People v. Cherry, 63 N.E.3d 871

In Oct. 2010 James Cherry shot Larry Miller; a jury convicted Cherry of armed violence predicated on aggravated battery causing great bodily harm and of aggravated battery with a firearm; the court merged the latter into armed violence and sentenced Cherry to 25 years.
Two weeks after verdict Cherry filed a posttrial motion asserting lack of proof and failure to establish unjustified use of force; two months later he complained pro se of ineffective assistance by his privately retained trial counsel.
At sentencing the trial court declined to entertain his ineffective-assistance complaints, later appointed counsel for appeal, and Cherry’s appointed counsel filed and argued a motion to reconsider sentence (denied).
After several continuances the trial court held a Krankel hearing on Cherry’s pro se ineffective-assistance claims; the court denied relief under the Strickland prejudice standard.
The appellate court held (1) aggravated battery cannot serve as the predicate felony for armed violence and vacated that conviction, and (2) appointed counsel at the Krankel hearing was not per se ineffective (governed by Strickland). The State appealed; Cherry cross‑appealed the Krankel ruling.
The Illinois Supreme Court reversed the appellate court on the armed‑violence predicate issue and affirmed on the Krankel/ineffective‑assistance issue, upholding the circuit court judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether aggravated battery may serve as the predicate felony for armed violence	State: aggravated battery is a valid predicate for armed violence when armed violence is premised on aggravated battery causing great bodily harm	Cherry: armed violence statute excludes offenses that have an aggravated/enhanced version making weapon use an element, and aggravated battery is so enhanced by aggravated battery with a firearm, thus barred as a predicate	Held: Reversed appellate court — aggravated battery may serve as the predicate; aggravated battery with a firearm is an aggravated form of battery, not an aggravated form of aggravated battery, so no statutory bar applies
Whether appointed counsel at the Krankel hearing was per se ineffective such that prejudice may be presumed under Cronic	Cherry: appointed counsel merely echoed his pro se letter and did nothing to develop claims, amounting to non-representation and thus Cronic prejudice should be presumed	State: appointed counsel made arguments and the Krankel hearing occurred after trial/sentencing; any failures were poor representation governed by Strickland, not Cronic	Held: Affirmed appellate court — Cronic does not apply; Strickland governs; Cherry forfeited any Strickland prejudice showing on direct appeal, so ineffective-assistance claim fails

Strickland v. Washington, 466 U.S. 668 (established performance-and-prejudice test for ineffective assistance of counsel)
United States v. Cronic, 466 U.S. 648 (identified narrow circumstances where prejudice can be presumed, including total failure to subject prosecution to adversarial testing)
People v. Hauschild, 226 Ill. 2d 63 (led to legislative amendment addressing proportionality between armed violence and firearm-enhanced offenses)
People v. Hattery, 109 Ill. 2d 449 (Illinois case finding Cronic-style per se ineffectiveness where defense counsel unequivocally conceded guilt and presented no defense)
People v. Morris, 209 Ill. 2d 137 (Illinois case finding Cronic-style relief where counsel’s concessions plus introduction of inflammatory evidence destroyed any viable defense)
People v. Caballero, 126 Ill. 2d 248 (discussed standards for when counsel’s performance equates to no representation)