Appeal from the Circuit Court of La Salle County; the Hon.
James J. Wimbiscus, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
John K. Smith appeals from his conviction for reckless conduct (Ill. Rev. Stat. 1981, ch. 38, par. 12-5(a)), following a bench trial in the circuit court of La Salle County. We reverse the conviction and remand for a new trial, based upon the failure of the record to indicate that the defendant knowingly and understandingly waived his right to a jury.
The record indicates that the defendant was charged by information on December 3, 1982, and his attorney entered an appearance on December 7, 1982. A notice to appear for bench trial was mailed to the defendant and his counsel in December 1982. A bench trial was held on February 2, 1983, and at the conclusion of the trial, the court found the defendant guilty of reckless conduct. The court imposed a sentence of 10 months' imprisonment upon the defendant. The record is silent as to any waiver of defendant's right to a jury.
This court decided a similar case in People v. Banks (1979), 71 Ill. App.3d 15, 389 N.E.2d 180. As in the instant case, the record in Banks was silent as to any jury waiver by the defendant. We there stated:
"As Justice Moran said in People v. Rondeau (2d Dist. 1971), 8 Ill. App.3d 286, 289, 291 N.E.2d 666, 668:
`A trial court has a duty to see that defendant's waiver of the right to trial by jury "is not only expressly but also understandingly made," (People v. Fisher, 340 Ill. 250, 265 (1930). See also, People v. Surgeon, 15 Ill.2d 236, 238 (1958); People v. Sailor, 43 Ill.2d 256, 260 (1969); Cty. of McLean v. Kickapoo Creek, Inc., 51 Ill.2d 353, 355-356 (1972).) Pertinent to the admonition of the offenses of burglary and theft, no inquiry was made of defendant regarding his willingness to forego a trial by jury. There could, therefore, have been no understanding waiver of that right evidenced in the record.'
Our supreme court said in County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill.2d 353, 355-356, 282 N.E.2d 720, 722:
`A defendant who is informed and who expresses his desire may waive his right to a jury trial. (People ex rel. Swanson v. Fisher, 340 Ill. 250.) This waiver must be understandingly accomplished in open court (Ill. Rev. Stat. 1971, ch. 38, par. 103-6; People v. Williams, 36 Ill.2d 194, 202), and it is the court's duty to establish that the waiver is properly made. (People v. Clark, 30 Ill.2d 216; People v. Wesley, 30 Ill.2d 131.) * * *
The facts presented in this case do not establish that quantum of proof from which we can say that Lewis, individually or as the corporation president, knowingly and expressly waived the right to a jury trial by remaining silent during the proceedings. Nor did defense counsels' actions affirmatively establish a sufficient basis under decisions of this court to constitute a waiver of the right to a jury trial which might be imputed to defendants.'" (People v. Banks (1979), 71 Ill. App.3d 15, 17-18, 389 N.E.2d 180.)
In Banks, where the record was silent as to any jury waiver by the defendant, we reversed and remanded for a new trial. (See also People v. Walton (1979), 77 Ill. App.3d 905, 396 N.E.2d 841; People v. Losacano (1975), 29 Ill. App.3d 103, 329 N.E.2d 835; People v. Clay (1974), 19 Ill. App.3d 296, 298, 311 N.E.2d 384.) Additionally, in Banks, although the defendant had not raised the issue at trial or by way of post-trial motion, the court found that the error was cognizable under the plain error rule. (People v. Banks (1979), 71 Ill. App.3d 15, 18; see also People v. Walton (1979), 77 Ill. App.3d 905, 906.) These cases are controlling in the instant case. Here, there is no docket entry showing "jury waived" nor any signed jury waiver document. The record is devoid of any evidence that the defendant understandingly waived his right to trial by jury in open court.
The State, in seeking to avoid this result, argues that the common law record does, in fact, indicate a jury waiver. Reliance for the argument is placed upon the fact that the defendant was notified by the court of the date for his bench trial. That is simply not enough, nor do we perceive how it demonstrates an understanding waiver of the jury trial by the defendant. Similar circumstances were held insufficient by the court in People v. Walton (1979), 77 Ill. App.3d 905, and insufficiency was found, on even better evidence of a waiver, in Losacano, over some dissent. The State relies upon People v. Young (1980), 86 Ill. App.3d 306, 408 N.E.2d 104, which upheld a waiver of jury trial based upon some evidence in the common law record. However, in that case, unlike the case at bar, there was a docket entry expressly noting "jury waived" and a document signed by the defendant waiving the jury. Furthermore, in that case the court noted, with express approval, the prior decision in Banks, stating:
"Certainly where the record is silent as to jury waiver (see People v. Banks (1979), 71 Ill. App.3d 15, 389 N.E.2d 180), or where the report of proceedings does not demonstrate an understanding waiver even though there is a docket entry to that effect (see People v. Coleman (1978), 59 Ill. App.3d 1050, 376 N.E.2d 277), a reviewing court will find that the defendant has demonstrated an absence of an effective jury waiver." (86 Ill. App.3d 306, 308.)
In Young, however, there were the affirmative indications of jury waiver, which, coupled with the presumption that the court acted correctly, was found to be sufficient. As noted, no such affirmative indications are present in the record in this case.
We also reject the State's argument that the failure of the defendant to argue or assert that there was no understanding waiver is itself sufficient evidence of a jury waiver by the defendant. No such rule or requirement is imposed upon the defendant by the cases previously cited and discussed. The record must be examined, when the issue is raised, and if the record is silent, as it is here, then the defendant has effectively demonstrated the absence of a jury waiver for appeal purposes. People v. Banks (1979), 71 ...