stated, “Bench.” During a subsequent hearing, in which the parties were discussing the

merits of the State’s motion to admit other crimes evidence, defense counsel asked the trial court

to rule on this motion at the time of the trial, stating, “That’s fine, Judge, just let me say this; we’ve

already told you this is going to be a bench trial…” The circuit court stated that, “…I will table

that ruling until I actually hear the evidence, if it’s a bench trial, I will make a ruling following that

evidence of whether or not and you can make your objection” and “[s]et it down for bench trial

today, whatever date that’s convenient…”

¶8 On April 14, 2014, before defendant’s trial began, he signed a written jury waiver form, which

was tendered to the circuit 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.” At that

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same time, the following colloquy occurred between the trial court, defense counsel and

defendant: 1

“THE COURT: [Defendant], I am told you wanted to proceed with what’s called a bench
trial, is that right?

THE DEFENDANT: Yes.

THE COURT: At a bench trial I decide your guilt or innocence based upon my review
beyond a reasonable doubt. The decision will be mine and mine alone to make. Do you
understand that?

THE DEFENDANT: Yes.

THE COURT: When you take a bench trial you give up your absolute right to trial by jury
where a group of your peers would decide your guilt or innocence based on their review
of the evidence beyond a reasonable doubt. Any decision they make would have to be
unanimous, meaning they would all have to agree. Do you understand by taking a bench
trial you are giving up your right to a jury trial?

THE DEFENDANT: Yes.

THE COURT: Did anyone threaten you or promise you anything in order to make you
choose a bench trial?

THE DEFENDANT: No, Sir.

THE COURT: You are choosing a bench trial of your own free will?

THE DEFENDANT: Yes.

THE COURT: And that’s after talking about it with your attorney?

THE DEFENDANT: Yes.

1
Without objection by defendant, during the pendency of this appeal, we granted the State’s
request to file a corrected Report of Proceeding for this colloquy after discovering a scrivener’s
error. In the original transcript, defendant responded “Yes” when he as asked if anyone threatened
him or promised him anything in order to make him choose a bench trial.
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THE COURT: I find this man had made a knowing and intelligent and voluntary waiver of
his right to a trial by jury. I accept the jury waiver in writing. When you signed that
[defendant], you are telling me in writing, ‘I want you, Judge Ford, to decide my case’?

THE DEFENDANT: Yes.”

¶9 After the bench trial, the trial court found defendant guilty of eight counts of first degree

murder, one count of aggravated battery with a firearm, and two counts of unlawful use or

possession of a weapon by a felon. The trial court sentenced him to a total of 90 years’

imprisonment.

¶ 10 On direct appeal, defendant exclusively challenged the propriety of his sentence. In particular,

defendant argued that his conviction for aggravated battery with a firearm should be vacated

because it constituted a lesser-included offense of the felony-murder offenses, and that all but one

of his first degree murder convictions should be vacated. On June 17, 2017, we determined that all

first degree murder counts should merge, and the sentencing order should reflect a single

conviction and sentence for first degree murder, and we also affirmed defendant’s aggravated

battery conviction. The cause was remanded for correction of the mittimus. People v. Fox, 2017

IL App (1st) 143966-U.

¶ 11 On May 16, 2017, defendant filed a petition for post-judgement relief pursuant to section 2-

1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2022)). He argued that his

convictions were void as they were based upon a public act which violated the single subject rule.

The trial court dismissed the petition. On January 7, 2019, the United States Supreme Court denied

defendant’s writ of certiorari. Fox v. Illinois, 2019 U.S. LEXIS 133.

¶ 12 In March of 2021, defendant filed a petition for leave to file a late postconviction petition. In

his petition and in his attached affidavit, dated March 3, 2021, defendant made several allegations

surrounding the waiver of his right to a jury trial. He included allegations that his trial counsel was

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ineffective, his appellate counsel was ineffective, along with trial court error. Specifically, he

alleged that his trial counsel was ineffective, and the trial court abused its discretion, when neither

of them advised him of his right to a jury trial. According to defendant, counsel never advised him

of his right to a trial by jury, and the trial court never informed him of his right, but only told him

of the “consequences” behind taking a bench trial. Defendant averred that “he would have insisted

upon a jury trial had he known he had the right to choose a trial by jury because defendant heard

from other inmates in the Cook County Jail, that [the trial court] was a biased Judge.”

¶ 13 Defendant further alleged that his trial counsel was ineffective when counsel “threatened” him

to take a bench trial instead of a jury trial. He averred that his defense counsel told him that if he

proceeded with a jury trial, counsel “will not fight for defendant’s freedom.” In further support of

his claim, defendant relied upon the original version of the trial transcript before it was corrected

and argued that the record revealed that he responded “Yes,” when the trial court asked him if

anyone promised or threatened him to choose a bench trial.

¶ 14 Defendant also alleged that the trial court abused its discretion when it “failed to engage in an

adequate colloquy” regarding the voluntariness of defendant’s jury trial waiver after defendant

informed the trial court his decision was based upon threats. Defendant argued that, had the trial

court inquired further, it would have learned that defense counsel did not advise him of his right

to a jury trial and, instead, “threatened” defendant to take a bench trial or counsel “[would] not

fight for defendant’s freedom.” As to these claims, defendant also alleged that his appellate counsel

was ineffective for failing to raise these issues on direct appeal.

¶ 15 In defendant’s affidavit, he averred, in pertinent part:

“3. At no time prior to trial did my trial attorney [] advise me of my right to a jury

trial. Instead, [trial counsel] advised me to waive a jury and take a bench trial. [Trial

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counsel] threatened me by saying that if I took a jury trial, that [he] will not fight

for my freedom.

4. If [trial counsel] would have advised me of my right to a jury trial I would have

taken a jury trial because when I was in the Cook County Jail, the inmates there

talked about Judge Ford’s biasedness [sic].”

¶ 16 On June 8, 2021, the Honorable Diane Kenworthy issued a written order summarily dismissing

defendant’s postconviction petition. Initially, the postconviction court found that defendant’s

claims were barred by waiver when he failed to raise them on direct appeal. As to the substantive

issues, the postconviction court found that defendant was “duly admonished by the court”

regarding his waiver of his right to a jury trial. The postconviction court “decline[d] to conclude”

that defendant’s waiver of his right to a jury trial was unknowing or involuntary where his claim

amounted to defense counsel providing advice to defendant as to the most beneficial way to

proceed and therefore, amounted to trial strategy. As to defendant’s claim that the trial court abused

its discretion relating his reply of “Yes” to the trial court’s question as to whether anyone had

promised him or threatened him to take a bench trial, the postconviction court found that there was

no abuse of discretion based upon a review of the entire colloquy between the trial court and

defendant.

¶ 17 ANALYSIS

¶ 18 At the outset, we recognize that, on appeal, defendant exclusively challenges the

postconviction court’s decision to summarily dismiss his pro se postconviction petition allegation

of ineffectiveness of his trial counsel when trial counsel allegedly threatened to abandon him

unless he took a bench trial, thereby making his decision to waive his right to a jury trial

involuntary. He also argues that his appellate counsel was ineffective for failing to raise this claim

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on direct appeal. In his opening brief, in contending that his waiver of his right to a jury trial was

involuntary, defendant argues that his allegation that his trial counsel told him that he would no

longer “fight for [defendant’s] freedom” unless he agreed to a bench trial, was not positively

rebutted by the record. In doing so, he relies upon the original trial transcript showing that

defendant responded affirmatively when asked by the circuit court whether “anyone threatened or

promised him anything in order to make him choose a bench trial[.]”

¶ 19 However, the State subsequently submitted a corrected copy of that colloquy between

defendant and the circuit court showing that defendant responded, “No, sir” to the question as to

whether anyone had threatened or promised him anything in order to make him choose a bench

trial. The State pointed to the discussion that occurred between the trial court, defense counsel,

and defendant when the trial court accepted defendant’s written jury waiver, the fact that defendant

executed a signed, written jury waiver, as well as the two status dates in which defense counsel

and the trial court discussed, in defendant’s presence, that defendant would be seeking to proceed

with a bench trial. Thus, the State argued that defendant could not establish that his trial counsel’s

performance was arguably deficient because the trial record positively rebutted his claim that his

trial counsel threatened to abandon him unless he took a bench trial.

¶ 20 In his reply brief, defendant acknowledges the change in the transcript – showing that he

informed the trial court that no one had threatened or promised him to get him to waive his right

to a jury trial – and continues to argue the record does not positively rebut his claim. According to

defendant, the record did not positively rebut his claim because the admonishments showed that

he admitted that he spoke with his trial counsel about the waiver of his right to a jury trial, and

“[t]he record is still silent as to why he waived his right to a jury trial and the substance of his

conversation with his attorney.”

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¶ 21 Defendant’s challenge on appeal involves the summary dismissal of his pro se postconviction

petition. The Post-Conviction Hearing Act (Act) provides a procedural mechanism through which

a defendant may assert a substantial denial of his constitutional rights in the proceedings which

resulted in his conviction. 725 ILCS 5/122-1 et seq. (West 2018). At the first stage of

postconviction proceedings, the circuit court must determine whether the defendant’s

postconviction petition is “‘frivolous or is patently without merit.’” People v. Boykins, 2017 IL

121365, ¶ 9 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2014)). The circuit court may only

summarily dismiss a petition as frivolous or patently without merit where the petition “has no

arguable basis either in law or fact.” People v. Hodges, 234 Ill.2d 1, 16 (2009). A petition has “no

arguable basis either in law or in fact” where it is “based on an indisputably meritless legal theory

or a fanciful factual allegation.” Id. “An example of an indisputably meritless legal theory is one

that is completely contradicted by the record,” and “[f]anciful factual allegations include those that

are fantastic or delusional.” (Internal quotation marks omitted.) People v. White, 2014 IL App (1st)

130007, ¶ 18. During first stage postconviction proceedings, “the courts treat allegations of fact as

true so long as those allegations are not affirmatively rebutted by the record.” (Internal quotation

marks omitted.) Id. We review de novo the summary dismissal of a postconviction petition. People

v. Tate, 2012 IL 112214, ¶ 10. The trial court’s judgment is considered, not the reasons cited, and

that judgment may be affirmed on any basis supported by the record if the judgment is correct.

People v. Lee, 344 Ill.App.3d 851, 853 (1st Dist. 2003).

¶ 22 Defendant argues that his trial counsel was ineffective surrounding defendant’s decision to

waive his right to a jury trial. Defendants have a constitutional right to the effective assistance of

counsel at trial and on direct appeal under the United States Constitution and the Illinois

Constitution. People v. Jackson, 205 Ill.2d 247, 258-59 (2001); U.S. Const., amends. VI, XIV;

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Ill.Const. 1970, art. I § 8. Under the Strickland standard, “[t]o prevail on a claim of ineffective

assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient and

that the deficient performance prejudiced the defendant.” People v. Cathey, 2012 IL 111746, ¶ 23

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Specifically, the defendant must

demonstrate “that counsel’s performance was objectively unreasonable under prevailing

professional norms and that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.)

People v. Domagala, 2013 IL 113688, ¶ 36. During first-stage proceedings, “a defendant need

only show that he can arguably meet those two standards, i.e., it is arguable that his counsel was

deficient, and it is arguable that the outcome of his case would have been different absent the

deficient representation.” Id. (Emphasis in original.) It is well-established that “the Strickland

standard applies equally to claims concerning trial and appellate counsel. People v. Petranko, 237

Ill.2d 490, 497 (2010).

¶ 23 Both the United States Constitution and the Illinois Constitution guarantee a criminal

defendant the right to a trial by jury. People v. Bannister, 232 Ill.2d 52, 65 (2008). That right

includes the right to waive a trial by jury. Id. Section 103-6 of the Code of Criminal Procedure

provides that every person accused of a crime has the right to a jury trial unless that right is

“understandingly waived by the defendant in open court.” 725 ILCS 5/103-6 (West 2016). The

ultimate decision of whether to waive a jury trial, and thus proceed to a bench trial, belongs solely

to the defendant. People v. Ramey, 152 Ill.2d 41, 54 (1992) (“[T]hree decisions are ultimately for

the defendant in the criminal case after full consultation with his attorney: what plea to enter;

whether to waive a jury trial; and whether to testify in his behalf.”); People v. McCarter, 385

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Ill.App.3d 919, 943 (2008) (“[T]he prerogative to choose a bench trial over a jury trial belongs to

the defendant and not to his counsel.”); People v. Holley, 377 Ill.App.3d 809, 813 (3rd Dist. 2007).

¶ 24 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 voluntarily. People v. West, 2017 IL App (1st) 143632, ¶

10 (citing People v. Tooles, 177 Ill.2d 462, 468 (1997). Here, defendant signed a written jury

waiver which is one means by which a defendant may waive his right to a jury trial, but a written

waiver is not conclusively a valid waiver. People v. Bracey, 213 Ill.2d 265, 269 (2004). The

determination of the validity of a waiver depends on the facts and circumstances of a particular

case. Bracey, 213 Ill.2d at 269. A court need not give any specific admonishment or advice for a

waiver to be effective, and there is no precise formula to apply to determine whether a jury waiver

is valid. Id. “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.” West, 2017 IL App (1st) 143632, ¶ 10 (citing People v.

Bannister, 232 Ill.2d 52, 69 (2008). Thus, a jury waiver is generally valid where the defense

counsel waives that right in open court and the defendant does not object to the waiver. Bracey,

213 Ill.2d at 270.

¶ 25 Thus, we review defendant’s jury waiver in this case based on whether the record reflects the

waiver was made voluntarily, thereby positively rebutting defendant’s allegation that trial counsel

caused him to waive a jury trial by threatening to abandon his representation if defendant did not

proceed with a bench trial. People v. Knapp, 2020 IL 124992, ¶ 50 (if the postconviction

allegations are affirmatively rebutted by the record on appeal, the claims can be construed as

frivolous, and the court can dismiss the petition). Here, the State does not dispute defendant’s

argument that, if not positively rebutted by the record, would amount to deficient performance by

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trial counsel under the first prong of Strickland analysis. Moreover, the State does not dispute that

defendant has sufficiently alleged facts to establish the prejudice prong of Strickland analysis.

¶ 26 We agree with the State that defendant’s own words at the time that he acknowledged that he

was voluntarily waiving his right to a jury trial, together with his signature on his jury waiver,

contradict his postconviction claim that he waived his right to a jury trial in reliance upon his trial

counsel’s threat to only represent him if he chose a bench trial. Even taking defendant’s allegations

as true and construing them liberally (People v. Allen, 2015 IL 113135, ¶ 25), the alleged off-the-

record conversation with counsel on defendant’s right to a jury trial occurred before the trial court’s

admonishments. After the trial court’s admonishments, defendant confirmed on the record that no

one had threatened or promised him anything in order to make him choose a bench trial. In addition

to the oral admonishments, defendant also executed a written jury waiver.

¶ 27 While we agree that the record shows that defendant voluntarily waived his right to a jury trial,

we also acknowledge how difficult it is for a defendant, standing next to his or her attorney, to tell

the court if they have been threatened or intimidated by their counsel. The problem is exacerbated

by the concern that a trial court cannot ask about these conversations without opening the door to

waiver of attorney-client privilege. In addition, we recognize that a trial court need not give any

specific admonishment or advice for a waiver to be effective (Bracey, 213 Ill.2d at 269), however,

we encourage trial courts, before accepting a written jury waiver, to admonish defendants so that

they understand the role and function of the judge and jury, the consequences of his or her choice,

and that this decision belongs to the defendant alone. We emphasize that a defendant’s right to a

jury trial is fundamental. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. Because

of its importance, the trial court has an independent duty to ensure that defendant’s waiver is

voluntary and knowing. Bannister, 232 Ill.2d at 66. Moreover, while “a written jury waiver merely

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memorializes the defendant’s decision,” (Bannister, 232 Ill.2d at 66), a more comprehensive

written jury waiver than the one used in this case, as well as other cases, could provide more

specific context to the assist defendants in making a fully informed decision as to whether they

should waive their right to a jury trial.

¶ 28 In so holding, we consider the cases cited by the parties in support of their positions. For

instance, we find that defendant’s reliance on People v. Smith, 326 Ill.App.3d 831 (1st Dist. 2001),

is misplaced. In Smith, the defendant alleged in his postconviction petition that his attorney told

him that he should take a bench trial because the judge owed him a favor and would have access

to information that was unavailable to the jury. Smith, 326 Ill.App.3d at 838. The defendant’s

petition was dismissed at the second stage of postconviction proceedings. The Smith court held

that the defendant’s petition should advance to the third stage of postconviction review upon

finding that the defendant’s signed jury waiver and the trial court’s admonitions when securing the

defendant’s oral waiver did not rebut the defendant’s claim that his counsel pressured him to waive

his right to a jury trial. Id. at 847-49. Specifically, the Smith court noted that when the trial court

admonished the defendant regarding his desire to waive the right to a jury trial, “[a]t no time

[during those admonitions] did the trial judge ask the defendant whether he had been promised

anything in exchange for giving up his right to a jury trial.” Id. at 848-49.

¶ 29 Thus, in Smith, the court found that the record may positively rebut a defendant’s claim that

his trial counsel threatened him to take a bench trial by looking at whether the trial court asked

defendant whether he had been threatened or promised anything in exchange for giving up his right

to a jury trial. Building upon the holding in Smith, the record here positively rebuts defendant’s

allegation where the trial court specifically asked defendant whether he had been promised

anything or threatened by anyone in exchange for giving up his right to a jury trial.

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¶ 30 Both parties also discuss the impact of People v. Knapp, 2020 IL 124992, ¶¶ 53-54, a case in

which our supreme court found that the defendant’s allegations were directly rebutted by the trial

court’s admonishments. In Knapp, the trial court summarily dismissed the defendant’s

postconviction petition in which he alleged that defense counsel was ineffective for providing “bad

advice” on his right to testify. The defendant averred that counsel told him that he could not testify

unless there was corroborating evidence to support his testimony. Essentially, the defendant’s

claim was that his decision to waive his right to testify was not knowingly or voluntary because of

defense counsel’s bad advice.

¶ 31 In looking at whether the record positively rebuts the defendant’s allegation, our Supreme

Court found that “the record contains nothing to suggest that petitioner ever alerted the trial court

of his desire to testify, that he had any questions about his right to testify, or that he otherwise was

unsure about waiving his right to testify.” Knapp, 2020 IL 124992, ¶ 51 (citing People v. Smith,

176 Ill.2d 217 (1997) (“…defendant’s waiver of his right to testify is presumed if *** he fails to

testify or notify the court of his desire to do so”). However, our Supreme Court found that the

“record demonstrates that petitioner not only understood his right to testify but that it was

petitioner’s decision not to testify” where the circuit court admonished the defendant that his

decision to testify was his decision and his alone, after consulting with his attorney, and the

defendant immediately confirmed that it was his decision not to testify. Id. ¶ 53.

¶ 32 Defendant seeks for us to distinguish Knapp on the basis that “the trial court gave no such

admonishment that the right to a jury trial was [defendant’s] alone.” While true, following Smith,

we find that the defendant’s allegation that his decision to waive his right to a jury trial was

involuntary was positively rebutted by the trial court’s admonishments as to whether anyone had

promised him anything or threatened him in making his decision to waive his jury trial. Smith. 326

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Ill.App.3d at 848-49. Notably, in Knapp, the trial court never asked the defendant whether he had

received any threats or promises regarding this decision. Knapp, 2020 IL 124992, ¶ 26. Therefore,

in Knapp, the court merely looked at other admonishments to determine whether a defendant’s

claim of an involuntary waiver was positively rebutted by the record.

¶ 33 Recently, and after the parties filed their briefs, we issued the decision in People v. Rouse,

2022 IL App (1st) 210761. In Rouse, the defendant’s allegations surrounded whether his decision

to waive his right to a jury trial was made knowingly. Specifically, he alleged that his trial counsel

was ineffective when counsel “prevented” him from exercising his right to a jury trial because of

an off-the-record conversation. Rouse, 2022 IL App (1st) 210761, ¶ 17. The defendant alleged that

he decided to waive his right to a jury trial after counsel told him that he should “take a bench

trial.” Id. ¶ 17. When the defendant told trial counsel that he believed a guilty verdict after a bench

trial would be harder to appeal, trial counsel told him that his belief was a myth and that “if [the

defendant] did not take a bench trial, she would withdraw from representing him.” Id. The

defendant further alleged that the trial court’s admonishments did not make clear that he could

have told the court about counsel telling him that she would withdraw and that he “took trial

counsel’s admonishments to heart because he had ‘a brief criminal history [and had] never been to

trial before.” Id.

¶ 34 Here, defendant’s contention does not surround whether he knowingly waived his right to a

jury trial, and instead, concerns whether he voluntarily waived this right. Specifically, in Rouse,

we found that the defendant “does not allege that counsel ‘threatened’ him; rather he alleges that

he did not know that he could go over his counsel’s head and choose a jury trial when she insisted

on a bench trial.” Id. ¶ 39. Because defendant’s allegation in the instant case surrounds whether he

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voluntarily waived his right to a jury trial, as opposed to whether he knowingly waived that right,

the holding in Rouse is distinguishable.

¶ 35 In defendant’s reply brief, after he acknowledged the correction to the trial transcript, he argued

that the record does not positively rebut his claim because “[t]he record is still silent as to why he

waived his right to a jury trial and the substance of his conversation with his attorney.” Notably,

he does not cite to any case in which a court has required an explanation for why a defendant chose

to waive his right to a jury, and we decline to find that the record must specifically explain why a

defendant choose to waive his right to a jury trial in order for a reviewing court to find that the

record positively rebuts a defendant’s allegation.

¶ 36 Regarding his argument that, to find that the record positively rebuts a defendant’s allegation,

the record must specifically rebut the actual substance of the conversation, we find no support for

this claim. For instance, in Smith and in Knapp, the courts only looked at whether the record,

specifically the admonishments, showed that defendant was asked if he had been

promised/threatened by anyone in evaluating the record and did not look at the issue in terms of

whether the specific out-of-court statement was positively rebutted. Smith, 326 Ill.App.3d at 848-

49; Knapp, 2020 IL 124992, ¶ 53. Defendant’s suggestion also ignores that this claim concerns an

out-of-court statement made to defendant and therefore not be part of the record on appeal unless

defendant or his trial counsel informed the trial court of its existence.

¶ 37 Moreover, he cites to People v. McGee, 2021 IL App (2d) 190040, ¶ 38 (citing People v.

Simms, 2021 IL App (1st) 161067-B), for the proposition that “[c]ontradictions between the

defendant’s averments and the trial evidence are not enough” to establish that the record is

positively rebutted. In McGee, the defendant’s appeal involved a claim that his trial counsel failed

to convey a plea offer before the time that the offer had expired. McGee, 2021 IL App (2d) 190040,

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¶ 35. Thus, McGee did not involve the issue presented or the facts of the instant case where there

existed oral admonishments by the trial court in which the defendant acknowledged his

understanding of his right to waive a bench trial.

¶ 38 Because we find no merit to this claim, we similarly find no merit to defendant’s claim that

appellate counsel was ineffective for failing to raise the same issue on direct appeal. People v.

Enis, 194 Ill.2d 361, 388 (“A defendant suffers no prejudice from appellate counsel’s failure to

raise an issue on direct appeal where the underlying issue is not meritorious.”). Furthermore, this

claim was based on evidence outside the trial record, meaning that appellate counsel could not

have brought the claims in the first instance. See People v. Youngblood, 389 Ill.App.3d 209, 214

(2d Dist. 2009) (nothing that matters outside the record may not be raised on direct appeal).

¶ 39 In sum, we find that there was no arguable basis to defendant’s postconviction claim that his

trial counsel was ineffective when trial counsel allegedly threatened to abandon him unless he took

a bench trial, thereby making his decision to waive his right to a jury trial involuntary. Finding no

merit to this contention, we likewise find that there is no arguable basis for defendant’s claim that

his appellate counsel was ineffective for failing to raise this issue on direct appeal. Therefore, we

find that defendant failed to set forth the gist of a constitutional claim that satisfied the low

threshold for pleading a claim at the first stage of postconviction proceedings. Accordingly, we

affirm the trial court’s summary dismissal of defendant’s postconviction petition.

¶ 40 CONCLUSION

¶ 41 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 42 Affirmed.

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