No. 46849. Appeal from the Appellate Court for the First
District; heard in that court on appeal from the Circuit Court of
Cook County; the Hon. Lawrence I. Genesen, Judge, presiding.
No. 46850. Appeal from the Appellate Court for the First
District; heard in that court on appeal from the
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
William J. Scott, Attorney General, of Springfield, and Bernard Carey, State's Attorney, of Chicago (James B. Zagel and Jayne A. Carr, Assistant Attorneys General, and Patrick T. Driscoll, Jr., and Scott W. Petersen, Assistant State's Attorneys, all of Chicago, of counsel), for the People.
James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, of counsel), for appellee.
These consolidated appeals concern the continued viability of our decision in People v. Sailor, 43 Ill.2d 256, where this court held, inter alia, that where defense counsel waives the defendant's right to a trial by jury in the defendant's presence, the defendant is deemed to have acquiesced in, and is bound by, his attorney's action.
In cause No. 46849, the defendant, Eddie Murrell, was found guilty, in a bench trial, of battery and theft of property valued at less than $150. The record shows that the defendant was arrested, tried, convicted, sentenced, and filed his notice of appeal all on the same day, February 8, 1973. The defendant waived a jury trial through his court-appointed counsel. There is no indication in the record that defense counsel ever advised his client of his right to trial by jury. The appellate court reversed and remanded for a new trial, finding a lack of any affirmative showing in the record that the defendant knew or was informed of his right to trial by jury. 20 Ill. App.3d 789.
In cause No. 46850, the defendant, James Brodus, was charged with contributing to the sexual delinquency of a child and found guilty in a bench trial. Defendant Brodus also waived a jury trial through his court-appointed counsel. In this case also there is a lack of any affirmative showing in the record indicating that the defendant knew or was informed of his right to trial by jury. The appellate court reversed the conviction and remanded the cause for a new trial. (19 Ill. App.3d 840.) We granted the State's petitions for leave to appeal in both cases and consolidated them in this court.
The sole question presented is: When defense counsel in defendant's presence makes a statement waiving the defendant's right to a jury trial, does such a statement constitute a valid jury waiver. In Sailor we answered this question in the affirmative, concluding that a defendant ordinarily speaks and acts through his attorney, who stands in the role of agent. A defendant who permits his attorney, in his presence and without objection, to waive his right to a jury trial is deemed to have acquiesced in, and is bound by, his attorney's action.
The defendants, borrowing language from and relying on Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, contend that a knowing and understanding waiver of the right to jury trial cannot be presumed from a silent record. In each of these cases now under consideration the waiver of the right to jury trial was not presumed, nor is the record silent on the question of waiver. The record shows that the waiver was made by counsel in open court in the presence of the defendant, who acquiesced in the waiver. The record is only silent as to the defendant's knowledge and intent. Our Rule 402 (50 Ill.2d R. 402) only requires an affirmative showing on the record of a knowing and understanding waiver as to pleas of guilty. As the Committee Comments state, this determination is required by Boykin. Neither our rule nor Boykin contains a similar requirement concerning the waiver of the right to jury trial. Since Boykin was decided on June 2, 1969, prior to the decision of this court in Sailor on November 26, 1969, it is not necessary to again consider the question of jury waiver in light of Boykin.
We accept as the preferred procedure the recommendation contained in the American Bar Association Standards relating to the Administration of Criminal Justice. ABA Standards, Trial by Jury, Standard 1.2(b) (1968), provides:
"The court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record."
By following this recommendation the courts will not only minimize the chance of an involuntary waiver by a defendant but will also provide the basis for an accurate after-the-fact determination if a waiver is later challenged. Although this procedure is preferred, it is not constitutionally required; nor do our rules or the statutes require that it be followed. Should a case arise where the application of the principle of Sailor does result in an involuntary waiver, as will be indicated later in this opinion, the defendant is not without a remedy.
We also cannot accept the defendants' argument that Sailor should not be followed where counsel is not appointed until the time of trial and the record does not indicate that the newly appointed counsel had an adequate opportunity to confer with the defendant. This argument is again asking the court to presume from a silent record that the waiver was not knowingly and understandingly made.
Neither of the defendants in these cases now before this court has urged that he wanted or that he was deprived of a jury trial. Also neither defendant urges that he was in any way prejudiced by his counsel's waiver. There is no contention that the waiver was not voluntary. Under these circumstances we will not reverse the convictions. People v. Dudley, 58 Ill.2d 57; People v. Morehead, 45 Ill.2d 326.
A review of violations of constitutional rights which do not appear in the record may be obtained under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.) If the defendant, as in these cases, has been convicted of a misdemeanor and feels that his constitutional rights have been violated, he may resort to the remedy fashioned by this court in People v. Warr, 54 Ill.2d 487. Thus, if a defendant claims that the waiver of jury trial made by his counsel was not authorized and that he was deprived of this constitutional right by the application ...