20 21 IL App ( 1st ) 180499

- U No. 1-18-0499
SECOND DIVISION August 24, 20 21 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS , Pla intiff

- Appellee ,

v. JACK ABLAHAD , Defendant -Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook C ounty.

No. 16 CR 7562 No. 16 CR 7563 No. 16 CR 7564 The Honorable Earl B. Hoffenberg , Judge Presiding.

____________________________________________________________________________ JUSTI CE PUCINSKI delivered the judgment of the court. Justices COBBS and LAVIN concurred in the judgment

. ORDER ¶ 1 Held: Defendant’s claim that his trial counsel was ineffective for failing to object to the joinder of three underlying cases is without merit, as defendant cannot establish that he suffered prejudice

. We reject defendant’s claim that a witness’s identification testimony was in sufficient to support his convictions for vehicular hijacking and possession of a stolen motor vehicle. However, the trial c ourt erred in imposing extended

- term sentences on the convictions of unlawful restraint and criminal trespass to a residence, and thus we modify the mittimus to reflect nonextended sentences on those counts. ¶ 2 Following a joint bench trial of three underlying cases, defendant contends that : (1) his trial counsel was ineffective in failing to object to the joinder; (2) his convictions in case 16 CR 75641-18-0499

-2- should be reversed because the State’s eyewitness identifica tion testimony was unreliable, and (3) the court improperly imposed extended

- term sentences on certain Class 4 convictions in case 16 CR 756 3 , as he was also convicted of an offense in a more serious class. For the following reasons, we reject defendant’s first two claims and affirm his convictions. However, we agree with defendant that extended

- term sentences were improperly imposed on certai n convictions , and we modify those sentences to nonextended terms. ¶ 3 BACKGROUND ¶ 4 This appeal concerns three separate cases that were tried together

. In case 16 CR 7564, defendant was charged with offenses that occurred on or about April 3, 2016: vehicular hijacking; possession of a stolen motor vehicle (PSMV ) with respect to a Toyota Camry; identity theft; and unlawful possession of a credit card. The other two c ases , 16 CR 7562 and 16 CR 7563 , concerned offenses allegedly committed on April 27, 2016. In case 16 CR 7562, defendant was charged by indictment with three coun ts of aggravated battery to a police officer; PSM V with respect to a Toyota RAV4 , and aggravated assault against a police officer

. In case 16 CR 7563, defendant was charged with four counts of unlawful r estraint, criminal trespass to a residence , and possession of a controlled substance

. ¶ 5 Before trial , t he State filed a motion for joinder of all three cases , argu ing that the charged offenses were “ all part of the same comprehensive transactions.” D efense counsel told the court that it had no objection to the State’s motion for joinder , which was a llowed. ¶ 6 At the ensuing bench trial, Siththy Mohideen (Siththy) testified regarding the incident that formed the basis for case 16 CR 7564. On the morning of April 3, 2016, Siththy and her husband, Mohammed, went to a grocery store in a Toyota Camry owed by their daughter, Fatimah. Siththy stayed in the car while Moha mmed went ins ide the sto re . While she was1-18-0499

-3- looking at her phone, a man entered the car . She initially though t the man was Mohammed , but

w hen she looked up, she saw it was a different man and screamed

. Sit hthy identified defendant as the man who entered her car. Defendant threatened to kill her and told her to get out of the car. Si th thy testified that she could see defendant’s face and th at his face was “not cover ed.” Siththy exited the Camry, and defendant dr ove away in it . Sit h thy ran inside the store and called police. ¶ 7 During Siththy’s testimony, the State published video footage from a security camera outside the
store

. Siththy identified points in the video when her husband left the car, when defendant approached and entered the car , and when she ran out of the car. Siththy further testified that on April 13, 2016, she met with detectives at a police station, where she was shown a photo array and identified a photograph of defendant . T he photo array , which was admitted into evidence , included photographs of six men , including defendant. Three of the men in the photo array (including defendant) are bald , two have short hair, and one has medium

- length hair

. Two the six men were clean

- shaven, and the other four (including defendant) had short facial hair on their upper lips and chins

. Defendant was one of two bald men in the array who also had facial hair. ¶ 8 On cross -examination, Siththy acknowledged that she was looking at her phone and texting her daughter when the offender entered the car. She stated that the man had “no hair ” and a “little bit” of a beard. She ackno wledged the incident happened very quickly , and t h at she was in the car with the offender for “like five seconds.” However, she testified that he turned to ward her and that she saw his whole face. She agreed that the incident w a s “scary” and that she was

nervous. Regarding her initial description, she testified she told police that the offender was a bald white man w ho was a “little chubby” with a “little bit” of a bear d , and that his face was red and “not normal.”1-18-0499

-4- ¶ 9 When defense counsel cross - examined Siththy about the photo array, she agreed that she selected defendant’s photograph “right away.” She acknowledged that the array included three men with no hair on their head s . She ini tially agreed with defense counsel’s sugges tion that only one of the three bald men also had a b eard ; however, the State objected and the trial court noted that defense counsel’s question did not ac cu rately reflect the photo array

. 1 Siththy subsequently acknowledged that multiple men in the photo array had facial hair

. ¶ 10 Fathima Ameer testified that Siththy is her mother. In April 2016, while Ameer was out of the country, she allowed her parents to use her Toyota Camry, a s well as her credit c ard. ¶ 11 Detective Thomas Beck testified that he was assigned to investigate the April 3 carjacking incident. Beck was “put in contact” with Detective Hernandez of the Burbank Police Department, who told Beck that the missing vehicle “and the subject was ident ified from an incident in their town.” Using the name provide d by Hernandez, Beck composed a photo array and arranged for Siththy to view it . Beck did not show the array to Siththy because the police use

an “ independent administrator ” with “ no knowledge of the facts of the case” to present photo
arrays. Beck later learned that Siththy id entifi ed defendant in the array

.

1 The relevant exchange is as follows: “Q. [DEFENSE COUN S EL:] Okay. Now in [the photo array] there is [sic] three men who have no hair on their head? A. Yeah. Q. Okay. There is only one though with no hair who se [sic] got hair on his chin, correc t? A. Yeah. Q. And that’s the one you picked? A. Right. Q. Okay. So is it safe to say that you picked the person out of the picture who was bald and had hair on their chin? [STATE’S ATTORNEY]: Objection to th at characterization, Judge. THE COU RT: That’s not a proper question. [DEFENSE COUNSEL]: I will re [-] ask it. THE COURT: Well, I have to tell you that’s not true. What I’m saying is let the record reflect there [are] two people that do have a mustache. If you look, there is another gentlem en [sic] that does have it. Your statement that he’s the only one is not correct.”1-18-0499

-5- ¶ 12 Mohammed Nejari testified that on April 20, 2016, he was working as a delivery driver for a Domino’s Pizza in the 3100 block of West Devon Avenue

. He was parked outside the restaurant in his Toyota RAV4, preparing to leave for a delivery, when he realized that he had forgotten part of the order. He left t he vehicle and returned to find that the RAV4 was gone. He did not see who took the vehic le . Approximate l y a week later, police informed Nejari that the RAV4 had been found. Nejari never met defendant or gave him permission to drive the RAV4

. ¶ 13 Chicago Police Officer Jeremiah Johnson testified that in April 2016, h e w as looking for defendant in connection with a vehicular hijacking that occurred on April 3, 2016. Johnson spoke to defend ant’s mother and a security guard who worked in her building. On April 27, the security guard provided information th at defendant had been seen with a Toyota RAV4 with a certain plate number

. Johnson and his partner, Officer Adam Cri s cione, went out to find defendant and the RAV4. About 20 to 30 minutes later, they saw defendant driving the vehicle

. ¶ 14 Johnson and Criscione followed defendant while they al erted other officers

. W hen t hey were directly behind the RAV4, they activated their lights and appr oached the RAV4 on foot

. Criscione walked to the driver’s side , while Johnson approached the passenger’s side window

. Joh nson announced that they were police and “pounded” on the window, at which point def endant looked at him, “ turn ed the w heel and floor ed the gas in the car .” The RAV4 “jumped up onto the curb ” and struck John son , who was pushed against a building

. Joh nson sustained a small cut on his finger but was other wise un injured. Criscione jumped back into the police car and pursued defendant down the alley. Johnson radioed and another officer, Jason Norwick, picked him up in Norwick’s vehicle

. ¶ 15 Johnson and Norwick subsequent ly learned of defendant’s possible location and proceeded to an alley behind an address in the 4000 block of North Western Avenue. They met with other1-18-0499

-6- officer s , including Sergeant Stack. 2 Johnson and other officers went to the top floor, where there was b lood on the door. The door was locked and police made a forced entry. Inside, Johnson saw what appeared to be family of four, including an adult male . The police asked “where is he” and the male “ motion[ed] with his head” to his left. Johnson “peek[ed] around the door” and saw de fend ant. Defendant told police something to the effect of “ [t] hese are my friends,” after which the male shook his head. As police tried to place him in custody, defendant “flail [ed] his arms ” and resist ed arrest. Johnson handcuffed defendant and removed him with the assistan ce of another officer. ¶ 16 Johnson then went to look at the RAV4 that defendant had been driving. On the driver’s seat, in plain view, he saw a “plastic baggy” of suspect narcotics, which he recovered and inventoried

. Johnson later learned that additional suspect narcotics were recovered after a custodial search of def endant’s person. ¶ 17 Similar to Johnson’s testimony, Detective Adam Criscione recalled that o n April 27, 2016, they saw defendant in a vehicle, after which the y walked up to separate sides of the vehicle. As the officers approached, Crisci one he ard the “revvi ng of the engine” as defendant’s vehicle turne d into an alley. Johnson was pushed up aga inst a wall by defendant’s vehicle, which then drove away in a “reckless manner.” After he saw Johnson s tand up , Crisc ione returned to their police vehicle and pur sued defendant. Criscione lost sight of defendant’s vehicle, but later heard o ver police radio that defen dant was in custody. ¶ 18 Officer William Seski testified that he was one of the officers involved in the pursuit of defendant on April 2 7 , 2016

. Near the inters ect ion of Western Avenue and Irving Park Road, he observed a red SUV and a Chicago Polic e vehicle , both of which were unoccupied. A woman

22 The reco rd reflects that Stack was a s ergeant as of April 2016 but was a l ieutenant at the time of trial.1-18-0499

-7- then ran toward him and told him that the residents of the apartment above her were being held against their will by an intruder . T he woman pointed out the top floor of a residence in the 4000 block of Western Avenue. Se ski communicated that information to other officer s. ¶ 19 Eva Gelfand testified that she was driving near the intersection of Western Avenue and Irving Park Road when she heard police sirens. She saw a n SUV at “very high speed” turn in front of her before crash ing into a parked car. A man , whom she identified as defendant , exited the SUV and r an westbound on Cuyler. A short time later, Gelfand tol d a police officer what had happened. ¶ 20 Lieutenant Thomas Stack of the Chicago Police Department testified th at o n April 27, 2016, he

was driving a police vehicle when he learned of a pursuit that led him to the intersection of Western Avenue and Irving Par k Road. Stac k stopped after observing a n unoccupied SUV . A number of citizens indicated that the SUV’s driver fled westbound on Cuyler Avenue . Stack ran in that direction and radioed other officer s . As Stack was searching on foot , he heard a radio transmission indicating that a suspect had entered an apartment at a residence in the 4000 block of North Western Avenue and was holding the residents against their will. Stack proceeded to that address, where he met other officer s . Police went upstairs to the back door of the apartment , where Stack noticed blood on the door. After Stack knocked and announced his office , p olice forcibly ent ered the residence

. Inside, Stack observed a “couple Asian people” including a male. Stack a ske d “ where is he ” and the male “ nodded his head to the left .” Stack then saw defendant in the kitchen area “ trying to conceal himself .” Stack recalled that defendant initially told police that he knew the people in that apartment

. Defendant resisted arrest but police eventually han dcuff ed him.1-18-0499

-8- ¶ 21 Officer Fernando Flores testified that he was one of the officers who entered the apartment and helped apprehend defendant

. After defendant was in custody, Flores observed as another officer patted defendant down and recovered suspected narc otics from his clothing. ¶ 22 Suwit Yantaratanawan (Suwit) tes tified that he lived in the top floor apartment of a residence in the 4000 bloc k of North Western Avenue with his wife , Naruemon Makevilai (Naruemon), and their two children. The family was home on the afternoon of April 27, 2016 , when Suwit heard banging on the back door. A man, whom Suwit identified as defendant, entered the apartment and shut the door. Defendant appeared to be nervous and said he “need[ed] a pl a ce to hide

. ”
S uwit told Nar uemon to call her sister , Nattaphak Preechapongmit (Nattaphak) , who lived on the first floor of the same building. Suwit spoke to defendant and tried to calm him down , as d efe ndant repeatedly looked out of the window. Suwit heard foot steps coming from the stair s outside, after which p olice ent ered . As the police approached, defendant went to the kitchen and hid

. When police entered, Suwi t signal ed to let them know where defendant was hiding

. ¶ 23 Naruemon similarly testified that she heard banging shortly before defendant, whom she identified in court, entered t he apartment. 3 While her children hid in a closet, Naruemon called her sister

- in

- law , Nattaphak , and told her that there was a stranger inside Naruemon’s home. Nattaphak also testified that Naruemon called her on April 27, 2016

. 4 Nattaphak looked out her window and saw police cars. Nattaphak approached a police officer and told him that there was a stranger in Naruemon’s apartment

. ¶ 24 Detective Timothy O’Brien testified t hat he and Beck conducted a videotaped interview of defendant on April 28, 2016, after advising him of his Miranda rights. O’Brien identified People’s Exhib it 21 a s an accurate video recording of the interview, which was admitted and

3 Naruemon, whose native language is Thai, testified through an interpreter. 4 Nattaphak indicated that she speaks some English but testified in Thai through an interpreter.1-18-0499

-9- published. O’Brien testified that during the interview, defendant offered to reveal the location of the Camry taken in the April 3 carjacking if he could make a “deal.” When O’Brien told defendant that he could not make a deal, defendant responded that he “wasn’t going to take an extra six years for that car.” O’Brien further testified that when he asked defendant about Neja ri’s RAV4, defendant claimed that the owner of that vehicle “told him to burn the car for him.” O’Brien also stated that d efendant admitted that he went into Suwit’s apartment and that he t ried to pay the occupants to allow him to stay there. ¶ 25 O’Brien further stated that , at the time of his arrest, defendant was wearing a jacket with “striping along the arms .” O’Brien testified that he reviewed video footage of the April 3 carjacking invol ving Sith thy , and that he believed the offender in that footage was wearing the

same jacket that defendant wore when he was arrested. ¶ 26 On cross

- examination, O’Brien acknowledged that defendant never admit ted to taking the Camry. He also admitted that he did not actually see defendant wearing the striped jacket , but stated he had seen the jacket after it was inventoried by ot he r officers. ¶ 27 The State introduced a number of stipulations

. Among these, t he parties sti pulated that a Chicago Police Department evidence technician would tes tify that she recovered swabs from the RAV4’s
g ear shift and steering wheel. A f orensic scientist with the Illinois State Police would testify that the swab from the gear shift indicated a mixture of two people, including a major DNA profile that matched defendant , and that defen d ant could not be excluded from the DNA mixture from the swabs of the steering wheel. The parties also s tipulated that Officer McGary would testify that he recovered three “baggies” of suspect cocaine from defendant’s sweatshirt pocket, and that1-18-0499

-10- a forensic chemist with the Illinois State P olice would testify that items recovered from defendant and RAV4 teste d positive for cocaine

. 5 ¶ 28 Following the stipulations and t he admission of the State’s exhibits, t he State ’s Attorney requested a continuance to locate the jacket referenced by O’Brien and present it to the court

. Th e court denied that request, and the State rested. ¶ 29 Defendant’s motion for a directed verdict was denied. Defendant elected not to testify, and the defense rested without presenting any evidence

. ¶ 30 In its findings with respect to case 16 CR 7564 , concerning the April 3 carjacking of the Camry , the court found defendant guilty of vehicular hijacking and PSMV, explaining that it found Siththy’s testimony “very clear and convincing,” and that she picked defendant out of a “pretty good lineup” that “wasn’t suggestive.” The court also noted that defendant “hurts himself by saying, let’s make a deal. Where’s the car? Let’s make a deal. You know, I’m not going to do it for six years.” The court remarked that this was “a form of admission that he knew wher e the car
was.” The court acquitted defendant of the charges of identity theft and possession of a credit card

. ¶ 31 Wi th respect to case 16 CR 7562, the court acquitted defendant of all three counts of aggravated battery to a police officer , citing Johnson’s testimony that he was not injured. However, t he court found him guilty of PSMV with respect to the RAV4 and guil ty of aggravated assault against Johnson. With respect to case 16 CR 756 3 , t he court found defendant guil ty of all counts , including four counts of unlawful restraint, criminal trespass to a residence, and possession of a controlled substance

. ¶ 32 Defendant ’s motion for judgment notwithstanding the verdict or a new trial was denied.

5 Officer McG ary’s first name is not stated in the trial transcript.1-18-0499

-11- ¶ 33 Defendant’s presentence investigative report reflected numerous convictions dating from 1989. His criminal history included multiple PSMV c onvictions, an armed robbery conviction, and multi ple prior convictions for retail theft and possession of a controlled substance

. ¶ 34 At defendant’s sentencing hearing, the State pointe d out that defen dant had two pending cases, incl uding a case for aggravated PSMV. The State argued that def endant was sub ject to sentencing as a Class X offen der given his criminal history

. The court remarked that the convictions in case 16 CR 7563 were “Class 4 [offenses] , but they’re extendable” and indicated that the sentencing range was between one and six years’ imprisonment

. Counsel for the State and defendant expressed their agreement. ¶ 35 Following argument in mitigation and aggravation , defendant spoke in allocution . He expressed remorse for his action s , stated that “the drugs really had me,” and asked for substance abuse
tre atment while incarcerated

. ¶ 36 In imposing sentence with respect to case 16 CR 7564, the court merged the PSMV count into the vehicular hijacking count and sentenced defendant, as a Class X offender , to 20 years ’ imprisonment on th e vehicular hijacking count. In case 16 CR 7562, the court merged the conviction for aggravated assault against Johnson into the PSMV conviction and imposed a 20

- year sentence on the PSMV count, to run concurrent with the 20

- year sentence i mposed in 16 CR 7564. In case 16 CR 7563, the court sentenced d efendant to extended

- term sentence s of six year s

on each of the four c onvictions of unlawful restraint, as well as the convictions for possession o f a controlled substance and criminal trespass to residen ce . 6 In doing so, the court noted: “So I’m

6 We note that the written sentencing order in case 16 C R 7563 appears to include a clerical error, insofar as it does not specify the imposition of the extended

- term six

- year sentence for the unlawful restraint conviction under count I, yet elsewhere states: “On Count 001, defendant having been convicted of a Class 4 offense is sentenced as a class x offender * * *.” However, the trial court’s oral pronouncement is the judgment and controls in the event of any conflict with the written sentencing order

. See People v. Carlisle , 2015 IL App (1st) 13114 4, ¶ 87. The transcript from defendant’s sentencing makes clear (and the parties do not dispute) that the court imposed a six

- year extended1-18-0499

-12- going to give you the max on those, 6 years IDOC” but specified that those sentences would “ run
concurrent with the 20

- year se ntence [s]” imposed in cases 1 6 CR 75 62 and 16 CR 7564. ¶ 37 Defen d ant’s motion to reconsider sentence was denied, and defendant filed a timely notice of appeal. ¶ 38 ANALYSIS ¶ 39 On appeal, defendant raises three distinct claims of error

. First, he contends that he was deprived of effective assistance of counsel when his trial counsel failed to object to the joinder of the three cases. Second, he contends that his convictions in case 16 CR 7564, pertaining to the April 3 carjacking, should be reversed because Siththy’s identification testimony was unreliable. Finally, he asserts that the court erred in imposing extended

- term sentences on his convictions for the Class 4 offenses o f unlawful restraint and criminal trespass to a residence, sinc e they were not the most serious class of offense for which he was convicted . We address these arguments in
turn. ¶ 40 Defendant’s primary argument is that his trial counsel was ineffective in failing to object to the State’s request to the “improper joinder” of all three cases. H e asserts that case 16 CR 7564, arising f rom the April 3, 2016 carjacking of the Camry in Sith thy’s presence, was “entirely separate” from cases 16 CR 7562 and 16 CR 7563, which concerned events on April 27, 2016.
He claims tha t his counsel acted unreasonably in not objecting to the joinder, and that he suffered resulting prejudice and an unfair tr ial because the joinder allowed the trial court to hear “ what amounted to evidence of other crimes in each ca se. ” On that basis, he asks that we reverse and remand for new, separate trials.

term sentence on the unlawful restraint conviction under count I , just as it did with respect to the three other unl awful restraint convictions and the criminal trespass to residence conviction

.1-18-0499

-13- ¶ 41 In determining whether a defendant was denied effective assistance of counsel, “we apply the familiar two

- prong test established in Strickland v. Washington , 466 U.S. 668 (1984).” People v. Cherry , 2016 IL 118728, ¶ 24. Under that test, a defendant “must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant. [Citation.] ” Id. S pecifically, the defendant must demonstrate that counsel’s performance was objectively unreasonable and that there is a “ reason able probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Id. In assessing the prejudice prong, “ [a] reasonable probability is a probability sufficient to u ndermine confidence in the outcome.” People v. Evans , 186 Ill. 2d 83, 93 (1999)

. The prejudice prong “is not simply an outcome

- determinative test but, rather, may be satisfied if defendant can show that counsel’s deficient performance rendered the result o f the trial unreliable or the proceeding fundamentally unfair.” (Internal quotation marks omitted.) People v. Manning , 241 Ill. 2d 319, 327

- 28 (2011). ¶ 42 The failure to establish either prong of the Strickland inquiry precludes a finding of ineffective assist ance of counsel. Cherry , 2016 IL 118728, ¶ 24 (citing People v. Henderson , 2013 IL 114040, ¶ 11). If defendant cannot establish prejudice, we need not separately analyze whether counsel’s conduct was unreasonable. See Evans , 186 Ill. 2d at 94 (“ [I] f the ineffective

- assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, a court need not decide whether counsel’s performance was constitutionally deficient. [Citations.]”). ¶ 43 In order to assess defendant’s claim of ineffective assistance, we briefly review the law regarding joinder. Section 114

- 7 of the Code of Criminal Procedure of 1963 provides that “[t]he court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge.” 725 ILCS 5/114

- 7 (West 2018). In turn, under section 111- 4(a) of the1-18-0499

-14- Code, t wo or more offenses may be charged in the same indictment if they are “ based on the same act or on 2 or more acts which are part of the same comprehensive transact ion.” 725 ILCS 5/111- 4(a) (West 2018). In determining whether a defendant’s acts were part of the same comprehensive transaction, “the most crucial factors to consider include: the proximity of time and location of the various charges, the identity of evidence which would be presented to prove each charge; whether the offenses shared a common method; and whether the same or similar evidence would establish the elements of the offenses.” (Internal quotation marks omitted.) People v. Fleming , 2014 IL App (1st) 113004, ¶ 36. The trial court has “substantial discretion” in determining whether joinder of offenses is proper. People v. Marts , 266 Ill. App. 3d 531, 542 (1994). ¶ 44 In this appeal, the parties devote substantial argument debating whether the separate cri mes in the three underlying cases were part of the same transactio n , and, in turn, whether defense counsel ’s fail ure to object to the joinder constituted deficient performance under the first prong of the Strickland analysis. However, we need not discuss the first prong, as we conclude that defendan t canno t satisfy the second prong , i.e ., prejudice from counsel’s failure to object to the joinder. As explained below, w e find that, e ven assuming arguendo that counsel was deficient in fail ing to object to the joinder , defendant’s claim of resulting prejudice is unavailing. ¶ 45 G iven that there were three separate cases joined concerning offenses committed on two separate dates , we clarify the precise nature of defendant’s prejudice claims. D efendant argues that his counsel’s failure to object to the joinder resul ted in prejudice because it allowed the t r ial judge to hear other

- cri me s evidence that would otherwise be inadmissible , and that the trial court “likely relied” upon such oth er - crimes evidence in finding him guilt y. D efendant primarily claims that the joinder prejudiced hi s defense in case 16 CR 7564, regarding the April 3 , 2016 carjacking of1-18-0499

-15- the Camry

. Spec ifically , he suggests that evidence pertaining to case 16 CR 7562 , i.e ., that defendant “was seen in a stolen car [the RAV4] and led police on a high speed chase” on April 27, 2016 prejudiced the court against him with respect to the charges concerning the April 3, 2016 carjacking

. That is, he suggests that evidence of t he events on April 27 made the court “more likely to believe ” that defen dant previously stole the Camry. Se parately, defendant suggests he was prejudiced because evidence of the April 3 carjacking consti tuted inadmissible “other

- crimes” evidence with respe ct to the two remaining cases concerning offenses on April 27, as “none of the evidence concerning the [April 3] car jacking of Siththy was admissible” for any permissible purpose in the other cases

. ¶ 46 We reject defendant’s claims of prejudice. Keeping in mind that this was a bench trial , defendant cannot establish th at joinder prejudiced his defense in any of the three case s , or that the court improperly relied on evidence from other cases to reach it s findings of guilt in each specific case

. St ated differently, d efendant cannot demonstrate a reasonable probability that the result in any of the cases would have been different , even without the joinder. ¶ 47 In re ach ing this conclusion, we are guided by our precedent discussing other- crimes evidence ,

w hich clearly di fferentiates between its impact in a jury or a bench trial

. Evidence of other crimes is not admissible for the purpose of demons trating a d efendant ’s pro pensity to commit a crime. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v. Donoho , 204 Ill. 2d 159, 170 (2003). “Such evidence is generally inadmissible because it carries an extreme risk of prejudice in that it can lead to ‘the jury convicting a d e fen dan t because he or she is a bad perso n deserving punishment.’ ” People v. Felton , 2019 IL App (3d) 150595, ¶ 42 (quoting Donoho , 204 Ill. 2d at 170). Other

- crimes evidence is admissible for other purposes, “ ‘such as proof of motive,1-18-0499

-16- opportunity, intent, preparation, plan, knowledge, identi t y, or absence of mistake or accident.’ ” Felton , 2019 IL App (3d) 150595, ¶ 43 (quoting Ill. R. Evid. 404(b) (eff. Jan. 1, 2011) ). ¶ 48 Significantly, “ [t] he prejudicial effect of other

- crimes evidence is almost exclusively discussed in terms of impact on a jury

. [Citations.]” (Emphasis in original.) Felton , 2019 IL App (3d) 150595, ¶ 47. On the other hand , i n a bench trial, there is a rebuttable presumption that the trial court considers evidence only for proper purposes. See People v. Jones , 2017 IL App ( 1st ) 143 403 , ¶ 36 (t he trial court, “as the trier of fact, is presum ed to know the law and to have considered only competent evi dence in making a determination on the merits.”) ; Felton , 2019 IL App (3 d) 150595 , ¶ 47 (“U nlike a jury, a trial judge is presumed to know the law and to app ly it correctly. [Citation.]”) . “ To rebut this presumption, the record must affirmatively show that the trial court actually used the evidence improperly .” Jones , 2017 IL App (1st) 143403, ¶ 36

. ¶ 49 Consistent with this presumption, “ [t] he risk of undue prejudice normally accompanying the admission of large amounts of other

- crimes evidence is significantly diminished where the trier of fact is not a jury but a judge. [Citation.]” Felton , 2019 IL App (3d) 150595, ¶ 47. This court has expla ined : “The rule generally barring other

- crimes evidence is based on the belief that the introduction of the evidence may over

- persuade a jury to convict a defendant only because the jury believes the defendant is a bad person deserving punishment. [Citatio n.] In a bench trial, this fear is assuaged; it is presumed that the trial court considered the other

- crimes evidence o nly for the limited purpose for which it was introduced. [Citation.]” People v. Nash , 2013 IL App (1st) 113366, ¶ 24. ¶ 50 In light of this presumption and on the record before us , defendant cannot establish prejudice from the admission of other

- crimes evidence that resulted from joinder . In turn , he cannot show1-18-0499

-17- that he suffered prejudice from his defense counsel’s failure to object to th e joinder

. The record does not rebut the presumption that the court considered evidence from each of the three underlying case s for proper purposes. Specifically, the record does not support defendant’s suggestion that the court improperly relied on evidence of the offenses committed on April 27 to find that defendant committed the April 3 carjacking in case 16 CR 7564. Nor do we find that the trial court improperly relied on the April 3 carjacking to find defendant guil ty of any of the offenses charged in the other two cases. ¶ 51 In his reply brief, defendant acknowledges the presumption that the trial judg e will only consider compete nt evidence in reaching its findings

. However, he suggests that two comments by the trial court demonstrate that it “expressly considered” evidence from case 16 CR 7562 in finding that defendant committed the April 3 carjacking of the C amry in case 16 CR 7 564. First, defendant notes the court’s comment, in finding defendant guilty of PSMV of the RAV4 , that: “The witness [Nejari] left the car running and he went back into the place, * * * and that’s what’s going on with all hijackings, all vehicular stolen v ehicles.” Defendant’s reliance on that comment is unpersuasive . First, viewing the remark in context, the record shows that the court made it i n explaining it s f inding that defe ndant was guil ty of possessing the stolen RAV4 in case 16 CR 7562. Thus, it does support his claim that the court relied on other- crimes evidence to find
him guilty with respect to the April 3 carjacking in case 16 CR 7564. In any event, the court’s remark “that’s what’s going on with all hijacki ngs , all vehicular stolen vehicles” is so vague and

non- specific that we cannot interpret it to mean th at court was improperly relying on other

crimes evidence

. ¶ 52 Defendant also directs our attention to the court’s comment , after it credi ted Siththy’s ident ification testimony, that: “There is much corroboration on the identification and the1-18-0499

-18- statement that he made and the totality of all the circ u mstances since they were tried together that obviously he likes to steal cars.” We do not find th at this comment rebuts the presumption that the court relied on competent evidence regarding the April 3 carjacking to find him guilty of the offenses in that case . Signifi cantly, immediately before this statement, the court emphasized that it found Siththy’s testim ony “clear and convincing ,” indicating that it relied on that eyewitness testimony to find defendant guilty. ¶ 53 We acknowl edge that the court’s comment that defe ndant “likes to steal cars” suggests its belief that defen dant had a propensity to commit this sort of crime . However, we do not read the
court’s comment to mean that court was improperly relying on evidence of the subsequent theft of the RAV4 to find that defe ndant committed the April 3 carjacking. The “likes to steal cars” comment is properly viewed as reflecting the court’s findings that defendant was guilty of stealing the Ca mry in case 16 CR 7564 and the RAV4 in case 16 CR 7562, after prop e rly considering the corresponding evidence in each respective case . Thus, we do not find that either of the comments identified by defendant amounts to an affirmative showing rebut ting the presumption that the trial court properly considered only competen t evidence in reaching its findings. See Jones , 2017 IL App ( 1st ) 143403, ¶ 36. ¶ 54 In sum, defend ant cannot show that , in reaching its findings of guilt in each of the three cases, the trial court improperly relied on evid e nce from any of the other cases were joined. In turn, for purposes of the Strickland prejudice inquiry, he cannot show a “ reasonable probability ” that the result would have been different , even had his trial counsel successfully objected to the joinder of the three cases. See Cherry , 2016 IL 118728, ¶ 24. As he cannot satisfy the prejudice prong of the Stric kland inquiry, his ineffective assistance of counsel claim fails

.1-18-0499

-19- ¶ 55 We turn to defendant’s second claim of error, in which he assert s that the evi dence was insufficient to sustain his convictions for vehicular hijacking and PSMV in case 16 CR 7564 , stemming from the April 3 carjacking of the Camry. Specifically, he claims that Siththy’s identification testimony was dubious and unrel iable

. On that basis, he seeks outright reversal of the vehicular hijacking and PSMV convictions. ¶ 56 When reviewing a challenge to the sufficiency of the evidence, we consider “whether, vi e wing the evidence in the light most favorable to the State , any rational trier of fact could have fou nd the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original and internal quotation marks omitted.) People v. Wheeler , 22 6 Ill. 2d 92, 114 (2007). “[I] n a bench trial, it is for the trial judge, sitting as the trier of fact, to dete rmine the cre dibility of witnesses , to wei gh evidence and draw reasonable inferences therefrom, and to resolve any conflic ts in the evidence. [Citations.]” People v. Siguenza

- Brito , 235 Ill. 2d 213, 228 (2009). A reviewing court “will not retry the def endant or substitute its judgment for that of the trier of fact on questions involving the weight of the evidence, conflicts in the testimony, or the credibility of witne sses . [Citation.]” People v. Corral , 2019 IL App ( 1 st ) 171501, ¶ 71. ¶ 57 Defen dant does not challenge the State’s proof of any particular element of vehicular hijacking or PSMV with respect to the Camry, but attacks Siththy’s identification testimony as unreliable

. Although “ [i] den tification evidence which is vague or doubtful is insufficient to support a conviction ,” a single witness’ identification is sufficient to s ustain a conviction “ if the witness viewed the accused under circumstances permitting a positive ide ntification.” People v. Joiner , 2018 IL App (1st) 150343, ¶ 47. In assess ing identification testimony, we cons ider five factors derived from Neil v. Biggers , 409 U.S. 188 (19 72) , namely: (1) the witness’ opportunity to view the defendant during the offense; (2) the witness’ degree of attention at the time of the offense;1-18-0499

-20- (3) the accuracy of the witness’ prior description of the defe ndant; (4) the witness’ level of certainty at the subsequ ent identification; and (5) the length of time between the crime and the identification. Joiner , 2018 IL App (1st) 150343, ¶ 47. No single factor is dispositive , and “the trier of fact is to take all of the factors into consideration.” Id

. (citing Biggers , 409 U.S. at 199

- 200). Further, we are mindful that eyewitness testimony “is insuffi cient only if the record compels the conclusion that no reasonable person could accept that testimony beyond a reasonable doubt. [Citation .] ” People v. Charles , 2018 IL App ( 1st ) 153625, ¶ 25. ¶ 58 Defendant suggests that application of the five Biggers factors leads to the conclusion that Siththy’s identification testimony was unreliable. We disagree. ¶ 59 With respect to the first factor, “ [w] hen considering whether a witness had an opportunity to view the offe nder at the t ime of the offense, courts look at w hether the witness was cl ose enough to the accused for a suff icient per iod of time under co nditions adequate for observation. ” (Internal quotation marks omitted.) In re J.J ., 2 016 IL App 160379, ¶ 27. In arguing that the first factor weighs against Siththy’s identification, defendant notes that her “opportunity to view the offen der was extraordi narily brief and limited .” Defe ndant emphasizes Siththy’s testimony indicating that t he carjacking occurred in “ five seconds ” and that vide o footage indicates that approximately three seconds passed between the time the offender entered the Cam ry and when Sit hthy left the car

. However, despite the brevity of the encounter, Sith thy repeatedly and unequivocally testified that she saw defendant’s face. Thi s court has confirmed that the trier of fact may credit identification s made during very brief encounter s. See, e.g. , People v. Macklin , 2019 IL App (1st ) 161165, ¶ 30 (trial court could find witness had adequate opportun ity to view defendant , even assumin g that opportunity “lasted seconds rather than minutes”); People v.
Petermon , 2014 IL App ( 1st ) 113 536, ¶ 32 (identification testimony credible although the “entire1-18-0499

-21- incident took less than a minute ”); People v. Parks , 50 Ill. App. 3d 929, 932

- 33 (1977) (identification from attack lasting “five to ten seconds” sufficient to sustain conviction ). ¶ 60 Apart from th e brief nature of the encounter, defendant also claims that Siththy ’s view was obst ructed . He notes that video footage of the incident sho ws that the offe nder was wearing a hat and a hood, and posits that these “likely blocked Sith thy’s view of the of fende r’s face. ” He also notes that Sith thy was “wearing a s carf on her head, was te xting with he r dau ghter when the man got into the car, and she admitte d t hat she di d not immediately look at the offender .” However, Siththy never testified that her view was obstructed

. To the contrary, she tes tified that defendant’s face was “not covered” and that she saw his whole face when he turned toward her

. Moreover, t here is no dispute that the offender was in the vehicle with Siththy when she saw him; the trial court could certainl y have found that the closeness of the encounter also weighed in favor of the relia bility of Siththy’s identification. See In re J.J ., 2016 IL App ( 1st ) 160379, ¶ 28 ( finding that first Biggers factor supported identification and noting that “defe ndant was cl ose

eno ugh to reach out his arm and touch the victim’s chest w ith the gun”)

. Despite the brevity of the incident, the trial court was entitled to find that Siththy had suffic ient oppor tunity to view the offender. ¶ 61 With respect to the second Big gers factor

— Siththy’s degree of attention

— defen dant argues that it is “likely that stress affected Siththy’s a bility to make an accurate identification.” Defendant cites the Supreme Court of New Jersey’s decision in State v. Henderson , 2 08 N.J. 208 (2011) for the prop osition that scientific research indicates that high stress negatively impa ct s a witness ’s ability to recall and make an accurate id entification . Def endant notes Siththy’s testimony that she screamed when she saw the offender and panicke d as she ran from the car. “Illinois courts have recognized that the stress of a crime can con tribute to the un reliability of eye witness testimony .”1-18-0499

-22- In re J.J ., 2016 IL App ( 1st ) 160379, ¶ 30 (citing People v. Lerna , 2016 IL 118496 , ¶ 28 )

. However, d efendant does not cite any Illin ois prece dent suggesting that the trial court must discount the reliability of an identification where the witness was in a stressful situation. Moreover, nothing in the trial record suggests that the stress of the incident diminished Siththy’s ability to pay attention when she saw defendant. Indeed, her testimony included details about defen dant’s appearance and h is statements to her

. The trial court was entitled to find tha t this indicate d a sufficient degree of attention to support her identification

. See People v. Blankenship , 2019 IL App ( 1st ) 171 494, ¶ 29 ( fi nding that witness’ s degree of atte ntion favored the State where witness “was able to give a de tailed a cco unt of the ev ents of th e robbery and the ph ysical des cription of both d efendant and gun .” ) ; In re J.J

. , 2016 IL App (1st) 160379, ¶ 30 (rejecting defendant ’s argument that fear prevented witness from pay ing adequ ate attention , where the witness’s testimony was “detailed and de scr iptive and in dicated that sh e was acut ely a ware of what was happening during the encounter” ). ¶ 62 Regarding the third Biggers factor

— accuracy of the prior description —defendant contends that the description Sitht hy provided to police was “vague and ge neral , u ndermining any conf idence in [her] ability to observe and recall accurately .” Siththy told police that the offender was a “chubby” white man with no hair on his head and a “ little bit ” of a beard. Defe ndant pos its that “any number of people” could have matched that description. As t he State acknowledges, Siththy’s prior description was general. However, it is well

- settled that a general description does not preclude the trial court from finding an identification reliable. A witness “ ‘ is not expe cted or

re quired to dist inguish individual and sep arate features of a sus pect in mak ing an id e ntification

. Instead, a witness’ positive identification can be sufficient even though the witness give s only a general des cription base d on the to tal impression the accused’s appear ance made.’ ” People v.1-18-0499

-23- Tomei , 2013 IL App ( 1st ) 112 632, ¶ 52 (quoting People v. Slim , 127 Ill . 2 d 302, 308

- 09 (1989 ) ); People v. Williams , 2015 IL App ( 1st ) 131103, ¶ 75 ( “Where the witness makes a positive identi fication , precise accu racy in the prelim inary descr iption is not necessary. [Citation.]”)

. Thus, although th e third Biggers factor does not strongly weigh in the State’s favor, it certainly did not preclude the trial court from cred iting Siththy’s identification. ¶ 63 With respect to the fourth Biggers facto r, defendant does not dispute that Sith thy indicated she

was certain in identifying defendant in the photo array . However, he argues this fact or “deserves little w eight.” Defendant directs our attention to the statement from the Seventh Circuit Court of Appeals that “[p] sychological research has established that th e witness’ s faith is equa lly st rong

w hether or not the identification is correct .” Newsom e v. McCabe, 319 F.3d 301, 305 ( 7th Cir. 2003)

. However, defe ndant did not present expert testimony a t trial on this subject ; in such situation s “[t]his court has found defendant’s argument unpersuasive where no such evidence was presented to support a finding that the witness’s certainty should be given little weight.” Blankenship , 2019 IL App (1st) 171494, ¶ 32 (citing Tomei , 2013 IL App (1st) 112632, ¶ 56 (“Since defendant did not present expert testimony, we do not find persuasive that the fourth factor, the witness’s level of certain t y, should be given little weight ”)). ¶ 64 Defendant otherwise argues that Siththy’s level of certain ty “does not le nd reliability to her identification given the suggestiveness of the phot o array.” 7 Specifically, he notes that of the six subjects in the array, only “ three had no ha i r, and of those, only two had a bear d.” Thus, h e

7 The record does not reflect that defendant moved to suppress the photo array identification. Thus, defendant’s contention that the photo array was unduly suggestive was forfei ted. See People v. Piatkowski , 225 Ill. 2d 551, 564 (2007) (To preserve an error for appellate review, a defendant must both object at trial and raise the issue in a posttrial motion). However, the State does not claim on appeal that defendant forfeited th is argument by failing to raise in in the court below. “The State may forfeit a claim of forfeiture by failing to raise it.” People v. Jones, 2018 IL App (1st) 151307, ¶ 47. Thus, the State has forfeited any claim of forfeiture. See People v. Bahena , 2020 IL App (1st) 180197, ¶ 29 (finding that State forfeited argument that defendant forfeited his claim that trial court erred in denying pretrial motion to suppress photo array and lineup).1-18-0499

-24- argues that only two of the six subjects matched Siththy’s description, such that she had a “50% cha nce” of selecting defendant from the array. ¶ 65 W e find no merit to defendant’s claim that the photo array was unduly suggestive. “Criminal defendants have a due process right to b e free from identification procedures that are unnecessarily suggestive and condu cive to irreparable mistaken identification.” People v. Bahena , 2020 IL App ( 1st ) 180197, ¶ 32 (quoting People v. Jo nes , 2017 IL App ( 1st ) 143766, ¶ 27.) “The participants in a lineup or photo array should not appear grossly dissimi lar to the suspect

. [Citation .] ” People v. Ortiz , 2017 IL App (1st) 142559, ¶ 25

. Under the Code of Criminal Procedure of 1963, a lineup “shall be com posed to ensure tha t the su specte d perpetrator does not und u ly stand out” and the suspect “shall not be substantially different in appear ance from the fillers based on the eyewitness’ previous descript ion of the perp etrator .” 725 ILCS 5/107A- 2(f)(3) (West 2016)

. “The law, however, does not require the parti cipants in a photo array or lineup ‘to be identical or near ident ical .’ ” Ortiz , 2017 IL App (1st) 142559, ¶ 25 (quoting People v. Faber , 2012 IL App (1st) 093273, ¶ 57 ). Indeed, a photo array or lineup is not unduly suggestive merely because defendant is the only subject with a particular characteristic.
See , e.g ., Faber , 2012 IL App ( 1st ) 093273, ¶ 57 (lineup not und uly suggestive w here the de fe n dan t was the only person wearin g a sleeveless T

- shirt, whi ch a witness had de scribed the offen der as wearing ) ; People v. Kelley , 304 Ill. App. 3d 628, 638 (1999) (lineups not unduly suggest ive even where defendant was the only person with an “Afro” hairstyle in one lineup and
“f

rench br aids ” in another lineup). ¶ 66 After re viewing the phot o array that was presented in this case, we do not find that it was unduly suggestive. D efendant was not substantially different in appear ance from the five other participants

. All six individuals in the photo array were males that appeared to be roughly the1-18-0499

-25- same age and build with similar skin tone

. Three of the men in the photo array (including defendant) were bald, two ha d short hair, and one ha d medium- length hair. Two the six men were clean

- shaven ; t he other four (including defendant) had short facial hair on their upper lips and chins

. N one of the six men had more than a slight mustache, none had a thick beard, and

none had sideburns. We recognize that defendant was one of two men in the array who was bald and had facial hair. However, despite some variation among the six subjects, there were not suc h significant differences between defendant and the other five men so as to render the array improperly suggestive. See People v. Allen , 376 Ill. App. 3d 511, 521 (2007) ( in re jecting clai m that photo array wa s impro perly suggestive, explaining “ [w] hile defendant contends he wa s the only per son wh o was actually b al d in the ph oto array, we note all of the i ndividuals had ver y close cropped hair in the p ictures , which a ppeared sim ilar to defendant’s hairstyle in the picture shown to [witness. ]”)

. Thus, w e reject defendant’s suggest ion that this case bears any resemblance to the situation in People v. Clifton , 2019 IL App (1st) 151967, ¶ 62 (concluding that lineup was unduly sug gestive where defen dant was the only parti cipant “with three particular articles of clothing, a unique hairstyle [dreadlocks] , and a facial feature matching the description of the offender.”)

. ¶ 67 Apart from arguing that it was suggestive, defendant alternat ive ly attacks t he photo array by stating that “the record do es not demo n strate that the p olice comp lied with state law ” in condu cting the photo arra y, pursuant to the requirements of section 107A -2 (e) of the Code of Criminal Procedure of 1963. 725 ILCS 5/107A -2 (e) (West 2016). Specifically, defendant urges that the re was no evidence in the record that “Siththy signed a lineup ad visory form or was otherwise informed tha t the offender might not be in the lineup and she did not need to identify anyone.” These argu ments are not persuasive. Defendant cites no authority to suggest that , in1-18-0499

-26- order for the court to credit Siththy’s photo array identification, the State was required to elicit testimony to establish that it com plied with th e se procedural requiremen ts

. Defense counsel could have, but did not, cross - examine the State’s witnesses to develop a record regarding th ese

re qu irements

. In sum, the record does not support defendant’s attacks on the pho to array, and his arguments regarding the fourth Biggers factor are unavailing

. ¶ 68 Regarding the fifth and final Biggers factor

— the le ngth of t ime between the crime and the identification

— defendant contends that the 10- day period between the April 3 carjack ing and Si ththy’ s photo array identification allowed “ memor y deca y ” that compromised her ability to accurately re call the offender

. However, the 10- day interval certain ly did not preclude the trial court from crediting Siththy’s identification. We have found that equivalent or significant ly long er lengths of time have not rendered identi fications unreliable. See, e.g ., M acklin , 2019 IL App ( 1st ) 161165, ¶ 30 (upho lding id en tifications where “lineups wer e prompt ly conducted 10 days afte r the robbery) ; People v. Green , 2017 IL App ( 1st ) 152513, ¶ 113 ( upholding identification after three

- month interval and noting “reviewing court s hav e found identifications rel iable where nearly three months or more elapse d between the crime and the witnes s’s identification”); People v. Malone , 2012 IL App (1s t) 110517, ¶ 36 ( upholding identification notwithstanding one year and four month interval ). ¶ 69 In sum, the Biggers factor s support the trial court’ s decision to find Siththy’s identification reliable. T he trial court could (and did) credit her ident ification and rely on it to conv ic t defendant in cas e 16 CR 7564

. See Joiner , 2018 IL App (1st) 150343, ¶ 47 ( A single witness’ s identification is sufficient to sustain a conviction if the witness viewed the accused under1-18-0499

-27- circumstances permitting a positive identification ). We thus reject defendant’s challenge to his convi ction s in case 16 CR 7564

. 8 ¶ 70 We turn to defendant’s contention that the court erred in imposing extended

- term sentences
upon each of his convictions for the Class 4 offenses of unlawful restrain t and crim inal trespass to residence in case 16 CR 7563

. 9 He asserts that th ese extended sentences were improper pursuant to section 5 -8- 2(a) of th e Uni fied Code of Corrections (730 ILCS 5/5 -8- 2(a) (West 2016)), because he was convicted and sentenced upon a more serious offense , specifically, the Class 2 offense of PSMV in case 16 CR 7562

. On that basis, he requests that we either remand for resentencing or reduce each of his sentences for unlawful restraint and criminal trespass to residence to three year s, i.e. , the maximum nonextended term for a Class 4 felony. See 730 ILCS 5/5-4.5- 45(a) (West 2016)

. ¶ 71 As an initial matter, w e note the State ’s conte ntion that defendant’s claim of error regarding the extended

- term sentences is forfeited because he did not raise this argument at sentencing or in a motion to reconsider sen tence

. See People v. Hillier , 237 Ill. 2d. 539, 545 (2010) ( “[T] o preserve a claim of sentencing error, both a contemporaneous objection and a postsen tencing motion raising the issue are required [Citations.]” ). Defendant acknowledges that he did not preserve this claim but urges that we may review the issue under the plain

- error doctrine. Alternatively, defendant contends that his trial counsel’s failure to preserve the error in a postsentencing motion constitutes ineffective assistance of counsel. However, b oth part ies are mistaken , as forfeiture

8 As Sitht hy’s testimony was independently sufficient evidence to affirm his convictions stemming from the April 3 carjacking of the Camry, we need not discuss defendant’s contentions that there was no other admissible evidence of his guilt. That is, we need not decide defendant’s claim that his custodial statement indi cating he knew the Camry’s location was an attempt to “negotiate a deal” that could not be used against him. See Ill. R. Evid. 410(4) (eff. Oct 15, 2015) (any statement made in the course of a plea discussion which does not result in a plea of guilty is no t admissible in any criminal proceeding against the defendant).

9 Defendant does not raise any challenge to the six

- year sentence imposed on his conviction for possession of a controlled substance in case 16 CR 7563.1-18-0499

-28- does not apply to th e alleg ed error . “T he imposition of an extended

- term sentence without
st atutory author ity results in a void sentence that is not subject to the rule of forfeiture.” People v. Collins , 366 Ill. App. 3d 885, 900 (2006). T his court has repeatedly rejected the State’ s attempt to apply forfeiture to a defendant’s claim that an extended

- term sentence w a s

un authorized under secti on 5-8- 2(a) of the Unified Code of Corrections

. See People v. Rob inson , 2015 IL App (1st) 130837, ¶ 99; Collins , 366 Ill. App. 3d at 900. Accor d ingly , we proceed to the merits of the claim. ¶ 72 Under section 5 -8- 2(a) of the Unified Code of Corrections, a defendant may be sentenced to a n extended term if the sentence is “ for an offense within the class of the most serious offense of which the offender was conv icted, ” and if certain aggravating factors are present. 730 ILCS 5/5

- 8-2 (a) (West 2016). Thus, the “imposition of extended

- term sentences is limited * * * to offenses within the most serio us classification. [Citation.] ” People v. Reese , 20 17 IL 120011, ¶ 83 ; People v. Jordan , 103 Ill. 2d 192, 205

- 06 (1984) ( “the plain language of section 5 -8- 2(a) requires that, when a defendant has been convicted of multiple offense s of differing classes, an extended

- term sentence may only be imposed for the conviction within the most serious class .” ). ¶ 73 An “exception to that rule applies when extended

- term sentences are imposed ‘ on separately charged, differing class offenses that arise from unrelated courses of conduct.’ ” Reese , 2017 IL
120011 , ¶ 83 (quotin g People v. Coleman , 166 Ill. 2d 247, 257 (1995)). In turn , to determine

“ whether a defendant’s multiple offenses are part of an ‘unrelated course of conduct ’ for the purpose of his eligibility for an extended

- term sentence * * * courts must consider wheth er there was a substantial change in the nature of the defendant’s criminal objective. ” People v. Bell , 196 Ill. 2d 343, 354

- 55 (2001). If there was a substantial change in the nature of the criminal1-18-0499

-29- objective, the offenses are “ part of an ‘unrelated course of conduct’ and an extended

- term sentence may be imposed on differing class offenses. ” Id. ¶ 74 “ ‘The determination of whether a defendant’s actions constitute a single course of conduct’ or is part of an unrelated course of conduct ‘is a question of fact for the trial court to determine, and a reviewing court will defer to the trial court’s conclusion unless that conclusion is against the

m anifest weight of the evidence.’ ” Robinson , 2015 IL App 130837, ¶ 102 (quoting People v. Hummel , 352 Ill. App. 3d 269, 271 (2004) ). “ A factual finding is aga inst the man ifest weight of the evidence only if the opposite conclusion is readily apparent or when the finding appear s to be unreasonable, arbitrary or not based on the evidence. [Internal quotation marks omitted.]” Robinson , 2015 IL App 130837, ¶ 102. “However, whether the trial court applied a proper construction of a statute is a question of law t hat we review de novo .” Id. ¶ 75 In this case, the trial court at sentencing did not make an y explicit find ing as to whether the offenses were part of an unrelated course of conduct. In such a situation, our court applies the “presumption that a trial court knows the law and applies it,” and so we “must pre sume that the trial court reasoned that there was a substantial change in defendant’s criminal objective.” Id. ¶ 103. ¶ 76 In this case, there is no dispute that defendant was sentenced to extended terms on C lass 4 offenses in case 16 CR 7563 despite being sentenced upon PSMV, a Class 2 offense , in case 16 CR 7562

. Thus, unless the exception for “unrelated courses of conduct” applies, the extended

term sentences would not be permissible. See Reese , 2017 IL 120017, ¶ 83 . Th e State argues that the “unrelated course of conduct” exception applies because there was a substantial cha nge in criminal objective between the offenses in those two cases

. The crux of defen dant’s claim of1-18-0499

-30- error then, is whether the court’s presumed finding that there was sub stantial change in criminal objective was a gainst the manifest we ight of the evidence

. ¶ 77 Defendant maintains that there was no substantial change in the criminal objective between the offenses in case 16 CR 7562 and the offenses of unlawful restraint and criminal trespass to residence in case 16 CR 7563, all of which occurred on April 27, 2016. In addition to emphasizing the short time frame in which these offenses were committed, defendant argues that the offenses in bot h cases stemmed from the same motive : his attempt to evade capture. He points out that in 16 CR 7562 , he was charged and found guilty of aggravated assault against Johnson , stemming from his initial attempt to drive away from police in the RAV4

. He not es
t hat , after he crashed the RAV4, he “ imm ediately went to Suwit’s home to hide from the police.”
H e argues that he was “fleeing f rom police” in 16 CR 7562 and was continuing do to so when h e entered Suwit’s residence “with the same moti vation to avoid arres t .” Thus, he posits that the offenses in both cases were part of a re lated c ours e of conduct, the exception to the rule of section 5 -8- 2(a) of the Unified Code of Corrections does not apply, and so the extended

- term

se ntences in case 16 CR 7563 are improper. ¶ 78 In response , the State posits that defendant’s criminal objective substantially changed between commission of the PSMV offense in case 16 CR 7562 and the offenses of unlawful restraint and criminal trespass in case 16 CR 7563 . S pecifically , the State argues that possession of the stolen RAV4 was “ complete even before he struck Officer Johnson” with the RAV4 , and that his criminal objective c hanged when he broke into S uwit’s family’s home , at which poin t his
purpose was “ concealment and esc ape.” The State acknowledges that the offenses in both cases occurred within a short period of time , and even concedes that defendant’s motive for committing the offense s in 16 CR 7563 “may have been to escape his PSMV and aggravate d1-18-0499

-31- assault crimes” in 16 CR 7562

. Nonetheless, the State cites a number of cases to argue that , in analogous circumstances , our court has found a ch ange in criminal objective, so as to permit imposition of an extended

- term sentence

. ¶ 79 Among other cases, the State relies on People v. Hummel , 352 Ill. App. 3d 269 (2004), in which the Third District of this court affirmed the impos ition of an extended

- term sentence for aggravated battery , upon concluding that burglary and aggr avated battery were part of a single course of c onduct. In Hummel , the defendant acted as the “getaway driver” while his accomplices stole items from several stores

. Id. at 270. At the last store, defendant refused to stop his car when confronted by a store employee. Id. Defendant’s car accelerated , and the employee was “ struck by the c ar or r olle d onto the hood ” before slid ing off and str iking her head. Id. Hummel r easoned that there was a “substantial change in the criminal objective * * * at the point the employee blocked the d e fen dant’s car” such that the “battery was a de parture fr om th e sing l e cour s e of co nduct surroun ding the burglary.” Id. at 273. The court in Hummel found:

“ [T] he defendant’s original objective was to stealthily obtain items of merchandise from the store * * * . Once * * * the store employees gave chase, the objective changed from merely avoiding detection to avoiding apprehension. [ Citation.] More signifi cantly , once the sto re employee placed hers elf in f ront of the d efendant’s car * * * the d efendant’s actions wer e directed speci fically at tha t individual rather than at th e sto re he had inte nd ed to rob. At that point, if not before, the defendant’s course of conduct in committing the battery was unrelated to the objective in committing a burglary against the store.” Id. ¶ 80 O ther cases have followed Hummel ’s approach to find tha t a defendant’s criminal objective changed after being discovered while committing a crime

. For example, i n People v. Collins , 3661-18-0499

-32- Ill. App. 3d 885 (2006) , we affirm ed impos ition of an extended

- term s entence for attempted robbery , over defendant’s cont ention that the court had authority only to impose an exte n ded

s entence for PSMV, the most ser ious offen se of whi ch he was convic ted

. The victim testified that he saw the Collins defendant drive away in the victim’s van , after which the victim caught up to the van on foot

. Id. at 888. When the victim confronted defe ndant , defendant demanded money and a struggle ensued

. Id. at 888 -89. Citing Hummel , th is court in Collins reasoned that : “defendant’s firs t offen se [PSMV] was one he soug ht to commit without violence; his goal was
to en ter the van with out b eing se e n and dri ve off in it. When [victim] caught up with him * * * defendant’s goal changed from avoiding detection to violently confronting the victim to obtain his money.” Id. at 902. On that basis , we found that “d efendant’s action s arose f r om an unrelated

co urse of conduct.” Id. ¶ 81 Sig nificantly, h ow ever, a more recent deci s ion of our court , People v. Robinson , 2015 IL App (1st) 130837, strongly criticized Hummel and cautioned against finding that a crime committed in an attempt to evade capture refl ects a change in criminal objectiv e. In Robinson , defendant was convicted o f resi dential burglary and aggravate d battery

. Id. ¶ 1. T he victim encountered defendant in the victi m’s apartment and saw defendant attempt ing to remove a telev ision

. Id. ¶ 11. The victim blocked the doorway to prevent defendant’s es cape and a fight ensued, in which defendant bit the victim

. Id. Defendant was s entenced to 3 0 years for res idential bu rg lary and the court imposed a seven -yea r exte nded- term se ntence for aggrav ated battery. Id. ¶ 42. T he trial court in Robinson “made no explicit statement finding that defendant’s criminal objective changed between the residential burglary and the aggravated battery.” Id. ¶ 103. ¶ 82 On appeal, def endant argued that the extended

- term sentence for aggravated battery was void pursuant t o section 5
- 8- 2(a) of the Unified Code of Correction s , ins ofar as res idential bur glary1-18-0499

-33- wa s the most serious offense. Id. ¶ 100. Our court agreed that the exte nded- term sentence w a s

erro neous because d efendant’s cr iminal objective did not change between the burglary and the fight with the victim. Id. ¶¶ 103 -112. We explained that th e defendant intended to steal but “did not have an independent objective to harm [the victim] .” Id. ¶ 108. We noted that the victim acknow ledged that he prevented the defendant from leaving and that , had he not done so , it was “quite likely that defendant would have s imply fled the sc e ne.” Id. We concluded: “defendant’s only real objective was to finish what he had started, burglarizing [the victim] and th en escaping, and any harm done to [the victim] was mer ely a means to effe ctuate that objective .” Id. ¶ 83 Our court in Robinson went on to expressly cri ticize Hummel , cautioning:
“In cre ating the ‘sub stantial change in crim inal objective test, our su preme cour t
sp ecifica lly rea s oned tha t it wante d to avoi d creating a test in which vi rtually all crimes invo lving multiple offens es would be l iable to have extended terms imposed on the lesser offen se. Bell , 196 Ill.2d at 353. Yet, i n Hummel , this is exactly what was done. * * * Under Hummel , almost any time offenders ran from the police they would be liable for an extended

- term sentence because their criminal ob jective had shifted from whatever crime they were effectuating to ‘escape .’ Such a result seems to be incong ruous with our supreme court’s reasoning for adopting the ‘substantial change in criminal objective’ test.” Id. ¶ 109. ¶ 84 On the record before us, we find the reasoning of Robinson is persuasive. The evidence in this case does not reflect that defe ndant had a ny sub stantial change in criminal objective in th e short time between when police found him in the stolen RAV4 ( giving rise to t he charges in case 16 CR 7562 ) and when he entered Suwit’s residence , giving rise to the unlawful restraint and1-18-0499

-34- criminal trespass offenses in case 16 CR 7563

. To the contrary , the evidence indicates that the sole purpose for defendant entering the apartment was to conceal himself from the police pursuit immediately after he was located in the RAV4. This situation is anal ogous to Robinson , where th e defendan t fought the victim only in an attempt to effec t uate his escape after he was discovered committing a burglar y. 2015 IL App 130837 , ¶ 108. ¶ 85 In sum, the evidence does not support a finding that there was a “ substantial change in defen d ant’s criminal objective

. ” Bell , 196 Ill. 2d at 354. In turn, the crimes in cases 16 CR 7562 and 16 CR 7563 “are not part of an unrelated course of conduct.” Id. We thus conclude that the exception to section 5-8- 2(a) does not apply, and the trial court could only impose an exte ndedterm se ntence “o n those o ffe nses within the most serious class.” Id. at 355. S ince defendant’s
PSMV conviction was a Class 2 offense (625 ILCS 5/4- 103 (West 2016), the court was not authorized to impose an extended

- term se ntence on the Class 4 offenses of unlawful restraint (720 ILCS 5/10

- 3 (West 2016)) and criminal trespass to residence (720 ILCS 5/19

- 4(2) (West 2016)). ¶ 86 With respect to a remedy, “[a] reviewing court may modify a sentence that was ordered in error. [Citations.]” Robinson , 2015 IL App (1st) 130837, ¶ 113. Illinois Supreme Court Rule 615(4) authorizes this court to “reduce the punishment imposed by the trial court.” In Robinson , after we determined that a n extended

- term sentence was improperly imposed on Class 3 offense of aggravated battery, we reduced the sentence to the max imum nonextended term for that class of

o ffense

. Robinson , 2015 IL App (1st) 130837, ¶ 113 ; see also People v. Ware , 2014 IL App (1st) 120485, ¶ 32 ( Where a “trial court improperly imposes an extended term, but it is clear from the record the trial court intended to impose the maximum available sentence, we may use our power1-18-0499

-35- under Illinois Supreme Court Rule 615(b)(4), to redu c e the se ntence to the ma ximum nonextended term s entence. [Citation.]”)

. ¶ 87 We believe the approach taken in Robinson is proper here with respect to each of the extended

term sentences that were imposed on defendant’s four unlawful restraint convictions and the single c onviction for criminal trespass to residence, which were Class 4 felonies. 720 ILCS 5/10

- 3(b) (West 2016); 720 ILCS 5/19

- 4(a)(2),(b)(2) (West 2016). T he maximum nonextended sentence for a Class 4 felony is three years ’ imprisonment . 730 ILCS 5/5 -4.5 (a) (West 2016).
Accor d ingly, we reduce the sentences on each of those five counts to three

- year sentences , to be served concurrently

. We otherwise leave intact the trial court’s sentencing determinations , including that the sentences imposed in 16 CR 7563 will run concurrent with the sentences imposed in the other two cases. ¶ 88 CONCLUSION ¶ 89 For the foregoing reasons, we affirm each of defendant’s convictions. However, imposition of extended

- term sentences was improper with respect to each of the four co nvictions of unlawful restraint and the s ingle conviction of criminal trespass to residence in case 16 CR 7563 . W e modify the mittimus to reflect that the sentences on each of those offenses are reduced to three

year sentences , to run concurrently. ¶ 90 Affirmed in part; rev ersed in part; mittimus corr ected

.