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Docket No. 90345-Agenda 13-May 2001.

In re R.A.B., a Minor (The People of the State of Illinois,
Appellant, v. R.A.B., Appellee).

Opinion filed September 20, 2001.

JUSTICE GARMAN delivered the opinion of the court:

In June 1998, the State filed a delinquency petition againstrespondent, R.A.B., as a delinquent minor, alleging he committedtwo counts of robbery. After a stipulated bench trial, the circuitcourt of Du Page County adjudicated respondent a violent juvenileoffender and committed him to the Department of Correctionsuntil his twenty-first birthday. On appeal, respondent argued thathe did not knowingly waive his right to a jury trial under theJuvenile Court Act of 1987 (Act) (705 ILCS 405/5-36(d) (West1996) (now 705 ILCS 405/5-820 (West 1998)) and that, becausethe stipulated bench trial was tantamount to an admission, he didnot knowingly waive his privilege against self-incrimination. Theappellate court agreed that the respondent did not knowinglywaive his right to a jury trial and reversed and remanded. 315 Ill.App. 3d 620. We granted the State's petition for leave to appealpursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315).

BACKGROUND

On June 25, 1998, the State filed a delinquency petitionpursuant to section 5-3 of the Act (705 ILCS 405/5-3 (West1996)) against the 16-year-old respondent, charging him with twocounts of robbery (720 ILCS 5/18-1(a) (West 1996)). The petitionalleged that respondent committed robbery when he grabbed $90from the hand of Nicole Lenz and took the money by use of forceand by threatening the imminent use of force. The State also filedmotions indicating its intent to prosecute respondent as a violentjuvenile offender (705 ILCS 405/5-36 (West 1996)) and under thecriminal laws as an adult (705 ILCS 405/5-4(3)(a) (West 1996)).Following a transfer hearing, the circuit court denied the State'smotion to prosecute respondent as an adult. Thereafter, respondentfiled two motions to suppress and a motion to dismiss the State'spetition seeking adjudication as a violent juvenile offender. InNovember 1998, the circuit court denied the respondent's motionto dismiss and set respondent's motions to suppress for hearing onDecember 4, 1998.

On that date, respondent withdrew the motions to suppressand the following exchange occurred regarding the stipulatedbench trial:

"MS. ZAHRIEH [respondent's attorney]: We would bestipulating that if the State put on the witnesses, that thecourt would find the petitions proven.

MS. ORTON [Assistant State's Attorney]: Your Honor,this is essentially a 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 thatyou, that in order to pursue an appeal regarding the court'sruling on the minor's petition regarding the violentjuvenile offender petition by the People, in order topursue an appeal, that, in fact, minor need to onlystipulate or go through a stipulated bench trial, rather thanactually admit the petition.

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

MS. ZAHRIEH: Yes, sir."

The State then presented the facts for the stipulation and thefollowing 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. Itdoes appear to be sufficient beyond a reasonable doubt tosustain the two charges-three charges that have beenfiled.

* * *

THE COURT: You do, however, have the right to havea formal hearing, where the witnesses were required toappear in the courtroom, then subject them to cross-examination.

And if you proceeded this way, however, the stipulatedbench trial, these are the rights you're giving up. The onlyother trial there will be is what the state's attorney has justelicited, do you understand this?

MINOR RESPONDENT: Yes."

The circuit court explained the possible penalties involved in thiscase and the respondent stated that he understood. After thesestatements, the following exchange occurred:

"THE COURT: Bearing everything in mind that I haveexplained to you, also the possible consequences, is ityour agreement to proceed this way on a stipulated benchtrial, or, in fact, do you wish to have the witnessesbrought into court and 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 beyondwhat has occurred this morning, is that right?

MINOR RESPONDENT: Yes.

THE COURT: All right. You're making that decisionof your own free will?

MINOR RESPONDENT: Yes.

THE COURT: Okay, on that basis then I'm going toconcur and proceed this morning as a stipulated benchtrial. And will then indicate that my findings are theevidence submitted by the state's attorney is sufficientbeyond a reasonable doubt to sustain *** the charge ofrobbery as alleged in case number 98 JD 701. The minoraccordingly is found delinquent ***."

At the December 16, 1998 dispositional hearing, the circuitcourt committed the respondent to the Department of Correctionsuntil his twenty-first birthday. Respondent filed a motion toreconsider his adjudication as a violent juvenile offender, whichthe circuit court denied.

The appellate court reversed, holding that respondent did notexpressly and understandingly waive his right to a jury trial. 315Ill. App. 3d at 624. In remanding for a new trial, the appellatecourt stated that there was no written jury waiver in the record andthe transcripts of the proceedings were devoid of any mention ofrespondent's right to a trial by jury. 315 Ill. App. 3d at 624.

ANALYSIS

The issue in this case involves whether respondent knowinglywaived his right to a jury trial under the Act. Since the facts arenot questioned, the issue is a question of law. Accordingly, ourreview is de novo. Woods v. Cole, 181 Ill. 2d 512, 516 (1998). Wenote that respondent raised this issue for the first time in theappellate court. Ordinarily, errors not objected to during trial orraised in the post-trial motion are considered waived. UnderSupreme Court Rule 615(a), we will review plain errors affectingsubstantial rights, even if those errors were not objected to duringtrial or presented in a post-trial motion. See 134 Ill. 2d R. 615(a).We will invoke the plain error rule in two limited circumstances:"(1) where the evidence is closely balanced; or (2) when the errorsare of such magnitude that defendant was denied a fair andimpartial trial and remedying the error is necessary to preserve theintegrity of the judicial process." People v. Nieves, 192 Ill. 2d 487,502-03 (2000). As this case deals with the knowing waiver of thefundamental right to a jury trial, we will consider this issue underthe plain error doctrine. People v. Smith, 106 Ill. 2d 327, 333(1985); People v. Taylor, 291 Ill. App. 3d 18, 20-21 (1997).

Section 5-36(d) of the Act provides that when the State seeksto adjudicate a minor a violent juvenile offender under the Act, a"[t]rial on the petition shall be by jury unless the minor demands,in open court and with advice of counsel, a trial by the courtwithout a jury." 705 ILCS 405/5-36(d) (West 1996). We note that,in a similar fashion, defendants in criminal cases are generallyentitled to a trial by jury unless "understandingly waived bydefendant in open court." 725 ILCS 5/103-6 (West 1998). Also,in criminal cases, jury waivers are required to be in writing. 725ILCS 5/115-1 (West 1998). The Juvenile Court Act, however,does not have a similar provision requiring a written waiver. Thiscourt has recently noted that "virtually all of the constitutionalrequirements of a criminal trial have been introduced into juveniledelinquency proceedings *** includ[ing] the right to adequatenotice of charges, the right to counsel, the right to remain silent,and the right to confront and cross-examine witnesses." In re A.G.,195 Ill. 2d 313, 318 (2001). The right to a trial by jury, however,is not an absolute right in juvenile proceedings (McKeiver v.Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976(1971); People ex rel. Carey v. Chrastka, 83 Ill. 2d 67 (1980)), butrather is only available in a limited number of situations under theAct (see In re G.O., 191 Ill. 2d 37, 42 (2000) (the Act grants a jurytrial to habitual and violent juvenile offenders, but it does not grantsuch a right to juveniles charged with first degree murder); 705ILCS 405/5-35(d), 5-36(d) (West 1996)).

To be a valid jury waiver, it must be knowingly andunderstandingly made. Smith, 106 Ill. 2d at 334. A determinationof whether a jury waiver is valid cannot rest on any preciseformula but depends on the facts and circumstances of eachparticular case. People v. Frey, 103 Ill. 2d 327, 332 (1984). A jurywaiver may be valid if it is made by defense counsel in thedefendant's presence and the defendant does not object. People v.Watson, 246 Ill. App. 3d 548, 549 (1993). No specific admonitionor advice is required before an effective jury waiver may be made.People v. Tooles, 177 Ill. 2d 462, 469 (1997). The failure to file awritten jury waiver does not require reversal so long as the waiverwas understandingly made in open court. People v. Scott, 186 Ill.2d 283, 284-85 (1999).

In Scott, this court addressed whether a written waiver alonevalidly waives a defendant's right to a jury trial. The defendantexecuted a written jury waiver in his attorney's office, which waslater filed outside of the defendant's presence. Scott, 186 Ill. 2d at284. On the day of trial and in the defendant's presence, thefollowing exchange occurred:

" 'MR. WILLIAMS [defendant's counsel]: And wewould proceed to the bench trial today.

THE COURT: Okay, Defendant files motion todismiss. States Attorney given two weeks to fileresponsive pleading. Okay, we'll proceed to bench trial,then?

* * *

THE COURT: Okay, appreciate that., [sic] okay. Wewill then proceed with the bench trial. Mr. Vaughan, youmay proceed.' " Scott, 186 Ill. 2d at 284.

This court noted that it had "never found a valid jury waiver wherethe defendant was not present in open court when a jury waiver,written or otherwise, was at least discussed." Scott, 186 Ill. 2d at285. The State argued that references to a bench trial constitutedan acknowledgment of a waiver in open court, but this courtpointed out that the "defendant was never present in open courtwhen a jury waiver was discussed." Scott, 186 Ill. 2d at 285.Additionally, the written jury waiver executed by the defendantstated he had " 'until the last Thursday of December, 1994 torevoke this waiver of jury trial.' " Scott, 186 Ill. 2d at 285. Thecourt found that the language implied that the jury waiver wasirrevocable after that date. Thus, the defendant's silence may havebeen due to his belief that he could no longer revoke his jurywaiver. The court could not presume that the defendant's silenceconstituted a valid waiver and held that the defendant did notvalidly waive his right to a jury trial in open court. Scott, 186 Ill.2d at 285-86.

In People v. Williamson, 311 Ill. App. 3d 54 (1999), theappellate court considered whether the defendant validly waivedhis right to a jury trial. At a status hearing, the following exchangeoccurred:

" 'THE COURT: All right. You want to demand at thistime?

MR. BODE [codefendant Warship's attorney]: We'redemanding trial.

THE COURT: All right, on Williamson.

MR. BODE: Would like a trial date.

MR. MANN [defendant's attorney]: I'll fill out theform in a minute, on my client as well, we'll demand butwithout waiving, to file the motions.

THE COURT: Are you indicating juries at this time orbenches?

* * *

MR. MANN: We'll take a bench Judge.' " Williamson,311 Ill. App. 3d at 55.

At the conclusion of the hearing, the circuit court stated:" 'Defendants are demanding trial, March 29th. Each one will bea bench.' " Williamson, 311 Ill. App. 3d at 55. Subsequenthearings included references by the assistant State's Attorney ortrial judge that the case was set for a bench trial. The record didnot contain a signed jury waiver. The State argued that thedefendant understandingly waived his right to a jury trial becausethe defendant was present during discussions about a bench trialand he did not object when his attorney indicated that he wouldproceed by way of a bench trial. Williamson, 311 Ill. App. 3d at57. The appellate court, finding Scott to be instructive, stated that"nothing was said at any of these pretrial hearings that would haveindicated to defendant that he had a right to a jury trial or that hisright to a jury trial was being waived. Likewise, on the day of trial,there was no discussion of defendant's right to trial by jury orwaiver of that right." Williamson, 311 Ill. App. 3d at 59. Theappellate court concluded that the references to a bench trial wereinsufficient to constitute a valid jury waiver in open court.Williamson, 311 Ill. App. 3d at 59.

In People v. Watson, 246 Ill. App. 3d 548 (1993), thedefendant was not present at a pretrial hearing but was representedby counsel. His attorney stated that " '[w]hat I'd like to do is set[case number] 565 for bench trial and we need to make the note todo the jury waiver of Mr. Watson the date that we set.' " Watson,246 Ill. App. 3d at 548. The circuit court continued the hearing andnoted that the defendant's jury waiver must be received before thetrial started. At various rescheduling hearings, the defendant waspresent when references were made that he would be proceedingby way of a bench trial. Watson, 246 Ill. App. 3d at 549. The Stateargued that references to a bench trial made in the defendant'spresence constituted a valid waiver. The appellate court disagreed,finding that "[v]ague references to a bench trial at the reschedulingconferences were not sufficient to constitute a valid jury waiver,especially in light of the fact that the record is devoid of evidencesuggesting that the defendant was ever apprised of his right to ajury trial." Watson, 246 Ill. App. 3d at 549.

In the present case, neither the right to a jury trial nor a jurywaiver was discussed in the respondent's presence in open court.As demonstrated by the previous cases, vague references to astipulated bench trial by respondent's attorney, the prosecutor, andthe circuit court were insufficient to constitute a valid jury waiver.Although the circuit court instructed the respondent that he had aright to a formal hearing to confront and cross-examine witnesses,the record is devoid of any mention of the respondent's right to atrial by jury as prescribed under the Juvenile Court Act.

The State argues that this court's decision in Frey compels theconclusion that there was a valid waiver. In Frey, the circuit courtentered an order, approved by defense counsel, stating that " 'thedefendant's attorney indicates the defendant will waive a jury trialin this case.' " Frey, 103 Ill. 2d at 329. This court, recognizing thatan accused typically speaks and acts through his attorney, notedthat "we have given effect to jury waivers made by defensecounsel in defendant's presence where defendant gave noindication of any objection to the court hearing the case." Frey,103 Ill. 2d at 332. We found a valid jury waiver. Frey, 103 Ill. 2dat 333.

The present case is distinguishable from Frey. This court inFrey noted that it was apparent from the record that the defendantwas aware of his right to a jury trial and was present prior to trialwhen the jury waiver was discussed. Frey, 103 Ill. 2d at 333. Here,there was no indication in the record that respondent was aware ofhis right to a jury trial in his juvenile proceeding. Further, therewas no discussion of a jury waiver nor was one ever entered intobefore the circuit court.

Other cases relied on by the State that have found a validwaiver are likewise distinguishable because either the defensecounsel or the circuit court mentioned the defendant's right to ajury trial or discussed the jury waiver in the defendant's presencein open court. See People v. Lombardi, 305 Ill. App. 3d 33, 40-41(1999) (before the end of the trial, the court admonished thedefendant as to her right to a jury trial and the defendantunderstandingly waived that right); People v. Tucker, 183 Ill. App.3d 333, 334-35 (1989) (the circuit judge asked defense counsel inthe defendant's presence whether he wanted a jury trial andcounsel declined, stating his request for a bench trial); People v.Murrell, 60 Ill. 2d 287, 290 (1975) (the record showed the jurywaiver was made by counsel in open court in the defendant'spresence).

Respondent in this case had a right to a trial by jury on thepetition to adjudicate him a violent juvenile offender under theAct. It is clear from the record that respondent was not informedin open court of his right to a jury trial and there is nothing in therecord to indicate he validly waived that right. Althoughrespondent had previous experience in the juvenile justice system,we cannot presume from this fact that he had knowledge of hisright to a jury trial. In re J.W., 164 Ill. App. 3d 826, 829 (1987).Further, respondent points out that in his previous delinquencyproceedings, he had not been eligible for a jury trial. As in Scott,we cannot presume respondent's silence constituted a validwaiver. Therefore, we find that the record fails to support thatrespondent knowingly and intelligently waived his right to a jurytrial. Because of our resolution of the jury waiver issue, we neednot address respondent's second argument on appeal.

Since the cause will be remanded for further proceedings, wehave reviewed the record and find that the evidence presentedbefore the circuit court was sufficient to adjudicate respondentdelinquent in that he committed the offense of robbery beyond areasonable doubt. Thus, there will be no double jeopardy violationin the event of a new trial. In re L.L., 295 Ill. App. 3d 594, 604(1998). Our conclusion does not in any way imply a determinationof respondent's guilt or innocence that would be binding on retrial.Taylor, 291 Ill. App. 3d at 21.

CONCLUSION

For the foregoing reasons, we affirm the appellate court'sjudgment reversing the judgment of the circuit court andremanding the cause for a new trial.

Affirmed.