2020 IL App (1st) 162792-U No. 1-16-2792 Order filed February 6, 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, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 6922 ) AVERY SINGLETON, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Reyes and Burke concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for retail theft, as the prosecution’s comments in closing argument were proper except for one, which did not rise to the level of plain error. Pursuant to Supreme Court Rule 472, we remand to the trial court to allow defendant to raise his claims of error with respect to the assessment of fines and fees.
¶2 Following a jury trial, defendant was convicted of retail theft (720 ILCS 5/16-25(a)(1)
(West 2014)) and sentenced to an extended term of eight years’ imprisonment. The court also
assessed $467 in various fines and fees. On appeal, defendant contends that he was denied his right No. 1-16-2792
to a fair trial as a result of certain comments made by the prosecutor during closing argument that
he claims were improper. Defendant separately contends that the trial court erred in imposing
certain fines and fees. For the following reasons, we affirm defendant’s conviction but remand to
the circuit court to allow defendant to file a motion raising his claims of error regarding fines and
fees.
¶3 Defendant was charged by information with a single count of retail theft for knowingly
taking merchandise from a Home Depot store with a retail value in excess of $300, in violation of
section 16-25(a)(1) of the Criminal Code of 2012. 720 ILCS 5/16-25(a)(1) (West 2014). Defendant
elected to represent himself at his ensuing jury trial.
¶4 The State called Edmond Ramirez, who testified that he was a loss prevention specialist at
the Home Depot home improvement store on 6211 North Lincoln Avenue in Chicago (the Lincoln
Avenue Home Depot). Ramirez described the layout of the store and explained that the customer
entrance was located at the south end of the store. At the time of the events in question, the only
active cash registers were at the north end of the store. During Ramirez’s testimony, the State
admitted and published a diagram (People’s Exhibit 3) of the layout of the Lincoln Avenue Home
Depot. The diagram shows that the designated customer entrance is at a different end of the store
from the location of the cash registers, which are stationed near the designated exit doors.
¶5 Ramirez testified that on April 9, 2015, he was in the store’s security office, from which
he viewed monitors from a number of video cameras at different locations in the store. Through
those cameras, he observed defendant “pick up a welder from the hardware department” and place
it in a shopping cart. Defendant also placed a garden hose into his cart. Ramirez then observed
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defendant walk out of the entrance of the store and into the parking lot, without stopping at any
cash register.
¶6 Ramirez left the security office and walked toward the front of the building so that he could
continue to observe defendant. He observed defendant place the merchandise into the back of a
green van before driving away. Ramirez noted the license plate number of the vehicle. Then,
pursuant to company policy, he contacted nearby Home Depot stores to alert them in order to
prevent a similar theft at another store.
¶7 Later on the same date, Ramirez went to a Home Depot store in Evanston (the Evanston
Home Depot) where he observed that defendant was detained by other Home Depot loss
prevention personnel. Evanston police arrived and placed defendant into custody. Ramirez
testified that, with the Evanston police, he went to the parking lot of the Evanston Home Depot,
where he identified the same green van he observed at the Lincoln Avenue Home Depot. Through
the van’s windows, Ramirez observed the merchandise that he had observed defendant take from
the Lincoln Avenue store.
¶8 The following day, Ramirez went back to work at the Lincoln Avenue store. Outside his
office, he observed a cart that contained merchandise. Ramirez identified a photograph of the cart
of merchandise (People’s Exhibit 6), which included a welder, a bucket of paint, a bucket of
primer, and “yellow extension poles.” Ramirez explained that the cart contained the same items
he observed defendant steal the previous day, except for a hose that had been “returned at the
Evanston store” and placed in that store’s inventory. Ramirez testified that he brought the cart to
a cashier to scan the items and “generate a receipt to determine the value of the merchandise that
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was recovered.” That receipt, which was admitted and published as People’s Exhibit 1, indicated
that the retail value of the merchandise on the cart was $1094.91.
¶9 Ramirez identified a digital video disc (DVD) with security video footage from the Lincoln
Avenue Home Depot. The DVD was admitted into evidence and played before the jury. Ramirez
also identified two still images from the video, which he testified showed defendant walking out
of the store “two separate times with unpaid merchandise.” Ramirez never observed defendant pay
for any of the items.
¶ 10 On cross-examination, Ramirez agreed that the security video included “two separate sets
of footage of the defendant exiting the store,” with separate items of merchandise, indicating that
defendant exited and reentered the store. The State rested after Ramirez’s testimony.
¶ 11 Defendant called Evanston police officer Michael Mangas, who testified that he was
working with officer Thomas Curtain on April 9, 2015. Mangas and Curtain were dispatched for
a “retail theft” at the Evanston Home Depot. Mangas acknowledged that his police report indicated
that a Home Depot store employee detained defendant for damaging property. Mangas explained
that defendant was arrested in Evanston for criminal damage to property, rather than theft, because
defendant opened an item at the store but did not leave the store with the item.
¶ 12 Evanston police officer Thomas Curtain testified that he was training Mangas on April 9,
2015. Curtain acknowledged that a Home Depot gift card was taken from defendant and was
“inventoried” on the day of his arrest. Curtain did not know if the gift card belonged to defendant,
and he did not know the amount of the gift card’s balance. Curtain denied that he kept the gift card
recovered from defendant. Curtain acknowledged that police also inventoried a receipt from the
purchase of the water hose returned to the Evanston Home Depot. He also acknowledged that
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defendant’s vehicle was towed after his arrest. He denied knowing whether evidence defendant
attempted to retrieve from the vehicle was destroyed.
¶ 13 Alejandro Rojas, a loss prevention specialist for the Evanston Home Depot, testified that
on April 9, 2015, he was contacted by Ramirez from the Lincoln Avenue Home Depot. Ramirez
informed Rojas that defendant could be on the way to the Evanston Home Depot with stolen
merchandise.
¶ 14 The final defense witness, Latasha James, testified that she was working at the return
counter at the Evanston Home Depot on April 9, 2015, when defendant came to her with a water
hose. Defendant had a receipt indicating that the hose was paid for in cash on March 28, 2015.
James gave him cash for that return. On cross-examination, James acknowledged that the receipt
indicated that the hose was purchased at a separate Home Depot on 87th Street in Chicago, and
that the receipt did not identify the purchaser. After defendant returned the hose, it was placed with
the regular inventory at the Evanston Home Depot.
¶ 15 In closing argument, the prosecutor commented:
“There are people that are owners of Home Depot and they have to get paid
and they have to pay employees, and if everybody were to just steal merchandise
from them, then the prices would rise and that would be unfair for the merchants
[sic] that just want to go in every single day and make a simple purchase.”
¶ 16 The prosecutor argued that the evidence showed that defendant twice loaded a cart with
merchandise and “exited through [the] entrance” of the Lincoln Avenue Home Depot, avoiding
the cash registers near the designated customer exit at the other end of the store. The prosecutor
recounted Ramirez’s testimony that he identified the same stolen merchandise in defendant’s
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vehicle after defendant was detained at the Evanston Home Depot. The prosecutor then referred to
the security video footage as the “strongest piece of evidence” in the case. After playing the video
for the jury, the prosecutor argued that it showed that defendant left with merchandise through the
entrance and there is “no reason a person would be putting all of the merchandise in a cart and
leaving through the entrance.” After showing the video, the prosecutor further argued:
“What you have that further corroborates that he was stealing is the location
he decides to exit, through the entrance. He knows how to get out of that store
without having paid for the merchandise. What you also have is that the items were
recovered soon thereafter.
Going back just briefly about what is evidence and what isn’t. What you
have at the end of the day is a guy that the evidence—a guy who goes to Home
Depot number one on March 28th on the South Side of Chicago, Home Depot
number two on April 9, 2015, in Chicago, Home Depot number three in Evanston
on the same date of April 9th. Three Home Depots.
What’s he doing? We know he caused trouble at the second Home Depot
opening their property. We know he stole from these two. There is evidence of
some kind of gift card.
This guy has mastered retail theft. This is a con. This is what he is doing.
He is very good at this. He is a professional thief, and you can see because
professionals know how to exit with over a thousand dollars of merchandise
without getting detected initially.”
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¶ 17 The prosecutor proceeded to argue that the State had proven each of the elements of the
offense of retail theft, again referencing the video footage: “You saw for yourself moments ago
how he just exited without paying for the merchandise.”
¶ 18 In his closing argument, defendant claimed that he was not permitted to admit evidence,
including a Home Depot gift card and receipts, that would have proved that he purchased the
allegedly stolen merchandise. He argued that he could not “walk out of a store without paying for
something without an alarm” being activated and maintained that he had purchased the items at
issue.
¶ 19 During the State’s rebuttal argument, the prosecutor stated: “This is a professional retail
thief. It is a con scheme. Everything he is telling you goes along with the evidence which you have
in this case. It is a con scheme.” The prosecutor again referred to Ramirez’s testimony and the
video footage as evidence that defendant left through the entrance of the Lincoln Avenue Home
Depot store, in order to avoid paying for the merchandise.
¶ 20 The jury returned a guilty verdict. Defendant filed a pro se motion for a new trial.
Defendant subsequently retained counsel and filed a supplemental motion for a new trial. The court
denied those motions.
¶ 21 On July 12, 2016, after a hearing, the trial court imposed an extended-term sentence of
eight years’ imprisonment. The court also entered an order assessing $467 in various fines and
fees. Defendant filed a motion to reduce sentence, which was denied on September 21, 2016. On
that date, defendant filed a notice of appeal.
¶ 22 On appeal, defendant contends that the prosecutor’s comments during closing and rebuttal
argument constituted prosecutorial misconduct. He specifically takes issue with the prosecutor
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labeling him a “professional thief” who “mastered retail theft” as well as the characterization of
his actions as a “con.” He also challenges the propriety of the comment that “if everybody were to
just steal merchandise” from retail stores then “prices would rise and that would be unfair.” He
claims that these comments “introduced other crimes evidence relating prejudicial matters not
introduced into evidence” and that such comments “inflame[d] the passions of the jury, denying
[defendant] a fair trial.” On that basis, he requests that we reverse and remand for a new trial.
¶ 23 In setting forth this argument, defendant acknowledges that he did not make a timely
objection to the prosecutor’s comments at trial, as necessary to preserve the alleged error. See
People v. Thompson, 238 Ill. 2d 598, 611-12 (2010) (“To preserve a claim for review, a defendant
must both object at trial and include the alleged error in a written posttrial motion.”). Nevertheless,
he urges that we should address his argument under the doctrine of plain error, which “bypasses
normal forfeiture principles and allows a reviewing court to consider unpreserved claims of error
in specific circumstances.” Thompson, 238 Ill. 2d 598 at 613.
¶ 24 The plain-error doctrine applies when “ ‘(1) a clear or obvious error occurred and the
evidence is so closely balanced that the error alone threatened to tip the scales of justice against
the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.’ ” Thompson, 238 Ill. 2d 598 at 613
(quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). “The first step of plain-error review
is determining whether any error occurred.” Thompson, 238 Ill. 2d at 613; see also People v.
Nicholas, 218 Ill. 2d 104, 121 (2005) (“Before we may apply either prong of the plain error
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doctrine *** there must be a plain error.”). Thus, we first consider whether the prosecutorial
comments at issue constituted error.
¶ 25 A prosecutor has “wide latitude in making a closing argument” and may comment on the
evidence presented at trial and “any fair, reasonable inferences it yields [citation], even if such
inferences reflect negatively on the defendant [citation].” Nicholas, 218 Ill. 2d at 121. However,
“comments intended only to arouse the prejudice and passion of the jury are improper [citation].”
People v. Jones, 2016 IL App (1st) 141008, ¶ 21. “A prosecutor cannot use closing argument
simply to inflame the passions or develop the prejudices of the jury without throwing any light
upon the issues.” (Internal quotation marks omitted.) People v. Wheeler, 226 Ill. 2d 92, 128-29
(2007).
¶ 26 We initially note that, whereas defendant posits that the “recent trend” is to review
comments in closing arguments de novo, the State suggests that a deferential “abuse of discretion”
standard is appropriate. Our court has acknowledged some confusion regarding the applicable
standard of review, in light of “seemingly contradictory statements” from supreme court precedent.
People v. Phagan, 2019 IL App (1st) 153031, ¶ 47. In 2000, our supreme court stated that: “[t]he
regulation of substance and style of the closing argument is within the trial court’s discretion, and
the trial court’s determination of the propriety of the remarks will not be disturbed absent a clear
abuse of discretion.” People v. Blue, 189 Ill. 2d 99, 128 (2000). However, in 2007, our supreme
court stated that “[w]hether statements made by a prosecutor at closing argument were so egregious
that they warrant a new trial is a legal issue this court reviews de novo.” Wheeler, 226 Ill. 2d at
121. In Phagan, this court determined that Blue’s abuse of discretion standard was better supported
by precedent than the de novo standard described in Wheeler. Phagan, 2019 IL App (1st) 153031,
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¶ 54 (“We follow Blue and review claims of prosecutorial misconduct in closing arguments under
the abuse of discretion standard.”). Elsewhere, in People v. Cook, 2018 IL App (1st) 142134, ¶ 63,
this court found that “no such conflict exists” but that “supreme court decisions have applied the
two standards of review separately to the appropriate issue addressed on appeal.” Our court in
Cook reasoned: “Whereas a reviewing court applies an abuse of discretion analysis to
determinations about the propriety of a prosecutor’s remarks during argument [citations] a court
reviews de novo the legal issue of whether a prosecutor’s misconduct, like improper remarks
during argument, was so egregious that it warrants a new trial.” Cook, 2018 IL App (1st) 142134,
¶ 64.
¶ 27 In this case, we need not decide whether Wheeler or Blue defined the precise standard of
review. This is because, whether we review the challenged arguments de novo or under an abuse
of discretion standard, our conclusion is the same.
¶ 28 Defendant’s arguments can be summarized as challenges to (1) the prosecutor’s comments
labeling him a “professional thief” who had “mastered retail theft”; (2) the prosecutor’s
characterization of defendant’s actions as a “con” or “con scheme”; and (3) the comment that “if
everybody were to just steal merchandise from [retail stores] then the prices would rise” to the
detriment of consumers. We review these in turn.
¶ 29 First, with respect to the “professional thief” and “mastered retail theft” remarks, defendant
suggests that these comments “spread before the jury other crimes evidence that had not been
introduced at trial.” He suggests that they were improper since “there was no evidence presented
to the jury from which they could conclude that [defendant] made his living as a thief.”
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¶ 30 After reviewing the record, we find these comments were not improper because they fell
within the wide latitude afforded to prosecutors to comment about the trial evidence and the
reasonable inferences therefrom. See People v. Perry, 224 Ill. 2d 312, 347 (2007) (“The prosecutor
may comment during closing argument on the evidence and on any fair and reasonable inference
the evidence may yield, even if the suggested inference reflects negatively on the defendant.”
(citing Nicholas, 218 Ill. 2d at 121)). Here, as argued by the State’s brief, “the evidence tended to
establish not simply that defendant committed an isolated act of retail theft but that he put some
planning and skill” into the crime. The State presented evidence that defendant (twice) brought
merchandise out of the Lincoln Avenue Home Depot by exiting through the main entrance, where
there were no active cash registers, rather than using the exit near the cash registers. It was
reasonable to infer that he did this deliberately. We agree with the State that “in context, the
prosecutor’s use of the word ‘professional’ reflected defendant’s care in planning the offense by
utilizing his knowledge of the layout of the store” to remove merchandise surreptitiously.
¶ 31 The “professional thief” comment must also be viewed in light of the evidence that
defendant, after leaving the Lincoln Avenue Home Depot, proceeded directly to the Evanston
Home Depot store, where he was detained for opening merchandise. That evidence permitted a
reasonable inference that defendant intended to take merchandise from the Evanston store without
paying for it. We thus find that the references to defendant as a “professional” or “master” thief
fell within the wide latitude afforded prosecutors to comment on the evidence presented and the
reasonable inferences therefrom.
¶ 32 We likewise reject defendant’s argument to the extent it is premised on the prosecutor’s
characterization of his actions as a “con” or “con scheme.” In context, we believe these comments
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were also reasonable inferences drawn from the evidence that defendant (1) deliberately took
several items of merchandise from the Lincoln Avenue store without paying and (2) proceeded
directly to the Evanston Home Depot, where he was observed opening the packaging to additional
merchandise. From this evidence, it was reasonable to infer that defendant intended to deceive or
“con” the Home Depot by attempting to perpetrate retail theft.
¶ 33 Unlike the foregoing prosecutorial remarks, we do find error (though not reversible or plain
error) with respect to the final challenged comment, in which the prosecutor argued that “if
everybody were to just steal merchandise from [retail stores] then the prices would rise and that
would be unfair.” This comment was improper because it was not relevant to the specific evidence
of this case. See Nicholas, 218 Ill. 2d at 121-22 (a prosecutor “may comment unfavorably on the
evil effects of the crime and urge the jury to administer the law without fear, when such argument
is based upon competent and pertinent evidence” (emphasis added)) Rather, the prosecutor’s
remark amounted to an improper general comment on the effects of crime. See People v. Deramus,
2014 IL App (1st) 130995, ¶ 55 (“the prosecution must refrain from focusing its argument on ‘[t]he
broader problems of crime in society’ or engaging in ‘an extended and general denunciation of
society’s ills.’ ” (quoting People v. Johnson, 208 Ill. 2d 53, 77, 79 (2003))). We note that the State
cites Deramus as support for the propriety of the prosecutor’s remark regarding the effects of retail
theft. However, Deramus is distinguishable: in that case we explained that “the prosecutor’s
comments about defendant ruining the neighborhood properly focused upon the negative effects
of defendant’s conduct and not on crime in society at large.” (Emphasis added.) Deramus, 2014
IL App (1st) 130995, ¶ 56. Unlike the situation in Deramus, the prosecutor’s comment in this case
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was not limited to defendant’s retail theft, but referred to the overall effect of theft on consumers
at large knowing that the members of the jury are consumers.
¶ 34 Nevertheless, although improper, the prosecutor’s comment did not result in reversible
error, as we cannot say that it resulted in substantial prejudice to the defendant because the
evidence was overwhelming. See People v. Harris, 2017 IL App (1st) 140777, ¶ 60 (“[A]
‘substantial prejudice’ inquiry applies to determine if there is reversible error.”). As explained by
our supreme court:
“In reviewing comments made at closing arguments, this court asks whether or not
the comments engender substantial prejudice against a defendant such that it is
impossible to say whether or not a verdict of guilt resulted from them. [Citation.]
Misconduct in closing argument is substantial and warrants reversal and a new trial
if the improper remarks constituted a material factor in a defendant’s conviction.
[Citation.] If the jury could have reached a contrary verdict had the improper
remarks not been made, or the reviewing court cannot say that the prosecutor’s
improper remarks did not contribute to the defendant’s conviction, a new trial
should be granted. [Citation.]” Wheeler, 226 Ill. 2d at 123.
“In other words, ‘[w]hile a prosecutor may not make arguments or assumptions that have no basis
in evidence, even improper comments or remarks are not reversible error unless they are a material
factor in the conviction or cause substantial prejudice to the accused. [Citation.]’ ” People v.
Harris, 2017 IL App (1st) 140777, ¶ 61 (quoting People v. Smith, 362 Ill. App. 3d 1062, 1085
(2005)).
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¶ 35 In this case, we cannot say that the prosecutor’s comment, which simply observed that
retail theft causes prices to rise, could result in substantial prejudice or constitute a material factor
in the conviction. We keep in mind that “[c]losing arguments must be viewed in their entirety and
the challenged remarks must be viewed in context.” Wheeler, 226 Ill. 2d at 123. After reviewing
the totality of the closing argument, we fail to see how this general comment could have had any
impact on the jury’s verdict. The State’s argument primarily focused on the testimonial evidence
of Ramirez, as well as the video evidence. The jury apparently credited that evidence to find that
defendant committed retail theft. We do not see any realistic possibility that the jury would have
acquitted defendant, but for the comment at issue. See People v. Ramos, 396 Ill. App. 3d 869, 874
(2009) (“Reversible error may be found in a closing argument where the defendant can establish
that but for the particular comment, the verdict would have been different.”). In other words, we
cannot conclude that this comment constituted a material factor or caused substantial prejudice
because all of the evidence was overwhelming that defendant took the merchandise from Home
Depot without paying for it or intending to pay for it. Thus, that comment does not warrant reversal.
¶ 36 Furthermore, defendant cannot establish plain error under either prong of the plain-error
test. First, the evidence in this case was not closely balanced. Defendant was observed on video
taking several items from the Home Depot store in Chicago and leaving the store while avoiding
the cash registers and not paying for them. The items were recovered in Evanston and found to
have a value of over $1000, far exceeding the monetary amount charged in the statute. Also, we
cannot find that the error was so serious that it affected the fairness of the trial or challenged the
integrity of the judicial process. We specifically reject defendant’s contention that we should find
plain error because the prosecution engaged in a “pattern” of misconduct that affected his
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substantial rights. See People v. Johnson, 208 Ill. 2d 53, 64 (2003) (“[A] pattern of intentional
prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as to
support reversal under the plain-error doctrine.”). We find only a single improper comment, not a
“pattern” of misconduct.
¶ 37 We also reject defendant’s suggestion that the “closely balanced” prong of the plain-error
doctrine applies; that is, we cannot say that the “evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant.” People v. Piatkowski, 225 Ill. 2d 551,
565 (2007). In contending that the evidence was closely balanced, defendant claims that Ramirez’s
credibility was “suspect” because: (1) Ramirez did not personally scan the items used to generate
the receipt (People’s Exhibit 1) showing the value of the stolen goods; (2) that receipt reflected
two five-gallon buckets of interior paint; whereas the photograph of the cart (People’s Exhibit 6)
showed a five-gallon bucket of exterior paint and a five-gallon bucket of primer; and (3) the date
printed on the receipt was April 9, 2015, although Ramirez indicated that the items were not
scanned until the following day. Defendant further suggests that the video footage showing
defendant leaving the store was insufficient to prove that he had not paid for the merchandise.
Despite any inconsistencies identified by defendant, under the totality of the evidence we cannot
say that the evidence was close. See People v. Sebby, 2017 IL 119445, ¶ 53 (“In determining
whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the
evidence and conduct a qualitative, commonsense assessment of it within the context of the case.
[Citations].”). Ramirez provided unrebutted testimony that he observed defendant leave through
the entrance of the store—twice—without paying for merchandise. That testimony was
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corroborated by video footage of defendant. We see no realistic possibility that the jury would
have acquitted him of retail theft, even without the prosecutor’s improper comment.
¶ 38 In sum, we find that: (1) the comments referring to defendant as a “professional thief” who
had “mastered retail theft” and referring to his actions as a “con” were permissible; and (2)
although the prosecutor improperly commented on the effect of theft on consumer prices, that
comment did not constitute reversible error or rise to the level of plain error. Accordingly, we
affirm defendant’s conviction.
¶ 39 Separately, defendant raises a number of claims regarding the trial court’s assessment of
fines and fees. Specifically, he asserts that a number of charges labeled as “fees” are, in fact,
“fines” that are offset by the $5-per-day credit for his time in presentence custody, pursuant to
section 110-14(a) of the Code of Criminal Procedure of 1963. 725 ILCS 5/110-14(a) (West 2018)
(“Any person incarcerated on a bailable offense who does not supply bail and against whom a fine
is levied on conviction of the offense shall be allowed a credit of $5 for each day so incarcerated.”).
In addition, he asserts that the trial court erred in assessing a $5 electronic citation fee, pursuant to
section 27.3e of the Clerks of Courts Act (705 ILCS 105/27.3e (West 2018)), because that fee
applies only to misdemeanors, whereas he was convicted of a felony.
¶ 40 On February 26, 2019, while this appeal was pending, our supreme court adopted new
Illinois Supreme Court Rule 472, which sets forth the procedure in criminal cases for correcting
sentencing errors in, as relevant here, the “imposition or calculation of fines, fees, and assessments
or costs” as well as the “application of per diem credit against fines” and “calculation of
presentence custody credit.” Ill. S. Ct. R. 472(a)(1), (2), (3) (eff. Mar. 1, 2019). On May 17, 2019,
Rule 472 was amended to provide that “[i]n all criminal cases pending on appeal as of March 1,
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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). “No
appeal may be taken” on the ground of any of the sentencing errors enumerated in the rule unless
that alleged error “has first been raised in the circuit court.” Ill. S. Ct. R. 472(c) (eff. May 17,
2019). Therefore, pursuant to Rule 472, we “remand to the circuit court to allow [defendant] to
file a motion pursuant to this rule,” raising the alleged errors regarding the imposition of fines and
fees, and application of presentence custody credit. Ill. S. Ct. R. 472(e) (eff. May 17, 2019).
¶ 41 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County with
respect to defendant’s conviction but remand to the circuit court to allow defendant to file a motion
raising his contentions regarding fines and fees.
¶ 42 Affirmed and remanded.
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