People v. Cherry

• Decision Date: 22 September 2016
• Docket Number: No. 118728.,118728.
• Citation: 407 Ill.Dec. 439,63 N.E.3d 871
• Parties: The PEOPLE of the State of Illinois, Appellant and Cross–Appellee, v. James CHERRY, Appellee and Cross–Appellant.
• Court: Illinois Supreme Court

63 N.E.3d 871

407 Ill.Dec. 439

The PEOPLE of the State of Illinois, Appellant and Cross–Appellee,

v.James CHERRY, Appellee and Cross–Appellant.

No. 118728.

Supreme Court of Illinois.

Sept. 22, 2016.

Lisa Madigan, Attorney General, of Springfield, and Brendan F. Kelly, State's Attorney, of Belleville (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Erin M. O'Connell, Assistant Attorneys General, of Chicago, and Patrick Delfino, Lawrence M. Bauer, and Joan M. Kripke, of the Office of the State's Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard, Deputy Defender, and Susan M. Wilham, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial in the Circuit Court of St. Clair County, defendant, James Cherry, was found guilty of one count of armed violence (720 ILCS 5/33A–2(b) (West 2010)) and one count of aggravated battery with a firearm (720 ILCS 5/12–4.2(a) (West 2010)). The armed violence count was predicated on aggravated battery causing great bodily harm (720 ILCS 5/12–4(a) (West 2010)). The trial court merged the aggravated battery with a firearm conviction into the armed violence conviction and sentenced defendant to 25 years in prison. Defendant appealed, and the Appellate Court, Fifth District, concluded that aggravated battery cannot serve as the predicate felony for armed violence. 2014 IL App (5th) 130085, ¶ 19, 387 Ill.Dec. 624, 22 N.E.3d 1277. Accordingly, the court vacated defendant's armed violence conviction and remanded the case to the trial court for sentencing on the remaining aggravated battery with a firearm conviction. Id. ¶ 31. The State appealed that decision to this court, and we allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Jan. 1, 2015). For the reasons that follow, we reverse that portion of the appellate court's decision vacating defendant's armed violence conviction.

¶ 2 BACKGROUND

¶ 3 The evidence adduced at defendant's trial is set forth fully in the appellate court opinion below, and we need not repeat it here. For present purposes, it is sufficient to know that, in the early morning hours of October 31, 2010, defendant was involved in a parking lot altercation that ended with defendant shooting Larry Miller multiple times with a laser-sighted firearm. At the conclusion of defendant's trial, the jury convicted him of one count of armed violence predicated on aggravated battery (720 ILCS 5/33A–2(b), 12–4(a) (West 2010)) and one count of aggravated battery with a firearm (720 ILCS 5/12–4.2(a) (West 2010)). In addition, the jury found beyond a reasonable doubt that defendant committed both of these crimes with a laser-sighted firearm and that an extended-term sentence therefore was warranted (see 730 ILCS 5/5–5–3.2(b)(6) (West 2010)).

¶ 4 On April 6, 2011, which was two weeks after the jury returned its verdict, defense counsel filed a posttrial motion for a new trial. The motion alleged generally that the State failed to prove defendant's guilt beyond a reasonable doubt and specifically that the State failed to prove beyond a reasonable doubt that defendant's crimes were committed without legal justification. The trial court would go on to deny this motion at defendant's sentencing hearing, which was held three months later.

¶ 5 On June 30, 2011, defendant wrote a four-page letter to the trial court asserting that he had received ineffective assistance from his privately retained trial counsel. Specifically, defendant's letter alleged that trial counsel (1) assigned defendant's bond to his fee without defendant's knowledge; (2) failed to disclose a prior connection to the victim's father; (3) mishandled defendant's case by, among other things, failing to interview certain witnesses, failing to test certain evidence, failing to hire a ballistics expert, and failing to contest the admission of certain evidence; (4) did not maintain adequate communication with defendant prior to trial; and failed to prepare defendant to testify.

¶ 6 On July 6, 2011, defendant's sentencing hearing was held. During his statement in allocution, defendant attempted to read from his June 30, 2011, letter. The first two sentences of that letter read, “During my trial I did not have adequate representation. I was prejudiced by the poor performance of my attorney and a conflict of interest that violated my sixth amendment rights.” However, before defendant had finished reading the second of these two sentences, the State requested a sidebar and expressed to the court its belief that the sentencing hearing was not the appropriate forum for defendant to air his misgivings about trial counsel's performance. In response, trial counsel informed the court that he “was probably going to be withdrawing anyway for purposes of appeal” and did not believe defendant's letter had “any relevance” at the sentencing hearing. At that point, the trial court told defendant that his complaints concerning trial counsel were not germane to his statement in allocution and instead should be raised as part of defendant's appeal. The trial court then sentenced defendant to 25 years in prison on the armed violence conviction, into which was merged defendant's aggravated battery conviction. After receiving his appellate admonishments, defendant asked the trial court how he could obtain a different lawyer. The trial court responded by confirming with defendant, “you believe that there's been a breakdown in your lawyer[-]client relationship * * * among other things and would request that the Court appoint a lawyer, is that correct, sir?” When defendant responded in the affirmative, the trial court appointed a public defender to take over defendant's representation.

¶ 7 On August 4, 2011, defendant's appointed counsel filed a motion to reconsider defendant's sentence. The motion alleged that defendant's sentence was excessive in light of the specific facts of the case, which appointed counsel asserted were unlikely to recur. Moreover, the motion alleged that defendant is a veteran, that defendant was contrite and had shown remorse, and that the sentence imposed would create an extreme hardship for defendant's family and dependents. A hearing on the motion was held on December 7, 2011, and appointed counsel there emphasized defendant's military service and good character, that defendant had no prior convictions of any kind, that defendant's conduct occurred in the course of an altercation in which defendant felt threatened, and that “[t]his was a unique set of circumstances that resulted from defendant's extreme intoxication.” In sum, appointed counsel insisted, “[t]his is a good and upstanding citizen who did something * * * very stupid that he regrets very much.” Accordingly, appointed counsel asked the court to reduce defendant's 25–year sentence to the statutory minimum of 20 years. At the conclusion of the hearing, the trial court denied defendant's motion.

¶ 8 A month later, on January 5, 2012, the trial court entered an order stating that, “pursuant to People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984),” defendant's pro se letter alleging ineffective assistance of counsel and requesting a new trial “must be reviewed by the court.” Accordingly, the trial court set the matter for hearing on February 23, 2012. After a series of continuances, the hearing finally was held on January 16, 2013. At the hearing, no witnesses were called, and the court requested that the parties give brief argument on the issues. Appointed counsel essentially summarized the concerns raised in defendant's letter, including defendant's claims that trial counsel was ineffective for failing to preserve evidence from the crime scene, failing to call certain witnesses, and failing to retain a ballistics expert. In addition, appointed counsel argued for the first time that trial counsel was ineffective for failing to review certain medical records that may have shown that defendant was not under the influence of alcohol at the time of the shooting. In response, the State argued principally that the concerns raised by defendant all related to matters of trial strategy. In addition, the State pointed out that trial counsel had been privately retained and that defendant therefore could have fired him at any point he became dissatisfied with the quality of his representation. Instead, defendant brought his concerns to the trial court's attention only after his conviction, even though many of those concerns related to matters that occurred during the pretrial phase of the case. After hearing from the parties, the trial court concluded that, under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), defendant had failed to demonstrate a reasonable probability that counsel's alleged errors substantially affected the outcome of defendant's case. In other words, the trial court concluded, defendant had failed to demonstrate sufficient prejudice to justify the granting of relief under Strickland. The trial court therefore denied defendant's request for a new trial.

¶ 9 On appeal, defendant raised two issues. First, defendant argued that his armed violence conviction must be vacated because aggravated battery cannot serve as the predicate for that offense. Second, defendant argued that he received ineffective assistance from his appointed counsel at the Krankel hearing. More specifically, defendant argued that, by not calling any witnesses and instead merely repeating the claims contained in defendant's pro se letter, appointed counsel effectively provided no representation at all, such that prejudice should be presumed under the standard established in United States v. Cronic, 466 U.S. 648, 656–57, 104 S.Ct. 2039, 80 L.Ed.2d...