June 29, 2001

JUSTICE BYRNE delivered the opinion of the court:

Defendant, Anthony Milbratz, was charged with driving whileunder the influence of alcohol (DUI) (count I) (625 ILCS 5/11--501(a)(2) (West 2000)), resisting a peace officer (count II) (720ILCS 5/31--1(a) (West 2000)), attempted obstructing justice (countIII) (720 ILCS 5/8-4(a), 31--4(a) (West 2000)), driving while hislicense was suspended or revoked (count IV) (625 ILCS 5/6--303(a)(West 2000)), and operating an uninsured motor vehicle (count V)(625 ILCS 5/3--707 (West 2000)). Prior to trial, defendant pleadedguilty to counts II and III and the matter proceeded to a benchtrial on the remaining counts. The trial court subsequentlygranted defendant's motion for directed findings as to counts IVand V and found defendant guilty of count I, the DUI charge.

Defendant appeals and contends that, as to counts II and III,his guilty pleas must be reversed and the cause must be remanded toallow him to replead because no factual basis was presented insupport of the pleas. Defendant also contends that his convictionof DUI must be reversed because (1) the trial court erred when itpermitted the cross-examination of a witness beyond the scope ofher direct examination and (2) defendant did not knowingly waivehis right to a jury trial. We affirm defendant's conviction of DUIand remand the cause for further proceedings as to counts II andIII.

Prior to the start of the trial, the following colloquyoccurred among defendant's attorney (Mr. Coco), the trial court,and defendant:

"MR. COCO: Tony Coco for the defendant, your honor.

At this time we are still seeking to go to bench trial onCounts 1, 4 and 5.

But at this time we will be entering pleas of guilty toCounts 2 and 3 of the resisting and the attempt obstructingjustice.

THE COURT: All right, as to counts 2 and 3, those areClass A misdemeanors, punishable by up to one year in jail, a$2500 fine. Probation or conditional discharge up to 24months; as a condition of either of those, up to 180 dayscounty jail, periodic imprisonment up to one year, courtsupervision up to two years.

As to all the charges, you are entitled to have a jurytrial. A jury trial is where 12 people sit and listen to theevidence, they decide if you're guilty or not guilty.

And then a bench trial is a judge sitting alone.

You're giving up your right to have a jury or bench trialfreely and voluntarily, is that correct?

DEFENDANT ANTHONY MILBRATZ: Yes, sir.

THE COURT: Nobody has threatened or promised you anythingto get you to do that, is that correct?

DEFENDANT ANTHONY MILBRATZ: No, sir.

THE COURT: To the charges on Counts 2 and 3, by pleadingguilty, you're giving up your right to have a trial of anykind, giving up your right to cross-examine witnesses, bringin witnesses in your own behalf, and you're doing all thosethings freely and voluntarily?

DEFENDANT ANTHONY MILBRATZ: Yes.

THE COURT: Nobody threatened or forced you to do that?

DEFENDANT ANTHONY MILBRATZ: No, sir.

THE COURT: Upon a plea of guilty, I'll find you guilty.

I'll continue those over for sentencing.

As to Counts 1, 4 and 5, pleas of not guilty.

And is it going to be a bench trial?

MR. COCO: Yes, Judge."

At trial, the State called Susan Barry, an Elmhurst policeofficer, as a witness. Officer Barry testified that on March 14,1998, at about 3:56 a.m., she was on duty and was called to thearea near North Avenue and Route 83 in response to a report of thereckless driving of a gray Ford pickup truck. Officer Barryobserved a gray Ford pickup truck with its hood up being driventhrough the lot of a gas station on the southwest corner of theintersection of North Avenue and Route 83. After the truck stoppedin the gas station lot, Officer Barry approached the truck andobserved that defendant was the driver of the truck.

Officer Barry noticed that defendant had a slight odor ofalcohol on his breath, that defendant's speech was slurred, andthat defendant's eyes were bloodshot and glassy. Defendant toldOfficer Barry that his truck was overheating, that he was comingfrom Buffalo Grove, and that he was going home to ArlingtonHeights. Officer Barry asked defendant for his identification. Defendant then handed Officer Barry a citation with the nameBrandon Booth and walked into the gas station.

Officer Barry followed defendant and observed that he wasstaggering and was very unsteady on his feet. Inside the gasstation, Officer Barry observed that the odor of alcohol ondefendant's breath was much stronger than it had appeared whendefendant was outside. Defendant agreed to perform three fieldsobriety tests. After administering the tests, Officer Barryconcluded that defendant failed each of the tests and arresteddefendant for DUI. At trial, Officer Barry opined that defendantwas under the influence of alcohol when he was arrested.

On cross-examination, Officer Barry acknowledged that she didnot observe defendant's truck on a public road. On redirectexamination, Officer Barry testified that the entrances and exits to the gas station are all adjacent to public highways, thatdefendant was by himself, and that defendant did not say thatanyone else drove him to the gas station.

Dan Terry, an Elmhurst police officer, testified that he wason duty at about 4 a.m. on March 14, 1998, when he was dispatchedto the gas station to assist Officer Barry. Officer Terry'stestimony corroborated the testimony of Officer Barry with respectto defendant's slurred speech, defendant's bloodshot, glassy eyes,the odor of alcohol on defendant's breath, and defendant's failureof the field sobriety tests. Officer Terry opined that defendantwas intoxicated when he was arrested.

On cross-examination, Officer Terry acknowledged that he didnot observe defendant's truck move. Officer Terry alsoacknowledged that he did not recover a set of keys from defendant'struck.

After the State rested, defendant made an oral motion for adirected finding. Following arguments, the trial court denied themotion as to the DUI charge and granted the motion as to counts IVand V. With respect to count IV, the charge of driving withlicense suspended or revoked, the trial court commented that therewas circumstantial evidence that defendant was driving but that thecourt was not convinced beyond a reasonable doubt that defendant"operated the vehicle, and on a certain street at a certain time."

Defendant then called Officer Barry as a witness. The onlyquestion that defendant's attorney asked Officer Barry was whethershe ever recovered a set of keys from defendant on the night inquestion. Officer Barry's response was, "I don't believe I did."

On cross-examination, Officer Barry was asked whether theengine in defendant's truck was running when defendant walked intothe gas station. Defendant objected on the ground that thequestion was beyond the scope of the direct examination. The trialcourt overruled the objection. Officer Barry then answered, "Yes."

The trial court found defendant guilty of DUI. The courtsubsequently denied defendant's motion for a new trial andsentenced defendant to a term of 292 days' incarceration in thecounty jail on each of counts I, II, and III with 292 days ofcredit for time served on each count. The trial court also imposedvarious fines and costs on defendant. Defendant's timely notice ofappeal followed.

On appeal, defendant first contends that the trial courtcommitted reversible error when it allowed the State to cross-examine Officer Barry beyond the scope of her direct examinationduring defendant's case. Defendant asserts that the error occurredwhen the trial court overruled his objection and allowed OfficerBarry to answer the question as to whether the truck's engine wasrunning. Defendant maintains that the subject matter of the directexamination regarding the recovery of keys was to establish hisdefense that someone else, not defendant, had been driving thetruck. In defendant's view, the scope of the direct examination ofOfficer Barry should have been limited to that subject matter. Defendant argues that the State's question on cross-examinationregarding whether the truck was running was beyond the scope of thedirect examination because it did not address whether someone otherthan defendant was driving the truck but instead sought to bolsterthe State's lack of evidence as to whether defendant was drivingthe truck.

The State initially responds that defendant has waived thisissue by failing to raise it in his posttrial motion. The Statealso maintains that the issue should not be reviewed as plain errorbecause the cross-examination in question was within the scope ofthe direct examination and therefore the trial court did not errwhen it allowed the cross-examination.

Cross-examination is generally limited in scope to the subjectmatter of the direct examination of the witness and to mattersaffecting the credibility of the witness. People v. Terrell, 185Ill. 2d 467, 498 (1998). However, courts should liberally construethis limitation to allow inquiry into whatever subject tends toexplain, discredit, or destroy the witness' testimony. Terrell,185 Ill. 2d at 498. The latitude allowed regarding cross-examination rests within the sound discretion of the trial court,and a reviewing court should not interfere absent a clear abuse ofdiscretion that results in manifest prejudice to the defendant. People v. Hall, 195 Ill. 2d 1, 23 (2000). Improper cross-examination is not reversible error if it can be consideredharmless error. People v. Enis, 139 Ill. 2d 264, 296 (1990).

In this case, we agree with the State that defendant haswaived the issue because he failed to raise it in his posttrialmotion. See Hall, 195 Ill. 2d at 26 (failure to object to claimedimproper cross-examination both contemporaneously and inpostsentencing motion resulted in waiver of the issue). Furthermore, even if we were to address the merits of the issue, wewould agree with the State that the trial court did not err becausethe cross-examination was within the scope of the directexamination. Defendant's argument that the subject matter of thedirect examination was limited to whether someone other thandefendant was driving the truck and did not at least infer thatdefendant was not driving the truck cannot withstand logicalscrutiny. In addition, it would be reasonable to infer from thefact that the truck was running that the keys were in the truck'signition and that the keys therefore could have been recovered. This would tend to discredit the direct examination of OfficerBarry. Thus, the trial court did not abuse its discretion when itdecided that the question was within the scope of the directexamination.

Finally, even if the trial court had erred by allowing thecross-examination we would conclude that the error was harmless. In the State's case, Officer Barry testified that she observeddefendant driving the truck. Consequently, the question on cross-examination was not necessary to establish that defendant wasdriving the truck.

For all these reasons, defendant is not entitled to a reversalof his conviction of DUI on the ground that the trial court erredby allowing cross-examination beyond the scope of directexamination.

Defendant next makes a compound contention that he did notknowingly and understandingly plead guilty to counts II and III(attempted obstructing justice and resisting a peace officer) andthat he therefore could not have made a knowing waiver of his rightto a jury trial on count I (DUI). Defendant seeks the reversal ofhis convictions on counts II and III, a remand of the cause toallow him to replead on those counts, and the reversal of hisconviction on count I and a remand for a new trial on that count.

We first address defendant's contention that he did notknowingly and understandingly plead guilty to counts II and III. Defendant bases this contention on his assertion that there was nofactual basis presented in support of the pleas. Defendant arguesthat, in the absence of a supporting factual basis, his guiltypleas did not comply with the requirements of Supreme Court Rule402(c) (177 Ill. 2d R. 402(c)) and therefore must be reversed.

The State responds that defendant's appeal on this issueshould be dismissed because defendant failed to file a motion towithdraw his guilty pleas as required by Supreme Court Rule 604(d)(188 Ill. 2d R. 604(d)). Defendant acknowledges that he failed tofile a motion to withdraw his guilty pleas but argues that thisfailure should be excused because the trial court did not admonishhim regarding his rights and responsibilities with respect to thepleas pursuant to Supreme Court Rule 605(b) (188 Ill. 2d R.605(b)).

Supreme Court Rule 605(b) provides that the circuit courtshould give certain admonishments to a defendant after thedefendant submits a guilty plea. Specifically, Rule 605(b)requires that the circuit court should advise a defendant (1) thathe has a right to appeal; (2) that he must file a motion towithdraw the guilty plea before taking an appeal; (3) that if themotion is allowed, the circuit court will vacate the plea, thesentence, and the judgment and the matter will proceed to trial;(4) that the State may pursue any charges that were dismissed aspart of a plea agreement; (5) that if the defendant is indigent,transcripts and counsel will be provided to assist him in thepreparation of the motions; and (6) that any claims of error notraised in the motion to withdraw the guilty plea will be waived onappeal. 188 Ill. 2d R. 605(b); People v. Burton, 184 Ill. 2d 1, 17(1998).

Because such posttrial motions are necessary to preserveissues for appeal, the Rule 605(b) admonishments are mandatory so that a defendant does not fail to file the necessary motion if hewishes to appeal. Burton, 184 Ill. 2d at 18. Consequently, wherethe circuit court fails to admonish a defendant pursuant to Rule605(b) and the defendant fails to file a motion to withdraw aguilty plea, a reviewing court must remand the cause to the circuitcourt to give the defendant an opportunity to file a motion towithdraw the guilty plea. Burton, 184 Ill. 2d at 18.

In this case, when the trial court accepted defendant's guiltypleas on counts II and III prior to trial, it continued the matterfor sentencing on those counts. After the trial, when the trialcourt sentenced defendant on his conviction of DUI, the assistantState's Attorney reminded the trial court that it had not yetsentenced defendant for his convictions on counts II and III. Thetrial court then sentenced defendant on counts II and III. However, the trial court did not admonish defendant pursuant toRule 605(b) at that time, and nothing in the record shows that thetrial court admonished defendant pursuant to Rule 605(b) at anyother time. Therefore, because the trial court failed to admonishdefendant regarding his guilty pleas on counts II and III pursuantto Rule 605(b), we must remand the cause to the circuit court togive defendant an opportunity to file a motion to withdraw hisguilty pleas on counts II and III.

Because we must remand the cause based on the trial court'sfailure to admonish defendant pursuant to Rule 605(b), we will onlybriefly address defendant's contention that he did not knowinglyand understandingly plead guilty to counts II and III because nofactual basis was presented in support of the pleas. Nothing inthe record shows that the trial court determined that there was afactual basis for the guilty pleas before the court entered finaljudgment on the pleas. Thus, the pleas were entered withoutsatisfying Supreme Court Rule 402(c) (134 Ill. 2d R. 402(c)), whichrequires a factual basis for all guilty pleas. On remand,defendant will be given an opportunity to withdraw his guilty pleason counts II and III.

We next address defendant's contention that he did notknowingly waive his right to a jury trial with respect to count I,the DUI charge. Defendant acknowledges that he signed a writtenwaiver of his right to a jury trial. However, defendant points outthat the written waiver does not identify the counts that thewaiver applied to. Defendant argues that his waiver was unknowingbecause the trial court failed to identify the counts on which hewas pleading guilty and therefore he could not have known thecounts on which he waived his right to a jury trial.

A criminal defendant may waive his right to a trial by jury ifhe understandingly waives the right in open court. 725 ILCS 5/103--6 (West 2000); People v. Scott, 186 Ill. 2d 283, 284-85 (1999). Generally, a written waiver signed by the defendant is a sufficientindication that the defendant knowingly and understandingly waivedhis right to a jury trial. See 725 ILCS 5/115--1 (West 2000). Whether a waiver was knowingly and understandingly made isdetermined by the facts and circumstances of each case. People v.Tye, 141 Ill. 2d 1, 24 (1990).

In this case, the facts simply do not support defendant'scontention that he did not knowingly waive his right to a jurytrial. Prior to trial, while defendant was present in open court,defendant's attorney advised the court that defendant wished toplead guilty to counts II and III and proceed to a bench trial onthe remaining counts, including count I, the DUI count. Defendant's attorney stated the charges related to counts II andIII. The trial court then admonished defendant as to counts II andIII and accepted defendant's guilty pleas on counts II and III. The trial court also described the difference between a jury trialand a bench trial. The trial court then asked whether it would bea bench trial as to counts I, IV, and V. Defendant's counselreplied, "Yes, Judge."

Based on this record, we conclude that defendant knowingly andunderstandingly waived his right to a jury trial with respect tocount I, the DUI charge. Therefore, defendant is not entitled tothe reversal of his conviction of DUI on that ground.

In sum, we affirm defendant's conviction of DUI and remand thecause for further proceedings to allow defendant an opportunity towithdraw his guilty pleas on counts II and III.

Affirmed in part and remanded for further proceedings.

GEIGER and CALLUM, JJ., concur.