2016 IL 118728



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 118728)

     THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and Cross-Appellee, v.
                JAMES CHERRY, Appellee and Cross-Appellant.


                             Opinion filed September 22, 2016.



        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



                                              -2-
     connection to the victim’s father; (3) mishandled defendant’s case by, among other
     things, failing to interview certain witnesses, 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




                                               -3-
     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 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.



                                              -4-
¶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 statutory language itself, given its plain



                                                -5-
       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.




                                               -6-
¶ 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 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, ***




                                                -7-
                 [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




                                               -8-
       commission of an aggravated battery is not required under the aggravated battery
       with a firearm statute. Rather, 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




                                               -9-
       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 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
           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.”




                                                 - 10 -
       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. Martin, 481 F.3d 468, 473 (7th Cir.




                                               - 11 -
       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.




                                               - 12 -
¶ 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 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



                                               - 13 -
       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



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       presumed. Id. And while defendant 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.




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¶ 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 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




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       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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