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1-01-0245

JUSTICE REID delivered the opinion of the court:

Following a bench trial, Yusef Owens (Owens) was convicted of reckless driving. 625ILCS 5/11-503 (West 2000). Owens claims the trial court conducted the bench trial without firstadmonishing him of his right to a jury trial and without getting a valid jury waiver beforeproceeding. For the reasons that follow, we reverse the trial court's judgment and remand for anew trial consistent with the views expressed herein.

The misdemeanor complaint alleged that Owens, with a wanton disregard for the safety ofpersons or property, drove over the curb and onto the easement, swerved from side to side, andnearly struck several parked vehicles. The complaint also alleged that Owens, when boxed in bypolice vehicles, placed his car in reverse and struck one of the police cars in an attempt to flee. The other complaints included charges for having no valid front license plate, failure to reducespeed to avoid an accident, driving under the influence of alcohol, operating an uninsured motorvehicle, and driving on an expired driver's license.

The record shows that the trial court called the case but passed it because Owens'attorney was not present. When the case was recalled, the following exchange took place, afterwhich the trial took place without further objection:

"THE COURT: Mr. Owens, did I previously admonish youof a jury--

THE DEFENDANT: Yes.

THE COURT: All right. I thought I did."

At the close of the State's case in chief, Owens moved for a directed finding on allcharges. The trial court granted the motion as to the driving under the influence charge butdenied the motion as to the reckless driving charge and the other minor charges. At the end ofthe trial, the court found Owens guilty of reckless driving and the other minor charges. He wassentenced to 20 days in the Cook County Department of Corrections for the reckless driving andfined on the other minor charges, the incarceration satisfying all previous fines. His notice ofappeal only makes reference to the judgment of guilt of reckless driving entered on December 18,2000.

Owens argues that the trial court deprived him of his constitutional right to a jury trial bynot admonishing him as to the right to a jury trial. Owens claims that the trial court failed tosecure a knowing, voluntary, intelligent jury waiver. Owens admits he did not include this issuein a motion for a new trial, but he now argues that it should be reviewed by this court under theplain error doctrine because the error is of such a magnitude that it denied him a fair trial.

Owens argues error because the United States and Illinois Constitutions guarantee theright to a trial by jury, yet there is no proof in the record of a knowing, intelligent jury trialwaiver. Here the colloquy between the trial court and the defendant is incomplete. It makesreference to some prior conversation having something to do with a jury, but the language is nomore illuminating than that. Beyond that incomplete, unclear colloquy, the transcript ofproceedings in the record is silent. The common law record does not contain a signed, writtenjury waiver. It does contain notations on the half-sheet and the order of sentence andcommitment to the Department of Corrections suggesting that jury trial was waived.

The State responds that the issue has been waived by Owens' failure to preserve it below. The State argues that plain error review is not called for because the evidence is neither closelybalanced nor is the error of such a magnitude that the defendant was denied a fair trial. The Stateargues that the evidence of intoxication, reckless driving, running up on the curb and grasseasement, stopping the car in the middle of the street, and almost striking the parked cars isoverwhelming evidence of guilt. The State also argues that opting for a bench trial should beconsidered a knowing waiver of the right to a jury because Owens was represented by counsel. The State further argues that the implication of the notation on the half-sheet and order ofsentence and commitment should be considered as well. Finally, the State argues that Owens'failure to object during the proceedings implies he was fine with a bench trial.

The issue in this case involves whether Owens knowingly waived his right to a jury trial. Since the facts are not questioned, the issue is a question of law. Accordingly, our review is denovo. In re R.A.B., 197 Ill. 2d 358, 362 (2001), citing Woods v. Cole, 181 Ill. 2d 512, 516(1998). The right to trial by jury is fundamental to the American criminal justice system. Peoplev. Smith, 326 Ill. App. 3d 831, 847 (2001), citing Duncan v. Louisiana, 391 U. S. 145, 149, 20 L.Ed. 2d 491, 496, 88 S. Ct. 1444, 1447 (1968). Both the United States Constitution and theIllinois Constitution provide for jury trials in criminal cases. Smith, 326 Ill. App. 3d at 847,citing U.S. Const. amends. VI, XIV; Ill. Const. 1970, art. I,