2026 IL App (3d) 250218
Opinion filed August 10, 2026
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2026
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 18th Judicial Circuit,
) Du Page County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-25-0218
v. ) Circuit No. 23-CF-292
)
RASHAUN STEWART, ) Honorable
) Margaret M. O’Connell,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE ANDERSON delivered the judgment of the court, with opinion.
Justices Brennan and Peterson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Rashaun Stewart, appeals from his convictions for being an armed habitual
criminal (AHC) and for unlawful possession of a weapon by a felon (UPWF), arguing that the
State failed to prove that his prior conviction for reckless discharge of a firearm was a qualifying
forcible felony. Further, defendant contends that he is entitled to 716 days of presentence custody
credit where he remained in the simultaneous custody of Du Page and Cook Counties for the
pendency of the case. We reverse in part and remand for further proceedings.
¶2 I. BACKGROUND
¶3 Defendant was charged with AHC (720 ILCS 5/24-1.7(a)(1) (West 2022)) and six counts
of Class 2 felony violations of UPWF (id. § 24-1.1(a)) stemming from a January 15, 2023, event
at a shooting range in Naperville. Count I alleged that defendant committed AHC by possessing a
firearm after having been convicted of two forcible felonies. Count II and III alleged violations of
UPWF for possessing a firearm after having been convicted of reckless discharge of a firearm and
UPWF, respectively. Counts IV and V were eventually dismissed by the State and are, therefore,
not at issue. Counts VI and VII alleged violations of UPWF for possessing firearm ammunition
after having been convicted of the same respective forcible felonies. Relevant to this appeal,
defendant had prior convictions for reckless discharge of a firearm and UPWF in separate Cook
County cases, which the State relied on as predicate forcible felonies for the charges in the instant
case. An arrest warrant was issued for defendant on February 9, 2023. On February 21, 2023,
defendant was arrested on the Du Page County warrant and taken into custody in Cook County.
Defendant remained in custody throughout the pendency of the case.
¶4 Prior to trial, defendant filed a motion to dismiss the AHC charge on the grounds that his
prior reckless discharge of a firearm conviction did not qualify as a forcible felony pursuant to
section 2-8 of the Criminal Code of 2012 (Code) (id. § 2-8). The record includes a transcript of the
plea hearing from defendant’s reckless discharge of a firearm conviction. The indictment in that
case indicated that defendant had committed “reckless discharge of a firearm in that [he]
discharged a firearm in a reckless manner which endangered the bodily safety” of the public.
Defendant pled guilty to that offense and stipulated that the State’s evidence would show that
officers responded to a report of gunshots. Upon the officers’ approach, defendant, who matched
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the description provided to the police, fled on foot with a firearm in his hands. He then threw the
weapon over a fence. Defendant “admitted that he had shot the weapon in the air.”
¶5 In its written response to the motion to dismiss, the State proffered additional information
regarding defendant’s prior conviction. The proffer indicated that the calls that police received
were for two individuals shooting at each other. During defendant’s interview with police, he
explained that he and his sister’s boyfriend had been shooting at each other following a domestic
dispute involving defendant’s sister. Defendant “demonstrated how he held the gun in his hand,
aimed the gun slightly above his sister’s boyfriend’s head, and fired the weapon.”
¶6 On June 20, 2024, a hearing was held on the motion. Defendant argued that his reckless
discharge of a firearm conviction was neither specifically listed as a forcible felony nor did the
facts surrounding the conviction involve the use or threat of physical force against an individual.
Defense counsel pointed out that the additional facts provided by the State appeared to be from
police reports. He argued that the facts had never been sworn to or entered into evidence and were
not part of the stipulated facts from the plea hearing. The State argued that they were not limited
to the facts presented at the plea hearing and acknowledged that if the matter proceeded to trial
without any stipulation as to the underlying case, it “would have to proveup those facts which [it]
would do by calling witnesses.” The State affirmed that they were in the position to call witnesses
to testify regarding the statements.
¶7 The court denied the motion to dismiss based “solely on the transcript from the plea of
guilty.” It found that the facts presented at the plea hearing demonstrated that it was a “felony
which involves the use or threat of physical force or violence against any individual.” The court
clarified that it was denying the motion in its current form but indicated that, if there was no
stipulation as to the facts of the underlying felony prior to trial, it would be the State’s burden to
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secure testimony supporting their additional facts. The court stated that, if the State did not meet
its burden or failed to fulfill the requirements for the underlying felony, then defendant could renew
his motion to dismiss.
¶8 On January 6, 2025, a further hearing was held. Both the State and defense counsel agreed
that once the court found the underlying felony qualified as a forcible felony, the State would only
be required to prove the conviction at trial, not any of the facts surrounding the conviction. The
parties requested a hearing date before trial for the State to present witnesses for the proffered
additional facts. The court indicated that when it denied the motion to dismiss, it accepted the
proffer presented by the State. The court stated that it found the reckless discharge of a firearm
conviction to be a forcible felony and refused to have “an evidentiary hearing on something that
happened in 2017 that was *** a plea.” Defense counsel indicated that he would be filing a motion
to reconsider and argued that a proffer of statements from police reports was hearsay and could
not be considered in determining whether the conviction qualified as a forcible felony without an
evidentiary hearing.
¶9 On January 14, 2025, defendant waived his right to a jury trial. Prior to the start of the
bench trial, the court heard defendant’s motion to reconsider. The court denied the motion,
explaining that defendant’s reckless discharge conviction qualified as a forcible felony under “the
catchall language of the Illinois statute, in that [his] actions in 2017 were a threat of physical force
or violence against any individual.” The court stated that this finding was supported by the
language of the indictment and the facts presented at the plea hearing. The case proceeded to trial.
The State presented certified copies of his convictions for reckless discharge of a firearm and
UPWF. Defendant was found guilty on all charges.
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¶ 10 On March 26, 2025, the court denied defendant’s posttrial motions. Defendant was
sentenced to 10 years’ imprisonment for AHC. Counts II and III merged into the AHC conviction.
The court sentenced defendant to concurrent terms of four years’ imprisonment on counts VI and
VII. Defendant received 49 days of presentence custody credit for time spent in the Du Page
County jail. Defendant appealed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant argues that his convictions for AHC and UPWF, as charged in count
VI, must be reversed where the State failed to prove that his prior reckless discharge of a firearm
conviction was a qualifying predicate conviction. Further, defendant argues that he received
significantly less presentence custody credit than he was entitled to where he spent 716 days in the
simultaneous custody of both Du Page and Cook Counties.
¶ 13 A. Forcible Felony
¶ 14 The AHC statute provides, in pertinent part, that “[a] person commits the offense of being
an [AHC] if he or she receives, sells, possesses, or transfers any firearm after having been
convicted a total of 2 or more times of *** a forcible felony as defined in Section 2-8 of this
Code.” 720 ILCS 5/24-1.7(a)(1) (West 2022). The UPWF statute provides that “[i]t is unlawful
for a person to knowingly possess on or about his person or *** fixed place of business *** any
firearm or any firearm ammunition if the person has been convicted of a felony.” Id. § 24-1.1(a).
Defendant maintains that, because reckless discharge of a firearm is not a forcible felony under
section 2-8 of the Code, the State failed to present sufficient evidence to sustain his convictions
for AHC and UPWF, as charged in count VI.
¶ 15 “[Q]ualifying convictions are elements of the offense.” People v. White, 2015 IL App (1st)
131111, ¶ 28. “To sustain a conviction for the offense of [AHC], the State must prove the
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defendant’s prior convictions as well as his present conduct beyond a reasonable doubt.” People
v. Brown, 2017 IL App (1st) 150146, ¶ 17. The only contested element on appeal is whether
defendant’s reckless discharge of a firearm conviction is a qualifying forcible felony.
“Interpretation of the forcible felony statute is an issue of law, which we review de novo.” People
v. Sanderson, 2016 IL App (1st) 141381, ¶ 5.
¶ 16 The parties agree that reckless discharge of a firearm is not included in the enumerated
offenses in section 2-8 of the Code and, therefore, must qualify under the residual clause of the
section, which provides that a forcible felony includes “any other felony which involves the use or
threat of physical force or violence against any individual.” 720 ILCS 5/2-8 (West 2022). Crimes
fall under the residual clause in one of two ways: (1) if one element of the underlying offense is a
specific intent to perform a violent act, then every such instance of that offense will be considered
a forcible felony or (2) where offenses do not carry violent intent as an element, it may still be
considered a forcible felony if the State proves that, under the particular facts of the underlying
case, defendant contemplated the use of force and was willing to use it. People v. McGhee, 2020
IL App (3d) 180349, ¶¶ 59-62.
¶ 17 The offense of reckless discharge of a firearm involves reckless conduct, “a conscious
disregard of the consequences of one’s actions,” and not a specific violent intent. People v.
Coleman, 131 Ill. App. 3d 76, 79 (1985). Accordingly, not every instance of reckless discharge of
a firearm can be considered a forcible felony. We must look at the specific facts surrounding the
conviction to determine whether defendant contemplated the use of force and was willing to use
it.
¶ 18 Here, the record reflects sparse facts surrounding defendant’s reckless discharge of a
firearm conviction. The bill of indictment alleged the general statutory elements of the offense,
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that defendant discharged a firearm in a reckless manner that endangered the bodily safety of the
public. The stipulated evidence at the plea hearing merely demonstrated that defendant admitted
to firing his gun into the air, fled on foot, and threw the gun over a fence once police arrived.
¶ 19 The additional facts proffered by the State to meet its burden that the reckless discharge
offense was a forcible felony were not stipulated to and thus constituted impermissible hearsay.
“Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted.”
People v. Marcotte, 337 Ill. App. 3d 798, 803 (2003). Such statements are inadmissible unless an
exception applies. Ill. R. Evid. 802 (eff. Jan. 1, 2011). Police reports may be used for impeachment
purposes or to refresh a witness’s recollection but are inadmissible as substantive evidence. People
v. Wilder, 356 Ill. App. 3d 712, 724 (2005); see In re Estate of Frakes, 2020 IL App (3d) 180649,
¶ 38 (observing that while police reports are generally inadmissible as substantive evidence, they
“may be used to refresh a witness’s recollection so long as the report is not merely read into
evidence”). Here, the facts recited by the State from police reports were offered substantively to
prove the truth of the matter. Even though the State indicated that it could call witnesses to testify
to those facts, the record reflects that no such testimony was heard. Thus, we will not consider
these facts in determining whether defendant’s conviction for reckless discharge of a firearm
constitutes a forcible felony as they were not properly admitted.
¶ 20 Based on the admissible evidence, defendant’s reckless discharge conviction resulted from
his firing a gun in a populated area. The record is silent as to how many individuals were in the
area and whether they were outside near defendant or inside residences or vehicles in the general
area. The evidence demonstrates only that defendant acted without regard for the potential danger
to any individuals in the area but does not indicate that he was considering or willing to use force
or violence against another person. While the inherent danger of the situation is evident, “a
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defendant’s knowledge that his actions might involve the threat or use of force or violence against
an individual is not sufficient *** to make a felony a forcible felony under section 2-8.” (Emphasis
and internal quotation marks omitted.) People v. Schmidt, 392 Ill. App. 3d 689, 698 (2009).
Without more, the State failed to meet its burden of proving beyond a reasonable doubt that
defendant’s prior reckless discharge of a firearm conviction was a qualifying forcible felony.
Accordingly, the evidence presented at trial is insufficient to sustain any conviction that required
the reckless discharge conviction to be considered a forcible felony as a matter of law. Defendant’s
conviction for AHC is reversed.
¶ 21 Similarly, we reverse defendant’s conviction and sentence for UPWF, as charged in count
VI. The record reflects that the State charged defendant with the Class 2 felony version of UPWF,
specifically predicated on defendant having been previously convicted of reckless discharge of a
firearm, a forcible felony. “Where an indictment charges all essential elements of an offense, other
matters unnecessarily added may be regarded as surplusage.” People v. Collins, 214 Ill. 2d 206,
219 (2005). In relevant part, an indictment must cite “the statutory provision alleged to have been
violated and set forth in the language of the statute the nature and elements of the offense charged.”
People v. Simpkins, 48 Ill. 2d 106, 111 (1971). Consequently, because the State charged defendant
with the Class 2 felony version of the UPWF statute, based on a prior forcible felony, it was
required to prove the forcible nature of the prior conviction, as an essential element of the offense.
Thus, where the State failed to prove that defendant’s prior conviction for reckless discharge of a
firearm was a forcible felony, the conviction for UPWF, as charged in count VI, cannot stand.
¶ 22 Finally, the record reflects that defendant was found guilty of other offenses that were
unsentenced, as they merged with his AHC conviction. Because no sentence was imposed on either
count, no final appealable judgment was entered. See People v. Ross, 2018 IL App (3d) 160478,
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¶ 8. Accordingly, we lack the jurisdiction to address either of those counts. See People v. Relerford,
2017 IL 121094, ¶¶ 71, 75; People v. Hale, 2025 IL App (3d) 220510, ¶¶ 76-77. We, thus, remand
for additional proceedings pertaining to these additional counts, consistent with this order.
¶ 23 B. Presentence Custody Credit
¶ 24 Defendant next contends that he is entitled to additional presentence custody credit where
he was in continuous custody on the instant case during its pendency, beginning on February 21,
2023. Defendant received 49 days of presentence custody credit for dates that he was personally
present in Du Page County jail. Section 5-4.5-100(b) of the Unified Code of Corrections (Unified
Code) provides that an offender “shall be given credit *** for the number of days spent in custody
as a result of the offense for which the sentence was imposed.” 730 ILCS 5/5-4.5-100(b) (West
2022). When a defendant is held in simultaneous custody on two unrelated charges, he is entitled
to presentence custody credit against both sentences. People v. Robinson, 172 Ill. 2d 452, 462-63
(1996).
¶ 25 As an initial matter, the State argues that we lack jurisdiction to consider the merits of this
argument because jurisdiction remains vested with the circuit court, pursuant to Illinois Supreme
Court Rule 472 (eff. Feb 1, 2024). Rule 472 states that
“(a) In criminal cases, the circuit court retains jurisdiction to correct the following
sentencing errors at any time following judgment and after notice to the parties, including
during the pendency of an appeal, on the court’s own motion, or on motion of any party:
***
(3) Errors in the calculation of presentence custody credit;***
***
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(e) In 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(a)(3), (e) (eff. Feb. 1, 2024).
¶ 26 Here, the record indicates that defendant failed to raise the issue of an error in the
calculation of the credit in the circuit court and has therefore raised the issue for the first time on
appeal. Thus, we lack jurisdiction to consider defendant’s arguments. By rule, we are required to
remand to the circuit court to permit defendant an opportunity to file a motion pursuant to Rule
472.
¶ 27 In reaching this conclusion, we reject defendant’s argument that Rule 472 does not apply
because this is a legal error and not merely a clerical error. The plain language of the statute
encompasses errors in the denial of presentence custody credit, pursuant to section 5-4.5-100 of
the Unified Code, whether clerical or legal. See People v. Ford, 2020 IL App (2d) 200252, ¶ 15,
overruled on other grounds by People v. Wells, 2024 IL 129402, ¶ 28; People v. Knight, 2023 IL
App (3d) 220198, ¶ 16. Further, any determination of ineffective assistance of counsel is premature
where no findings have been made by the circuit court and defendant continues to have an avenue
of relief. Any potential prejudice to defendant has not yet occurred.
¶ 28 For the foregoing reasons, we reverse defendant’s convictions for AHC and UPWF as
charged in count VI. We remand the cause to the circuit court for further proceedings regarding
the unsentenced, previously merged offenses and to permit defendant the opportunity to file a Rule
472 motion.
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¶ 29 III. CONCLUSION
¶ 30 The judgment of the circuit court of Du Page County is reversed in part and remanded for
further proceedings.
¶ 31 Reversed in part and remanded.
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People v. Stewart, 2026 IL App (3d) 250218
Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 23-CF292; the Hon. Margaret M. O’Connell, Judge, presiding.
Attorneys James E. Chadd, Santiago A. Durango, and Sekoya Pelayo, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant:
Attorneys Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne for Hoffman and Steven J. Biagi, Assistant State’s Attorneys, of Appellee: counsel), for the People.
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