No. 3--03--0568

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE SCHMIDT delivered the opinion of the court:

Following a jury trial, defendant Sandra Barrier was convicted of driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 2002)). She was sentenced to two years' probation and 62 days in jail. She also was ordered to pay costs and fines in the amount of $600. Defendant appeals, arguing that (1) her right to be tried by a 12-person jury was violated when one juror was excused on the first day of trial; and (2) she is entitled to monetary credit for 31 days spent in presentence custody. We affirm defendant's conviction and grant the monetary credit.

The record shows that assistant public defender John Fisher was appointed to represent defendant. Counsel entered a plea of not guilty.

The cause was called for a jury trial on April 28, 2003. Although the record on appeal contains no verbatim report of proceedings conducted on that date, the common law record shows that defendant was present with attorney Fisher, and 12 jurors were selected. The record further shows that the parties agreed not to select alternates, thereby risking the possibility and obviously agreeing that they would proceed to a verdict by less than 12 jurors. One of the jurors selected on April 28 was Ronald Wagner. After the jurors were sworn and admonished, they were released for the evening and told to return to hear the case the next morning.

On April 29, 2003, defendant appeared in court with counsel, and the following colloquy was recorded:

"THE COURT: Could counsel approach the bench? This is on the record. Yesterday, when we were picking the jurors, it was agreed that we would not have an alternate.

MR. JENNETTON [Assistant State's Attorney]: That's correct.

MR. FISHER [Defense attorney]: That's correct.

THE COURT: We will either proceed ahead with 11 jurors.

MR. FISHER: That would be fine.

MR. JENNETTON: Yes.

MR. OLEWINSKI [Assistant State's Attorney]: Yes.

THE COURT: All right. Have a seat. Mr. Wagner, come on up here.

THE COURT: All right. So what I am going to do is, when the jury comes in, I will tell them that you are ill and were unable to come here, but we are going to proceed with 11.

MR. WAGNER: Thank you, sir."

After Wagner was released and before the jury entered the courtroom, the court invited the parties to present any other motions. Neither defendant nor defense counsel raised any objections to the 11-member jury.

After the 11 jurors were seated in the jury box, the judge stated the following in his opening remarks:

"THE COURT: There are a few matters that came up, some unrelated to this case. One, though, that is related, is the fact that one of the jurors took ill. Nothing serious, but he is unable to be here today.

So, both parties have agreed that we can proceed ahead with the trial, with the 11 of you, who will make the decision. So instead of 12, there will be 11."

The jury found defendant guilty as charged. Consequently, the court revoked defendant's bond and set the cause for sentencing on May 15, 2003. On that date, defendant expressed discontent with her attorney. The record shows that the trial court discharged Fisher and appointed La Salle County Public Defender Daniel Bute.

Bute then filed a motion for new trial arguing, interalia, that error resulted from proceeding to trial with less than 12 jurors without first obtaining defendant's personal waiver of her right to a 12-person jury. No issue of ineffective assistance of counsel was raised.

Defendant's motion was heard on July 3, 2003. After reviewing the record and relevant case law cited by the parties, the court denied the motion, and the cause proceeded to sentencing. Defendant was sentenced to two years of reporting probation and a 62-day jail term with credit for time served prior to the sentencing hearing. She also was ordered to perform 100 hours of community service and to pay costs and fines totaling $600, the amount of bond posted in the case.

On appeal, defendant first argues that she is entitled to a new trial, because the court failed to obtain a valid waiver of her right to a 12-person jury. She asserts that, without a record of her personal oral or written waiver, the court's acceptance of her attorney's stipulation to an 11-person jury was reversible error. She notes that two appellate decisions are directly on point, but they reach opposite conclusions. See People v. Matthews, 304 Ill. App. 3d 415, 710 N.E.2d 524 (1999); People v. Chandler, 7 Ill. App. 3d 949, 289 N.E.2d 67 (1972).

In this state, a criminal defendant's right to a jury of 12 is guaranteed by article I, section 13, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I,