People v. Cherry
2014 IL App (5th) 130085
Ill. App. Ct.2015Background
- Defendant James Cherry was tried for a shooting that injured two people; evidence included eyewitness ID, casings matched to a gun found nearby, and a magazine in his vehicle. He was convicted of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1)) and armed violence (720 ILCS 5/33A-2(b)).
- At sentencing the aggravated-battery-with-firearm count was merged into the armed-violence conviction; defendant received 25 years at 85% and later sought appellate counsel.
- Defendant filed a pro se claim alleging trial counsel ineffective (failure to investigate, interview witnesses, test evidence, conflict of interest). A Krankel hearing was held; the trial court denied relief after argument but no live witnesses.
- On appeal defendant raised (1) that armed violence cannot be predicated on aggravated battery because the armed-violence statute excludes offenses that are an "aggravated or enhanced version" of a base offense, and (2) that his posttrial (Krankel) counsel performed ineffectively at the hearing.
- The appellate court agreed that the armed-violence statute, as amended, bars using aggravated battery as a predicate felony (even where prosecution relied on subsection alleging great bodily harm). The court vacated the armed-violence conviction and remanded for resentencing on the remaining aggravated-battery-with-firearm conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aggravated battery may serve as a predicate felony for armed violence after the 2007 statute language | State: yes — aggravated battery (12-4(a)) does not depend on weapon use and has been used as a predicate; prior cases support this | Cherry: no — armed-violence statute excludes any offense that creates an aggravated/enhanced version based on weapon use, so aggravated battery (and its firearm-enhanced counterpart) cannot be a predicate | Held: Vacated armed-violence conviction — statute's plain language excludes aggravated battery as a predicate, including subsection 12-4(a) |
| Whether posttrial (Krankel) counsel provided ineffective assistance at the Krankel hearing | State: counsel adequately presented defendant's pro se claims and argued them; Strickland governs | Cherry: counsel only adopted the pro se letter and thus failed to meaningfully test the prosecution (invoking Cronic) | Held: No ineffective assistance by posttrial counsel — Strickland analysis applies; defendant failed to show prejudice |
Key Cases Cited
- People v. Blair, 215 Ill. 2d 427 (explains statutory construction principles)
- People v. Whitney, 188 Ill. 2d 91 (ambiguity in penal statutes construed for defendant)
- People v. Krankel, 102 Ill. 2d 181 (procedure when defendant raises pro se ineffective-assistance claims)
- People v. Moore, 207 Ill. 2d 68 (Krankel inquiry obligations of trial court)
- Strickland v. Washington, 466 U.S. 668 (two-part test for ineffective assistance of counsel)
- United States v. Cronic, 466 U.S. 648 (presumption of prejudice when counsel entirely fails to test prosecution)
- Bell v. Cone, 535 U.S. 685 (distinguishing Strickland and Cronic standards)
- Harrington v. Richter, 562 U.S. 86 (standard for reasonable probability of different outcome)
- People v. Hauschild, 226 Ill. 2d 63 (illustrative proportionate-penalties issues arising from statute amendments)
- People v. Drakeford, 139 Ill. 2d 206 (prior Illinois authority addressing armed-violence predicates)
- People v. Hines, 257 Ill. App. 3d 238 (prior appellate support for using aggravated battery as a predicate)
- People v. Floyd, 262 Ill. App. 3d 49 (prior appellate authority on predicates)
- People v. Decker, 126 Ill. App. 3d 428 (prior appellate authority on predicates)