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No. 3--02--0346

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE HOLDRIDGE delivered the Opinion of the court:

The defendant, Chawn Allan Spracklen, was charged withdriving under the influence (625 ILCS 5/11--501(a)(2) (West1998)). After filing a written waiver of his right to a trial byjury, he moved to withdraw his waiver. His motion was denied. Following a bench trial, the defendant was found guilty andsentenced to one year of conditional discharge. On appeal, heargues that he did not knowingly and understandingly waive hisright to a jury. We reverse the denial of the defendant's motionto withdraw his jury waiver, vacate his conviction, and remandfor further proceedings.

BACKGROUND

On July 25, 1999, the defendant was issued a citation fordriving under the influence. He submitted a written demand for ajury trial on August 9, 1999. After multiple continuances,however, he filed a written waiver of his right to a jury trial. This document includes the defendant's signature and the hand-written date "7-11-01," but was not file stamped by the trialcourt. The waiver document states, "I further waive my right tohave these proceedings recorded verbatim by a court reporter."

The record does not include a verbatim transcript of anyproceeding in which the defendant waived his right to a jury. The record also does not include a bystander's report, an agreedstatement of facts, or other record of such a hearing. Therecord is devoid of a docket sheet entry or other document toindicate that the defendant appeared in open court concerning hisjury waiver. However, a court document, which is file stampedAugust 17, 2001, states that the defendant's case was "set forBench trial on September 28, 2001 ***."

Following another series of continuances and thesubstitution of a new defense attorney, the defendant filed a"Motion To Vacate Withdrawal Of Jury Demand," on February 20,2002. The record includes a transcript of the hearing on thismotion held on March 18, 2002.

At the hearing, the defendant was the sole witness. Hetestified that on the day he signed the jury waiver document, hehad "a Court date." The defendant spoke with his former attorneyby phone prior to coming to the courthouse. According to thedefendant, his former attorney wanted the defendant to meet oneof the former attorney's associates at the courthouse for thedefendant "to sign a waiver."

On direct examination, the defendant claimed that his formerattorney did not discuss with him what the jury waiver meant. The defendant said that the attorney only told him that "it's awaiver for a jury and that way we will have a bench." Thedefendant claimed that when he asked the attorney what he meantby a "bench," the attorney "said no more and that was it." Oncross-examination, however, the defendant admitted that hisformer attorney explained the meaning of a bench trial by saying"that you go in front of a Judge."

The defendant submitted that when he signed the jury waiverdocument, he "figured we were just waiving it for that day, togive [his attorney] more time to process the paperwork and geteverything prepared." The defendant said that after he signedthe waiver document at the courthouse, he did not go into acourtroom or "in front of a Judge."

At the conclusion of the hearing, Judge Erik I. Blanc statedthat he found the defendant's testimony not to be credible. Judge Blanc said,

"Judge Nemenoff took this waiver and in myexperience[,] Judge Nemenoff is thorough about advisingpeople of their rights.

* * *

This case is currently 2 and a half years old. Ispecifically find that this is an effort by theDefendant to further delay this case and the Motion isdenied."

Following a bench trial, the defendant was found guilty andwas sentenced. The defendant appealed.

ANALYSIS

The defendant argues that he did not knowingly andunderstandingly waive his right to a jury trial. The Statecontends that the defendant's uncorroborated testimony isinsufficient to overcome the presumption that the trial judgequestioned the defendant concerning waiver of his right to ajury. The State also submits that because the defendant failedto include a report of the proceedings in which he moved towithdraw his jury waiver, we must affirm. We disagree with bothof the State's contentions.

The State is correct that as the appellant in this case, itis the defendant's burden to include those matters in the recordnecessary for the issues to be reviewed. The lack of such arecord from the trial court requires that we affirm issues whichmay depend on missing facts for their resolution. People v.Scruggs, 161 Ill. App. 3d 468, 514 N.E.2d 807 (1987). Failure todemonstrate the existence of error in the record creates apresumption of regularity that attaches to all trial courtproceedings. People v. Majer, 131 Ill. App. 3d 80, 475 N.E.2d269 (1985).

However, in this case, the defendant has supplied us withthe transcript of the hearing on his motion to withdraw his jurywaiver, which includes the facts regarding the issue before us. It would be a logical absurdity for us to require the defendantto produce a record of a proceeding that he claims never tookplace, i.e., a hearing in which he waived his right to a jury. Therefore, we disagree with the State's contention that therecord supplied to us by the defendant is inadequate.

The State cites Marin v. Grimm, 37 Ill. App. 3d 979, 347N.E.2d 418 (1976), for the proposition that the defendant'suncorroborated testimony was insufficient to overcome thepresumption that the trial judge followed the proper procedure inaccepting the defendant's jury waiver. Marin concerned whether asheriff's return of service was sufficient to overcome thedefendant's affidavit saying that she was not served withprocess. The Marin court said that the sheriff's return ofservice was sufficient.

Marin is inapplicable to the present case both because itconcerned a civil matter, and because it concerned which of twocompeting documents in the record would prevail. The instantcase is a criminal matter and does not concern competingdocuments. Thus, Marin is inapposite to the present case. Wereject the State's contention that the defendant's uncorroboratedtestimony was insufficient to overcome the presumption that thetrial judge questioned the defendant concerning waiver of hisright to a jury.

Every person accused of an offense has the right to a jurytrial unless that right is understandingly waived in open court. 725 ILCS 5/103--6 (West 2000). The Illinois Supreme Court hasstated that a written jury waiver, standing alone, isinsufficient to prove a valid waiver of the right to trial byjury. The court said that it never has found a valid jury waiverunless the defendant was present in open court when a jury waiverwas at least discussed. It is necessary for a defendant toacknowledge in open court his knowing and understanding waiver ofhis right to trial by jury. People v. Lindsey, 201 Ill. 2d 45,772 N.E.2d 1268 (2002); People v. Scott, 186 Ill. 2d 283, 710N.E.2d 833 (1999). The decision concerning whether to allow adefendant to withdraw a jury waiver is within the trial court'ssound discretion. People v. Montgomery, 192 Ill. 2d 642, 736N.E.2d 1025 (2000).

In this case, the record does not include any documentindicating that the defendant knowingly and understandinglywaived his right to a jury trial in open court. His written jurywaiver standing alone is insufficient. The legal standard forwhether the defendant's right to a jury trial was knowingly andunderstandingly waived in open court does not include weighingthe credibility of the defendant's testimony against the judge'sopinion of how thorough another judge may be. The legal standardalso does not include whether the judge believes that thedefendant is attempting to delay the proceedings. Therefore, wehold that the trial court abused its discretion by denying thedefendant's motion to withdraw the waiver of his right to trialby jury.

CONCLUSION

For the foregoing reasons, we reverse the judgment of theTazewell County circuit court denying the defendant's motion towithdraw his jury waiver. We vacate the defendant's convictionand remand for further proceedings.

Reversed and remanded.

LYTTON, P.J., and MCDADE, J., concur.