People v. Reed

2016 IL App (1st) 140498

                                                                                 THIRD DIVISION
                                                                                  January 27, 2015

                                           No. 1-14-0498

______________________________________________________________________________

                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
                  Plaintiff-Appellee,           )     Cook County.
                                                )
v.                                              )     No. 13 CR 5811
                                                )
ANTONIO REED,                                   )     Honorable
                                                )     Thomas J. Hennelly,
                  Defendant-Appellant.          )     Judge Presiding.
______________________________________________________________________________

         JUSTICE LAVIN delivered the judgment of the court, with opinion.
         Presiding Justice Mason and Justice Fitzgerald Smith concurred in the judgment and
         opinion.

                                            OPINION

¶1       Following a bench trial, defendant Antonio Reed was found guilty of possession of a

controlled substance with intent to deliver and sentenced to nine years' imprisonment. On appeal,

he contends the trial court did not adequately ensure that his waiver of his right to a jury trial was

made knowingly. He also contends that various fees assessed against him are in actuality fines,

and therefore subject to the $5 per diem credit under section 110-14 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/110-14 (West 2012)). We affirm and correct the fines and fees

order.
1-14-0498


¶2     Prior to trial, the trial court appointed counsel for defendant. On August 12, 2013,

defense counsel, appearing with defendant, requested a trial date and twice repeated that it would

be a bench trial. Defense counsel, alongside defendant, again indicated that there would be a

bench trial at a status hearing on September 19, 2013. On the day of trial, the trial court asked

whether there would be a bench or jury trial. After defense counsel answered bench, the trial

court stated to defendant:

               "The Court: Mr. Reed, I have in my hand a document entitled jury waiver which

       means you want to waive your right to a jury and have the matter submitted to me for

       trial which is known as a bench trial. Is that your wish?

               Defendant Reed: Yes.

               The Court: On this document, it's got your name, today's date, the case number

       and charge and there is a signature on this. Is that your signature on that document, Mr.

       Reed?

               Defendant Reed: Yes.

               The Court: Has anyone forced or threatened you or promised you in any way to

       prevent you from having a jury trial.

               Defendant Reed: No.

               The Court: Are you making that decision freely and voluntarily?

               Defendant: Freely."

The trial court found defendant's jury waiver to be knowingly and voluntarily given.

¶3     The evidence at trial established that defendant and Delores Edwards were standing near

each other on West Flournoy Street in Chicago on February 27, 2013. Chicago police officer


                                                -2-
1-14-0498


Ronald Coleman observed them from a parked unmarked car. On three separate occasions,

individuals or a vehicle approached defendant. On each occasion, defendant dropped an item to

the ground. Edwards then retrieved the item and gave it to the individual. During one of the

transactions, Coleman observed the individual give Edwards cash after receiving the item.

Subsequently, Officer Martin Howard, dressed in plainclothes, approached defendant and asked

for heroin. Defendant asked Howard how much he wanted. After receiving an answer, defendant

dropped a pink baggy containing white powder on the ground and Edwards retrieved it. She

handed the baggy to Howard in exchange for $10 in marked bills. Howard left the area and

radioed other officers. The other officers arrested defendant and Edwards. The marked bills were

recovered from Edwards' jacket. Testing revealed the pink baggy given to Howard contained 0.2

grams of heroin. The trial court found defendant guilty of delivery of a controlled substance. It

sentenced him to nine years' imprisonment and assessed fines and fees against him, including a

Court System fee, a Public Defender Records Automation fee, and a State's Attorney Records

Automation fee. Defendant appeals.

¶4     Defendant first contends that the trial court failed to ensure that his waiver of his right to

a jury trial was knowingly and voluntarily made. He asserts that the court did not question him

on his understanding of that right or the ramifications of waiving it. He also asserts that the trial

court did not advise him of the nature of a jury trial, the difference between a bench and a jury

trial, or that a judge would decide the facts rather than a jury. He acknowledges that he has failed

to preserve his claim on appeal, but argues that issues of jury waiver affect the fundamental right

to a jury trial and thus are reviewable under the structural error prong of plain error doctrine.




                                                 -3-
1-14-0498


¶5        The State responds that defendant has forfeited his claim, and it is not reviewable as plain

error. It argues alternatively that the record establishes that defendant's waiver was knowing and

voluntary, particularly where appointed counsel repeatedly asked for a bench trial and defendant

has successfully waived the right to a jury in multiple, prior prosecutions.

¶6        Before addressing the merits of defendant's claim, we must determine whether the claim

has been properly preserved. Ordinarily, errors not objected to during trial or raised in the post-

trial motion are considered waived. In re R.A.B., 

197 Ill. 2d 358, 362

 (2001). Under plain error

doctrine, however, we may review otherwise waived errors in two limited circumstances: “(1)

where the evidence is closely balanced; or (2) when the errors are of such magnitude that

defendant was denied a fair and impartial trial and remedying the error is necessary to preserve

the integrity of the judicial process.” People v. Nieves, 

192 Ill. 2d 487, 502-03

 (2000). Under

either prong, a defendant bears the burden of persuasion. People v. Lewis, 

234 Ill. 2d 32, 43

(2009). In the present case, defendant only argues that his claim is reviewable under the second

prong of plain error analysis. Yet, before considering defendant's claim under either prong, we

must first determine whether error has occurred. People v. Piatkowski, 

225 Ill. 2d 551, 565

(2007).

¶7        Both our federal and state constitutions guarantee a criminal defendant's right to a trial by

jury. U.S. Const., amends.VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. A defendant may waive this

right, but the waiver must be knowingly and understandingly made in open court. 725 ILCS

5/103-6 (West 2012); People v. Bracey, 

213 Ill. 2d 265, 269-70

 (2004). There is no specific

admonishment or advice the court must provide before accepting a waiver. People v. Bannister,

232 Ill. 2d 52, 66

 (2008). Consequently, the effectiveness of a defendant's waiver depends on the


                                                  -4-
1-14-0498


facts and circumstances of each particular case. 

Id.

 The crucial determination is whether the

waiving defendant understood that his case would be decided by a judge and not a jury. 

Id. at 69

.

Although a signed jury waiver alone does not prove a defendant's understanding, it is evidence

that a waiver was knowingly made. People v. Dockery, 

296 Ill. App. 3d 271, 276

 (1998).

Similarly, a present defendant's silence while his or her attorney requests a bench trial provides

evidence that the waiver is valid. See People v. Brials, 

315 Ill. App. 3d 162, 176

 (2000).

Reviewing courts may also consider a defendant's prior interactions with the justice system in

determining whether a jury waiver was made knowingly. Bannister, 

232 Ill. 2d at 71

; see also

People v. Turner, 

375 Ill. App. 3d 1101, 1109

 (2007). Defendant bears the burden of establishing

that his jury waiver was invalid. People v. Stokes, 

281 Ill. App. 3d 972, 977

 (1996). We review

whether defendant knowingly waived his right to a jury trial de novo. Bracey, 

213 Ill. 2d at 270

.

¶8     The particular facts and circumstances here support the finding that defendant's waiver of

his right to a jury trial was knowing and voluntary. Defense counsel indicated that he wished to

proceed by way of bench trial multiple times in defendant's presence. Defendant did not object or

ask any questions at any point. He also submitted a signed waiver indicating he did not wish to

have a jury trial. Following its submission, the trial court informed defendant that the waiver

meant "the matter would be submitted to [the trial court] for trial." The court questioned

defendant whether he wished to waive his right, whether he had signed the waiver, whether he

had been threatened or promised anything for doing so, and whether he was waiving his right

freely and voluntarily. Defendant answered yes to each question. Moreover, it is clear from the

record that defendant has an extensive history with the criminal court system. Prior to the case at

issue, defendant had been convicted of eight felonies and multiple misdemeanors. He has


                                                -5-
1-14-0498


previously waived a jury trial twice and pled guilty numerous times. Thus defendant's history

indicates a familiarity with the criminal justice system, and a familiarity with his right to a trial

by jury. See Turner, 

375 Ill. App. 3d at 1109

. Accordingly, we find that defendant has failed to

show that he did not knowingly waive his right to a jury trial.

¶9     Defendant analogizes his case to People v. Sebag, 

110 Ill. App. 3d 821

 (1982). In Sebag,

the defendant was charged with battery and public indecency. 

Id. at 822

. The defendant, acting

pro se, signed a written jury waiver, and the trial court informed him, with regard to the battery

charge, that he had a right to a jury or bench trial and that by waiving his right to a jury trial he

could not later reinstate it. 

Id. at 828-29

. The reviewing court concluded that the record did not

show that the defendant voluntarily and knowingly waived his right to a jury trial on the public

indecency charge, particularly where it was clear the defendant was unfamiliar with court

proceedings. 

Id. at 829

. Here, unlike Sebag, defendant had the benefit of counsel when he

executed the written jury waiver and it is clear that defendant was familiar with criminal

proceedings. Therefore, the defendant's reliance on Sebag is misplaced.

¶ 10   Defendant also cites the supreme court's opinion in Bracey for the proposition that we

may not consider defendant's prior jury waivers in finding his waiver knowing. In Bracey, the

defendant knowingly waived his right to a jury trial after extensive admonishments by the trial

court. Bracey, 

213 Ill. 2d at 267

. Following a trial, the trial court granted the defendant's motion

for a new trial. 

Id. at 267-68

. Before the second trial, the court announced that it was ready to

begin the second bench trial, and neither defendant nor his attorney objected. 

Id. at 268

. The

supreme court held that the defendant did not knowingly waive his right to a jury trial for the

second trial. 

Id. at 272-73

. The supreme court reasoned that the defendant's initial waiver ended


                                                 -6-
1-14-0498


with the initial trial and that he was erroneously led to believe that the initial waiver obligated

him to a bench trial in his second trial. 

Id.

 Contrary to defendant's arguments, Bracey does not

prohibit a court from considering a defendant's prior jury waivers in judging his or her

knowledge. See, e.g., Bannister, 

232 Ill. 2d at 71

. Rather, it stands for the more limited

proposition that when a defendant is retried, he must waive his right to a jury trial anew.

¶ 11   Taking into consideration defendant's written jury waiver, his colloquy with the trial

court, and his demonstrated familiarity with the justice system, we find the trial court did not err

in finding that defendant knowingly waived his right to a jury trial. As we find no error occurred,

there can be no plain error. See People v. Lopez, 

2012 IL App (1st) 101395, ¶ 64

.

¶ 12   Defendant next contends that three of the fees that the trial court imposed are actually

fines and are therefore subject to per diem credit for time he served in custody prior to his

sentencing: (1) the $50 Court System fee (55 ILCS 5/5-1101(c) (West 2012)); (2) the $2 State's

Attorney Record's Automation fee (55 ILCS 5/4-2002.1(c) (West 2012)); and the Public

Defender Records Automation fee (55 ILCS 5/3-4012 (West 2012)). We first discuss the

background law applicable to all three fees before addressing each fee in turn.

¶ 13   We review the propriety of a trial court's imposition of fines and fees de novo. People v.

Price, 

375 Ill. App. 3d 684, 697

 (2007). Defendant asserts that his fees are void, and may

therefore be challenged at any time, citing People v. Marshall, 

242 Ill. 2d 285, 302

 (2011). In

light of People v. Castleberry, 

2015 IL 116916

, ¶ 19, this rule no longer applies. Generally, a

defendant forfeits any sentencing issue that he or she fails to preserve through both a

contemporaneous objection and a written postsentencing motion. See People v. Hillier, 

237 Ill. 2d 539, 544

 (2010). However, the rules of waiver and forfeiture are also applicable to the State.


                                                 -7-
1-14-0498


See People v. Williams, 

193 Ill. 2d 306, 347

 (2000). By failing to timely argue that a defendant

has forfeited an issue, the State waives the issue of forfeiture. 

Id.

 As the State has not argued that

defendant forfeited his fee arguments, we address the merits of defendant's claims.

¶ 14   A defendant is entitled to a credit of $5 against his or her fines, but not fees, for each day

spent in presentence custody. 725 ILCS 5/110-14(a) (West 2012). Defendant was incarcerated

for 335 days prior to his sentencing, and was thus entitled to a credit of up to $1,675 against his

fees. It is the nature of an assessment, and not its statutory label, that determines whether the

assessment is a fee or a fine. People v. Graves, 

235 Ill. 2d 244, 250

 (2009). A fee is a charge that

“seeks to recoup expenses incurred by the state,” or compensates the State for some cost of

prosecuting a defendant. People v. Jones, 

223 Ill. 2d 569, 582

 (2006). A fine, conversely, is “ ‘a

pecuniary punishment imposed as part of a sentence.’ ” 

Id.

 at 581 (quoting People v. White, 

333 Ill. App. 3d 777, 781

 (2002)).

¶ 15   In regards to the $50 Court System fee, the State concedes that the assessment is in fact a

fine, and we accept the State's concession. This court has previously held that the Court System

fee is essentially punitive, particularly because its amount varies depending on the degree of a

defendant's offense. People v. Smith, 

2013 IL App (2d) 120691, ¶ 21

. Accordingly, the

assessment is a fine, and defendant is entitled to a $50 credit. See 

id.

¶ 16   The $2 State's Attorney Record's Automation fee is compensatory in nature and thus not

subject to the per diem credit. This court has previously found that the State's Attorney records

automation fee is compensatory because it reimburses the State for its expenses related to

automated record-keeping systems. People v. Rogers, 

2014 IL App (4th) 121088, ¶ 30

; see also

People v. Bowen, 

2015 IL App (1st) 132046, ¶¶ 62-65

. The reasoning in Rogers applies with


                                                 -8-
1-14-0498


equal force here where the State's Attorney's office would have utilized its automated record

keeping systems in the prosecution of defendant when it filed charges with the clerk's office and

made copies of discovery, which were tendered to the defense. Therefore, the State's Attorney

Record's Automation fee is legally a fee and defendant is not entitled to per diem credit.

¶ 17   Finally, we turn to the Public Defender Records Automation fee. This court recently

noted that the statutory language of the Public Defender Records Automation fee is nearly

identical to that of the State's Attorney Record's Automation fee. Bowen, 

2015 IL App (1st) 132046, ¶ 65

. Finding no reason to distinguish between the two statutes, we applied the

reasoning of Rogers to the Public Defender Records Automation assessment and concluded that

it too was a fee. Id. ¶¶ 62-65. We find no reason to deviate from our previous holdings. The

purpose of the fee is "to discharge the expenses of the Cook County Public Defender's office for

establishing and maintaining automated record keeping systems." 55 ILCS 5/3-4012 (West

2012). Because defendant was represented by a public defender, counsel would have used the

public defender's office record systems in representing defendant. Therefore, the assessment

clearly compensates the State for the costs of representing defendant and constitutes a fee. As

such, defendant is not entitled to a per diem credit.

¶ 18   For the foregoing reasons, we find that the record establishes that defendant's jury waiver

was knowing and valid. While we find that the State's Attorney Record's Automation and Public

Defender Records Automation assessments are legally fees, the Court System assessment

assessed against defendant legally constitutes a fine. Defendant is therefore entitled to a $50

credit. Accordingly, we affirm the judgment of the circuit court of Cook County and order the

clerk to correct defendant's fines and fees order to reflect a total owed of $1,734.


                                                -9-
1-14-0498


¶ 19   Affirmed; fines and fees order corrected.




                                             - 10 -