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2 August 2000

Respondent, R.A.B., appeals from his adjudication ofdelinquency as a violent juvenile offender. Respondent contendsthat he did not knowingly waive his right to a jury trial pursuantto subsection 5--36(d) of the Juvenile Court Act of 1987 (Act) (705ILCS 405/5--36(d) (West 1996) (now 705 ILCS 405/5--820 (West1998))) and that, as the stipulated bench trial was tantamount toan admission, he did not knowingly waive his privilege againstself-incrimination. We reverse and remand.

The record shows that, on June 19, 1998, the victim (a minor)was outside her home showing some friends $100 that she hadreceived as a gift for graduation. Respondent's little brother snatched a $10 bill from the victim's hand but immediately returnedit. The victim placed the bill in her pocket. Respondent,observing the occurrence, pushed the victim with one hand andgrabbed the remaining $90 with his other hand. Respondent and thevictim struggled, and the victim bit respondent on the arm in anattempt to retain her money. Respondent nevertheless succeeded intaking the $90 from the victim and fled the scene in a friend'scar.

The victim recognized respondent and knew where he lived. Sheand her mother attempted to retrieve the money by going torespondent's home, but they were unsuccessful. The victim thencontacted the police.

Following an interview with the victim, Detective Naydenoffapproached respondent. Respondent admitted taking the victim'smoney, saying that the victim deserved it because she should nothave been flashing the money around like that. Respondent toldNaydenoff that he had spent the money on food and movies.

On June 25, 1998, the State filed a delinquency petitionalleging that respondent had committed the offense of robbery. Onthat day, the State also filed both a notice of its intent toprosecute respondent as a violent juvenile offender pursuant tosection 5--36 of the Act (705 ILCS 405/5--36 (West 1996)) and amotion to prosecute respondent as an adult. Following a transferhearing, the trial court determined that respondent should not beprosecuted as an adult. Thereafter, respondent filed a motion tosuppress statements, a motion to suppress identification, and amotion to dismiss the violent juvenile offender petition. OnNovember 20, 1998, the trial court denied respondent's motion todismiss and set December 4, 1998, for a hearing on respondent'smotions to suppress.

On December 4, 1998, respondent withdrew the motions tosuppress and the following exchange occurred:

"MS. ZAHRIEH [Respondent's counsel]: Judge, we aresomewhat changing our answer. We would be stipulating that ifthe State put on witnesses, that [sic] the court would findthe petitions proven.

MS. ORTON [Prosecutor]: Your Honor, this is essentiallya stipulated bench trial.

THE COURT: Okay, what's the difference between astipulated bench trial and actual admission to the charge?

MS. ORTON: My understanding, your Honor, is that you,that in order to pursue an appeal regarding the court's rulingon the minor's petition regarding the violent juvenileoffender petition by the People, in order to pursue an appeal,that, in fact, minor need to only stipulate or go through astipulated bench trial, rather than actually admit thepetition.

THE COURT: Is that the manner in which you wish toproceed?

MS. ZAHRIEH: Yes, sir."

The State presented the stipulated evidence against respondent andthe following exchange occurred:

"THE COURT: [Respondent], at this time this is astipulated bench trial, in that this is the evidence if thecase were to proceed forward the State would produce. It doesappear to be sufficient beyond a reasonable doubt to sustainthe *** charges that have been filed. Actually one count ofburglary, one count of theft [both counts on a petition not atissue in this appeal] and one of the two counts of robbery.

You do, however, have the right to have a formal hearing,where the witnesses were required to appear in the courtroom,then subject them to cross-examination.

And if you proceeded in this way, however, the stipulatedbench trial, these are the rights you're giving up. The onlyother trial there will be is what the [S]tate's [A]ttorney hasjust elicited, do you understand this?

MINOR RESPONDENT: Yes.

***

[The trial court explained the possible penalties facedby respondent, and respondent indicated he understood.]

***

THE COURT: Bearing everything in mind that I haveexplained to you, also the possible consequences, is it youragreement to proceed this way on a stipulated bench trial, or,in fact, do you wish to have the witnesses brought into courtand proceed to trial?

MINOR RESPONDENT: I'd like to admit, sir.

THE COURT: All right, this is not really in the natureof an admission. You're not admitting to the charges, butwhat you're doing is not contesting the State's evidence.

MINOR RESPONDENT: I don't want to go to trial.

THE COURT: You actually do not want a trial beyond whathas occurred this morning, is that right?

MINOR RESPONDENT: Yes.

THE COURT: All right. You're making that decision ofyour own free will?

MINOR RESPONDENT: Yes.

THE COURT: Okay, on that basis then I'm going to concurand proceed this morning as a stipulated bench trial. Andwill then indicate that my findings are the evidence submittedby the state's attorney is sufficient beyond a reasonabledoubt to sustain *** the charge of robbery as alleged in casenumber 98 JD 701."

On December 16, 1998, the trial court committed respondent tothe Department of Corrections until the age of 21. Respondentfiled a motion to reconsider, which the trial court denied, andthis timely appeal followed.

On appeal, respondent contends that he did not knowingly waivehis right to a jury trial under section 5--36(d) of the Act (705ILCS 405/5--36(d) (West 1996)). As an initial matter, we note thatrespondent did not raise this error in the court below. Ordinarily, this failure would foreclose our consideration of thiserror under principles of waiver; however, as the knowing waiver ofthe right to a jury trial is a fundamental right, we may considerthis issue under the doctrine of plain error. 134 Ill. 2d R.615(a); People v. Taylor, 291 Ill. App. 3d 18, 20 (1997).

Section 5--36(d) of the Act provides that a "[t]rial on thepetition shall be by jury unless the minor demands, in open courtand with advice of counsel, a trial by the court without a jury."705 ILCS 405/5--36(d) (West 1996). The interpretation of thisprovision is an issue of first impression. We note that,analogously to section 5--36, section 103--6 of the Code ofCriminal Procedure of 1963 (Code) (725 ILCS 5/103--6 (West 1998))provides that the right to a jury trial must be "understandinglywaived by defendant in open court." Additionally, section 115--1of the Code (725 ILCS 5/115--1 (West 1998)) requires jury waiversto be in writing. Thus, we look to the Code, and the casesinterpreting the waiver of the right to a jury trial, for guidancein interpreting section 5--36 of the Act.

The determination of whether the right to trial has beenunderstandingly waived turns on the facts and circumstances of eachparticular case. People v. Lombardi, 305 Ill. App. 3d 33, 39(1999). No particular admonition or advice to a defendant orrespondent is required before an effective jury waiver may be made. People v. Tooles, 177 Ill. 2d 462, 469 (1997). The failure toobtain a written jury waiver does not constitute reversible errorso long as the waiver was understandingly made in open court. People v. Scott, 186 Ill. 2d 283, 285 (1999).

Applying these principles to the case at bar, we conclude thatrespondent did not expressly and understandingly waive his right toa jury trial. No written jury waiver appears in the record. Thereis also no record of any discussion of respondent's right to a jurytrial appearing in any of the transcripts. The transcript of theDecember 4 hearing, quoted above, demonstrates that, although thetrial court admonished respondent concerning his right to confrontand examine witnesses and the possible penalties he faced, thetrial court failed to suggest that respondent had a right to a jurytrial and would be waiving that right by agreeing to the stipulatedbench trial. Thus, the record is, at best, silent concerning theissue of respondent understandingly waiving his right to a jurytrial. Where the record is sufficiently complete, an understandingjury waiver will not be found on a silent record. Taylor, 291 Ill.App. 3d at 20. (We also note that respondent indicates thattranscripts to several hearings were not included in the record andavers that the record is nevertheless sufficient to review hisclaim on appeal. The State does not contest the sufficiency of therecord. Additionally, we further note that, "[i]f the Statebelieves that the jury waiver was made on an occasion other thanthat suggested in the record, then the record may be supplemented,at the State's request, with the corresponding report." People v.Smith, 106 Ill. 2d 327, 335 (1985).) Accordingly, we concludethat, in the absence of an express and understanding jury waiver,this cause must be remanded for a new trial.

The State argues that respondent's counsel waived a jury trialas a result of her actions. The State contends that respondentacquiesced to the jury waiver because he failed to object tocounsel's statement that respondent would be proceeding by way ofa stipulated bench trial. We disagree.

The State correctly notes that an effective waiver may occurwhere a defendant's attorney makes an affirmative statement in opencourt and in the defendant's presence and the defendant does notobject. People v. Frey, 103 Ill. 2d 327, 332 (1984); People v.Murrell, 60 Ill. 2d 287, 290 (1975); Lombardi, 305 Ill. App. 3d at40; People v. Silas, 278 Ill. App. 3d 400, 403 (1996); People v.Tucker, 183 Ill. App. 3d 333, 335 (1989). This rule, however, doesnot apply to this case because respondent was not given theopportunity to waive a jury trial; he was not even informed by thetrial court that he had the right to choose a jury trial over abench trial. Counsel's statement, that she was stipulating to thesufficiency of the State's evidence, was insufficient to informrespondent that he was waiving his right to a jury trial; indeed,the State, and not respondent's counsel, first supplied the term ofart, "stipulated bench trial." The trial court merely informedrespondent that he would be giving up his right to confront andexamine witnesses if he agreed to proceed by the stipulated benchtrial and did not mention that respondent would also be giving uphis right to a jury trial. Thus, contrary to the State'scontentions, the record does not show that respondent's counselmade an affirmative representation that respondent would accept abench trial in lieu of a jury trial.

Moreover, the cases cited by the State are alldistinguishable. In Frey and Silas, the defendant made an oralwaiver of his right to a jury trial at some point prior to thebeginning of the bench trial. Frey, 103 Ill. 2d at 332-33; Silas,278 Ill. App. 3d at 401. Here, by contrast, there is no record ofrespondent ever making any sort of waiver.

In Lombardi, the defendant's counsel stated that the defendantwas " 'ready for the bench trial' " and " 'wish[ed] to proceed onthe bench trial as planned,' " with the defendant making noobjection. Lombardi, 305 Ill. App. 3d at 40. In addition, beforethe end of the trial, the trial court questioned the defendant andascertained that she had understandingly waived her right to a jurytrial. Lombardi, 305 Ill. App. 3d at 38-39, 40. Thus, inLombardi, the defendant acquiesced to her counsel's affirmativestatement that the defendant would take a bench trial. In thiscase, however, respondent's counsel did not make an affirmativestatement and respondent was never questioned about relinquishinghis right to a jury trial.

In Tucker, the defendant's counsel responded that thedefendant wanted a bench trial after the trial court asked if thedefendant was pursuing a jury trial. Tucker, 183 Ill. App. 3d at334. Thus, the defendant was given the choice between taking abench or jury trial. In this case, respondent was never asked tochoose.

In Murrell, it is unclear as to what the facts surrounding the jury waivers were. The court held that each attorney's waiverof a jury trial was effective against each defendant. Murrell, 60Ill. 2d at 291. Here, respondent's counsel did not respond to achoice offered by the trial court or otherwise affirmatively act towaive respondent's right to a jury trial.

Instead, we find Taylor to be more factually similar to thecase at bar than any case cited by the State. In Taylor, there wasno written jury waiver, and the record was silent concerningwhether the defendant was ever given a choice of conducting a benchor a jury trial. Taylor, 291 Ill. App. 3d at 21. Likewise, inthis case, there was no written jury waiver and no record ofrespondent ever having been given his choice between proceeding bya bench trial or a jury trial. Accordingly, because the recorddoes not show that respondent understandingly waived his right toa jury trial, the cause must be remanded for a new trial.

Based on our resolution of the jury waiver issue, we need notaddress respondent's remaining argument. We note that, as theevidence adduced before the trial court was sufficient to sustaina finding that respondent committed robbery beyond a reasonabledoubt, there will be no double jeopardy violation in case of a newtrial on this cause. See Taylor, 291 Ill. App. 3d at 21.

The judgment of the circuit court of Du Page County isreversed, and the cause is remanded.

Reversed and remanded.

GEIGER and GALASSO, JJ., concur.