1 

 2014 IL App (5th) 130085 

 NO. 5-13-0085 

 IN THE 

 APPELLATE COURT OF ILLINOIS 

 FIFTH DISTRICT 

________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 10-CF-1007 

 ) 

JAMES CHERRY, ) Honorable 

 ) Michael N. Cook, 

 Defendant-Appellant. ) Judge, presiding. 

________________________________________________________________________ 

 JUSTICE WELCH delivered the judgment of the court, with opinion. 

 Justices Goldenhersh and Stewart concurred in the judgment and opinion. 

OPINION 

¶ 1 The defendant, James Cherry, was found guilty by a St. Clair County jury of one 

count of aggravated battery with a firearm, a Class X felony (720 ILCS 5/12-4.2(a)(1) 

(West 2010)), and one count of armed violence, a Class X felony (720 ILCS 5/33A-2(b) 

(West 2010)). The armed violence conviction was predicated on his knowingly causing 

great bodily harm to another as prohibited by the Illinois aggravated battery statute (720 

ILCS 5/12-4(a) (West 2010)). On July 6, 2011, the defendant was sentenced to 25 years' 

imprisonment to be served at 85% on the armed violence conviction, with the lesser 

count of aggravated battery with a firearm merged into it for sentencing purposes. For 

NOTICE

Decision filed 12/10/14. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
2 

the following reasons, we vacate the defendant's armed violence conviction and remand 

for sentencing based on the defendant's remaining conviction. 

¶ 2 On November 19, 2010, the defendant was charged by indictment with one count 

of armed violence and two counts of aggravated battery with a firearm. One count of 

aggravated battery with a firearm was dismissed pursuant to the State's March 21, 2011, 

motion. The State filed a "[n]otice of intent to seek extended-term sentencing pursuant to 

730 ILCS 5/5-5-3.2(b)(10) [sic]," as the defendant committed the offenses with a firearm 

with an attached laser sight. 

¶ 3 Evidence adduced at trial reflected that on October 31, 2010, the defendant was 

involved in an altercation in an East Saint Louis parking lot owned by Bey Miller-Bey 

and his son, Larry Miller. Bey's daughter, Montrese Miller, also worked on the parking 

lot, as did their friend Jarius Lacey. The defendant arrived in Bey's parking lot around 2 

a.m. in a black Dodge Nitro. The defendant, a passenger in the vehicle, paid Montrese 

for parking privileges. The driver parked at a perpendicular angle to Montrese's vehicle, 

a blue Chrysler. The defendant and his companion then walked over to Club Illusion. 

Sometime around 4:30 a.m., the defendant returned to the vehicle alone. Larry Miller 

testified that the defendant walked around the vehicle, got in and out, and eventually 

stood next to the building as though he was urinating. Larry asked the defendant not to 

disrespect the property, and the two began arguing. The defendant then pointed a gun 

with a laser sight at Larry. Larry testified that the defendant asked if Larry was trying to 

steal his truck, and then shot him in the stomach. The witnesses heard between 6 and 12 

gunshots. Larry was shot multiple times and Montrese was shot in the neck. After the 
3 

shooting stopped, Montrese flagged down a police car. Larry's girlfriend, Tonya Moore, 

arrived to take Larry to the hospital. Montrese and Bey accompanied Larry to the 

hospital. 

¶ 4 Former police officer Ramon Carpenter testified that he heard gunshots while he 

was on patrol that night, and was flagged down by Montrese upon his arrival at the scene. 

Carpenter stated that Lacey and Bey identified the defendant as the shooter, and Lacey 

testified that the defendant told the arriving officers that he "didn't mean to do it" and that 

he was a cop. Carpenter noted that when he approached the defendant, the defendant told 

him, "[T]hey're trying to kill me." The defendant was placed under arrest. Carpenter 

inventoried the defendant's vehicle, which had a bullet hole on the rear driver's-side 

passenger door. Inside the vehicle, behind the driver's seat, a fully loaded black 

magazine to a handgun was recovered. A firearm was recovered in a wooded area behind 

the building. No other weapons were located in the area. Carpenter confirmed that the 

only discharged casings in the area were the ones by the defendant's vehicle. 

¶ 5 Crime scene investigator Michael Grist processed the scene, collecting eight 

casings into evidence. He opined that the bullet defect in the Nitro's door was fired from 

back to front of the vehicle. He also recovered a projectile fragment from the front 

driver's-side floorboard of the Chrysler, which had a bullet hole in the front driver's-side 

door trim. He noted that the firearm that was recovered from the woods had a laser sight

and still contained several live rounds. Thomas Gamboe, a forensic scientist employed 

by the Illinois State Police, confirmed that the discharged casings were fired from the 

firearm that was recovered from behind the building. 
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¶ 6 The jury found the defendant guilty of armed violence, and that he committed the 

offense while armed with a firearm with an attached laser sight. The jury also found him 

guilty of aggravated battery, and that he committed the offense while armed with a 

firearm with an attached laser sight. 

¶ 7 The defendant filed a "post-trial motion for new trial" on April 6, 2011, asserting 

that the State failed to prove him guilty of the charges beyond a reasonable doubt, and 

that there was not credible evidence demonstrating that he committed the crimes "without 

legal justification." The motion was denied at the defendant's July 6, 2011, sentencing 

hearing. 

¶ 8 On June 30, 2011, the defendant wrote a letter to the trial court asserting that he 

received ineffective assistance from his trial counsel where his counsel had his bond 

assigned as part of the fee, without the defendant's knowledge, and that his attorney 

operated under a conflict of interest because he was an associate of Miller-Bey. The 

letter also asserted that his counsel failed to interview witnesses, did not conduct an

investigation, did not investigate other crimes near the parking lot, did not hire a ballistics 

expert, did not test the bullet that was removed from his vehicle, and failed to challenge 

the admission of the magazine found in his vehicle. The defendant also claimed that the 

State acted in bad faith by failing to maintain the chain of custody for the vehicles 

involved in the incident, by not calling Miller's girlfriend as a witness, and by not 

questioning the Club Illusion patrons from that evening. 

¶ 9 While the defendant was speaking in allocution at his July 6, 2011, sentencing 

hearing, he began reading the aforementioned letter to the trial court. The State requested 
5 

a side-bar and noted to the court that it felt that the hearing was not an appropriate venue 

for the defendant's assertions. In response, defense counsel noted that he was "probably 

going to be withdrawing anyway for purposes of appeal" and agreed with the trial court 

and the State that he did not see the relevance at a sentencing hearing. The trial court told 

the defendant that his complaints were more properly brought up on appeal, and not 

relevant to the sentencing. The defendant was allowed to continue reading his letter, but 

again the State requested a side-bar and objected to the relevance of the defendant's 

statement. The court sustained the objection and told the defendant, "[A]ny error that 

you believe the Court or the attorneys made is something that is germane to an appeal, 

not to your statement in allocution." The defendant received his sentence. After 

receiving his appellate admonitions, the defendant asked how he could obtain a different 

lawyer. The court asked the defendant whether he believed that there was "a breakdown 

in [his] lawyer/client relationship with [his attorney] among other things and would 

request that the court appoint a lawyer." The defendant agreed, and the court appointed a 

public defender to represent the defendant. 

¶ 10 On August 4, 2011, the defendant's newly appointed counsel (posttrial counsel) 

filed a motion to reconsider the sentence, asserting that the defendant's sentence was 

extreme in light of all the circumstances involved, and that the events were unlikely to 

recur. After a hearing on December 7, 2011, the motion was denied. 

¶ 11 On January 2, 2012, the trial court filed an order granting the defendant a hearing 

on his pro se letter regarding the ineffective assistance of his trial counsel, pursuant to the 

rule in People v. Krankel, 102 Ill. 2d 181 (1984). At the January 16, 2013, hearing, the 
6 

defendant's posttrial counsel requested that the court consider the issues presented in the 

defendant's letter, as well as an allegation that his trial counsel was ineffective for failing 

to investigate medical records that may have demonstrated that the defendant was not 

under the influence of alcohol during the incident. No witnesses were called, and the 

court requested that the parties give brief argument on the issues. The defendant's 

allegations were presented, and the State responded that these were matters of trial 

strategy. The State also noted that some of the defendant's allegations occurred during 

the pretrial stage, and the defendant could have fired his privately retained trial attorney 

at any time. The court found that the defendant's allegations did not meet his burden

under Strickland v. Washington, 466 U.S. 668 (1984), as he did not demonstrate a 

reasonable probability that any errors by his trial counsel would have substantially 

changed the outcome of his case, and that the defendant was not prejudiced by his trial 

counsel's performance. The court denied the defendant's motion. 

¶ 12 The defendant presents two points on appeal. First, he asserts that his conviction 

for armed violence is void, as the armed violence statute specifically excludes aggravated 

battery as a possible predicate felony for an armed violence conviction. In addressing 

this claim, we begin by noting that our primary objective is to give effect to the intention 

of the legislature, and if this court can ascertain the intent from the plain language of the 

statute, that intent must prevail. People v. Blair, 215 Ill. 2d 427, 442-43 (2005). Further, 

any ambiguity in a penal statute must be construed in favor of the defendant. People v. 

Whitney, 188 Ill. 2d 91, 98 (1999). This court reviews questions of statutory construction 
7 

de novo. Blair, 215 Ill. 2d at 443. A review of the relevant statutes' language and history 

aids our decision in the instant case. 

¶ 13 The Illinois statute prohibiting armed violence is the vehicle that allows the State 

to seek higher Class X penalties for a defendant where a predicate felony is committed in 

circumstances involving the presence or use of a dangerous weapon.1

 The General 

Assembly's stated intention of the statute is to deter the use of firearms in the commission 

of a felony, due to their more lethal nature, the significant escalation of the threat, and the 

potential for bodily harm that comes with their presence. 720 ILCS 5/33A-1(a), (b) 

(West 2010). However, the statute also specifically excludes certain felonies from 

providing the basis for an armed violence conviction, providing in relevant part: 

"(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 first degree murder, attempted first 

degree murder, intentional homicide of an unborn child, second degree murder, 

involuntary manslaughter, reckless homicide, predatory criminal sexual assault of 

a child, aggravated battery of a child as described in Section 12-4.3 or subdivision 

(b)(1) of Section 12-3.05, home invasion, or any offense that makes the possession 

or use of a dangerous weapon either an element of the base offense, an 

 1

The statute states that "[v]iolation of Section 33A-2(a) with a Category I weapon 

is a Class X felony for which the defendant shall be sentenced to a minimum term of 

imprisonment of 15 years." 720 ILCS 5/33A-3(a) (West 2010).
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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). 

¶ 14 The statute providing the predicate felony for the defendant's armed violence 

conviction, aggravated battery, provides in relevant part: 

"(a) A person who, in committing a battery, intentionally or knowingly 

causes great bodily harm *** commits aggravated battery. 

(b) In committing a battery, a person commits aggravated battery if he or 

she: 

(1) Uses a deadly weapon other than by the discharge of a firearm

***[.] 

 * * * 

 (e) *** 

(1) *** [A]ggravated battery is a Class 3 felony." 720 ILCS 5/12-

4(a), (b)(1), (e)(1) (West 2010). 

¶ 15 The relevant subsection of the statute prohibiting aggravated battery with a firearm 

provides: 

"(a) A person commits aggravated battery with a firearm when he, in 

committing a battery, knowingly or intentionally by means of the discharging of a 

firearm (1) causes any injury to another person ***. 

(b) A violation of subsection (a)(1) of this Section is a Class X felony." 

720 ILCS 5/12-4.2(a)(1), (b) (West 2010). 
9 

¶ 16 The defendant's argument is based on the language of the armed violence statute, 

which we have emphasized above. The defendant notes that the use of a firearm elevates 

a charge of aggravated battery to a charge of aggravated battery with a firearm, creating 

an enhanced version of the offense. Thus, the defendant argues, aggravated battery is a 

specifically prohibited predicate felony per the clause in the armed violence statute 

excluding "any offense that makes the possession or use of a dangerous weapon either an 

element of the base offense[ ] [or] an aggravated or enhanced version of the offense" 

(720 ILCS 5/33A-2 (West 2010)). 

¶ 17 In rebuttal, the State argues that there is no blanket proscription on predicating an 

armed violence conviction on aggravated battery. The State notes that the defendant's 

predicate felony was not based in either section 12-4(b)(1) or section 12-4.2 of the 

Criminal Code of 1961 (720 ILCS 5/12-4(b)(1), 12-4.2 (West 2010)), both of which are 

clearly excluded by the armed violence statute by virtue of their inclusion of presence or 

use of a weapon in the base offense. Rather, the defendant's conviction was based on his 

battery causing "great bodily harm" as the aggravating factor.2

 The State cites numerous 

 2

The charging instrument stated that the defendant committed armed violence 

"while armed with a dangerous weapon, a gun," by performing acts prohibited by section 

12-4(a) of the Criminal Code of 1961 (720 ILCS 5/12-4(a) (West 2010)), "in that he 

knowingly caused great bodily harm to Larry Miller, in that he shot Larry Miller in the 

leg with a handgun, and the said defendant personally discharged a handgun that is a 

Category I weapon." 
10 

Illinois cases finding section 12-4(a) to be a proper predicate felony to the armed violence 

statute, as the presence or use of a weapon is not an element of aggravated battery 

causing great bodily harm. See, e.g., People v. Hines, 257 Ill. App. 3d 238, 243 (1993); 

People v. Drakeford, 139 Ill. 2d 206, 214 (1990); People v. Floyd, 262 Ill. App. 3d 49, 

59-60 (1994); People v. Decker, 126 Ill. App. 3d 428, 432 (1984). 

¶ 18 However, we agree with the defendant's interpretation. Though the State has 

indeed presented case law supporting its argument, the cited authority predates crucial 

amendments to the armed violence statute. In 2000, when the Illinois legislature enacted 

Public Act 91-404 and created the 15-20-25-life sentencing scheme, the armed violence 

statute was amended to specifically exclude 10 newly enhanced offenses in order to avoid 

punishing identical conduct more severely and thus violating the proportionate-penalties 

clause of the Illinois Constitution.3

 720 ILCS 5/33A-2(b) (West 2000); Pub. Act 91-404, 

 3

The preamendment armed violence statute read that "[a] person commits armed 

violence when, while armed with a dangerous weapon, he commits any felony defined by 

Illinois Law." 720 ILCS 5/33A-2 (West 1994). The 2000 amendment, in relevant part, 

read that "[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 first degree murder, attempted first degree murder, intentional 

homicide of an unborn child, predatory criminal sexual assault of a child, aggravated 

criminal sexual assault, aggravated kidnaping, aggravated battery of a child, home 
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§ 5 (eff. Jan. 1, 2000). Despite the amendment, the dueling sentencing options led to 

proportionate-penalties violations that were successfully litigated in our courts. See, e.g., 

People v. Hauschild, 226 Ill. 3d 63, 86-87 (2007) (holding that the 15-year enhancement 

provided for in the armed robbery statute was unconstitutional because the sentence was 

more severe than the sentence for the identical offense of armed violence based on 

robbery). In 2007, the Illinois legislature again amended the statute. The statute 

currently in force excludes several of the previously included 15-20-25-life offenses, 

includes several other offenses, and has the umbrella "any felony" clause at issue here.4

 

See 720 ILCS 5/33A-2 (West 2010); Pub. Act 95-688, § 4 (eff. Oct. 23, 2007). 

¶ 19 We think the plain language of the current statute prohibits predicating armed 

violence on any part of the aggravated battery statute, including section 12-4(a). The 

wording unambiguously excludes any offense that makes the use of a dangerous weapon 

either an element of the base offense or an aggravated or enhanced version of the offense. 

Thus, this clause provides alternative circumstances under which an offense–not parts or 

 

invasion, armed robbery, or aggravated vehicular hijacking." 720 ILCS 5/33A-2(b) 

(West 2000). 

4

The 2007 amendment added second-degree murder, involuntary manslaughter, 

and reckless homicide to the list of specifically excluded predicate felonies. The 

legislature noticeably removed aggravated criminal sexual assault, aggravated kidnaping, 

armed robbery, and aggravated vehicular hijacking, as those felonies were now included 

under the umbrella "any felony" clause. 
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subsections of an offense–cannot be used as a predicate offense. We focus here on the 

prohibition of "an aggravated or enhanced version of the offense." Aggravated battery, 

which prohibits battery causing great bodily harm (section 12-4(a)) and battery using a 

weapon other than a firearm (section 12-4(b)(1)), is a Class 3 felony. Aggravated battery 

with a firearm (section 12-4.2) is a Class X felony. Consequently, aggravated battery 

with a firearm is an enhanced version of aggravated battery. As aggravated battery is an 

offense that makes the use of a dangerous weapon an enhanced version of the offense, the 

logical conclusion is that it is specifically excluded by the statute's most recent iteration, 

despite the fact that the prosecution chose a subsection of the predicate offense that does 

not reference a weapon. 

¶ 20 In reaching our conclusion, we note that the defendant was also convicted of 

aggravated battery with a firearm based on the same event. As such, we find it would be 

patently unreasonable to conclude that the prosecution may both charge the defendant 

with an enhanced version of an offense and then also predicate an armed violence charge 

on a subsection of the same basic offense that does not specifically address weapons in 

order to sidestep the statutory exclusions. This would clearly frustrate the legislative 

intent of the General Assembly's multiple, and increasingly thorough, revisions to the 

statute. We therefore decline to search for meaning beyond the plain wording of the 

clause by reading into it exceptions, limitations, or conditions. People v. Boclair, 202 Ill. 

2d 89, 100 (2002). 

¶ 21 The defendant's remaining point on appeal is that he received ineffective 

assistance from his posttrial appointed counsel at his Krankel hearing. Specifically, he 
13 

asserts that his posttrial counsel simply adopted and set forth his own pro se arguments, 

which was tantamount to doing nothing to advance his ineffective-assistance-of-trialcounsel claims. The defendant asserts that such inaction "entirely failed to subject the 

prosecution's case to meaningful adversarial testing" under the standards set by United 

States v. Cronic, 466 U.S. 648, 657 (1984). We disagree with the defendant's contention. 

¶ 22 The defendant was granted an evidentiary hearing pursuant to the rule in People v. 

Krankel, 102 Ill. 2d 181 (1984), to evaluate his assertions. Under Krankel, a pro se

posttrial motion alleging ineffective assistance of counsel can trigger a trial court's

obligation to appoint new counsel and set the claims for a hearing. See Krankel, 102 Ill. 

2d at 189. The trial court is not automatically required to appoint new counsel to assist 

the defendant; rather, the court should first examine the factual basis of the defendant's 

claim. People v. Moore, 207 Ill. 2d 68, 77-79 (2003). If the claims indicate that the 

defendant's trial counsel neglected the case, the trial court must appoint new counsel. 

People v. McLaurin, 2012 IL App (1st) 102943, ¶ 40. 

¶ 23 The trial court in the instant case did not examine the basis of the defendant's 

claims when they were brought to its attention at the sentencing hearing, but instead 

appointed new counsel and set a hearing on the defendant's motion.5

 At this juncture, the 

 5

Contrary to the defendant's assertion, the record of the defendant's sentencing 

hearing does not reflect that the trial court found that the defendant's trial counsel 

established a sufficient showing of neglect; the court only inquired as to the defendant's 

desire for new counsel. However, because no Krankel inquiry into the defendant's 
14 

defendant was entitled to new counsel that would undertake an independent evaluation of 

his claim and present the matter to the court from a detached, yet adversarial, position. 

People v. Jackson, 131 Ill. App. 3d 128, 139 (1985). As noted in our factual summary, 

the court heard argument from both the State and the defendant's appointed counsel, and 

made a factual determination on the merits of the defendant's claims by finding that the 

defendant did not demonstrate that his trial counsel's performance fell below the 

Strickland standards. 

¶ 24 However, the defendant's assertion on appeal is not that the trial court conducted 

an inadequate inquiry into his posttrial claims, but rather that his posttrial counsel was 

ineffective in presenting his claims regarding his trial counsel. Claims of ineffective 

assistance of counsel are generally evaluated under the two-part test set forth in 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland requires a defendant to 

show both that (1) his attorney's performance fell below an objective standard of 

reasonableness and (2) the attorney's deficient performance resulted in prejudice to the 

defendant; the failure to satisfy either element will preclude a finding of ineffective 

assistance of counsel. People v. Shaw, 186 Ill. 2d 301, 332 (1998). 

¶ 25 In certain exceptional situations, as the defendant asserts is appropriate in this 

case, the two-part Strickland test need not be applied and prejudice may be presumed. 

 

assertions was made at that time, a hearing on the motion was properly set. See Moore, 

207 Ill. 2d at 79 (finding that the law requires an inquiry into a defendant's posttrial 

assertions of ineffective assistance of counsel). 
15 

When "counsel entirely fails to subject the prosecution's case to meaningful adversarial 

testing, then there has been a denial of Sixth Amendment rights that makes the adversary 

process itself presumptively unreliable." Cronic, 466 U.S. at 659. 

¶ 26 First we address the defendant's argument that his claim is properly evaluated 

under the Cronic standard. When distinguishing between the rule of Strickland and that 

of Cronic, the differences in evaluating error are not in degree, but in kind. Bell v. Cone, 

535 U.S. 685, 697 (2002). Examples of failures that meet the Cronic standard include 

employing a trial strategy that concedes a defendant's guilt when the defendant has pled 

not guilty (see People v. Hattery, 109 Ill. 2d 449, 464-65 (1985)), insisting on raising an 

unavailable defense (see People v. Kozlowski, 266 Ill. App. 3d 595 (1994)), and 

stipulating to the admission of testimony that is inadmissible against a defendant by a 

supreme court rule (see People v. Hoerer, 375 Ill. App. 3d 148, 152 (2007)). Because it 

is the kind of error and not the egregiousness of the error that guides this evaluation, we 

conclude that the defendant's posttrial counsel's performance must be evaluated under 

Strickland. 

¶ 27 There is a strong presumption that an attorney's choices fall within the wide range 

of choices that could be considered adequate counsel. Strickland, 466 U.S. at 689. The 

defendant's posttrial counsel presented and argued his claims from the letter, as well as an 

additional claim regarding evidence of the defendant's lack of intoxication. However, we 

need not address whether the performance was objectively unreasonable, as we can 

dispose of the defendant's claim because he suffered no resulting prejudice. Strickland, 

466 U.S. at 697; People v. Salas, 2011 IL App (1st) 091880, ¶ 91. 
16 

¶ 28 Under the second prong of Strickland, the defendant is required to demonstrate 

that his counsel's representation at the Krankel hearing was so prejudicial that there is a 

reasonable probability that absent the errors, the outcome would have been different. 

Strickland, 466 U.S. at 694. A reasonable probability is one that is sufficient to 

undermine confidence in the outcome. People v. Patterson, 2014 IL 115102, ¶ 81. This 

requires a substantial, not just conceivable, likelihood of a different result. Harrington v. 

Richter, 562 U.S. 86 (2011). 

¶ 29 Thus, the defendant is required to demonstrate that absent his posttrial counsel's 

inadequate performance, there was a substantial likelihood that he would have prevailed 

on his claims regarding his trial counsel. We note initially that the defendant failed to 

address this prong in his brief, arguing only that he met his burden under the Cronic 

standard. However, we will briefly discuss the defendant's failure to meet his burden 

regarding his ineffective-assistance-of-trial-counsel claims, which in turn establishes that 

the actions of his posttrial counsel were not prejudicial. 

¶ 30 We agree with the trial court's determination that the defendant's claims regarding 

his trial counsel fail under one or both prongs of Strickland. The majority of the 

defendant's claims concern his trial attorney's strategy, which enjoys a strong 

presumption of competency; for example, whether to call certain witnesses on a 

defendant's behalf are matters of trial strategy that are generally immune from claims of 

ineffective assistance of counsel. People v. English, 334 Ill. App. 3d 156, 164 (2002). 

The remainder of the defendant's allegations regarding his trial counsel are either refuted 

by the record, present general allegations that are not supported by specific information, 
17 

or fail to demonstrate how he was prejudiced by the alleged failures. The defendant was 

entitled to professionally competent assistance, not a perfect attorney or successful 

representation. Cone, 535 U.S. at 702. 

¶ 31 The defendant did not demonstrate that he received ineffective assistance from his 

posttrial counsel at his Krankel hearing. However, we find that the armed violence 

statute currently in force prohibits the use of aggravated battery as a predicate offense. 

Therefore, we vacate the defendant's conviction for armed violence and remand this 

cause for sentencing on his remaining conviction, aggravated battery while armed with a 

firearm, a Class X felony, pursuant to section 12-4.2(a)(1) of the Criminal Code of 1961 

(720 ILCS 5/12-4.2(a)(1) (West 2010)). 

¶ 32 Vacated and remanded with directions. 
 2014 IL App (5th) 130085 

 

 NO. 5-13-0085 

 IN THE

 APPELLATE COURT OF ILLINOIS

 FIFTH DISTRICT

_____________________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of

Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 10-CF-1007 

 ) 

JAMES CHERRY, ) Honorable 

 ) Michael N. Cook, 

Defendant-Appellant. ) Judge, presiding. 

_____________________________________________________________________________________ 

Opinion Filed: December 10, 2014 

_____________________________________________________________________________________ 

Justices: Honorable Thomas M. Welch, J.,

 Honorable Richard P. Goldenhersh, J., and 

 Honorable Bruce D. Stewart, J., 

 Concur 

_____________________________________________________________________________________ 

Attorneys Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard, Deputy

for Defender, Susan M. Wilham, Assistant Appellate Defender, Office of the State 

Appellant Appellate Defender, Fourth Judicial District, 400 West Monroe Street, Suite 303, 

P.O. Box 5240, Springfield, IL 62705-5240 

_____________________________________________________________________________________ 

Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County Courthouse, 10 Public 

for Square, Belleville, IL 62220 

Appellee 

 Patrick Delfino, Director, Lawrence M. Bauer, Deputy Director, Joan M. Kripke, 

 Staff Attorney, State's Attorneys Appellate Prosecutor, Second Judicial District, 

 2032 Larkin Avenue, Elgin, IL 60123 

_____________________________________________________________________________________