The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Thomas R. Sumner, Judge Presiding
Following a bench trial, defendant Hector Marquez was convicted of criminal drug conspiracy and sentenced to a 15-year prison term. The judgment was affirmed on direct appeal. People v. Marquez, No. 1-97-4013 (1999) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed a pro se petition for post-conviction relief, which the trial court summarily dismissed as frivolous and patently without merit. Defendant contends on appeal that his petition stated the gist of several meritorious claims: (1) that he did not voluntarily and intelligently waive his right to a jury trial; (2) that he was deprived his right to confront his accusers and be present at every stage of the trial; and (3) that he received ineffective assistance of counsel.
Defendant's conviction was the result of a 1996 Drug Enforcement Administration (DEA) investigation of several people believed to be involved in the sale of large amounts of cocaine in Chicago. The facts are set forth in this court's order on direct appeal and will be repeated here only as necessary. People v. Marquez, No. 1-97-4013 (1999) (unpublished order under Supreme Court Rule 23).
In his pro se post-conviction petition and supporting memorandum, defendant alleged that he is of Mexican descent, speaks a Spanish dialect that differs greatly from the "normal" Spanish dialect spoken in the United States, speaks little English, and had a "grossly inadequate" understanding of the American judicial system. Defendant asserted that at the time he waived his right to a jury, he did not understand what was happening in court and "was just told by his counsel to answer `yes' " to the trial court's questions. Defendant contended that because he did not have the aid of a certified interpreter, he did not voluntarily and intelligently waive his right to a jury trial, he was deprived of his right to confront his accusers, and he was deprived of his right to be present at trial. Defendant argued that his trial counsel was ineffective for failing to discredit testimony from the confidential informant by showing his interest, bias, and motive to testify falsely. In support of his petition, defendant attached portions of the trial transcript.
The Post-Conviction Hearing Act (Act) establishes a three-step process for adjudicating petitions for post-conviction relief. 725 ILCS 5/122-1 et seq. (West 1998). A petition must clearly set forth sufficient facts demonstrating the way in which the petitioner's constitutional rights were violated. 725 ILCS 5/122-2 (West 1998). At the first stage, the court is not to consider the petition on the merits. Instead, the court considers the petition, with no input from the State in order to determine if it is frivolous and patently without merit. If the court determines within 90 days of its filing that the petition is frivolous or patently without merit, it must summarily dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 1998). If the petition is not dismissed, the State is required at the second stage to answer the petition or file a motion to dismiss. 725 ILCS 5/122-5 (West 1998). If the court does not dismiss the petition on the State's motion then an evidentiary hearing is conducted at the third and final stage of the process. People v. Hernandez, 283 Ill. App. 3d 312, 316 (1996).
In this case, the proceeding was only in the first stage. "At the dismissal stage of a post-conviction proceeding, all well-pleaded facts that are not positively rebutted by the original trial record are to be taken as true." People v. Coleman, 183 Ill. 2d 366, 385 (1998). The summary dismissal of a post-conviction petition is subject to de novo review. Coleman, 183 Ill. 2d at 380-81, 388-89. A pro se petition is to be construed liberally. People v. Smith, 268 Ill. App. 3d 574, 580 (1994). A pro se petition is required to state the gist of a meritorious constitutional claim in order to survive summary dismissal. Coleman, 183 Ill. 2d at 380 n.2. However, the gist of a meritorious claim is not established by a bare allegation of a deprivation of a constitutional right. People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993). A pro se defendant must allege sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. People v. Lemons, 242 Ill. App. 3d 941, 946 (1993). The allegations in a pro se post-conviction petition must be supported by the record or accompanying affidavits or other evidence. 725 ILCS 5/122-2 (West 1998); People v. Seaberg, 262 Ill. App. 3d 79, 82 (1994). Alternatively, the petition must state why supporting affidavits, records, or other forms of evidence are not attached. 725 ILCS 5/122-2 (West 1998).
A post-conviction proceeding is a collateral attack on a judgment of conviction and is limited to constitutional issues that have not been, and could not have been, presented on direct appeal. People v. Franklin, 167 Ill. 2d 1, 9 (1995). Issues decided by a reviewing court on direct appeal are barred by res judicata, and any issue that could have been presented on direct review is considered waived for post-conviction review. Franklin, 167 Ill. 2d at 9.
Defendant's first contention on appeal is that his petition stated the gist of a meritorious claim that he did not voluntarily and intelligently waive his right to a jury trial. He claims he did not have a sufficient command of the English language to understand the trial court's admonitions. He contends that the record demonstrates that he was deprived of an interpreter even after the assistant State's Attorney questioned his ability to understand English on two separate occasions. Defendant alleged that he speaks an unusual Spanish dialect, speaks little English, and had a "grossly inadequate" understanding of the American judicial system at the time of his trial. He also asserted that at the time he waived his right to a jury, he did not understand what was transpiring in the court and "was just told by his counsel to answer `yes' " to the trial court's questions.
The State argues that because defendant did not raise this issue on direct appeal, it is waived. However, the waiver rule may be relaxed where the facts relating to the claim do not appear in the original appellate record, where the defendant's arguments stem from the incompetency of the original appellate counsel, or where fundamental fairness so requires. People v. Hayes, 279 Ill. App. 3d 575, 580 (1996). We are mindful of the importance of the right to a jury trial, and we review defendant's claim that his jury waiver was invalid based on the third exception, fundamental fairness. People v. Tooles, 177 Ill. 2d 462, 465 (1997).
The right to trial by jury is fundamental to the American criminal justice system. Duncan v. Louisiana, 391 U.S. 145, 149, 20 L. Ed. 2d 491, 496, 88 S. Ct. 1444, 1447 (1968). Both the United States Constitution and the Illinois Constitution provide for jury trials in criminal cases. U.S. Const. amends. VI & XIV; Ill. Const. 1970, art. 1, secs. 8, 13. Section 103-6 of the Code of Criminal Procedure provides that every person accused of a crime has the right to a jury trial unless that right is "understandingly waived by the defendant in open court." 725 ILCS 5/103-6 (West 1998). To be valid, this waiver must be in writing. 725 ILCS 5/115-1 (West 1998). The determination of whether this right has been validly waived does not rest on any precise formula but, rather, turns on the facts of each particular case. People v. Frey, 103 Ill. 2d 327, 332 (1984). A written and signed jury waiver " `lessens the probability that the waiver was not made knowingly.' " People v. Dockery, 296 Ill. App. 3d 271, 276 (1998), quoting People v. Steiger, 208 Ill. App. 3d 979, 982 (1991). "All the trial judge has to do, at the bare minimum, is ask the defendant if he understands he is giving up his right to have a jury decide his case and if that is something he wants to do." Dockery, 296 Ill. App. 3d at 277. Of course, the trial judge should first determine whether the defendant understands what is meant by a jury trial.
The Illinois Supreme Court has indicated no requirement that the record " `affirmatively establish that the court advised defendant of his right to a jury trial and elicited his waiver of that right [citation], nor that the court or counsel advised defendant of the consequences of the waiver.' " Dockery, 296 Ill. App. 3d at 275, quoting Frey, 103 Ill. 2d at 332. The supreme court has also concluded that if a defendant is present when the court and defense counsel discuss a jury trial waiver and the defendant does not object to the waiver, the defendant is deemed to have acquiesced in the waiver. People v. Sailor, 43 Ill. 2d 256, 260 (1969). However, the Illinois Supreme Court has also recognized the duty imposed on the circuit courts "of ensuring that a defendant's waiver of his right to a jury trial be made expressly and understandingly." People v. Smith, 106 Ill. 2d 327, 334 (1985). We review defendant's jury waiver in this case in the context of whether the record reflects the waiver was made expressly and understandingly thereby positively rebutting defendant's post-conviction claim that he did not voluntarily and intelligently waive jury trial.
Here, the first time defendant spoke on the record was when he was informed of the possibility of trial in absentia:
"THE COURT: Let me do this first. Mr. Garcia?
MR. GARCIA [co-defendant]: Yes.
THE COURT: Mr. Hector Marquez?
THE COURT: And Mr. Perez?
MR. PEREZ [co-defendant]: Yes.
THE COURT: I have to advise you, at this time, that you have to be in court on each and every occasion that you are required to be there. If you don't this case could proceed to trial against you even if you aren't in court, if you don't show up. If that happens and if you're found guilty at that trial then you could be sentenced even though you're not there. Do you understand that?
THE COURT: And that applies to you as well, Mr. Marquez. In the event you make bond, you still have to come to court on each and every occasion. If you don't the case could go to trial against you without your being present. If you're found guilty at the trial, then you could be sentenced in your absence. Do you understand that?
The issue of defendant's ability to understand English was addressed for the first time when the case was called again the same day:
"[ASSISTANT STATE'S ATTORNEY]: *** Also unaware -- we weren't sure whether this defendant, Hector Marquez, understood English and he was admonished to trial in absentia rights this morning.
THE COURT: Do you understand what I told you this morning?
THE COURT: Earlier about having to be in court in the ...