Illinois Official Reports 

Appellate Court

People v. West, 2017 IL App (1st) 143632

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

ESAU WEST, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-14-3632

Filed January 17, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 12-CR-1930; the 

Hon. Neil J. Linehan, Judge, presiding.

Judgment Affirmed; mittimus corrected.

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Carolyn R. Klarquist, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

Whitney Bond, and Radhika Lohia, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Presiding Justice Hyman and Justice Neville concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 Following a bench trial, defendant Esau West was convicted of (1) armed habitual 

criminal (AHC), (2) aggravated unlawful use of a weapon (AUUW), and (3) unlawful use of 

a weapon (UUW) by a felon. The trial court imposed a six-year imprisonment term for each 

conviction, to be served concurrently. On appeal, West claims that (1) his jury waiver was 

invalid because the trial court failed to adequately admonish him, (2) the AHC statute is 

facially unconstitutional, and (3) his AUUW conviction must be vacated because it was 

based on the same physical act—possession of a loaded firearm—as his AHC conviction. 

Because we find no merit in West’s claims regarding the invalidity of his jury waiver and the 

facial unconstitutionality of the AHC statute, we affirm West’s AHC and UUW by a felon 

convictions and sentences. But, as the State concedes we should, we vacate the less serious 

AUUW conviction as violating the one-act, one-crime rule and direct the clerk of the circuit 

court to correct the mittimus accordingly. 

¶ 2 BACKGROUND 

¶ 3 Because the police found West in possession of a 9-millimeter semiautomatic handgun 

loaded with 13 rounds of ammunition, the State charged him with (1) one count of AHC, 

(2) four counts of AUUW, and (3) two counts of UUW by a felon. After the trial court denied 

West’s motion to dismiss, his case proceeded to trial. 

¶ 4 Before his trial began, West signed a written jury waiver form, which was tendered to the 

trial court. The written jury waiver form stated that “I, the undersigned, do hereby waive the 

jury trial and submit the above entitled cause to the Court for hearing.” Thereafter, the 

following colloquy occurred between the trial court, defense counsel, and West. 

“THE COURT: All right. And your client has executed a Jury Waiver, is that 

correct? 

 MR. GREENBERG [Defense Attorney]: Yes. 

 THE COURT: Mr. West, is this your signature on this document? 

 THE DEFENDANT: Yes. 

 THE COURT: Understand that by signing that document and handing it to me, 

you’re indicating that you wish to waive your right to a jury trial?

 THE DEFENDANT: Yes. 

THE COURT: Do you understand by tendering that document to me, I’ll hear the 

evidence rather than a jury, is that what you wish to have happen? 

 THE DEFENDANT: Yes. 

 THE COURT: All right, Jury Waiver will be accepted, made a permanent part of 

the record.”

¶ 5 The facts of West’s bench trial are largely undisputed and of limited relevance to the 

issues he raises on appeal, and so, we only briefly summarize them. On January 10, 2012, at 

approximately 10:40 p.m., officer Derouin of the Chicago police department responded to a 

call of a “man with a gun,” who was later identified as West, located in a gangway at 89th 

Street and Woodlawn Avenue in Chicago. After the police vehicle arrived in the area and 

turned down an alley, officer Derouin saw West walking down the alley in the opposite 
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direction. The police vehicle began to chase West, who fled on foot, and when West was 

about four or five residences away, he attempted to jump over a three-foot tall chain-link 

fence but fell over it, landing on the other side. Officer Derouin exited the police vehicle and 

yelled “Police.” By that point, West was already on the ground, and officer Derouin saw him 

throw a handgun, which landed on the ground a couple of feet away. Officer Derouin jumped 

the same fence, apprehended West, and recovered the handgun, which was a 9-millimeter 

semiautomatic Smith & Wesson handgun loaded with 13 rounds of ammunition. 

¶ 6 The State also introduced evidence that West had never been issued a firearm owners 

identification (FOID) card and that he had been convicted of attempted murder on August 10, 

1998, and UUW by a felon on April 3, 1996. The trial court denied West’s motion for a 

directed finding, and the defense rested without presenting any evidence. 

¶ 7 The trial court found West guilty of (1) AHC (a Class X felony), (2) AUUW with a 

previous conviction (a Class 2 felony), and (3) UUW by a felon (a Class 2 felony). West was 

sentenced to concurrent terms of six years’ imprisonment for each conviction. West filed a 

motion for a new trial asserting that he was not proved guilty beyond a reasonable doubt 

because the State offered no proof that the recovered item was, in fact, a firearm. After the 

trial court denied West’s motion, he timely appealed. 

¶ 8 ANALYSIS 

¶ 9 West first challenges the validity of his jury waiver, claiming that (1) the trial court’s 

admonishments failed to adequately inform him of the difference between a jury and bench 

trial and (2) he did not understandingly waive his right to a jury trial. Specifically, West 

contends that his waiver was not valid because the trial court failed to ensure that he 

understood (1) how a jury was selected, (2) his right to cross-examine the State’s witnesses 

and present his own witnesses and evidence in a jury trial, (3) that a jury’s decision regarding 

his guilt must be unanimous, and (4) that the State had the burden of proof in either a jury or 

bench trial. West claims that his convictions should be reversed and his case remanded for a 

new trial due to his invalid jury waiver. 

¶ 10 Our federal and state constitutions guarantee the right to a jury trial. People v. Bracey, 

213 Ill. 2d 265, 269 (2004); U.S. Const., amends. VI, XVI; Ill. Const. 1970, art. I, §§ 8, 13. 

But a defendant may waive that right. Bracey, 213 Ill. 2d at 269; 725 ILCS 5/103-6 (West 

2012). For a jury waiver to be valid, the defendant must understandingly waive his right to a 

jury trial in that the waiver is both knowing and voluntary. People v. Tooles, 177 Ill. 2d 462, 

468 (1997) (citing 725 ILCS 5/103-6 (West 1992), and People v. Smith, 106 Ill. 2d 327, 334 

(1985)). A written jury waiver is one means by which a defendant may waive his right, but a 

written waiver is not conclusively a valid waiver. Bracey, 213 Ill. 2d at 269-70. A court need 

not give any specific admonishment or advice for a waiver to be effective; instead, the 

determination of whether a jury waiver is valid depends on the facts and circumstances of a 

particular case. Id. at 269; People v. Tye, 141 Ill. 2d 1, 24 (1990). Indeed, there is no precise 

formula to apply to determine whether a jury waiver is valid. Bracey, 213 Ill. 2d at 269. In 

essence, for a jury waiver to be effective, the trial court must ensure that the defendant knows 

that the facts of his case would be determined by a judge and not a jury and the resulting 

consequences of that decision. People v. Bannister, 232 Ill. 2d 52, 69 (2008). A jury waiver is 

generally valid where defense counsel waives that right in open court and the defendant does 

not object to the waiver. Bracey, 213 Ill. 2d at 270. West bears the burden of establishing that 
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his jury waiver was invalid, which is an issue we review de novo. People v. Reed, 2016 IL 

App (1st) 140498, ¶ 7. 

¶ 11 West acknowledges that he did not raise the validity of his jury waiver in the trial court 

but contends that his forfeited claim is reviewable under the plain error doctrine because his 

claim entails a violation of his fundamental right to a jury trial guaranteed by our federal and 

state constitutions—an issue properly considered under a plain error analysis. Bracey, 213 Ill. 

2d at 270. Of course, the precursor to a discussion of plain error is the determination that an 

error occurred in the trial court. People v. Walker, 232 Ill. 2d 113, 124 (2009) (initial step in 

plain error analysis is to determine whether error occurred at all); People v. Smith, 372 Ill. 

App. 3d 179, 181 (2007) (without error there can be no plain error). The State concedes that 

West’s claim is reviewable for plain error but contends that there is no error. 

¶ 12 Given the facts here, we agree with the State that there was no error because West 

understandingly waived his right to a jury trial. Importantly, West does not dispute that he 

tendered a signed written jury waiver form to the trial court and was present in open court 

when the trial court addressed that jury waiver. West, rather, asserts that the waiver’s 

language was too cursory, offering no explanation of the difference between a jury and bench 

trial and that the trial court failed to adequately admonish him regarding his right to a jury 

trial and waiver of that right. But as demonstrated by the record, the trial court adequately 

admonished West that by signing the waiver form and tendering it to the court, he would be 

waiving a jury trial and that the court, and not a jury, would hear the evidence. Consequently, 

the trial court adequately conveyed to West that his case would not be heard by a jury. The 

fact that the trial court did not inquire into whether West’s waiver was the product of any 

promise or threat is an insufficient basis to undermine his otherwise valid waiver. 

Significantly, at no point did West object to his case proceeding to a bench trial despite his 

presence in court; instead, he affirmatively indicated that he understood he was waiving his 

right to have a jury hear the evidence in his case. 

¶ 13 West’s criminal history reinforces our conclusion that his jury waiver was valid. West 

had multiple prior felony convictions (seven adult felony convictions) and extensive 

experience with the judicial system, creating the reasonable presumption that he knew what a 

jury trial was and understood his right to a jury trial but chose not to exercise that right. See 

Bannister, 232 Ill. 2d at 71. West’s prior experience with the judicial system belies any claim 

that he did not know or understand judicial proceedings and, in particular, the difference 

between a bench and jury trial. 

¶ 14 West claims that the admonishments in his case were inadequate when compared to those 

in People v. Tooles, 177 Ill. 2d 462, 469-70 (1997). Although we recognize that the 

admonishments in Tooles were more expansive, the Tooles court explicitly stated that while a 

trial court must ensure that a defendant’s waiver of his right to a jury trial is understandingly 

made, “no set admonition or advice is required before an effective waiver of that right may 

be made.” Id. at 469. Likewise, West’s reliance on People v. Sebag, 110 Ill. App. 3d 821, 829 

(1982), is misplaced because although the trial court’s admonishments were found 

inadequate for failing to inquire into whether the defendant understood what a jury trial was, 

the defendant in Sebag, unlike West, was unfamiliar with criminal proceedings and was not 

represented by counsel. In essence, West is urging this court to compare the trial court’s 

admonishments in his case to unassailable admonishments, but case law is clear that there are 
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no set admonishments that must be given to find a jury waiver valid. Tooles, 177 Ill. 2d at 

469. 

¶ 15 Although we conclude that West validly waived his right to a jury trial, we note that 40 

years ago our supreme court observed that trial courts could avoid any claimed error on this 

point by providing a defendant with the following admonishments and eliciting a response 

from the defendant reflecting that he (1) understands he is entitled to a jury trial, 

(2) understands what a jury trial is, and (3) wishes to be tried by a jury or by the court 

without a jury. People v. Chitwood, 67 Ill. 2d 443, 448-49 (1977); People v. Bell, 104 Ill. 

App. 2d 479, 482 (1969). Moreover, trial courts should ensure a defendant wishing to waive 

his right to a jury trial executes a written jury waiver. “ ‘This simple procedure incorporated 

in the record will reduce the countless contentions raised in the reviewing courts about jury 

waivers.’ ” Chitwood, 67 Ill. 2d at 449 (quoting Bell, 104 Ill. App. 2d at 482). 

¶ 16 Here, taking into account the trial court’s admonishments coupled with the signed jury 

waiver, West’s representation by counsel, his presence in court, his verbal assent to waive a 

jury trial, and his prior exposure to the criminal justice system, we conclude that West 

understandingly waived his jury trial. People v. Clay, 363 Ill. App. 3d 780, 791 (2006). 

Because there was no error relating to West’s jury waiver, there can be no plain error, and we 

need not consider this issue further. 

¶ 17 West next challenges the constitutionality of the AHC statute, contending it violates due 

process because it criminalizes both the lawful and unlawful possession of a firearm with the 

potential effect of criminalizing innocent conduct. West claims that the AHC statute is 

facially unconstitutional because it criminalizes the possession of a firearm by a felon twice 

convicted of statutorily enumerated offenses even though the Firearm Owners Identification 

Card Act (FOID Card Act) does not criminalize that same possession, since a 

twice-convicted felon may qualify for a FOID card in limited circumstances under that Act. 

430 ILCS 65/5, 8, 10 (West 2012). Simply put, West claims that only the possession of a 

firearm without a FOID card is illegal under Illinois law, but the AHC statute criminalizes 

possession of firearm by a repeat felon even if he possesses a valid FOID card. Thus, West 

asserts that the AHC statute is facially unconstitutional because it criminalizes a 

twice-convicted felon’s possession of a firearm regardless of the fact that he may have a 

valid FOID card and lawfully possess the firearm. 

¶ 18 The Criminal Code of 2012 defines the offense of AHC as being a person who “(a) *** 

receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or 

more times of any combination of the following offenses: *** (2) unlawful use of a weapon 

by a felon; aggravated unlawful use of a weapon; aggravated discharge of a firearm.” 720 

ILCS 5/24-1.7(a)(2) (West 2012). 

¶ 19 Under section 8 of the FOID Card Act (430 ILCS 65/8(c) (West 2012)), a convicted felon 

may have his or her FOID card revoked and seized or application denied. But under section 

10(c) (430 ILCS 65/10(c) (West 2012)), a convicted felon who is prohibited from acquiring a 

FOID card may apply to the Director of State Police or the circuit court, as applicable, 

requesting relief from that prohibition. The director or court may grant the requested relief in 

specific enumerated instances, including where “the applicant has not been convicted of a 

forcible felony *** within 20 years of the applicant’s application for a [FOID] Card, or at 

least 20 years have passed since the end of any period of imprisonment imposed in relation to 

that conviction.” 430 ILCS 65/10(c)(1) (West 2012). Basically, section 10 provides 
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guidelines for the individual review of a felon’s application for a FOID card. Based on this 

“individual review,” West contends that a person convicted under the AHC statute could 

lawfully possess a FOID card. Thus, West claims that the AHC statute criminalizes 

potentially innocent conduct and has no rational relationship to the statute’s intended 

purpose. 

¶ 20 As an initial matter, West does not contend that he had applied for a FOID card and was 

denied one. But West does not raise an “as applied” challenge to the constitutionality of the 

AHC statute; instead, he mounts a facial challenge arguing that the statute violates due 

process because it is unenforceable against anyone. People v. Fulton, 2016 IL App (1st) 

141765, ¶ 19. Consequently, because West claims that he was convicted under a facially 

unconstitutional statute, he has suffered an injury and has standing to challenge the AHC 

statute’s constitutionality. Id. 

¶ 21 Notably, an attack on a statute as facially unconstitutional is the most difficult challenge 

to mount. People v. Davis, 2014 IL 115595, ¶ 25. Only where there are no circumstances in 

which the statute could be validly applied is a statute facially unconstitutional. Id. A statute is 

not facially invalid merely because it could be unconstitutional in some circumstances. Id.

Accordingly, a facial challenge cannot succeed if any circumstance exists where the statute 

could be validly applied. Id. The constitutionality of a statute is a question of law we review 

de novo. Id. ¶ 26. 

¶ 22 A facial unconstitutionality challenge to the AHC statute on grounds identical to those 

raised by West has been previously considered and rejected by two different panels of this 

court in People v. Johnson, 2015 IL App (1st) 133663, and People v. Fulton, 2016 IL App 

(1st) 141765. West urges this court not to follow Johnson and Fulton because those cases 

were silent regarding the required individualized consideration of a person’s right to possess 

a firearm as recognized in Coram v. State of Illinois, 2013 IL 113867, ¶ 58. But Johnson and 

Fulton found Coram inapposite because it analyzed a prior version of the FOID Card Act 

(pre-2013 amendments) in upholding the individualized consideration of a person’s right to 

possess a firearm. Johnson, 2015 IL App (1st) 133663, ¶ 29; Fulton, 2016 IL App (1st) 

141765, ¶ 24. Fulton further found Coram distinguishable because it did not address the 

constitutionality of the AHC statute. Fulton, 2016 IL App (1st) 141765, ¶ 24. We find no 

basis to invalidate the substantial authority upholding the constitutionality of the AHC statute 

and adopt the soundly reasoned decisions in Johnson and Fulton. Accordingly, we reject 

West’s claim that the ACH statute is facially unconstitutional as a violation of due process. 

¶ 23 Finally, West contends that his conviction for AUUW must be vacated on the basis that it 

violates the one-act, one-crime rule because it encompasses the same physical act leading to 

his conviction for AHC. Specifically, West claims that his possession of a single 9-millimeter 

handgun containing 13 rounds of ammunition improperly lead to his convictions for both 

AUUW and AHC. 

¶ 24 The one-act, one-crime rule prohibits convictions for multiple offenses based on the same 

single physical act. People v. Miller, 238 Ill. 2d 161, 165 (2010); People v. King, 66 Ill. 2d 

551, 566 (1977). Under the one-act, one-crime rule, a court should impose a sentence on the 

more serious offense and vacate the less serious offense. People v. Smith, 233 Ill. 2d 1, 20 

(2009); People v. Artis, 232 Ill. 2d 156, 170 (2009). 

¶ 25 The State acknowledges that West’s convictions for AHC and AUUW are both based on 

West’s possession of the same loaded 9-millimeter handgun and concedes that his less 
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serious conviction of AUUW must be vacated. We agree with the parties that West’s 

convictions for AHC and AUUW violate the one-act, one-crime rule because they arose out 

of the same physical act—possession of the same loaded firearm. Because West’s AUUW 

conviction is a Class 2 felony (720 ILCS 5/24-1.6(d)(3) (West 2012)) and his AHC 

conviction is a Class X felony (720 ILCS 5/24-1.7(b) (West 2012)), we vacate the less 

serious offense of AUUW and direct the clerk of the circuit court to correct West’s mittimus 

by vacating the AUUW conviction. We affirm the trial court’s judgment in all other aspects.

¶ 26 CONCLUSION 

¶ 27 Finding West’s jury waiver valid and the AHC statute facially constitutional, we affirm 

West’s convictions and sentences for AHC and UUW by a felon. But we vacate West’s 

conviction for AUUW for violating the one-act, one-crime rule and order West’s mittimus 

corrected accordingly. 

¶ 28 Affirmed; mittimus corrected.