People v. Cherry

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Date: 2016.12.01 11:58:44 -06'00'
Supreme Court
People v. Cherry, 2016 IL 118728Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and
Court: Cross-Appellee, v. JAMES CHERRY, Appellee and Cross-Appellant.
Docket No. 118728
Filed September 22, 2016
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of St. Clair County, the Hon.
Michael N. Cook, Judge, presiding.
Judgment Appellate court judgment affirmed in part and reversed in part.
Circuit court judgment affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Brendan F.
Appeal 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.
Justices JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
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.
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,
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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 (5) 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 (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
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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 (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
(1984). On the first issue, the appellate court agreed with defendant, holding that “the plain
language of the [armed violence] statute prohibits predicating armed violence on any part of
the aggravated battery statute, including section 12-4(a).” 2014 IL App (5th) 130085, ¶ 19. On
the second issue, the appellate court held that defendant’s ineffective assistance claim was
governed by Strickland rather than by Cronic and that defendant therefore was required to
show that he was prejudiced by appointed counsel’s deficient performance at the Krankel
hearing. Id. ¶ 26. After noting that defendant did not even attempt to make such a showing, the
appellate court nevertheless examined the record for itself and determined that no prejudice
occurred. Id. ¶¶ 29-30. Accordingly, the appellate court vacated defendant’s armed violence
conviction and remanded the cause for sentencing on defendant’s remaining conviction for
aggravated battery with a firearm. Id. ¶ 31.
¶ 10 The State appealed to this court, contesting the appellate court’s conclusion that aggravated
battery cannot serve as the predicate for armed violence. We allowed the State’s petition for
leave to appeal. Ill. S. Ct. R. 315(a) (eff. Jan. 1, 2015). Defendant then cross-appealed,
contesting the appellate court’s determination that appointed counsel was not ineffective at the
Krankel hearing.
¶ 11 DISCUSSION
¶ 12 Armed Violence
¶ 13 We begin with whether aggravated battery can serve as the predicate felony for armed
violence. This is an issue of statutory interpretation, and the rules governing our inquiry are
familiar. When construing a statute, our primary objective is to ascertain and give effect to the
legislature’s intent, keeping in mind that the best and most reliable indicator of that intent is the
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statutory language itself, given its plain and ordinary meaning. People v. Howard, 233 Ill. 2d
213, 218 (2009). Unless the language of the statute is ambiguous, this court should not resort to
further aids of statutory construction and must apply the language as written. People v.
Glisson, 202 Ill. 2d 499, 504-05 (2002). The construction of a statute is a question of law, and
our review therefore is de novo. People v. Davison, 233 Ill. 2d 30, 40 (2009).
¶ 14 The appellate court below concluded that “the plain language of the [armed violence]
statute prohibits predicating armed violence on any part of the aggravated battery statute,
including section 12-4(a).” 2014 IL App (5th) 130085, ¶ 19. The foundation for the appellate
court’s conclusion is section 33A-2(b) of the armed violence statute, which reads:
“(b) A person commits armed violence when he or she personally discharges a
firearm that is a Category I or Category II weapon while committing any felony defined
by Illinois law, except *** any offense that makes the possession or use of a dangerous
weapon either an element of the base offense, an aggravated or enhanced version of the
offense, or a mandatory sentencing factor that increases the sentencing range.”
(Emphasis added.) 720 ILCS 5/33A-2(b) (West 2010).
According to the appellate court, aggravated battery cannot serve as the predicate for armed
violence because it is an offense that makes the possession or use of a dangerous weapon “an
element of *** an aggravated or enhanced version” of that offense. 2014 IL App (5th) 130085,
¶ 19. In support, the appellate court points out that sections 12-4(a) and 12-4(b)(1) of the
aggravated battery statute, which respectively prohibit battery causing great bodily harm and
battery using a weapon other than a firearm, are Class 3 felonies (see 720 ILCS 5/12-4(a),
(b)(1) (West 2010)). 2014 IL App (5th) 130085, ¶ 19. Meanwhile, the appellate court notes,
aggravated battery with a firearm is a Class X felony (see 720 ILCS 5/12-4.2 (West 2010)).
2014 IL App (5th) 130085, ¶ 19. Based on this, the appellate court concludes that “aggravated
battery with a firearm is an enhanced version of aggravated battery.” Id. More importantly, the
appellate court explains, because the foregoing enhancement results from the defendant’s use
of a dangerous weapon, “the logical conclusion” is that aggravated battery “is specifically
excluded” as a predicate offense by the plain language of the armed violence statute. Id.¶ 15 We disagree with the appellate court’s conclusion. The armed violence statute prohibits the
predicate use of any felony that “makes the possession or use of a dangerous weapon either an
element of the base offense, an aggravated or enhanced version of the offense, or a mandatory
sentencing factor that increases the sentencing range.” 720 ILCS 5/33A-2(b) (West 2010). The
base offense at issue in this case is aggravated battery. That said, no one here is arguing that the
possession or use of a dangerous weapon is an element of aggravated battery itself. Neither is
anyone arguing that the possession or use of a dangerous weapon is a mandatory sentencing
factor that increases the sentencing range for aggravated battery. Rather, the only argument
advanced in this case is that the possession or use of a dangerous weapon is an element of an
“aggravated or enhanced version” of aggravated battery, namely, aggravated battery with a
firearm.
¶ 16 The appellate court’s conclusion that aggravated battery with a firearm is an “aggravated or
enhanced version” of aggravated battery is based solely on the fact that aggravated battery is
typically a Class 3 felony, whereas aggravated battery with a firearm is a Class X felony. The
problem with the appellate court’s approach is that, in focusing on the respective penalties, it
wholly ignores the actual elements of these offenses. This is significant because the statutory
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elements plainly demonstrate that, rather than being an aggravated or enhanced version of
aggravated battery, aggravated battery with a firearm is, like aggravated battery itself, an
aggravated or enhanced version of battery. The aggravated battery and aggravated battery with
a firearm statutes share an identical structure. Both offenses require the State to prove the
commission of a battery, and both offenses require the State to prove the presence of an
additional factor aggravating that battery. Consider, for example, the two forms of aggravated
battery highlighted by the appellate court below—one involving the infliction of great bodily
harm and one involving the use of a deadly weapon other than a firearm. To prove the former,
the State must prove that the defendant
“in committing a battery, intentionally or knowingly cause[d] great bodily harm ***.”
(Emphasis added.) 720 ILCS 5/12-4(a) (West 2010).
Similarly, to prove the latter offense, the State must prove that the defendant:
“[i]n committing a battery, ***
[used] a deadly weapon other than by the discharge of a firearm[.]” (Emphasis
added.) 720 ILCS 5/12-4(b)(1) (West 2010).
Under both of these provisions, the underlying offense that the State must prove is battery,
while the remaining elements serve to aggravate that battery. In exactly the same way, the
aggravated battery with a firearm statute requires the State to prove both the commission of a
battery and the presence of a factor aggravating that battery. Thus, to prove aggravated battery
with a firearm, the State is required to prove that the defendant:
“in committing a battery, knowingly or intentionally by means of the discharging of a
firearm *** cause[d] any injury to another person ***.” (Emphasis added.) 720 ILCS
5/12-4.2(a) (West 2010).
Once again, the underlying offense that the State must prove is battery, while the remaining
elements serve to aggravate that battery. So considered, aggravated battery with a firearm is
clearly not an enhanced or aggravated version of aggravated battery; rather, it is simply one
more aggravated version of battery.
¶ 17 Or to put it another way, the appellate court’s conclusion below would be correct if the
aggravated battery with a firearm statute read as follows:
“A person commits aggravated battery with a firearm when he, in committing an
aggravated battery, knowingly or intentionally by means of the discharging of a
firearm (1) causes any injury to another person ***.”
No question, such an offense would be “an aggravated or enhanced version” of aggravated
battery, as the possession or use of a dangerous weapon would aggravate the underlying
aggravated battery. But this is not how the aggravated battery with a firearm statute reads. On
the contrary, and just as in the aggravated battery statute, the aggravating factor set forth in the
aggravated battery with a firearm statute aggravates the underlying crime of battery. The
logical conclusion, therefore, is that aggravated battery with a firearm is not an aggravated or
enhanced version of aggravated battery; rather, it is an aggravated or enhanced version of
battery.
¶ 18 Or to put it yet another way, aggravated battery with a firearm cannot be an enhanced or
aggravated version of aggravated battery for the simple reason that the commission of an
aggravated battery is not required under the aggravated battery with a firearm statute. Rather,
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the commission of a battery is required. It makes no sense to say that offense A is an enhanced
or aggravated version of offense B, where the commission of offense B is not a necessary
element of offense A. Yet that is exactly the case with aggravated battery with a firearm and
aggravated battery. The commission of an aggravated battery is not an element of aggravated
battery with a firearm. By definition, then, aggravated battery with a firearm cannot be an
“enhanced or aggravated version” of aggravated battery.
¶ 19 In reaching this result, we note that our conclusion wholly comports with and vindicates
the public policy that informs the armed violence statute. In 2007, the legislature enacted
Public Act 95-688 (eff. Oct. 23, 2007). Among other things, Public Act 95-688 added the
language to the armed violence statute that is at issue in this case, namely, the language
excluding “any offense that makes the possession or use of a dangerous weapon either an
element of the base offense, an aggravated or enhanced version of the offense, or a mandatory
sentencing factor that increases the sentence range.” Significantly, Public Act 95-688 was
enacted just months after this court’s decision in People v. Hauschild, 226 Ill. 2d 63 (2007),
which held that the sentence for armed robbery with a firearm violated the proportionate
penalties clause because it was more severe than the sentence for armed violence predicated on
robbery, which has the identical elements. This court has since acknowledged that Public Act
95-688 was a direct response to Hauschild and “remedied the disproportionality that existed
between the armed violence and armed robbery statutes.” See People v. Blair, 2013 IL 114122,
¶ 21.
¶ 20 In other words, the language at issue in this case was designed specifically to foreclose any
existing or potential proportionate penalties problems that might exist between the armed
violence statute and other offenses containing identical elements. That is plainly not the case
here. Indeed, armed violence predicated on aggravated battery causing great bodily harm
requires the State to prove that (1) while committing a battery, defendant (2) knowingly
(3) caused great bodily harm and (4) personally discharged a firearm. See 720 ILCS 5/33A-2,
12-4(a) (West 2010). By contrast, aggravated battery with a firearm requires the State to prove
that (1) in committing a battery, defendant (2) knowingly or intentionally (3) caused any injury
to another person (4) by means of discharging of a firearm. 720 ILCS 5/12-4.2(a) (West 2010).
Thus, while the State was required to prove great bodily harm to secure a conviction for armed
violence predicated on aggravated battery causing great bodily harm, it was required to prove
only any injury at all to secure the aggravated battery with a firearm conviction. These two
offenses therefore do not contain identical elements, and therefore they are not implicated
either by Hauschild or by the 2007 statutory amendments.
¶ 21 In sum, the issue before us is whether aggravated battery with a firearm is an enhanced or
aggravated version of aggravated battery, such that aggravated battery cannot serve as the
predicate for armed violence. Clearly, it is not. Instead, like aggravated battery itself,
aggravated battery with a firearm is an enhanced or aggravated form of battery. Consequently,
there is absolutely no reason why, as charged in this case, aggravated battery cannot serve as
the predicate for a charge of armed violence.1 The appellate court’s conclusion to the contrary
1
Nothing in this discussion should be construed to suggest that aggravated battery with a firearm
itself can be used as a predicate for armed violence, as that offense is clearly disqualified by the fact that
its elements include “the possession or use of a dangerous weapon.”
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is reversed.
¶ 22 Appointed Counsel’s Performance
¶ 23 We next consider defendant’s argument that he received ineffective assistance from his
appointed counsel at the Krankel hearing. Specifically, defendant asserts that, at the Krankel
hearing, appointed counsel simply adopted and repeated the pro se arguments contained in
defendant’s June 30, 2011, letter while doing “nothing to advance [those] claims or counter the
State arguments that [defendant] received the adequate assistance of trial counsel.” According
to defendant, appointed counsel’s inaction in this regard “entirely failed to subject the
prosecution’s case to meaningful adversarial testing,” such that this court may presume
prejudice under the standard established in United States v. Cronic, 466 U.S. 648 (1984). We
disagree.
¶ 24 Ordinarily, in determining whether a defendant was denied the effective assistance of
counsel, we apply the familiar two-prong test established in Strickland v. Washington, 466
U.S. 668 (1984), and adopted by this court in People v. Albanese, 104 Ill. 2d 504 (1984). Under
Strickland, to prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance prejudiced
the defendant. Strickland, 466 U.S. at 687. More specifically, the defendant must demonstrate
that counsel’s performance was objectively unreasonable under prevailing professional norms
and that there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. Because a defendant must
satisfy both prongs of the Strickland test to prevail, the failure to establish either precludes a
finding of ineffective assistance of counsel. People v. Henderson, 2013 IL 114040, ¶ 11.
¶ 25 That said, the Court in Strickland also noted that there are some circumstances so likely to
prejudice the accused that such prejudice need not be shown but instead will be presumed.
Strickland, 466 U.S. at 692. In United States v. Cronic, 466 U.S. 648 (1984), which was a
companion case to Strickland, the Court explained that prejudice may be presumed where
(1) the defendant “is denied counsel at a critical stage,” (2) counsel “entirely fails to subject the
prosecution’s case to meaningful adversarial testing,” or (3) counsel is called upon to represent
a client in circumstances under which no lawyer could prove effective assistance. Id. at 659-61.
¶ 26 Here, defendant is arguing that appointed counsel’s performance at the Krankel hearing
triggers the second Cronic exception—namely, failing to subject the prosecution’s case to
meaningful adversarial testing. In discussing this exception, the Supreme Court has
characterized it as a “narrow exception” to Strickland that “infrequently” applies. Florida v.
Nixon, 543 U.S. 175, 190 (2004). Indeed, for this exception to apply, it is not enough that
counsel failed to oppose the prosecution “at specific points” in the proceeding. Bell v. Cone,
535 U.S. 685, 697 (2002). Rather, “the attorney’s failure must be complete,” meaning that
“counsel failed to oppose the prosecution throughout the *** proceeding as a whole.” Id. In
People v. Caballero, 126 Ill. 2d 248 (1989), this court explained that the second Cronic
exception applies when “counsel’s effectiveness has fallen to such a low level as to amount not
merely to incompetence, but to no representation at all.” (Internal quotation marks omitted.) Id.at 267 (citing Cronic, 466 U.S. at 659). Along the same lines, the Seventh Circuit Court of
Appeals has noted that “courts have rarely applied Cronic, emphasizing that only
non-representation, not poor representation, triggers a presumption of prejudice.” Miller v.
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Martin, 481 F.3d 468, 473 (7th Cir. 2007). Elsewhere, the Seventh Circuit has explained that
“Cronic only applies if counsel fails to contest any portion of the prosecution’s case; if counsel
mounts a partial defense, Strickland is the more appropriate test.” (Emphasis in original.)
United States v. Holman, 314 F.3d 837, 839 n.1 (2002).
¶ 27 Given these limitations, it is not surprising that, in the more than 30 years since Cronic was
decided, this court has found per se ineffectiveness under the second Cronic exception only
twice. The first time was in People v. Hattery, 109 Ill. 2d 449 (1985). In Hattery, the defendant
pleaded not guilty to the murders of a mother and her two children. Id. at 458. Nevertheless,
during his opening statement, defense counsel told the jury:
“ ‘Ladies and gentlemen of the jury, he [defendant] did it. He did everything [the
prosecution] just told you. ***
We are not asking you to find [him] not guilty. At the end of your deliberations, you
will find him guilty of murder. We are asking you to consider the evidence that you hear
today and in the next few days to explain why he did the horrible thing that he did. Once
you have found him guilty, we will proceed and you will find him eligible for the death
penalty. The question, and the only question facing you, will be whether to impose the
death penalty on Charles Hattery for trying to save the life of his family. Thank you.’ ”
(Emphasis in original.) Id. at 458-59.
To make matters worse, during the defendant’s trial, his attorneys advanced no theory of
defense, presented no evidence of their own, and did not make a closing argument to the jury.
Id. at 459. Instead, they attempted to show on cross-examination that defendant was compelled
to kill the victims, even though compulsion is not a defense to murder. Id. In concluding that
these facts warranted a per se finding of ineffectiveness under Cronic, the court emphasized
that “[t]he concession of defendant’s guilt by his attorneys was unequivocal” and “impressed
upon the jury the false notion that the guilt or innocence of the defendant was not an issue but,
rather, had already been decided.” Id. at 464. The result was that “counsel’s actions deprived
defendant of the right of having the issue of his guilt or innocence presented to the jury as an
adversarial issue.” Id.¶ 28 The second and only other time we applied the second Cronic exception was in People v.
Morris, 209 Ill. 2d 137 (2004), overruled in part on other grounds in People v. Pitman, 211 Ill.
2d 502 (2004). In Morris, defense counsel’s opening statement “readily admitted” defendant’s
guilt to the jury. 209 Ill. 2d at 182. Moreover, the apparent purpose of this admission was to lay
the groundwork for a plea of jury nullification based on sympathy or compassion, something
this court characterized as “a minimal, nonlegal defense.” Id. at 184. Even so, the court
emphasized that “defense counsel’s performance in the case at bar cannot be considered per se
ineffective simply because the defense *** offered at trial was a nonlegal plea for jury
sympathy.” Id. No, what tipped the scales in Morris was that, after conceding her client’s guilt
and pursuing a nonlegal plea for jury sympathy, defense counsel then affirmatively introduced
evidence of her client’s involvement in a grisly and unrelated murder, even though the trial
court previously had ruled such evidence inadmissible at defense counsel’s request. Id. at
184-85. Calling this “an unusual convergence of errors,” this court concluded that a finding of
per se ineffectiveness was warranted. Id. at 187. In so doing, the court stressed that “[d]efense
counsel’s erroneous understanding of the trial court’s ruling on the [other] murder opened the
door to the introduction of graphic details regarding the murder, to the State cross-examining
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defendant for 45 minutes about the crime, and to defendant’s admission of guilt for that
murder.” Id. Not only was this inherently prejudicial to the defendant, but more importantly,
“[o]nce defense counsel introduced the extensive and inflammatory evidence regarding the
[other] murder, the minimal but constitutionally acceptable strategy of appealing to the jury’s
sympathy regarding the murder [at issue] was utterly negated.” Id. at 187-88. As a result, the
court was “forced to conclude that there was a breakdown of the adversarial process during
defendant’s trial such that there was no meaningful adversarial testing of defendant’s case.” Id.
at 188. Indeed, “[f]or *** all practical effect, as a result of defense counsel’s actions, defendant
stood before the jury throughout the trial with no defensive strategy whatsoever.” Id.¶ 29 These, then, are the only two instances in which this court has found per se ineffectiveness
under the second Cronic exception. According to defendant, the case now before us should be
the third. We disagree. In both Hattery and Morris, counsel effectively conceded the State’s
entire case against the defendant. As importantly, in both cases, counsel did this absent any
coherent or plausibly effective strategy to justify it, thereby ensuring the defendant’s
unmitigated conviction. Nothing even close to that happened in the case before us. Again, the
second Cronic exception applies only when counsel “ ‘entirely fails to subject the
prosecution’s case to meaningful adversarial testing.’ ” (Emphasis in original.) Bell, 535 U.S.
at 697 (quoting Cronic, 466 U.S. at 659). Here, the public defender who is the subject of
defendant’s Cronic claim did not even enter the case until after defendant was both convicted
and sentenced. And by the time of the Krankel hearing, defendant’s motions for new trial and
to reconsider sentence had been filed, argued, and denied. In other words, by the time of
appointed counsel’s alleged failures, “the prosecution’s case” was effectively over and no
longer subject to “meaningful adversarial testing.” Moreover, appointed counsel hardly
provided “no representation at all.” (Internal quotation marks omitted.) See Caballero, 126 Ill.
2d at 267. On the contrary, upon entering the case, appointed counsel immediately filed and
argued a motion to reconsider defendant’s sentence, which the trial court denied. Then, at the
Krankel hearing, appointed counsel orally argued defendant’s pro se claims concerning trial
counsel’s alleged ineffectiveness. Now admittedly, defendant argues that appointed counsel
should have done more at the Krankel hearing to develop and advance defendant’s pro se
claims, such as introduce evidence and call relevant witnesses. This may or may not be true.
But even if it is true, appointed counsel’s failure to introduce evidence or testimony in support
of defendant’s pro se ineffective assistance claims hardly rises to the level of “entirely fail[ing]
to subject the prosecution’s case to meaningful adversarial testing.” On the contrary, if
established, such a failure would fall squarely in the category of poor representation, not “no
representation at all.” The appellate court therefore was correct in holding that defendant’s
claims are governed not by Cronic but by Strickland.
¶ 30 Accordingly, we turn to Strickland. To establish ineffective assistance of counsel under
Strickland, a defendant must demonstrate that (1) counsel’s performance was objectively
unreasonable compared to prevailing professional standards and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 688, 694. This standard poses a problem for
defendant because, as the appellate court below correctly noted, defendant failed to address the
prejudice prong of Strickland in his appellate court brief. 2014 IL App (5th) 130085, ¶ 29.
Instead, in that brief, defendant placed all of his eggs in the Cronic basket, insisting that his is
one of the very rare cases in which prejudice may be presumed. Id. And while defendant
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essentially does the same thing in this court, he does make a slender attempt to address
Strickland’s prejudice prong, arguing in his brief that, if this court concludes that Strickland
applies, “the requirement to show prejudice should be relaxed.” Setting aside whether this
court may “relax” the Strickland standard in a case governed by Strickland, we are confronted
with the fact that, slim as it is, defendant’s appeal to Strickland comes too late. It is well settled
that arguments raised for the first time in this court are forfeited. People v. Robinson, 223 Ill.
2d 165 (2006). Here, defendant’s only argument in the appellate court was that prejudice
should be presumed in this case under the second Cronic exception. He made no attempt in the
appellate court either to address or to satisfy Strickland’s prejudice prong, and consequently
any argument to that effect is now forfeited.
¶ 31 Having forfeited any argument concerning Strickland’s prejudice prong, defendant’s
ineffective assistance claim necessarily fails. Again, to prevail on an ineffective assistance
claim under Strickland, a defendant must establish both prongs of the Strickland test, such that
the failure to establish either precludes a finding of ineffective assistance of counsel. Here,
defendant cannot establish the prejudice prong, as he has forfeited any argument concerning it.
His ineffective assistance of counsel claim therefore fails, and we affirm the appellate court’s
conclusion on this point.
¶ 32 In reaching this result, we reject defendant’s contention that holding him to Strickland’s
prejudice standard “places [him] in an impossible situation.” According to defendant, the
situation is impossible because, in order to show prejudice under Strickland, he must
demonstrate a reasonable probability that, had appointed counsel introduced certain evidence
and testimony at the Krankel hearing, the outcome of that hearing would have been different.
Yet in order to do that, defendant maintains, the record would have to contain the very
evidence that counsel failed to introduce, which obviously it does not. In other words,
defendant argues, there is an insufficient factual basis in this case upon which to base a claim
of prejudice under Strickland, and the reason for that insufficiency is the very ineffectiveness
about which defendant complains. Moreover, defendant fears that, having now raised these
issues on direct appeal, any attempt to develop them in a postconviction petition will be barred
by res judicata.
¶ 33 Although we do not dispute defendant’s characterization of the record, we do dispute his
assertion that an “impossible situation” results. It is an altogether common occurrence that the
viability of a Strickland claim will turn on matters outside the record. And the legislature has
provided a mechanism for dealing with that in the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2010)), which specifically allows for the raising of “constitutional
questions which, by their nature, depend[ ] upon facts not found in the record.” People v.
Thomas, 38 Ill. 2d 321, 324 (1967). Nor is it necessarily the case, as defendant maintains, that
our rejection of his ineffectiveness claim in this appeal forecloses his ability to raise that claim
in a properly supported postconviction petition. In Thomas, for example, the State argued that
the defendant’s postconviction ineffective assistance claim was barred by res judicata because
this court considered and rejected that same claim in the defendant’s direct appeal. Id. at
323-24. This court disagreed, explaining that our rejection of that claim on direct review was
because “the record itself did not support” it. Id. at 324. At the postconviction stage, by
contrast, the claim was supported by affidavits that raised matters not contained in the
common-law record. Id. The court concluded that, “since many of the allegations contained in
defendant’s [postconviction petition] require an inquiry into matters outside of the
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common-law record, and *** since our decision [in the defendant’s appeal from his guilty
plea] was based only upon that record,” defendant’s postconviction claim could not be
dismissed on res judicata grounds. Id. at 324-25; see also People v. Taylor, 237 Ill. 2d 356, 362
(2010) (raising conflict-of-interest claim on direct review did not preclude the raising of that
same claim in a postconviction petition, where postconviction claim was supported by
information outside the trial record). In other words, the state of the record does not compel the
suspension of Strickland’s prejudice standard. Rather, it compels defendant to satisfy that
standard through the collection and presentation of “affidavits, records, or other evidence” not
contained in the record, just as the Post-Conviction Hearing Act contemplates.
¶ 34 CONCLUSION
¶ 35 For the foregoing reasons, we conclude that (1) defendant was properly convicted of armed
violence predicated on aggravated battery and (2) defendant failed to establish that he received
ineffective assistance of counsel at the Krankel hearing. We therefore reverse the appellate
court as to the first of these points, affirm the appellate court as to the second of these points,
and affirm the circuit court’s judgment in its entirety.
¶ 36 Appellate court judgment affirmed in part and reversed in part.
¶ 37 Circuit court judgment affirmed.
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