People v. Cherry
2016 IL 118728
| Ill. | 2016Background
- In 2010 Cherry shot Larry Miller; a jury convicted Cherry of armed violence (predicated on aggravated battery causing great bodily harm) and aggravated battery with a firearm; the latter was merged into the armed violence conviction and Cherry was sentenced to 25 years.
- Posttrial, Cherry submitted a pro se letter alleging ineffective assistance by his privately retained trial counsel; after sentencing the court appointed a public defender to represent Cherry on appeal and postconviction matters.
- Appointed counsel filed a motion to reconsider sentence and later represented Cherry at a Krankel hearing (a court-review hearing for pro se ineffective-assistance claims), but did not call witnesses or introduce additional evidence.
- The Illinois Appellate Court held aggravated battery cannot serve as a predicate felony for armed violence and vacated the armed violence conviction; it also held appointed counsel’s performance at the Krankel hearing was not per se ineffective and applied Strickland.
- The State appealed the predicate-offense ruling to the Illinois Supreme Court; Cherry cross‑appealed the Krankel-hearing counsel-performance ruling.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Cherry) | Held |
|---|---|---|---|
| Whether aggravated battery can be the predicate felony for armed violence | Aggravated battery should qualify as a predicate; the statutory exclusion only bars offenses that make weapon possession an element of the base offense, an aggravated form of that same offense, or a mandatory sentencing factor — and aggravated battery is not such an aggravated form | Aggravated battery cannot be a predicate because aggravated battery with a firearm is an "enhanced or aggravated version" of aggravated battery (higher class felony), so aggravated battery is excluded by the armed violence statute’s language | Reversed appellate court: aggravated battery may serve as the predicate for armed violence; aggravated battery with a firearm is an aggravated form of battery, not of aggravated battery, so the statutory exclusion does not apply. |
| Whether appointed counsel at the Krankel hearing was so deficient that prejudice should be presumed under Cronic | N/A (issue arises from defendant’s claim) | Appointed counsel "merely repeated" Cherry’s pro se claims and failed to develop evidence or call witnesses at the Krankel hearing; this amounted to no representation and triggers a presumption of prejudice under Cronic | Affirmed appellate court: Cronic does not apply; Strickland governs. Cherry forfeited any Strickland prejudice argument on direct appeal, so ineffective-assistance claim fails. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong test for ineffective assistance: deficient performance and prejudice)
- United States v. Cronic, 466 U.S. 648 (identifies narrow circumstances where prejudice may be presumed, including complete failure to test the prosecution)
- People v. Hauschild, 226 Ill. 2d 63 (2007) (prompted statutory amendment to armed violence statute to address proportionality concerns)
- People v. Hattery, 109 Ill. 2d 449 (example where counsel conceded guilt and court found per se ineffectiveness under Cronic)
- People v. Morris, 209 Ill. 2d 137 (example of per se ineffectiveness where counsel’s strategy and a major evidentiary error destroyed adversarial testing)
- People v. Caballero, 126 Ill. 2d 248 (discusses Cronic threshold: non‑representation, not mere poor representation, triggers presumption of prejudice)