                                                                              FIFTH DIVISION
                                                                              September 21, 2007




No. 1-05-1512


THE PEOPLE OF THE STATE OF ILLINOIS,                             )    Appeal from the
                                                                 )    Circuit Court of
                Plaintiff-Appellee,                              )    Cook County
                                                                 )
v.                                                               )
                                                                 )
ELI CUNNINGHAM,                                                  )    Honorable
                                                                 )    Dennis Porter,
                Defendant-Appellant.                             )    Judge Presiding.


       JUSTICE GALLAGHER delivered the opinion of the court:

       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.

                                         BACKGROUND

       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,
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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 reenter 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


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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.

                                            ANALYSIS


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                                 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 court may review either prong first, and the

court need not consider both prongs of the standard if a defendant fails to show one prong.

Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

        Under the first prong, counsel is afforded wide latitude when making tactical decisions and

the law presumes that counsel will faithfully fulfill his or her role envisioned by the sixth


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amendment. Strickland, 466 U.S. at 688-89, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65.

Hence, counsel’s assistance must fall “outside the wide range of professionally competent

assistance” considering all the circumstances. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695,

104 S. Ct. at 2066. Further, choices of trial strategy are virtually unchallengeable because such a

choice “is a matter of professional judgment to which a review of counsel’s competency does not

extend.” People v. Cundiff, 322 Ill. App. 3d 426, 435 (2001); see also Strickland, 466 U.S. at

690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. “Trial strategy includes an attorney’s choice of one

theory of defense over another.” People v. Campbell, 264 Ill. App. 3d 712, 732 (1992); accord

Cundiff, 322 Ill. App. 3d at 435.

        Defendant raises three arguments to show he received ineffective assistance from his trial

counsel. Defendant first argues that he received ineffective assistance because counsel failed to

file an answer asserting a self-defense defense. Next, defendant suggests that his trial counsel

abandoned a self-defense theory because counsel failed to provide adequate notice of the self-

defense theory in an answer to the State. Finally, defendant argues that his counsel was

ineffective because counsel’s intentional choice to pursue a strategy of showing defendant lacked

the specific intent to kill Daniels, rather than a self-defense strategy, was unreasonable. We shall

consider each contention with respect to the first prong under Strickland.

        Defendant first suggests that simply not filing an answer violates the spirit of the discovery

rules and thus falls below the objective standard of reasonable assistance, relying on People v.

Burns, 304 Ill. App. 3d 1 (1999). While not filing an answer containing affirmative defenses may,

at times, constitute attorney neglect (see, e.g., Burns, 304 Ill. App. 3d at 11), this is not such a


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case. In Burns, the defendant’s counsel knew of and intended to use an alibi witness, thus

constituting an affirmative defense for which an answer was required. Burns, 304 Ill. App. 3d at

9. However, although counsel knew of the alibi and even initially listed the alibi witness as a

possible witness, counsel intentionally chose to wait until the last minute to add the alibi witness

as a testifying witness. Burns, 304 Ill. App. 3d at 11. Recognizing that counsel did this to effect

surprise and gain an unfair advantage, the court held that such intentional and deliberate actions

clearly violated the spirit of the discovery rules. Burns, 304 Ill. App. 3d at 11. The record in the

present case, however, reveals no such surprise attempt by defendant’s counsel. On the contrary,

the record shows that counsel freely and consistently communicated his planned strategy to the

State. Moreover, as discussed below, counsel’s actions remained consistent with a lack-of-

specific intent defense strategy throughout the proceedings. Hence, counsel’s failure to file an

answer in this case was not objectively unreasonable.

       Defendant disagrees and next suggests that counsel intentionally abandoned a self-defense

theory of defense. During his opening statement, defense counsel said that defendant thought

Daniels had a gun, and the State objected because counsel had not previously identified a self-

defense defense in an answer. Defendant asserts that his counsel decided to abandon a self-

defense theory in response to the State’s objection only to cover up the failure to file an answer.

We disagree. Defendant’s argument ignores the fact that a self-defense theory would have

sharply contradicted defendant’s pretrial statements to investigators and his trial counsel

developed a strategy consistent with those statements. Moreover, defendant’s accusation is belied

by the record. Defense counsel’s opening statement clearly lays out the strategy of attempting to


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show that the State could not prove that defendant possessed the specific intent to kill Daniels

because defendant was confused and acted in a panic. Likewise, counsel’s motion for a directed

finding further shows counsel’s lack-of-specific intent strategy by, for example, drawing attention

to testimony regarding Daniels’ nearness to the street, as opposed to being on the sidewalk.

Finally, the record is replete with counsel’s attempts to elicit testimony from witnesses to show

that defendant lacked the requisite mental intent, such as cross-examination of ASA Harvath

where counsel questioned ASA Harvath about defendant’s statements regarding his alcohol

consumption prior to striking Daniels. Thus, it is evident that counsel did not “abandon” a self-

defense theory in response to the State’s objection, but instead attempted to further a strategic

defense choice by asserting defendant lacked the specific intent to kill Daniels.

        Finally, defendant argues that even if his counsel’s decision to present a lack-of-specific

intent defense was a strategic choice, it was an unreasonable one. However, defendant overlooks

the fact that the charge against him – attempted murder – imposes a significant burden of proof

on the State. The mental state required for attempted murder is well known. Conviction for

attempted murder requires proof of the specific intent to kill someone. People v. Jones, 81 Ill. 2d

1, 8-9 (1979); People v. Gentry, 157 Ill. App. 3d 899, 903 (1987). Mere intent to do great bodily

harm, or even knowledge that one’s acts may result in great bodily harm or death, is insufficient.

Jones, 81 Ill. 2d at 8-9. Thus, not only was it reasonable for defendant’s counsel to choose a

lack-of-specific intent defense strategy but, also, under the facts of this case, it was the best

strategic choice.

        Further, we find meritless defendant’s contention that self-defense was a sound defense


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strategy in this case. A successful self-defense defense requires that the evidence show that

“unlawful force was threatened against a defendant, he believed the danger of harm was imminent,

he was not the aggressor, force was necessary to avert the danger threatened against him, and the

amount of force used was necessary.” People v. Peterson, 202 Ill. App. 3d 33, 40 (1990); see

also People v. Wells, 346 Ill. App. 3d 1065 (2004). Indeed, pursuing a self-defense theory would

have presented defendant with three significant obstacles. First, the possibility that Daniels might

have had a gun directly contradicts defendant’s earlier statement to ASA Harvath that defendant

had not seen a gun. Second, defendant was driving a car and reasonably could have sped away

from Daniels, even if Daniels had had a gun. Third, no other witness testified to having seen a

gun, leaving only defendant’s testimony to establish that he acted in self-defense.

       Thus, after careful review of the briefs, cases and record, we are not persuaded by

defendant’s arguments. Instead, we agree with the State that trial counsel prepared and followed

a strategy consistent with a viable defense of reasonable doubt toward the defendant’s specific

intent to kill Daniels. Counsel’s representation and reasonable strategic choice of a defense of

defendant’s lack of specific intent neither fell below an objective standard of reasonableness nor

fell outside the wide range of professionally competent assistance. Since defendant has failed to

show that the pursued trial strategy was unreasonable, we need not consider the second prong of

the Strickland standard.

                           II. Inquiry into Defendant’s ARDC Complaint

       Defendant urges remand for an inquiry into the factual basis of an ARDC complaint he

filed against his trial counsel prior to post-trial proceedings, even though defendant was


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subsequently represented by different counsel and defendant did not make a pro se motion

alleging ineffective assistance of counsel. Essentially, defendant’s argument likens the mere

existence of an ARDC complaint to an actual claim of ineffective assistance, and it would require

a trial court inquiry into the basis of every ARDC complaint by any defendant when the court

becomes aware of such a complaint. We decline to announce and follow such a rule.

       The ultimate purpose of a trial court’s initial inquiry into a defendant’s ineffective

assistance claim is to determine whether new counsel should be appointed. See People v. Nitz,

143 Ill. 2d 82, 134-35 (1991); see generally People v. Krankel, 102 Ill. 2d 181 (1984). When a

defendant’s actual allegations show possible attorney neglect of the case, the court should appoint

new counsel to argue ineffective assistance, rather than simply having original trial counsel or a

defendant argue the claim. Krankel, 102 Ill. 2d at 188; Nitz, 143 Ill. 2d at 134. To invoke the

rule announced in Krankel and its progeny, however, a defendant must at least make some

allegation of ineffective assistance of counsel for the court to consider and must provide some

factual specificity of the reason for the allegation. See People v. Ward, 371 Ill. App. 3d 382, 431-

34 (2007). Mere awareness by a trial court that a defendant has complained about his counsel’s

representation imposes no duty on the court to sua sponte investigate a defendant’s complaint.

See Ward, 371 Ill. App. 3d at 434.

       In addition, our supreme court has said that when a defendant retains private counsel, it is

“not within the trial court’s rubric of authority to advise or exercise any influence or control over

the selection of counsel by defendant, who was able to, and did, choose counsel on his own

accord. [Citation.] * * * Defendant [can] retain[] other counsel to represent him prior to the


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hearing of his post-trial motions.” People v. Pecoraro, 144 Ill. 2d 1, 15 (1991). However, at

least one court has noted that it did not believe Pecoraro requires a trial court’s automatic denial

of pro se requests for new counsel whenever a defendant has retained private representation.

People v. Johnson, 227 Ill. App. 3d 800, 810 (1992).

       In the instant case, defendant retained private trial counsel, like the defendant in Pecoraro.

However, unlike the defendant in Pecoraro, defendant here made no claim of ineffective

assistance for the court to consider. Here, defendant’s trial counsel told the trial court that

defendant had filed an ARDC complaint against him, and counsel wanted to have another

attorney, from the same firm, represent defendant during sentencing, but that replacement

attorney was unavailable on the original sentencing date. The trial court immediately ordered a

continuance and defendant was subsequently represented by replacement counsel during the

sentencing phase.

       A trial court’s mere awareness of the existence of the complaint, without more, is

insufficient to effectively raise a claim of ineffective assistance. Compare Ward, 371 Ill. App. 3d

at 434, with People v. Jackson, 243 Ill. App. 3d 1026, 1033-1036 (1993) (court should have

inquired into ARDC complaint’s factual basis before denying defense counsel’s written motion to

withdraw based on a conflict of interest arising from defendant’s ARDC complaint). A trial

court’s awareness of an ARDC complaint is not equivalent to an actual claim of ineffective

assistance when a continuance is ordered and defendant is subsequently represented by different

private counsel. Defendant here did not request new counsel when his trial counsel orally

requested a continuance so that new counsel could represent defendant. Defendant did not


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request different counsel during the sentencing phase when defendant was, in fact, represented by

new counsel. In any event, defendant did not allege ineffective assistance before the court.

       Defendant also relies on Jackson, 243 Ill. App. 3d at 1035, for the proposition that the

court’s awareness of an ARDC complaint against counsel always requires an initial inquiry. In

Jackson, the trial court failed to conduct an initial inquiry when it became aware of an ARDC

complaint’s existence and denied the public defender’s request to withdraw and to have new

counsel appointed. Jackson, 243 Ill. App. 3d at 1033-36. Jackson is inapposite. Defendant

overlooks the fact that in Jackson the trial court denied counsel’s motion to appoint new counsel,

so the defendant was not later represented by different counsel. Jackson, 243 Ill. App. 3d at

1035. Here, as noted earlier, the trial court allowed defendant’s counsel’s request for a

continuance, so new counsel could represent defendant at sentencing, thus rendering moot any

required inquiry into the ARDC complaint.

       In sum, the initial inquiry’s purpose is to determine whether new counsel should be

appointed. Such an inquiry is irrelevant in the present case because defendant received new

counsel.

                                  III. $4 Charge Subject to Credit

       Defendant’s third argument on appeal is that he is entitled to a $5-per-day credit for the

539 days of his incarceration prior to sentencing under section 110–14 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/110–14 (West 2002)) toward the $4 charge imposed by section

5–9–1(c–9) of the Unified Code of Corrections (730 ILCS 5/5–9–1(c–9) (West Supp. 2003)), the

criminal/traffic conviction surcharge. We agree. After the filing of defendant’s initial brief and


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the State’s response brief, our supreme court resolved the issue in People v. Jones, 223 Ill. 2d 569

(2006). The criminal/traffic conviction surcharge of $4 is a fine that is subject to presentencing

credit. Jones, 223 Ill. 2d at 587. Accordingly, we need not discuss the issue further.

       Defendant’s conviction is affirmed. Defendant is entitled to a $4 credit toward the

criminal/traffic conviction surcharge imposed in the order assessing fines, fees and costs, reducing

defendant’s total owed to $545.

       Affirmed as modified.

       O'BRIEN and O'MARA FROSSARD, JJ., concur.




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