2020 IL App (1st) 162663-U

No. 1-16-2663 

Order filed June 11, 2020

Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

ANDY McTILLER, 

Defendant-Appellant. 

)

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the

Circuit Court of 

Cook County. 

No. 14 CR 8756 

Honorable 

Thomas J. Byrne, 

Judge, presiding. 

JUSTICE LAMPKIN delivered the judgment of the court. 

 Presiding Justice Gordon and Justice Burke concurred in the judgment. 

ORDER

¶ 1 Held: (1) The prosecution did not improperly shift the burden of proof to defendant when 

it discussed his subpoena power in rebuttal closing argument. (2) Defendant’s 16-

year sentence for being an armed habitual criminal is not excessive. (3) The trial 

court erred in imposing an extended-term sentence on defendant’s conviction for 

reckless discharge of a firearm; remand for resentencing is required. (4) We also 

remand for defendant to file a motion challenging his fines and fees under Illinois 

Supreme Court Rule 472(e). 

¶ 2 Defendant Andy McTiller was convicted of being an armed habitual criminal (720 ILCS 

5/24-1.7 (West 2018)) and recklessly discharging a firearm (720 ILCS 5/24-1.5 (West 2018)). The 
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trial court sentenced him to 16 years in prison on the armed habitual criminal conviction and

imposed a concurrent, extended-term sentence of four years on the reckless discharge conviction. 

The court also ordered defendant to pay various fines and fees.

¶ 3 On appeal, defendant contends that the State improperly shifted the burden of proof by 

discussing his power to subpoena witnesses in its rebuttal closing argument. He also argues that 

his 16-year sentence for being an armed habitual criminal is excessive and that the trial court erred 

in imposing an extended-term sentence on the reckless discharge conviction. Finally, defendant 

asserts that the trial court miscalculated his fines and fees and failed to award him the proper 

amount of presentence custody credit. 

¶ 4 For the following reasons, we reject defendant’s contention that the State improperly 

shifted the burden of proof during rebuttal closing argument and thus affirm defendant’s

convictions. We also affirm defendant’s 16-year sentence on the armed habitual criminal 

conviction, finding no abuse of discretion by the trial court. But we vacate defendant’s extendedterm sentence for reckless discharge of a firearm and remand to the trial court for resentencing to 

a non-extended term. Finally, under Illinois Supreme Court Rule 472(e) (eff. May 17, 2019), we 

also remand so that defendant may file a motion challenging his fines and fees in the trial court.

1

¶ 5 I. BACKGROUND

¶ 6 In May 2014, three police officers saw defendant repeatedly firing a gun on a residential 

street. The State charged defendant with being an armed habitual criminal and recklessly 

discharging a firearm. “A person commits the offense of being an armed habitual criminal if he 

1

 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 

2018), this appeal has been resolved without oral argument upon the entry of a separate written 

order.
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*** possesses *** any firearm after having been convicted *** of 2 or more” qualifying felony 

offenses. 720 ILCS 5/24-1.7(a) (West 2018). “A person commits reckless discharge of a firearm 

by discharging a firearm in a reckless manner which endangers the bodily safety of an individual.” 

720 ILCS 5/24-1.5(a) (West 2018). 

¶ 7 At trial, Officers Robert Waterstraat, Kelly Bongiovanni, and Terence Huels testified that

they were patrolling the Englewood neighborhood of Chicago in plain clothes and an unmarked 

police car on an evening in May 2014. At 9:00 p.m., as the officers were traveling west on 69th 

Street toward Paulina Street, Officer Waterstraat saw three juveniles run across the road and into 

a convenience store on the northeast corner of the intersection. Officer Waterstraat described the 

area as a mix of storefront businesses and residential housing, with Paulina Street being primarily 

residential. Shortly thereafter, the officers heard three or four gunshots, which appeared to come 

from an area southwest of the officers. As the officers proceeded through the intersection, they 

saw a man standing on the sidewalk on the east side of Paulina Street, straddling a bicycle and 

firing a handgun with an extended magazine. Each of the officers identified defendant as the 

gunman. 

¶ 8 Officer Huels made a U-turn on 69th Street, cut through a vacant lot, and headed toward 

defendant. When defendant saw the officers’ vehicle approaching, he lowered his weapon and 

began pedaling his bicycle south on the sidewalk. Officer Huels attempted to cut defendant off at 

an alley that intersected with the sidewalk, but defendant made it past the alley in front of the 

officers’ vehicle. Officer Huels then made a right turn, drove onto the sidewalk, and continued to 

follow defendant. When defendant looked over his shoulder, his bicycle wobbled and the front 

bumper of the officers’ vehicle clipped the bicycle’s rear tire, causing defendant to fall off the 
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bicycle. Officer Huels hit the brakes, swerved to the left, and crashed into several metal poles that 

lined a vacant lot to the south of the alley. 

¶ 9 Officer Waterstraat exited the vehicle and chased defendant on foot as he continued to flee 

south on Paulina. Officer Waterstraat eventually caught defendant and tackled him to the ground. 

Defendant struggled to escape, but Officer Waterstraat subdued him with an open-handed strike 

to the head before handcuffing him. As Officer Waterstraat waited for back-up to arrive, between 

40 and 50 people began to emerge from their homes and approach the scene. Fearful that the 

onlookers might try to help defendant escape, Officer Waterstraat instructed them to stay back. 

When other officers arrived soon thereafter, Officer Waterstraat stood defendant up, did a 

protective pat-down search for weapons, and placed defendant in the back of a marked police 

vehicle. Officer Waterstraat testified that he and his partners did not talk to any witnesses at the 

scene because no one was cooperative, but he conceded that none of the police reports documented 

that fact.

¶ 10 Officer Bongiovanni testified that, as defendant initially fled from the officers on his 

bicycle, she observed him appear to throw something into a small, fenced-in yard. After the crash, 

while Officer Waterstraat pursued defendant, Officer Bongiovanni went to the yard and saw a 

handgun with an extended magazine lying in the grass. Officer Bongiovanni noticed several people 

on a porch behind the apartment building next to the yard and asked them if they were okay. She 

then entered the yard and found a loaded, semiautomatic handgun. She later recovered seven spent 

cartridge casings in the area where the officers had observed defendant firing the gun. 

¶ 11 Officer Richard McCallum, a uniformed officer who arrived on the scene after defendant 

had been placed in custody, testified that he removed defendant from the marked police vehicle 
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and performed a custodial search, during which he found a spent cartridge casing in the front 

pocket of defendant’s sweatshirt. A forensic scientist specializing in firearm identification testified 

that she examined and tested the handgun that Officer Bongiovanni recovered in the yard and the 

cartridge casings recovered at the scene and in defendant’s pocket and concluded that all of the 

recovered casings had been fired from the recovered handgun. No fingerprints suitable for 

comparison were found on the gun or the casings, but an expert in fingerprint recovery testified

that finding fingerprints on such items is uncommon. 

¶ 12 Before the State rested, the parties stipulated that defendant previously had been convicted 

of two qualifying felony offenses for purposes of establishing that element of the armed habitual 

criminal charge. Outside the presence of the jury, the State introduced certified copies of 

defendant’s prior convictions for robbery and unlawful use of a weapon by a felon. 

¶ 13 Defendant took the stand and denied having possessed or fired a gun on the night in 

question. He testified that he was at his girlfriend’s house at 6930 South Paulina Street from 6:45 

p.m. until around 9:00 p.m., when he decided to ride a bicycle to a store on the corner of 69th and 

Paulina. While in the store, he heard several gunshots. About 30 seconds after the gunshots ceased, 

he left the store, got back on the bicycle, and rode south on the sidewalk on the east side of Paulina. 

He heard an engine behind him and, as he turned to see what was there, was struck and run over 

by a car. He extracted himself from under the car, stood up, and began to brush himself off when 

he was tackled to the ground. Although he initially struggled to get away, he stopped resisting 

when he realized that the person who tackled him was a police officer. The officer handcuffed him, 

stood him up, and searched his pockets, removing cigarettes and cash from the front pockets of his 

sweatshirt and a phone from his back pocket. The officer then placed him in a marked police 
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vehicle. A short time later, a different officer came to the vehicle, reached into defendant’s 

sweatshirt pockets, and said “What’s this?” before closing the door and walking away. On crossexamination, defendant testified that he was familiar with the area around his girlfriend’s house 

and knew people who lived on the block. He conceded that “[q]uite a few” of the people he knew 

came out of their homes during the incident, but he testified that he no longer talks to those people.

¶ 14 In closing argument, the State characterized the case as a credibility contest between the 

officers who testified to having seen defendant firing a gun and defendant’s “Hollywoodesque 

tale.” In defendant’s closing argument, defense counsel advanced the theory that the officers 

accidentally struck defendant with their vehicle while chasing the real gunman and intentionally 

misidentified defendant as the culprit to cover up their fault for the accident. Defense counsel 

argued that, even though the officers controlled the crime scene and the investigation, they never 

documented talking to the 40 to 50 people that they claimed were present during defendant’s arrest.

Defense counsel asked: “Where are these 40, 50 people? Where is the one resident in the 

neighborhood *** who is going to come out and say I saw it too[?]” Defense counsel also

questioned why the State had not called the people that Officer Bongiovanni testified were on the 

porch overlooking the yard where defendant discarded the gun, again asking “Where are these 

witnesses?” Defense counsel stressed that “not one single non-uniform person or non-employment 

with the State [sic] has come in to testify on their behalf.” 

¶ 15 Addressing defense counsel’s argument about the absence of civilian witnesses in its 

rebuttal, the State cited the officers’ testimony that “[n]o one was willing to cooperate.” The State

also noted that defendant “has the same subpoena power that we do” and that he “knows who those 

people are.” Over defense counsel’s objection, the State continued: 
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“Don’t think for one minute if those people out there saw any of this cover-up that 

they wouldn’t have come here and testified because the defense chose to put on a 

case. We have the burden, but they chose to put on a defense and call witnesses. 

They called their client. Don’t think for one second he couldn’t have gotten in

contact with the people on the block, a block where his girlfriend lives.” 

¶ 16 Following closing arguments, the trial court instructed the jury. Among other things, the 

instructions informed the jury that defendant “is presumed to be innocent of the charges against 

him” and that the presumption “remains with [him] through every stage of the trial and during your 

deliberations.” Similarly, the court instructed the jury that the State “has the burden of proving the 

guilt of the defendant beyond a reasonable doubt” and that the burden “remains on the State 

throughout the case.” After deliberating, the jury returned verdicts of guilt on both counts. In a 

motion for new trial, defendant argued, among other things, that the trial court erred in overruling 

his objection to the State’s comments in rebuttal closing argument concerning his power to 

subpoena witnesses. The trial court denied the motion. 

¶ 17 At the sentencing hearing, the trial court considered a presentence investigation report 

(PSI) prepared by the probation department, three letters submitted in support of defendant, and 

testimony from defendant’s mother. The PSI indicated that defendant was 42 years old and had 

four children between the ages of 25 and 11. Defendant reported having a close relationship with 

his mother and three brothers, one of whom he donated a kidney to. He described a good childhood 

in which he was raised by his mother in a stable home, but he noted that his father left when he 

was two years old. According to the PSI, defendant has a 10th-grade education, studied to be a 

nurse and an electrician, and had a job rehabilitating houses. (At trial, defendant testified that he 
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worked consistently at various jobs since dropping out of high school at age 16.) The PSI also 

documented defendant’s criminal history, listing convictions for possessing a firearm in 1993; 

driving under the influence in 1994; robbery in 1995; unlawful use of a weapon by a felon in 1997; 

domestic battery and violating an order of protection in 1999; aggravated domestic battery in 2008; 

and domestic battery in 2011. 

¶ 18 In one of the letters supporting defendant, correctional officers at the county jail wrote that 

defendant was a model inmate who was very respectful and did not cause problems. Another letter 

by fellow inmates stated that defendant regularly attended prayer group meetings and was trying 

to change his life. The final letter by defendant’s cousin described defendant as a nurturing father 

who was active in the lives of his children and the community. Defendant’s cousin also recounted 

that when she was homeless, defendant allowed her and her children to live with him. Defendant’s 

mother testified that he was a loving son and father. She also explained that, after having back 

surgery several years ago, she has had to rely on defendant to help her around the house and with 

errands. 

¶ 19 In argument, the State asked the trial court to impose a sentence at the upper end of the 

sentencing range, which for the armed habitual criminal conviction was six to 30 years in prison. 

The State argued that a sentence at the high end of the range was appropriate due to the serious 

harm threatened by defendant’s conduct and his documented history of violence. Defense counsel 

asked the court to impose the minimum sentence of six years. Counsel argued that the letters 

submitted on defendant’s behalf and his mother’s testimony showed that he was not a violent 

person. Counsel also noted that the robbery and unlawful use of a weapon convictions that served 

as the predicate offenses for the armed habitual criminal charge were from the 1990s and neither 
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involved the use of a firearm. (Counsel stated that the unlawful use of a weapon conviction 

stemmed from defendant’s use of an M-80 firecracker.)

¶ 20 In a statement in allocution, defendant discussed how his incarceration had been difficult 

for him and his family. He recounted his consistent work history and stated that he had been 

mentoring fellow inmates. He conceded that he made mistakes in the 1990s but asserted that he 

had been “okay” since the 2000s. With respect to his 2008 conviction for aggravated domestic 

battery, he explained that it arose from a fight with his girlfriend for which he took responsibility 

by pleading guilty. 

¶ 21 Before announcing the sentence, the trial court indicated that it had reviewed the trial 

transcript and considered the PSI, the letters submitted on defendant’s behalf, and defendant’s 

mother’s testimony. The court explained that it considered the statutory factors in aggravation and 

mitigation as well as defendant’s character and attitude. The court remarked that it was clear that 

defendant was loved by his mother and family and was a good and cooperative inmate. The court 

explained that the jury’s verdict (with which the court agreed) had credited the officers’ testimony 

and implicitly rejected defendant’s theory that he was the victim of police misconduct. The court 

recounted how the officers observed defendant firing a semiautomatic handgun down a residential 

street and described defendant’s conduct as “nothing but destructive to the citizens that live in that 

neighborhood.” On the armed habitual criminal conviction, the court indicated that a sentence near 

the maximum of 30 years would be appropriate based on the nature of the offense and defendant’s 

criminal history. But in light of the evidence in mitigation, the court opted to impose a sentence of 

16 years instead. On the reckless discharge of a firearm conviction, the court imposed a concurrent, 

extended-term sentence of four years. The court also imposed various fines and fees. After the 
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court denied defendant’s motion to reconsider the sentences, defendant filed a timely notice of 

appeal.

¶ 22 II. ANALYSIS 

¶ 23 Defendant first argues that the State committed prosecutorial misconduct in its rebuttal 

closing argument by discussing his power to subpoena witnesses, which he contends improperly 

shifted the burden of proof. The State bears the burden of proof at trial. People v. Murray, 2019 

IL 123289, ¶ 28. A prosecutor may not attempt to shift that burden to the defendant during closing 

argument. People v. Phillips, 127 Ill. 2d 499, 527 (1989). But a prosecutor’s comments in closing 

argument “will not be held improper if they were provoked or invited by the defense counsel’s

argument.” People v. Glasper, 234 Ill. 2d 173, 204 (2009). A prosecutor’s challenged remarks

must therefore be viewed in context of the entire record, including the defendant’s closing 

argument. People v. Williams, 313 Ill. App. 3d 849, 863 (2000). 

¶ 24 Our supreme court has held that a “trial court’s determination of the propriety of [closing 

argument] remarks will not be disturbed absent a clear abuse of discretion.” (Internal quotation 

marks omitted.) People v. Blue, 189 Ill. 2d 99, 128 (2000). The supreme court has also held that

de novo review applies to the question whether prosecutorial comments in closing argument “were 

so egregious that they warrant a new trial.” People v. Wheeler, 226 Ill. 2d 92, 121 (2007). Several 

decisions of this court have found that the appropriate standard of review for claims of improper 

closing argument comments is unsettled in light of an apparent conflict between Blue and Wheeler. 

See People v. Kelley, 2015 IL App (1st) 132782, ¶ 74. But in People v. Cook, 2018 IL App (1st) 

142134, ¶ 63, we examined the holdings of Blue and Wheeler and found no conflict between them. 

Rather, we explained that the abuse of discretion standard applies to a trial court’s determination 
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regarding the propriety of challenged closing argument comments and that de novo review governs 

the separate question whether any improper comments were sufficiently egregious to warrant a 

new trial. Id. ¶ 64. For the sake of completeness, we note that under either an abuse of discretion 

or de novo standard of review, we find that the remarks challenged here were proper.

¶ 25 Viewed in context, it is evident that the State’s comments that defendant “has the same 

subpoena power that we do” and that he could call witnesses that the State did not call were proper 

as invited responses to defense counsel’s remarks highlighting the State’s failure to call certain

witnesses. Defendant’s closing argument focused extensively on the prosecution’s decision not to 

call any civilian witnesses, particularly the people who Officer Bongiovanni testified were on the 

porch overlooking the yard where defendant discarded the gun or the numerous people that Officer 

Waterstraat testified were present during defendant’s arrest. Defense counsel repeatedly asked 

where those witnesses were and questioned why the State had not called them, suggesting that

their testimony would not have supported the officers’ version of events. It was not improper for 

the prosecutor to respond to that argument by telling the jury that defendant was able to subpoena 

witnesses and could have called the witnesses himself. See People v. Kliner, 185 Ill. 2d 81, 155 

(1998) (holding that “prosecutor’s comments during rebuttal argument regarding defense 

counsel’s ability to subpoena [a witness] were invited by defense counsel’s argument that the State 

failed to call [the person] as a witness”); People v. Baugh, 358 Ill. App. 3d 718, 742 (2005) (where 

defense argued that the State “had access to certain evidence but failed to use it at trial because it 

hurt the State’s case,” prosecutor properly “responded that defendant also had subpoena power”). 

¶ 26 Nor did the prosecutor’s comments shift the burden of proof to defendant. In People v. 

Beasley, 384 Ill. App. 3d 1039 (2008), on which defendant relies, the prosecutor responded to an
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argument by defense counsel concerning the State’s failure to submit certain evidence for 

fingerprint testing by saying: “If it’s unconscionable on the part of the State not to test certain 

items for fingerprints, it’s just as unconscionable on the part of the defense.” (Internal quotation 

marks and alterations omitted.) Id. at 1048. In holding that the remark improperly shifted the 

burden of proof to the defendant, the appellate court explained that “[a] defendant’s failure to 

submit evidence for analysis cannot be considered ‘unconscionable’” because, while a defendant 

is “able to submit evidence for analysis, [he] has no burden to do so.” (Emphasis in original.) Id.

“By describing the defendant’s failure to submit evidence as ‘unconscionable,’ the State implied 

that the defendant had a burden of proof.” Kelley, 2015 IL App (1st) 132782, ¶ 66. 

¶ 27 In contrast, the remarks challenged here did not suggest that defendant had the burden of 

proof or any obligation to present evidence. While the prosecutor mentioned that defendant had 

the ability to subpoena witnesses, she did not assert or imply that defendant had an obligation to 

do so. In fact, shortly after discussing defendant’s subpoena power, the prosecutor stressed that 

the State “ha[d] the burden.” See Kliner, 185 Ill. 2d at 155 (concluding that “prosecutor did not 

shift the burden of proof to defendant” by commenting on defendant’s subpoena power where 

prosecutor also “acknowledged that the burden of proof was on the State”). Defendant notes that 

the prosecutor also urged the jury to credit the officers’ testimony over his own, but we fail to see 

how that line of argument (in conjunction with the comment on defendant’s subpoena power)

could be read to suggest that defendant was required to call witnesses or present evidence in order 

to prove his innocence. Finally, we note that after closing arguments, the trial court instructed the 

jury that the burden of proof “remain[ed] on the State throughout the case.” In light of that 

instruction, the prosecutor’s comment on defendant’s subpoena power cannot be said to have 
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shifted the burden of proof to defendant. See United States v. Miller, 276 F.3d 370, 374 (7th Cir. 

2002) (“as long as it is clear to jurors that the government carries the burden of proof, the 

prosecutor may tell the jury that a defendant has the power to subpoena witnesses”). 

¶ 28 Defendant next argues that his 16-year sentence for being an armed habitual criminal is 

excessive. The offense is a Class X felony that has a sentencing range of six to 30 years in prison. 

720 ILCS 5/24-1.7(b) (West 2018); 730 ILCS 5/5-4.5-25(a) (West 2018). Defendant asks us to 

reduce his sentence to something closer to the minimum. We decline that request. “The trial court 

has broad discretionary powers in imposing a sentence, and its sentencing decisions are entitled to 

great deference.” People v. Alexander, 239 Ill. 2d 205, 212 (2010). “A sentence within [the] 

statutory limits will not be deemed excessive unless it is greatly at variance with the spirit and 

purpose of the law or manifestly disproportionate to the nature of the offense.” People v. Fern, 

189 Ill. 2d 48, 54 (1999). 

¶ 29 Defendant contends that a 16-year sentence is disproportionate to the nature of his offense. 

He minimizes the seriousness of the offense by focusing on the fact that no one was injured. But 

even though no one was injured, there is no question that firing a handgun eight times down a 

residential street is an exceptionally dangerous act that had the potential to cause serious harm to 

others. Defendant also downplays the nature and extent of his criminal history, characterizing it as 

mostly non-violent and well in his past. But of defendant’s eight prior convictions, we count four—

aggravated domestic battery, two domestic batteries, and robbery—that may aptly be described as

violent.2

 Whether violent or not, defendant’s criminal history is extensive. And while six of his

2 See 720 ILCS 5/12-3.2(a) (West 2018) (“A person commits domestic battery if he or she 

knowingly *** [c]auses bodily harm to any family or household member[ or] [m]akes physical 

contact of an insulting or provoking nature with any family or household member.”); 720 ILCS 
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prior convictions were from the 1990s, his 2008 conviction for aggravated domestic battery and 

2011 conviction for domestic battery were both of recent vintage when he committed his current 

offenses in 2014. 

¶ 30 Defendant argues that the trial court improperly considered his failure to admit guilt as an 

aggravating factor when it discussed his contention that he was a victim of police misconduct. But 

the court simply explained that the jury’s verdict implicitly rejected defendant’s theory and instead 

credited the officers’ version of events, which the court then went on to discuss when describing 

the nature of defendant’s offense. Noting in the record suggests that the court accorded aggravating 

weight to defendant’s failure to admit guilt.

¶ 31 Defendant cites the mitigation evidence offered at the sentencing hearing, including his 

age, work history, family ties, good conduct and mentorship of fellow inmates while incarcerated, 

and his disabled mother’s reliance on him for assistance. But the trial court considered this 

evidence and gave it significant mitigating weight in determining defendant’s sentence. See People 

v. Sauseda, 2016 IL App (1st) 140134, ¶ 19 (“Where mitigating evidence is presented to the trial 

court, it is presumed, absent some indication to the contrary, other than the sentence itself, that the 

court considered it.”). The court explained that, while a sentence of close to 30 years would have 

been appropriate based on the nature of the offense and defendant’s criminal history, the evidence 

in mitigation justified a lesser sentence of 16 years. We will not reweigh the evidence or the 

aggravating and mitigating factors and substitute our judgment for that of the trial court. 

5/12-3.3(a) (West 2018) (“A person who, in committing a domestic battery, knowingly causes 

great bodily harm, or permanent disability or disfigurement commits aggravated domestic 

battery.”); 720 ILCS 5/18-1(a) (West 2018) (“A person commits robbery when he or she 

knowingly takes property *** from the person or presence of another by the use of force or by 

threatening the imminent use of force.”). 
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Alexander, 239 Ill. 2d at 213. The trial court’s sentence is within the statutory range and not 

“greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the 

nature of the offense.” Fern, 189 Ill. 2d at 54. We thus cannot say that the sentence is excessive or 

that the trial court abused its discretion.

¶ 32 Next, defendant contends (and the State agrees) that the trial court erred in imposing an 

extended-term sentence of four years on defendant’s reckless discharge of a firearm conviction. 

Reckless discharge of a firearm is a Class 4 felony that ordinarily carries a sentencing range of one 

to three years in prison, but a trial court can impose an extended-term sentence of three to six years

if certain aggravating factors are present. 720 ILCS 5/24-1.5(c) (West 2018); 730 ILCS 5/5-4.5-

45(a) (West 2018). However, our supreme court has held that when a defendant is convicted of 

multiple offenses arising from a single course of conduct, the trial court may impose an extendedterm sentence only on the offense or offenses that are within the most serious class of offense of 

which the defendant was convicted. See People v. Bell, 196 Ill. 2d 343, 355 (2001); People v. 

Jordan, 103 Ill. 2d 192, 205-06 (1984). Because defendant was convicted of the Class X felony of 

being an armed habitual criminal, and because that conviction and his reckless discharge of a 

firearm conviction arose from the same course of conduct, the trial court was not authorized to 

impose an extended-term sentence on the reckless discharge conviction. We must therefore vacate 

defendant’s extended-term sentence for reckless discharge of a firearm. 

¶ 33 Beyond that, the parties disagree about the proper remedy. Defendant asks us to impose a 

term within the non-extended range (but not necessarily the maximum) or remand to the trial court 

for resentencing. The State requests that we impose the maximum, non-extended term of three 

years. Where “a trial court improperly imposes an extended term, but it is clear from the record 
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[that] the trial court intended to impose the maximum available sentence, we may use our power 

under Illinois Supreme Court Rule 615(b)(4), to reduce the sentence to the maximum nonextended 

term sentence.” People v. Ware, 2014 IL App (1st) 120485, ¶ 32. On the record here, we cannot 

say that the trial court intended to impose the maximum available sentence on defendant’s reckless 

discharge conviction. The four-year sentence that the court imposed on that conviction was two 

years below the maximum of the extended-term range to which the court believed defendant was 

subject. The court also imposed a sentence well below the maximum on defendant’s armed 

habitual criminal conviction. We thus remand to the trial court for resentencing on defendant’s 

reckless discharge conviction. 

¶ 34 Finally, defendant argues that the trial court miscalculated his fines and fees and failed to 

award him the proper amount of presentence custody credit. Illinois Supreme Court Rule 472 

specifies the procedure for challenging a trial court’s imposition or calculation of fines and fees, 

its application of per diem credit against fines, and its calculation of presentence custody credit. 

See Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019). The rule provides that “[n]o appeal may be taken by a 

party from a judgment of conviction on the ground of any sentencing error specified above unless 

such alleged error has first been raised in the circuit court.” Ill. S. Ct. R. 472(c) (eff. Mar. 1, 2019). 

Instead, “the circuit court retains jurisdiction to correct [such] sentencing errors at any time 

following judgment and after notice to the parties, including during the pendency of an appeal.” 

Ill. S. Ct. R. 472(a) (eff. Mar. 1, 2019). 

¶ 35 Defendant concedes that he did not challenge his fines and fees or presentence custody 

credit in the trial court, but he asks us to consider the issues in this appeal because he filed his

notice of appeal and opening brief before Rule 472 became effective. In People v. Barr, 2019 IL 
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App (1st) 163035, ¶¶ 6-15, this court held that Rule 472 applied only prospectively to appeals that 

were initiated after the rule’s effective date. However, our supreme court has since amended Rule 

472 to expressly provide that “[i]n all criminal cases pending on appeal as of March 1, 2019, or 

appeals filed thereafter in which a party has attempted to raise sentencing errors covered by this 

rule for the first time on appeal, the reviewing court shall remand to the circuit court to allow the 

party to file a motion pursuant to this rule.” Ill. S. Ct. R. 472(e) (eff. May 17, 2019). We have held 

that Rule 472(e) applies “to all cases pending on appeal as of March 1, 2019.” People v. Taylor, 

2019 IL App (1st) 160173, ¶ 46; see People v. Williams, 2020 IL App (1st) 163417, ¶¶ 91-94. 

Because defendant’s appeal was pending on March 1, 2019, we must remand to the trial court to 

allow defendant to file a motion challenging his fines and fees. 

¶ 36 III. CONCLUSION

¶ 37 For the foregoing reasons, we affirm defendant’s convictions and his 16-year sentence for 

being an armed habitual criminal. We vacate defendant’s extended-term sentence for reckless 

discharge of a firearm and remand to the trial court for resentencing to a non-extended term. On 

remand, defendant may also file a motion challenging his fines and fees under Illinois Supreme 

Court Rule 472. 

¶ 38 Affirmed in part; vacated in part; remanded with directions.