APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 26, 1980.
Following a bench trial in the circuit court of St. Clair County, defendant was convicted of armed robbery and sentenced to a term of 8 to 24 years imprisonment. On direct appeal this court remanded the cause to the circuit court for consideration of one issue, whether defendant had waived his right to a jury trial. On remand the trial court determined that defendant had waived that right. Defendant appeals contending that that finding was erroneous. The State contends the cause must be dismissed for (1) lack of an appealable order, and (2) lack of a proper notice of appeal. Alternatively the State contends the finding of the trial court on remand was correct and that defendant has waived the issue.
On the first direct appeal in this cause (People v. Thornton (1978), 61 Ill. App.3d 530, 378 N.E.2d 198), we disposed of several issues adversely to defendant. Those issues, save one, are not relevant to this appeal. Defendant contended at that time that he had not waived a jury trial and that this court must presume from the record's silence on the matter that no waiver had occurred. The State moved to amend the record to reflect such a waiver, basing it on an ex parte hearing below. This court declined to grant that motion in view of defendant' challenge as to the accuracy of the proposed amendment. The opinion of this court concluded as follows:
"A proper settlement of this controversy in the trial court, as required by Supreme Court Rule 329, will effectively dispose of the sole remaining issue in this appeal. Accordingly we will remand this cause to the trial court for a hearing of which defendant is to receive reasonable notice and an opportunity to be heard. If following the hearing the trial court finds that defendant waived his right to a jury in open court prior to the bench trial or that such was done by defense counsel in the presence of defendant, then the State's motion to amend is to be granted and the judgment entered by the circuit court of St. Clair County is affirmed. If, on the other hand, the court finds that the record as it presently exists conforms to the truth and a jury waiver as alleged by the State was not made, then the State's motion to amend is to be denied and the judgment entered is reversed and the cause remanded for a new trial." 61 Ill. App.3d 530, 538, 378 N.E.2d 202, 203-04.
On remand an evidentiary hearing was held. Robert Gagen, the judge at defendant's bench trial, testified that he recalled the following sequence of events on the day defendant's trial began: Del Goldenhersh, defendant's counsel, stated defendant wished to waive jury trial. Gagen gave the admonishments he usually gave before accepting a jury waiver. Defendant showed some hesitation. Goldenhersh took defendant aside for a conference outside Gagen's hearing. Goldenhersh advised Gagen his client did want to waive jury trial. Gagen repeated the admonishments he had just given. Defendant then personally waived trial by jury.
Carmen Durso, who represented the State on the date in question, testified Goldenhersh telephoned the week before trial and stated he was contemplating waiver of a jury in this case. He recalled the same sequence of events testified to by Gagen, including the admonishments, defendant's hesitation, the conference between defendant and Goldenhersh, and the second set of admonishments. He testified it was defendant himself who finally waived jury trial.
Both Gagen and Durso were questioned as to why the record did not reflect that defendant had been admonished and had waived jury trial. Gagen thought the court reporter had been absent and no one had noticed. Durso thought the reporter had been present and had run out of paper at that time. Both witnesses were obviously only speculating as to what might have caused the matter to be omitted from the record.
The next witness at the hearing on remand was Del Goldenhersh, defendant's attorney at trial. He recalled discussing jury waiver with defendant prior to trial. However, he could recall no such discussion in Gagen's presence. He had told Durso he might request a bench trial. He thought defendant understood there would be no jury trial. However, he did not recall whether defendant had said he wanted a jury or not.
The last witness at the hearing on remand was Duil Thornton, the defendant. He did not recall telling Gagen himself or hearing Goldenhersh tell Gagen that he would waive jury trial. Goldenhersh had advised Thornton that he recommended a bench trial. Asked whether he knew he could have had a jury trial, defendant replied that he was just going by what his lawyer told him. Defendant stated that he was sure he never spoke to Gagen except when he testified in his own defense. "God be my witness, he never talked to me."
The trial court took the matter under advisement for more than two months. On March 6, 1979, an order was filed which read in pertinent part as follows:
"The Court having heard the testimony of the witnesses called during the hearing on the Post Trial Petition, and having reviewed the entire file, is unable to find sufficient evidence to support the proposition that the `Defendant did not knowingly and understandingly waive his right to a trial by jury.'
IT THEREFORE [sic] ORDERED that the Defendant's Post Trial Petition be denied."
First, we consider the State's contention that the appeal must be dismissed for lack of an appealable order. The State's argument, as we perceive it, is this: The opinion of this court on the first direct appeal indicated that if the trial court found waiver had occurred, the judgment was affirmed, and if waiver was not found, the judgment was ...