APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The issue presented is whether the record affirmatively discloses that the defendant, Robert Bowers, expressly and understandingly waived his right to trial by jury in entering a plea of guilty to armed robbery, an offense for which he was sentenced to serve a term of not less than five nor more than fifteen years in the penitentiary.
Defendant first entered a plea of not guilty on June 17, 1970, pre-trial motions were ruled upon by the court, and the case was set for jury trial on July 20, 1970. He was represented throughout the proceedings by the public defender who had been appointed prior to preliminary hearing and indictment.
Transcript of hearing, July 20, 1970, shows that a co-defendant who "had not changed his mind" obtained a continued trial date of September 21, 1970, but defendant Bowers asked leave to withdraw his plea of not guilty in reliance upon a negotiated penalty agreement. This agreement was spread upon the record and defendant acknowledged it was accurate. It recited that the proposed penalty of not less than five years nor more than fifteen years upon a plea of guilty had been agreed upon three days earlier, that defendant had had three days to think about it, and that it took into account defendant's prior conviction and sentence to a term of 1-4 years in the penitentiary for robbery. The transcript shows the trial judge asked the defendant if he understood that upon a plea of guilty the court would sentence him to the penitentiary for not less than five years nor more than fifteen years, and defendant responded he did understand that. This passage is urged upon us as a plain inference that defendant could understand only that he would be immediately sentenced and there would be no trial of any kind upon a plea of guilty.
Otherwise, no mention of jury trial waiver appears in the transcript, although the common law record, for the same date, contains a written jury waiver signed by defendant and initialed by the trial judge as well as the clerk's docket entry which recites in part the following:
"The defendant Robert Bowers says for his plea that he is guilty of Armed Robbery as charged in count one of the indictment herein. The Court explains fully to said defendant the meaning and effect of an entry of a plea of guilty to count one and waiver of trial by jury. After such an explanation and answers made by said defendant, the Court finds from the proceedings that the said defendant comprehends the nature of the crime with which he is charged, the punishment thereof fixed by law and the consequences thereof upon a plea of guilty to count one. Thereupon the defendant files his written waiver of trial by jury, and persists in his plea of guilty to the charge in count one of the indictment herein. The Court accepts a plea of guilty by said defendant."
Count two of the indictment, apparently an included offense of robbery, was dismissed on motion of the State.
The determination required here is whether the transcript contains less than all of the proceedings or the docket entry concludes too much.
Defendant cites Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, a decision which has been much discussed in challenges to the validity of pleas of guilty because of the following language (395 U.S. at 243):
"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. (Citation.) Second is the right to trial by jury. (Citation.) Third is the right to confront one's accusers. (Citation.) We cannot presume a waiver of these three important federal rigats from a silent record."
• 1, 2 Recently however, the Illinois Supreme Court has held that the Boykin decision does not in any manner alter or modify the constitutional standards by which validity of a plea of guilty is to be determined, the constitutional requirement, both pre and post Boykin being that a plea of guilty must be intelligent and voluntary. Boykin adds the requirement that if the guilty plea is to withstand appellate or post-conviction review the record must affirmatively disclose that the plea was entered understandingly and voluntarily, a requirement which has been in effect in Illinois since 1948. People v. Reeves (1971), 50 Ill.2d 28 at 29, 30, 276 N.E.2d 319.
• 3 Illinois Supreme Court Rule 402 requires a substantial compliance with an admonition to defendant in open court that upon a plea of guilty there will not be a trial of any kind, that by pleading guilty the defendant waives his right to trial by jury and the right to be confronted with the witnesses against him. Where the crime is punishable by imprisonment in the penitentiary, the proceedings in open court shall be taken verbatim, transcribed, filed and made a part of the common law record, but Rule 402 is not applicable here as the plea of guilty was entered prior to its effective date, and thus we believe appearance of waiver in the transcript is not essential if it is found elsewhere in the record.
• 4 The statutory requirement, "every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court," (Ill. Rev. Stat. 1969, ch. 38, par. 103-6) is the test to be applied, and neither this statute nor the Boykin decision prescribes any particular form the waiver must take nor specifies in what portion of the record the affirmative showing of waiver must appear.
• 5 This court held in People v. Gaston (1971), (Ill. App.2d), 270 N.E.2d 846 and People v. Spates (Ill. App.2d), 270 N.E.2d 848, that a signed jury waiver in and of itself, in a record otherwise totally silent on the issue of waiver of jury trial, was not sufficient to result in relinquishment of defendant's constitutional right to trial by jury. This court held that although the signed form satisfied the requirement of ...