This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in January, 2004


In most criminal cases, the contending parties arrive at a plea agreement to dispose of all the charges. However, on occasion, the defense may want to preserve a pre-trial issue or a legal question pertaining to an affirmative defense, where the sufficiency of the evidence to prove guilt is not otherwise in doubt. Alternatively, the defense may want to avoid the adverse impact of a guilty plea upon a claim for civil liability arising out of the criminal incident. Although counsel intends for the court to find the client guilty, the accused does not make an admission of guilt that may be used against him in a subsequent civil case.

On the other side of the fence, the State may wish to avoid the time and effort involved in a trial of the case, but does not object very heartily to the defense preserving an issue for appeal. In these situations, the prosecution and defense agree to employ the procedure known as a stipulated bench trial to achieve their respective goals.

Although the stipulated bench trial can be a useful tool to preserve a pre-trial issue or a defense, a lack of precision in the language used before the bench can deprive the Appellate Court of jurisdiction. In this article, I want to highlight the perils involved for defense counsel in utilizing this procedure.


Most of the appellate cases determining whether proceedings intended as stipulated bench trials were transformed unwittingly into guilty pleas result from claims that the defendant did not receive admonishments under Supreme Court Rule 402. These cases concern the efforts of criminal defendants to vacate their supposed guilty pleas and to start afresh on their cases in the trial courts. While the rulings in these cases help to distinguish between stipulated bench trials and guilty pleas, the focus of this article is the proper procedure for preservation of the right to appeal rather than for vacating a plea.


The most common pitfall for counsel seeking to preserve the right to appeal at a stipulated bench trial relates to the language used in advising the court of the nature of the proceeding. Reviewing court decisions seek to determine whether the parties preserved the trial court's role in ruling on the sufficiency of the evidence to convict. In reaching this decision, the case law can turn on some exceedingly fine distinctions (a/k/a nitpicking) concerning the comments addressed to the court by defense counsel during the proceeding.

One unquestioned principle of appellate procedure drives the decisions in this area, namely, that the entry of a guilty plea waives all non-jurisdictional errors in the entire proceeding, including claims related to pre-trial motions. (fn. 1) Thus, for purposes of appeal, the entry of a guilty plea waives all issues other than the subject-matter and personal jurisdiction of the trial court. Only the rarest of cases involves the court's lack of jurisdiction to impose a judgment in a criminal case. (fn. 2) Even a claim that the court lacked jurisdiction because the defendant pleaded guilty to a non-existent offense does not avoid the normal rule of waiver. (fn. 3) Moreover, the parties cannot stipulate to the preservation of appellate jurisdiction when executing the terms of an agreed guilty plea. (fn. 4)

By contrast, a properly conducted stipulated bench trial preserves claims of error occurring during the course of the proceedings, such as rulings on pre-trial suppression motions. (fn. 5) Therefore, since the whole purpose of a stipulated bench trial may be the preservation of appellate issues, caution is required to avoid the waiver of those issues on appeal.

The key phrase to avoid turning a stipulated bench trial into a guilty plea is any stipulation that the evidence presented by agreement "is sufficient to convict".

As my first nitpicking example, the reviewing courts have distinguished between using this phraseology instead of stating to the court that the evidence "is sufficient" or that the evidence supports a finding of guilty. (fn. 6) The decisions hold that stipulating to the sufficiency of the evidence to convict deprives the trial court of its function of determining whether the defendant has been proven guilty, while the other phrases preserve the judge's function as the trier of fact. Under the pressure of the moment, should we expect to recall this distinction before the bench?

Just to make matters more complicated, try to discern the distinguishing feature between the following cases: In People v. Burns, 239 Ill.App.3d 169 (2nd Dist., 1993), a detailed stipulation of facts was presented to the court at a stipulated bench trial, with no evidence or argument advanced by defense counsel. The Appellate Court determined that the proceeding was tantamount to a guilty plea because the defense did not obtain rulings on its pre-trial motions. But, in People v. Henderson, 215 Ill.App.3d 24 (5th Dist., 1991), the mere filing of a pre-trial motion, without any indication that the court issued a ruling, preserved the designation of the proceeding as a stipulated bench trial.

My last nitpicker is the case of People v. Davis, 286 Ill.App.3d 686 (5th Dist., 1997). Here, counsel thought that he was preserving an issue for appeal by stipulating that the client was guilty of a misdemeanor traffic offense, but still arguing that this evidence did not suffice to prove the felony version of driving while license revoked (DWLR). The argument was based on the theory that a prior summary suspension could not be used to enhance the offense of DWLR to a felony. However, the Appellate Court ruled that the issue argued by the defense concerned a felony enhancement factor, rather than an element of the crime. Thus, counsel conceded the sufficiency of the evidence to convict and the proceeding was deemed tantamount to a guilty plea.


In the face of the extraordinarily narrow distinctions drawn by the case law, I offer the following suggestions with a disclaimer about their ability to preserve the right to appeal in any given factual circumstance.


As I noted earlier, the kiss of death for appellate jurisdiction is the stipulation of defense counsel that the evidence suffices to convict, or, worse yet, that the evidence suffices to convict beyond a reasonable doubt. The judge must decide this issue and not surrender his or her function to determine the sufficiency of the evidence. In fact, why use any language at all about the supposed "sufficiency" of the evidence? The only stipulations at this proceeding consist of the following: (1) The agreement to adopt the procedure of a stipulated bench trial in lieu of a non-stipulated trial; and (2) The agreement that the State and/or the defense would produce certain testimony if a non-stipulated trial were held. Thus, the defense concedes only the availability of the specified evidence by stating, "Your Honor, we stipulate that the State could present the evidence stated by the prosecutor."

Moreover, refraining from a stipulation concerning the sufficiency of the evidence helps avoid any adverse civil consequences if the client may be civilly sued later for his or her criminal conduct. As Judge Hudson noted in a Bar Briefs article many moons ago, a stipulation to the underlying facts in a criminal case is admissible in a subsequent civil suit based on the same incident. (fn. 7)


While your mere intention to preserve an issue for appeal will not alone save you from the stipulation versus plea conundrum (fn. 8), active efforts to preserve an affirmative defense can assist in the characterization of the proceeding as a stipulated bench trial. For example, in People v. Bellmyer, 199 Ill.2d 529 (2002), defense counsel uttered the prohibited phrase when stipulating to the State's ability to prove the charges beyond a reasonable doubt. Counsel also stipulated to the evidence presented on the issue of his client's sanity. However, the defense attorney actively argued for a finding of not guilty by reason of insanity. Since counsel did not stipulate to the sufficiency of the evidence on the sanity question, the proceeding was not considered tantamount to the entry of a guilty plea.

In those cases where a bona-fide affirmative defense is not available, but a suppression or other motion has been presented, advise the court that you are requesting reconsideration of the same issue presented in the motion. Since the proceeding is supposed to be a trial, why not exercise your client's right to raise the same issue at trial that you advanced at an earlier stage of the case? You can also present such questions via motions in limine, not to mention many other evidentiary questions that can be raised by this type of motion.


When in court, we lawyers fancy ourselves like Cicero. While we all like to hear ourselves talk, defense counsel should say as little as possible and let the prosecutor and judge do most of the talking. Of course, if the Court or assistant state's attorney misstates the nature of the proceeding, then correcting those comments is an absolute necessity. However, restraining the desire to state more than the necessary bare minimum avoids the possibility of a slip of the tongue that may jeopardize the appeal.


One way to discipline yourself on these arcane points of law is to write down precisely what you are trying to accomplish, as well as the pitfalls that you are trying to avoid. This could be especially important in a case where no court reporter is available to record the proceeding. I would not discount the importance of preparing a writing just because the case may be charged as a misdemeanor or traffic offense. If your client has injured or killed another individual because of her reckless driving, driving while under the influence of alcohol, or any other misdemeanor or traffic offense, you can seriously prejudice her ability to defend the civil action by entering a guilty plea, by stipulating to the sufficiency of the evidence, or by stipulating to the veracity of the prosecution witnesses.

I suggest that you draw a court order reciting the extent of the stipulation, i.e., that the defense stipulates to the availability of the testimony and evidence contained in the verbal or written stipulation of the parties. If appropriate, mention the request to reconsider a ruling on a pre-trial motion and the court's denial of that request. Then, recite that the defense is not stipulating to the truthfulness of the witnesses, the sufficiency of the evidence, or the sufficiency of the evidence to convict. You can follow up on these thoughts by reciting that the court considered the evidence presented by way of stipulation, that the judge was fully advised, and that he or she made a finding of guilty. While these may seem like rote, boilerplate words, they help demonstrate that the court retained its function of determining the sufficiency of the evidence to convict.


Sorry, it's beyond the scope of this article.

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.


fn. 1 People v. Horton, 143 Ill.2d 11 (1991)
fn. 2 When is the last time that you had a legitimate basis to complain that the court lacked jurisdiction due to a circumstance such as your client being kidnapped by authorities and returned to the United States?
fn. 3 People ex rel. Bassin v. Isreal, 31 Ill.App.3d 744 (5th Dist., 1975)
fn. 4 People v. Spurlock, 19 Ill.App.3d 474 (5th Dist., 1974)
fn. 5 People v. Gonzalez, 313 Ill.App.3d 607 (2nd Dist., 2000)
fn. 6 People v. Horton, 143 Ill.2d 11 (1991); People v. Torres, 279 Ill.App.3d 599 (2nd Dist., 1996); People v. Westerfield, 245 Ill.App.3d 398 (3rd Dist., 1993); People v. Pollard, 216 Ill.App.3d 591 (4th Dist., 1991)
fn. 7 Batterton v. Thurman, 105 Ill.App.3d 798 (3rd Dist., 1982). Judge Hudson's article appeared in the February 1995 issue of this publication.
fn. 8 People v. Fish, 316 Ill.App.3d 795 (3rd Dist., 2000)