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                              Appellate Court                          Date: 2016.09.20
                                                                       09:14:04 -05'00'




                   People v. White, 2016 IL App (2d) 140479



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ROEL WHITE, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-14-0479



Filed             August 1, 2016



Decision Under    Appeal from the Circuit Court of Du Page County, No. 13-CF-995;
Review            the Hon. Blanche Hill Fawell, Judge, presiding.



Judgment          Affirmed as modified.



Counsel on        Thomas A. Lilien and Josette Skelnik, both of State Appellate
Appeal            Defender’s Office, of Elgin, for appellant.

                  Robert B. Berlin, State’s Attorney, of Wheaton (Lisa A. Hoffman and
                  Sean P. Kinsella, Assistant State’s Attorneys, of counsel), for the
                  People.



Panel             JUSTICE SPENCE delivered the judgment of the court, with opinion.
                  Presiding Justice Schostok and Justice McLaren concurred in the
                  judgment and opinion.
                                              OPINION

¶1       Defendant, Roel White, met Aldo Grano in jail. When Grano was later released from
     prison, the two men contacted each other. During one of their conversations, defendant and
     Grano made arrangements for Grano to buy a gun from defendant. After defendant obtained
     the gun, he and his girlfriend, Stephanie Morales, were on their way to Addison to deliver the
     gun to Grano when the police stopped defendant for a traffic offense. Defendant fled from the
     police on foot, and Morales drove away, contacting Grano while doing so. Morales and Grano
     made arrangements to meet at a different location in Addison, Morales went to that location,
     and she sold the gun to Grano. Morales then went home and gave the money she got from
     Grano to defendant. Based on these facts, the trial court found defendant guilty of unlawful
     sale of a firearm to a felon (720 ILCS 5/24-3(A)(d) (West 2012)), under an accountability
     theory, and being an armed habitual criminal (720 ILCS 5/24-1.7(a)(1) (West 2012)), which
     were charged in the same indictment. Defendant was sentenced to an extended term of 8 years
     for unlawful sale of a firearm to a felon, a Class 3 felony (see 720 ILCS 5/24-3(C)(9) (West
     2012); 730 ILCS 5/5-8-2(a) (West 2012)), and a concurrent term of 12 years for being an
     armed habitual criminal, a Class X felony (see 720 ILCS 5/24-1.7(b) (West 2012)). On appeal,
     defendant claims that he was not proved guilty beyond a reasonable doubt of unlawful sale of a
     firearm to a felon, because (a) no evidence established that he was accountable for Morales’s
     action of actually selling the gun, and, in the alternative, (b) if he can be held accountable, he
     cannot be convicted of that offense in the absence of evidence establishing that Morales knew
     that Grano was a felon. Defendant also argues that, if his conviction of unlawful sale of a
     firearm to a felon is proper, his eight-year sentence for that offense must be reduced, as the
     extended term was improper in light of the fact that he also was convicted of a Class X felony.
     For the reasons that follow, we determine that defendant was proved guilty beyond a
     reasonable doubt of unlawful sale of a firearm to a felon, but we agree that defendant’s
     sentence for that offense must be reduced. Accordingly, we affirm as modified.

¶2                                        I. BACKGROUND
¶3       Grano, who had several prior convictions of various offenses including some felonies,
     testified that he was in jail for an aggravated battery charge in July 2010 when he met
     defendant, who was also a convicted felon. For the next three months, Grano and defendant
     would talk to each other. Grano told defendant that he was going to plead guilty to the
     aggravated battery charge and would be going to prison.
¶4       In March 2012, after Grano was released from prison, he contacted the police and the
     Bureau of Alcohol, Tobacco, and Firearms, because he wanted to work as an informant for
     them and help get unregistered guns and illegal drugs off the streets. Pursuant to this
     arrangement, Grano exchanged a series of text messages with defendant on October 14, 2012,
     during which defendant offered to sell Grano a shotgun for $250. Grano, after receiving
     instructions from the Addison police department, agreed to meet defendant at a specific
     location in Addison the next day.
¶5       Morales, who testified against defendant in exchange for the State reducing the charges
     brought against her, stated that she was defendant’s girlfriend, that she was living with him in
     October 2012, and that she had known him for a couple of years. On October 15, 2012,
     defendant told Morales that “he was going to sell a gun” and that he was going to sell the gun

                                                 -2-
       “to Aldo.” Morales believed that defendant was referring to Grano, whom she had known for
       three to five years. Grano was a “friend’s friend [from] where we used to hang out at” in
       Addison. On cross-examination, Morales testified that she and Grano “were friends, I guess.”
¶6         After defendant told Morales about selling a gun to Grano, he drove Morales’s car to
       Rockford to get the gun. When defendant returned, he told Morales to get herself and
       defendant’s two-year-old son ready, as they all were going to drive to Addison. Morales
       testified that defendant was driving her car, while she was seated in the passenger seat and
       defendant’s son was in a car seat in the back, when the police stopped defendant. At that point,
       defendant told Morales that the gun was under the hood.
¶7         Officer Langhenry testified that he was on duty in Hanover Park at approximately 1:28
       p.m. when he stopped the vehicle defendant was driving. Based on the fact that defendant was
       moving around in the car, Langhenry asked defendant to exit the vehicle so that he could
       perform a pat-down search. During that search, Langhenry discovered cannabis in defendant’s
       left pants pocket and another object in the right pocket. When Langhenry asked defendant
       about the object in the right pocket, defendant grabbed the pocket and struggled with
       Langhenry. Defendant eventually broke free and ran from the scene, motioning to Morales to
       leave.1 Morales moved to the driver’s seat and drove off with defendant’s son.
¶8         After leaving the scene, Morales immediately called Grano on defendant’s cell phone.
       Grano, who testified that he had known Morales for seven years and recognized her voice,
       asked her “if she had the gun *** if we were still going to buy [sic] the gun.” That is, Grano
       inquired whether “the deal [was] still going to go down.” Grano stated that, although he made
       the deal with defendant, Morales “was just *** delivering me the gun.”
¶9         Morales testified that she told Grano, whose voice she recognized, “[t]hat [defendant]
       got—we got pulled over and [defendant] took off so where did he want to meet.” According to
       Grano, Morales asked him to drive to Barrington, where she was, but he said no, because it was
       too far away. Eventually, they agreed to meet at a new location in Addison.
¶ 10       Morales then called Brenda White, defendant’s mother. Morales told Brenda that
       “[defendant] was going to sell a gun but he ended up getting pulled over and he left.” Morales
       informed Brenda that she had “[defendant’s son] in the car with the gun.” Pursuant to the
       arrangements Morales made with Brenda, Brenda met up with Morales, and they lifted the
       hood of the car and found the gun. The women wrapped the gun up, put the gun in Brenda’s
       truck, and, with defendant’s son,2 drove to the new location in Addison. Although Morales
       stated that she was concerned for her safety and could have gone home after defendant fled, she
       further testified that she arranged to drive Brenda’s truck because she believed that the police
       knew the car she had been in with defendant and she didn’t want the police to pull her over in
       that car, with the gun and defendant’s son in the car.
¶ 11       Once at the new location, the women gave the gun to Grano, and Grano gave Morales
       $250. After talking about what had happened to defendant, Brenda took Morales and
       defendant’s son home.



           1
             At trial, Morales “took her hand, put it at eye level in front of her face, and moved it away from her
       face about a foot several times, indicating the motions given to her by defendant.”
           2
             The evidence also revealed that Brenda’s boyfriend was with them.

                                                        -3-
¶ 12       While Morales and Brenda met with Grano, Langhenry apprehended defendant, took him
       to the Hanover Park police department, and questioned him. Defendant told Langhenry that he
       ran because he did not want to be charged with possession of cannabis. Defendant never told
       Langhenry anything about the gun he had planned to sell to Grano that day, and Langhenry
       never saw a gun in defendant’s possession.
¶ 13       After defendant was released, he went home. Morales, who was at home when defendant
       arrived, stated that “[defendant] just told me like what happened and I told him like I went on
       with what happened and then I just gave [defendant] the money and that was it.”
¶ 14       The next day, Grano had a conversation with defendant about the gun. Grano asked
       defendant if the gun worked and if defendant had bullets for it. Defendant assured Grano that
       the gun did work, and he told Grano that he was going to look for the bullets.
¶ 15       The trial court found defendant guilty of unlawful sale of a firearm to a felon and being an
       armed habitual criminal. In doing so, the court noted that defendant “is the one who initiated
       the deal *** followed it all the way through to the end when he actually took the $250.00.” The
       court sentenced defendant, and he timely appealed without having challenged his conviction or
       sentence.

¶ 16                                         II. ANALYSIS
¶ 17       Defendant essentially raises three issues on appeal. First, he argues that he was not proved
       guilty beyond a reasonable doubt of unlawful sale of a firearm to a felon because no evidence
       established that he was accountable for Morales selling the gun to Grano. Second, defendant
       claims that, even if he was accountable for Morales’s actions, the State still failed to prove him
       guilty of that offense beyond a reasonable doubt, as no evidence established that Morales knew
       that Grano was a felon, a necessary element of that offense. Last, defendant contends that, if he
       was proved guilty beyond a reasonable doubt of unlawful sale of a firearm to a felon, his
       eight-year extended-term sentence for that offense must be reduced to five years, because an
       extended-term sentence is appropriate on only the most serious class of offense and here, in
       addition to unlawful sale of a firearm to a felon, a Class 3 felony (see 720 ILCS 5/24-3(C)(9)
       (West 2012)), defendant was also convicted of being an armed habitual criminal, a Class X
       felony (see 720 ILCS 5/24-1.7(b) (West 2012)). We consider each issue in turn.

¶ 18                                         A. Reasonable Doubt
¶ 19       The first issue we address is whether defendant was proved guilty beyond a reasonable
       doubt of unlawful sale of a firearm to a felon. We note that the parties disagree about what
       standard of review should apply. Citing People v. Chirchirillo, 393 Ill. App. 3d 916, 921
       (2009), defendant argues that our review is de novo because at issue is whether the uncontested
       facts are sufficient to prove the statutory elements under an accountability theory. Id. The State
       claims that we should consider whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found defendant guilty beyond a
       reasonable doubt. See People v. Fernandez, 2014 IL 115527, ¶ 13. We need not decide here
       which standard should apply because, under either standard, we determine that defendant was
       proved guilty beyond a reasonable doubt.




                                                   -4-
¶ 20                                          1. Accountability
¶ 21       Section 5-2(c) of the Criminal Code of 2012 (720 ILCS 5/5-2(c) (West 2012)) provides
       that a person is legally accountable for the criminal actions of another if “either before or
       during the commission of an offense, and with the intent to promote or facilitate that
       commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the
       planning or commission of the offense.” Our supreme court recently reiterated “that the
       underlying intent of this statute is to incorporate the principle of the common-design rule.”
       Fernandez, 2014 IL 115527, ¶ 13. Accordingly, to prove a defendant guilty under an
       accountability theory, the State needs to establish that either (1) the defendant and the principal
       shared the same criminal intent or (2) there was a common criminal design. Id.; see also 720
       ILCS 5/5-2(c) (West 2012).
¶ 22       Pursuant to the common-design rule, if “ ‘two or more persons engage in a common
       criminal design or agreement, any acts in the furtherance of that common design committed by
       one party are considered to be the acts of all parties to the design or agreement and all are
       equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527,
       ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)). Moreover, “ ‘[e]vidence that a defendant
       voluntarily attached himself to a group bent on illegal acts with knowledge of its design
       supports an inference that [the defendant] shared the common purpose and will sustain his
       conviction for an offense committed by another.’ ” Id. (quoting W.C., 167 Ill. 2d at 338).
¶ 23       Under this rubric, we conclude that defendant was accountable for Morales’s act of
       physically delivering the gun to Grano in return for $250. Specifically, the evidence revealed
       that defendant planned to sell the gun to Grano. Defendant and Grano, whom defendant knew
       from jail, had a conversation during which they reached an agreement about the price of the
       gun, when defendant would sell the gun to Grano, and where the men would meet for the sale.
¶ 24       After making these arrangements, defendant told Morales that he was going to sell a gun to
       Grano. Defendant asked Morales if he could use her car to go retrieve the gun, Morales
       consented, and defendant drove to Rockford to get the gun. When he returned, he told Morales
       to get herself and his son ready because they were going to Addison. Morales, knowing that
       defendant made this plan to sell the gun to Grano, whom she knew from Addison, complied.
¶ 25       When the group was on its way to Addison in Morales’s car, the police stopped defendant.
       At that very moment, defendant, who knew that he had cannabis in his pocket, told Morales
       that the gun was under the hood. Although the reason why defendant chose to tell Morales this
       at that very moment is unknown, a very plausible reason is that defendant wanted Morales to
       complete the sale. In further support of this theory is the fact that defendant, who retrieved the
       gun without Morales’s help yet had her accompany him to the sale, motioned to Morales to
       leave the scene and then he took off running from the police. Although Morales testified that,
       at that point, she was concerned about her and defendant’s son’s safety, her actions suggest
       something different. Instead of, for example, alerting the police, going home, or throwing the
       gun away, Morales left the scene and contacted Grano. After explaining the situation to him,
       she asked him “where did he want to meet.” No terms other than the location of the sale were
       altered.
¶ 26       Once Grano gave Morales the $250 that Grano agreed to pay defendant for the gun, she
       went home, told defendant what happened, and gave defendant the money. The next day, when
       defendant talked to Grano, defendant assured him that the gun worked and told Grano that he
       would look for the ammunition.

                                                    -5-
¶ 27       From these facts, it may be inferred that there was a common design to sell the gun to
       Grano. Defendant made all of the arrangements for the sale, and, after he was prevented from
       personally delivering the gun to Grano, Morales executed the plan for him. This planning on
       defendant’s part makes him accountable for unlawful sale of a firearm to a felon. See People v.
       Taylor, 164 Ill. 2d 131, 140 (1995) (“[A]ctive participation has never been a requirement for
       the imposition of criminal guilt under an accountability theory.”); People v. McComb, 312 Ill.
       App. 3d 589, 593 (2000) (in armed-robbery case, court observed that “one may aid and abet
       without actively participating in the overt criminal act”). Thus, defendant was properly found
       guilty of unlawful sale of a firearm to a felon under an accountability theory, as he and Morales
       certainly aided each other in the commission of the crime.
¶ 28       In reaching this conclusion, we note, as the State indicates, that courts have considered
       numerous factors in determining whether a defendant can be accountable for the acts of
       another. For example, in Taylor, our supreme court mentioned that courts may consider
       whether the defendant (1) was present during the perpetration of the offense, (2) maintained a
       close affiliation with his companions after the commission of the crime, (3) failed to report the
       crime, (4) fled from the scene, and (5) voluntarily attached himself to a group bent on illegal
       acts with knowledge of the group’s criminal plans. Taylor, 164 Ill. 2d at 141; see also People v.
       Griffin, 247 Ill. App. 3d 1, 7 (1993) (citing factors mentioned in Taylor and noting that courts
       may consider, in addition, whether (1) the defendant accepted “illegal proceeds from the actual
       perpetrators which the [defendant] knew did not belong to that person” and (2) there was a
       “subsequent concealment or destruction of evidence”).
¶ 29       Here, although we do not believe that these factors amount to a test to be uniformly applied
       in accountability cases, which are fact-specific, we nevertheless find that a consideration of
       these factors supports the conclusion that defendant is accountable for Morales’s act of
       physically selling the gun to Grano. Specifically, while it is true that some of the factors are
       lacking here, as they are inapplicable to what transpired, we note that defendant went home to
       Morales after she sold the gun to Grano, he failed to report the crime to police even though he
       easily could have done so once he was apprehended, he accepted the $250 Morales received
       from Grano for the gun, he confirmed the sale by phone the next day, and he told Grano that he
       would try to obtain ammunition for the gun.
¶ 30       Defendant argues that he and Morales did not share a common design to sell the gun to
       Grano. Rather, he claims, “[his] actions consisted of his telling [Morales] what he planned to
       do, not in asking that she assist him in carrying out those plans.” Put another way, defendant
       argues that he “could not be held accountable for [Morales’s] conduct because it was not
       conduct that he had requested or solicited.” We find defendant’s argument untenable.
¶ 31       First, one can be held accountable for the conduct of another based on more than just a
       request to perform or a solicitation of specific acts. Indeed, one can be held accountable for the
       actions of another when he “aids, abets, agrees, or attempts to aid” another in the “planning” of
       an act. 720 ILCS 5/5-2(c) (West 2012). Here, defendant certainly aided Morales in selling the
       gun when he made arrangements to sell Grano the gun for $250 in Addison on the afternoon of
       October 15, 2012, and drove to Rockford to retrieve the gun.
¶ 32       Second, just as in a conspiracy, evidence of participation in a common criminal design is
       not necessarily explicit. See McComb, 312 Ill. App. 3d at 593 (“Words of agreement to commit
       the offense are not required to establish a common purpose or design.”); see also People v.
       Gates, 29 Ill. 2d 586, 590 (1963) (“To establish a conspiracy there must be a common design;

                                                   -6-
       a concert of will and endeavor on the part of two or more persons with a view to attaining the
       same unlawful object.”). Rather, given its clandestine nature, a common design may be
       broadly inferred from the surrounding circumstances. See People v. Garth, 353 Ill. App. 3d
       108, 121 (2004). Here, as noted above, the broad inference to draw from the surrounding
       circumstances is that defendant enlisted Morales’s help in carrying out the plan to sell the gun
       to Grano by having Morales deliver the gun to Grano when defendant could not do so
       personally. Although defendant never explicitly asked Morales to deliver the gun to Grano, the
       surrounding circumstances certainly indicate that that is precisely what defendant wanted
       Morales to do. That is, the evidence reveals not only that Morales was aware of the fact that
       defendant was going to sell a gun to Grano, but also that Morales accompanied defendant on
       his trip to Addison, was told about the location of the gun after the police stopped defendant,
       was advised by defendant to leave the scene of the stop, called Grano to ask him not whether
       but where they were going to meet, delivered the gun to Grano, and then gave defendant the
       money she received for the gun.
¶ 33       In his reply brief, defendant argues that he cannot be accountable for Morales’s conduct
       because he was not present when Morales sold the gun to Grano. Such a contention is
       completely unsupportable. As noted above, it is well settled that an accomplice’s presence at
       the scene of the crime is not a prerequisite to finding the accomplice guilty. See 720 ILCS
       5/5-2(c) (West 2012); see also People v. Carrizales, 240 Ill. App. 3d 893, 901 (1992) (active
       participation in overt act not required for accomplice to be held accountable); People v.
       Stevens, 98 Ill. App. 3d 158, 160-61 (1981) (same); People v. Dandridge, 79 Ill. App. 3d 693,
       695 (1979) (same).

¶ 34                            2. Knowledge of Grano’s Status as a Felon
¶ 35        Having determined that the evidence supported the conclusion that defendant was
       accountable for Morales’s delivering the gun to Grano, we next address whether the evidence
       revealed that Morales knew that Grano was a felon. “ ‘A charge based on accountability must
       necessarily flow from the principal crime at issue.’ ” Chirchirillo, 393 Ill. App. 3d at 922
       (quoting People v. Hicks, 181 Ill. 2d 541, 547 (1998)). As relevant here, in order to prove
       defendant guilty of unlawful sale of a firearm to a felon, the State had to prove beyond a
       reasonable doubt that defendant, or one for whose conduct he is accountable, knowingly sold
       or gave any firearm to any person who had been convicted of a felony in Illinois or any other
       jurisdiction. 720 ILCS 5/5-2(c), 24-3(A)(d) (West 2012).
¶ 36        Here, the parties do not dispute that a firearm was sold to Grano and that Grano was a
       convicted felon. Defendant argues that, because the evidence did not establish that Morales
       knew that Grano was a felon, Morales did not unlawfully sell a firearm to a felon and, as a
       result, defendant cannot be vicariously liable for that offense.
¶ 37        “Knowledge of a material fact includes awareness of the substantial probability that the
       fact exists.” 720 ILCS 5/4-5(a) (West 2012). In assessing whether a person acted with
       knowledge, we note that an individual need not admit that he or she acted with knowledge. See
       People v. Lind, 307 Ill. App. 3d 727, 735 (1999). Rather, whether a person acted with
       knowledge may be inferred from circumstantial evidence. People v. Hall, 273 Ill. App. 3d 838,
       842 (1995). Circumstantial evidence is proof of certain facts and circumstances from which the
       trier of fact may infer other connected facts that human experience dictates usually and
       reasonably follow. People v. Grathler, 368 Ill. App. 3d 802, 808 (2006). Here, the inference to

                                                  -7-
       draw from the evidence is that defendant knew that Grano was a felon. While in jail, defendant
       was made aware of the fact that Grano was a felon and that he was sentenced to prison. In his
       reply brief, defendant characterizes Morales’s relationship with Grano as that of mere
       acquaintances and argues that, given that relationship, one cannot infer that Morales knew that
       Grano was a convicted felon. The glaring problem with defendant’s position is that the State is
       not required to prove that Morales knew that Grano was a convicted felon, but rather that
       defendant knew Grano’s status and merely acted through Morales as the delivery person.
¶ 38       Defendant relies on Chirchirillo. In Chirchirillo, the defendant, a felon, broke into a home
       with her friend, who was not a felon, to steal a gun. Chirchirillo, 393 Ill. App. 3d at 918. The
       defendant was convicted of, among other things, unlawful possession of a weapon by a felon
       even though she never possessed the stolen gun. Id. at 918-19. The defendant appealed,
       arguing that she could not be convicted of that offense under an accountability theory. Id. at
       921. This court agreed. Id. at 925-26. We noted that, “[b]ecause the felony status of the person
       possessing the weapon is an element of unlawful possession of a weapon by a felon, the State,
       in order to establish that [the] defendant was accountable for unlawful possession of a weapon
       by a felon, had to prove that [the defendant’s friend] possessed the weapon, that [the friend]
       was a convicted felon, and that [the] defendant aided, abetted, or agreed or attempted to aid
       [the friend] in the planning or commission of that offense.” Id. Because the State never
       established that the friend was a felon, the defendant could not be vicariously liable for
       unlawful possession of a weapon by a felon. Id. at 925.
¶ 39       Here, unlike in Chirchirillo, the felony status of the person selling the gun, i.e., Morales, is
       not at issue. Rather, what matters here is the felony status of the person to whom Morales sold
       the gun, i.e., Grano. Regardless of who sold the gun, Grano’s felony status did not change.
       Thus, unlawful sale of a firearm to a felon was committed, whether defendant or Morales
       personally delivered the gun to Grano. Cf. Griffin, 247 Ill. App. 3d at 15 (noting that there are
       some offenses, like aggravated criminal sexual assault based on the age of the perpetrator,
       where one cannot be accountable for the conduct of the perpetrator, as “the status of the person
       accused *** is particularly important”). Of course, that is true only as long as the person who
       sold the gun knew that Grano was a felon. Here, because, as noted above, the inference to draw
       from the evidence is that defendant knew that Grano was a felon, he committed the offense of
       unlawful sale of a firearm to a felon by aiding Morales in committing the offense by making
       the arrangements for the sale and directing her to complete the transaction in his absence.

¶ 40                                   B. Extended-Term Sentence
¶ 41       Because we conclude that defendant was proved guilty beyond a reasonable doubt of
       unlawful sale of a firearm to a felon under an accountability theory, we must address whether
       defendant’s eight-year extended-term sentence for that offense was improper. Before
       addressing that issue, we note that defendant never challenged this sentence in the trial court.
       Recognizing this fact, defendant, citing People v. Thompson, 209 Ill. 2d 19, 22 (2004), claims
       that this court may consider the issue because his sentence is void and void sentences may be
       challenged at any time and in any court. In response, the State observes that, pursuant to
       People v. Castleberry, 2015 IL 116916, ¶ 19, an improper sentence is no longer void. Thus,
       after Castleberry, a defendant can forfeit a claim that his sentence is improper and he may have
       his sentence reviewed only if he satisfies the requirements of the plain-error rule. See People v.


                                                    -8-
       Hillier, 237 Ill. 2d 539, 545 (2010) (outlining requirements of plain-error rule in sentencing
       context); People v. Ramirez, 2015 IL App (1st) 130022, ¶ 21 (same).
¶ 42       Here, defendant does not make a plain-error argument, let alone invoke the rule.
       Ordinarily, the failure to do so results in the forfeiture of the defendant’s claim on appeal. See
       Ramirez, 2015 IL App (1st) 130022, ¶ 22. Nevertheless, because the State concedes error on
       this point, we will consider the argument. See People v. Buffkin, 2016 IL App (2d) 140792,
       ¶ 11 (confession of error permits review of otherwise precluded claim).
¶ 43       As noted, at issue is whether the imposition of the extended-term sentence of 8 years on the
       Class 3 felony of unlawful sale of a firearm to a felon (720 ILCS 5/24-3(A)(d), (C)(9) (West
       2012)) was proper when defendant was also sentenced to 12 years on the Class X felony of
       being an armed habitual criminal (720 ILCS 5/24-1.7(a)(1), (b) (West 2012)). Because this
       issue raises a question of law, our review is de novo. People v. Larry, 2015 IL App (1st)
       133664, ¶ 23.
¶ 44       Section 5-8-2 of the Unified Code of Corrections (730 ILCS 5/5-8-2 (West 2012)) outlines
       when extended-term sentences may be imposed. As relevant here, section 5-8-2(a) provides:
               “A judge shall not sentence an offender to a term of imprisonment in excess of the
               maximum sentence authorized by Article 4.5 of Chapter V for an offense or offenses
               within the class of the most serious offense of which the offender was convicted unless
               the factors in aggravation set forth in Section 5-5-3.2 or clause (a)(1)(b) of Section
               5-8-1 were found to be present.” 730 ILCS 5/5-8-2(a) (West 2012).
¶ 45       Our supreme court has interpreted section 5-8-2(a) to mean that a trial court may impose an
       extended-term sentence only for the conviction of the most serious class of offense. People v.
       Bell, 196 Ill. 2d 343, 350 (2001). However, extended-term sentences may be imposed “on
       separately charged, differing class offenses that arise from unrelated courses of conduct.”
       People v. Coleman, 166 Ill. 2d 247, 257 (1995).
¶ 46       Here, defendant was charged in one indictment with both unlawful sale of a firearm to a
       felon and being an armed habitual criminal. Both offenses arose out of defendant’s obtaining a
       gun and making arrangements with Grano to sell the gun to him. Accordingly, an
       extended-term sentence here would be appropriate only if it were imposed on the Class X
       felony of being an armed habitual criminal. Because the extended-term sentence was imposed
       not on this Class X felony but on the Class 3 felony of unlawful sale of a firearm to a felon, we,
       pursuant to Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967), reduce that sentence to
       the maximum nonextended term of five years.3 See 730 ILCS 5/5-4.5-40(a) (West 2012).

¶ 47                                       III. CONCLUSION
¶ 48       For these reasons, we affirm defendant’s conviction of unlawful sale of a firearm to a felon,
       but we reduce the extended-term sentence imposed on that conviction to a nonextended term of
       five years.

¶ 49      Affirmed as modified.


          3
           We note that the parties agree that the maximum nonextended term of five years should be
       imposed.

                                                   -9-
