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Petition filed by 5-year-old AJ Freund’s mother ‘patently without merit,’ judge rules

Judge says her constitutional rights were not violated, she agreed to plea deal

Prayer cards for AJ Freund, 5, sit on a table next to the visitor guestbook May 3, 2019, at Davenport Funeral Home in Crystal Lake.

Writing that JoAnn Cunningham’s constitutional rights were not violated, a McHenry County judge Wednesday dismissed the post-conviction petition filed by the former Crystal Lake mother serving 35 years in prison for killing her 5-year-old son.

McHenry County Judge Robert Wilbrandt presided over the negotiated plea on Dec. 5, 2019, and subsequent sentencing of Cunningham on July 16, 2020, who pleaded guilty to killing her son AJ Freund.

In denying the first stage of a post-conviction petition, Wilbrandt wrote the pleadings in Cunningham’s petition “do not provide the ‘gist’ of a meritorious claim of substantial deprivation of a federal or state constitutional right and that they are patently without merit.”

Joann Cunningham

Among the complaints, Cunningham, 39, said no witnesses were called to testify on her behalf; she was not allowed to testify herself, nor did she provide a confession; she was not read her Miranda rights; and she claimed she was “illiterate” as to her constitutional rights.

In fact, Wilbrandt responded in his order, at Cunningham’s “extensive sentencing hearing,” which was televised, witnesses were called on her behalf and defense attorneys presented “wide-ranging evidence” of her history of drug abuse and substance abuse treatment. She also provided a lengthy statement, addressing her “long-standing history of both prescribed and illegal drug use,” the judge wrote.

Cunningham’s attorneys declined to comment.

At Cunningham’s sentencing hearing, McHenry County State’s Attorney Patrick Kenneally said Cunningham beat her son, forced him to stand in a cold shower before putting him to bed wet, cold, and naked, ultimately causing his death on April 16, 2019.

Cunningham claimed in her petition filed in March that she was “seeing demons and hearing voices” at the time of AJ’s death.

Cunningham, who filed the handwritten petition from prison without the help of an attorney, claimed her “participation in the offense was a direct result of her suffering from postpartum depression or postpartum psychosis.”

She claimed she thought she and her son were possessed and she had asked a priest, chaplain and Andrew Freund, AJ’s father, for an exorcism.

Andrew T. Freund

While Cunningham was entitled to medical and mental health care while in jail, an “exorcism … would appear to be beyond the purview of any recognized constitutional right,” Wilbrandt said in his order.

Wilbrandt also dismissed Cunningham’s claims that her 35-year prison sentence is “cruel and unusual punishment.” He said these were “patently without merit.”

The negotiated plea to first-degree murder – which she agreed to in court – was amended to exclude an additional charge of first-degree murder that included verbiage the crime was done with “intent to kill.” It also excluded the words “brutal or heinous behavior indicative of wanton cruelty.”

Had these original allegations been proven at trial, she would have faced up to 60 years in prison, essentially natural life, Wilbrandt said.

Wilbrandt also wrote that when Cunningham entered the negotiated plea, she “indicated … that nothing interfered with her ability to understand” what she was pleading to or the potential sentencing range.

Cunningham claimed that while in jail, pregnant with her fourth child to whom she gave birth to while in custody, she was prescribed “psychotropic medication” and was not properly monitored. Yet, in her petition she “makes no claim that these medications affected her guilty plea, nor does she assert how these medications, or their monitoring contributed to her sentence,” Wilbrandt said in his order.

Wilbrandt also wrote that she and her attorneys had opportunity to give input following her pre-sentence investigation and “declined to do so.”

At sentencing Cunningham testified on her own behalf and since then has not requested to withdraw her plea, requested an appeal, or contested the sentence at the trial court level within the appellate time limits, Wilbrandt said.

“No direct appeal of her conviction or plea of guilty was ever filed,” he wrote.

Freund, 63, also pleaded guilty in connection with his son’s death and is serving 30 years in prison.