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People v. Cherry

Court of Appeals of Illinois, Fifth District

December 10, 2014

JAMES CHERRY, Defendant-Appellant

Appeal from the Circuit Court of St. Clair County. No. 10-CF-1007. Honorable Michael N. Cook, Judge, presiding.


Where defendant was convicted of armed violence predicated on aggravated battery and aggravated battery with a firearm, which merged into the armed violence conviction for sentencing purposes, and defendant alleged on appeal that his armed violence conviction was void on the ground that aggravated battery is excluded from serving as a predicate felony for an armed violence conviction and that his appointed posttrial counsel provided ineffective assistance, the appellate court upheld the trial court's determination that defendant did not sustain his claims that his posttrial counsel was ineffective and vacated defendant's armed violence conviction on the ground that the armed violence statute prohibited the use of aggravated battery as a predicate offense, and remanded the cause for resentencing on defendant's remaining conviction for aggravated battery.

For Appellant: Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard, Deputy Defender, Susan M. Wilham, Assistant Appellate Defender, Office of the State Appellate Defender, Fourth Judicial District, Springfield, IL.

For Appellee: Hon. Brendan F. Kelly, State's Attorney, Belleville, IL; Patrick Delfino, Director, Lawrence M. Bauer, Deputy Director, Joan M. Kripke, Staff Attorney, State's Attorneys Appellate Prosecutor, Second Judicial District, Elgin, IL.

JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Goldenhersh and Stewart concurred in the judgment and opinion.



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[¶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 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 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

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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.

[¶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 ...

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