Appeal from the Circuit Court of Cook County Honorable Dennis Porter, Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
After a bench trial, defendant, Eli Cunningham, was convicted of the attempted murder of his cousin, Sylvester Daniels. Defendant raises three issues on appeal: (1) his defense counsel was ineffective because he did not pursue a self-defense theory; (2) the trial court should have conducted an inquiry into the factual basis of a complaint that defendant lodged against his counsel with the Attorney Registration and Disciplinary Commission (ARDC); and (3) defendant is entitled to a $5- per-day credit toward a $4 fine. We shall address these issues seriatim.
On the evening of October 24, 2003, Sylvester Daniels (Daniels) was celebrating his birthday at a bar with friends and family, including his brother, Anderson Daniels, and his cousin, Eric Cunningham (Eric). After Daniels engaged in a verbal altercation with another bar patron inside the bar, some in the party moved outside the bar. Daniels struggled with his brother and his cousin, Eric. Daniels wanted to re-enter the bar to continue his argument with the patron. Daniels's brother and cousin, Eric, were trying to calm him down. Daniels pushed his brother and his cousin, Eric. At this point, Eric's son, who is the defendant, Eli Cunningham, arrived at the bar. Both defendant and Daniels had consumed large amounts of alcohol. Defendant approached Daniels and the two of them argued. Defendant told Daniels not to touch his father. Daniels hit defendant. Daniels' brother and a friend intervened and separated Daniels and defendant. Eventually, defendant returned to his car, and Daniels started walking away from the bar.
As Daniels walked away, he walked on the grassy area between the sidewalk and the road. The testimony was conflicting as to whether Daniels was on the grass or the curb, but in any event, he was closer to the road than to the sidewalk. Some people outside the bar began to call out Daniels' name. Daniels turned around and saw defendant driving toward him. Defendant's car struck Daniels injuring him, resulting in Daniels' right leg being amputated below the knee.
Defendant was arrested and later indicted for attempted first degree murder and five counts of aggravated battery. After police arrested defendant, Assistant State's Attorney (ASA) Douglas Harvath interviewed defendant. ASA Harvath testified that during the interview defendant told him that no guns were at the scene described above.
On cross-examination during the bench trial, however, defendant testified, "I thought I seen [sic] a gun," upon looking back up after reaching down to pick up a "blunt" of marijuana, and seeing Daniels standing near a pole. Defendant's testimony that he thought he had seen a gun contradicted his earlier statements to ASA Harvath. No one else testified to seeing any guns that evening. Defendant further testified that he ducked down and thought he crashed into a pole. Without exiting his car, defendant left the scene.
During trial counsel's opening statement, counsel stated that he would show that the State could not prove that defendant intended to kill Daniels when defendant struck Daniels with his car. He also said that defendant "panicked and drove the car up on to the sidewalk after he believed that he was being confronted by Mr. [Sylvester] Daniels who[m] he thought had a gun." The State objected because counsel had not filed an answer asserting a self-defense defense. Counsel responded that self-defense was not defendant's defense, but instead the defense was reasonable doubt with respect to defendant's specific intent to kill Daniels.
The trial court found defendant guilty and merged the aggravated battery counts into the attempted murder charge. While announcing a finding of guilt the trial judge said that he did not find defendant's testimony believable. On the original sentencing date, trial counsel informed the court that defendant had filed a complaint against him with the ARDC and requested a continuance so that new counsel could represent defendant. That new counsel was counsel's associate in the same private law firm but he was unavailable on the original sentencing date. The trial court did not conduct an inquiry into the nature of the ARDC complaint and instead granted the continuance and allowed defendant to be represented by new counsel. At sentencing, defendant was represented by the replacement counsel. Defendant was sentenced to 16 years' imprisonment. The trial court also imposed fines and fees totaling $549. Defendant now appeals.
I. Ineffective Assistance of Counsel
The sixth amendment to the Constitution "recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Strickland v. Washington, 466 U.S. 668, 685, 80 L.Ed. 2d 674, 692, 104 S.Ct. 2052, 2063 (1984). An accused is entitled to "reasonably effective assistance," and the touchstone for judging claims of ineffective assistance is whether an attorney's conduct renders the trial results undependable. Strickland, 466 U.S. at 687, 80 L.Ed. 2d at 693, 104 S.Ct. at 2064.
The standard for an ineffective assistance claim has two prongs. Strickland, 466 U.S. at 687, 80 L.Ed. 2d at 693, 104 S.Ct. at 2064, adopted by People v. Albanese, 104 Ill. 2d 504, 526 (1984). First, a defendant must demonstrate that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 80 L.Ed. 2d at 693, 104 S.Ct. at 2064. Second, a defendant must also demonstrate prejudice by showing that "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 694, 80 L.Ed. 2d at 698, 104 S.Ct. at 2068. In determining whether a defendant has received ineffective assistance of counsel, a reviewing ...