People v. Cisco , 2019 IL App (4th) 160515 ( 2019 )

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Appellate Court Date: 2019.04.16
11:05:42 -05'00'
People v. Cisco, 2019 IL App (4th) 160515
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RICHARD D. CISCO, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-16-0515
Filed January 28, 2019
Decision Under Appeal from the Circuit Court of Champaign County, No. 16-CF-70;
Review the Hon. Thomas J. Difanis, Judge, presiding.
Judgment Affirmed as modified and remanded with directions.
Counsel on James E. Chadd, Patricia Mysza, and Stephen L. Gentry, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
Robinson, and Linda Susan McClain, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justice Knecht concurred in the judgment and opinion.
Justice Steigmann specially concurred, with opinion.
OPINION
¶1 Following a jury trial, defendant was convicted of domestic battery (720 ILCS
5/12-3.2(a)(1) (West 2014)) and violation of an order of protection (id. § 12-3.4(a)). The trial
court sentenced him to consecutive prison terms of six and three years, respectively. Defendant
appeals, arguing (1) the court erred in imposing an extended-term sentence in connection with
his domestic battery conviction, (2) the court abused its discretion when imposing his
sentences, and (3) he is entitled to $475 in monetary credit toward imposed fines. We reduce
defendant’s sentence for domestic battery to the maximum nonextended term of three years’
imprisonment and remand with directions that the court modify its written order setting forth
imposed fines to show defendant’s entitlement to $475 in monetary credit. We otherwise
affirm the court’s judgment.
¶2 I. BACKGROUND
¶3 On January 15, 2016, the State charged defendant with the felony offense of unlawful
restraint (id. § 10-3(a)) (count I) and the misdemeanor offenses of violation of an order of
protection (id. § 12-3.4(a)) (count II) and domestic battery (id. § 12-3.2(a)(1)) (count III).
Later that same month, the misdemeanor charges against defendant (counts II and III) were
dismissed on the State’s motion, and the State added two additional felony counts against
defendant, charging him with felony violation of an order of protection (id. § 12-3.4(a), (d))
(count IV) and felony domestic battery (id. § 12-3.2(a)(1), (b)) (count V). Both additional
counts were based on allegations that defendant had previously been convicted of violating an
order of protection.
¶4 In March 2016, defendant’s jury trial was conducted. Prior to trial, the State noted that the
charging instrument identified counts IV and V as extended-term eligible. However, it asserted
that the charging instrument was incorrect and defendant was not eligible for extended-term
sentencing.
¶5 At trial, the State presented evidence that defendant and the victim, Zara Dawkins, had
been in a dating relationship that ended in November 2015. The parties stipulated that on
November 24, 2014, Dawkins was granted an order of protection against defendant that
required him to stay at least 500 feet away from both her and her residence. Defendant was in
court when the order of protection was entered and was provided with a copy of the order. The
State’s evidence further showed that on the evening of December 26, 2015, defendant went to
Dawkins’s home and forced his way inside. He threatened Dawkins and another person in the
home. Dawkins testified defendant repeatedly hit her on the face, grabbed her by her arms, and
threw her to the ground. Defendant also took Dawkins’s car keys and her cell phone.
Eventually, the police arrived on the scene and defendant fled. The State’s evidence further
showed that Dawkins sustained bruising on her upper arms as a result of defendant’s actions.
¶6 The jury found defendant not guilty of unlawful restraint but guilty of both felony domestic
battery and violation of an order of protection. In April 2016, defendant filed a motion for an
acquittal or, in the alternative, a new trial.
¶7 In May 2016, the trial court denied defendant’s posttrial motion and conducted his
sentencing hearing. In aggravation, the State presented the testimony of four witnesses. Police
officer Justus Clinton testified that he met with Dawkins on January 24, 2016, at the police
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department. Dawkins reported that defendant had violated an order of protection and no
contact order. She showed Clinton the call log on her cell phone, demonstrating that 47 phone
calls were made to Dawkins during an approximate 24-hour period on January 22 and 23,
2016. According to Clinton, the calls were “placed by a spoofing app,” which is used to
disguise a caller’s identification. He stated that the call log on Dawkins’s phone showed that
the calls she received were from Naples, Florida; however, Dawkins reported that she did not
know anyone at that location.
¶8 Steven Meadows testified that he was friends with Dawkins and that the two were in a
dating relationship. In the early morning hours of January 23, 2016, Meadows was playing
darts with Dawkins and her brother when Dawkins received a phone call. Meadows answered
Dawkins’s phone and spoke to the person calling. He testified he was able to identify the caller
as defendant “from talking to [defendant] previously.” According to Meadows, defendant
asked to speak with Dawkins. Meadows told defendant to “leave [Dawkins] alone,” and
indicated that he and Dawkins were dating. He testified that defendant threatened him and
claimed that defendant “and his boys” were watching. Meadows testified that defendant also
stated he was “not going to stop until [Dawkins] got blood on her head.”
¶9 Melissa Edwards testified she was a registered nurse and worked with Dawkins. While at
work on December 30, 2015, Dawkins received a phone call. Edwards “recognized the number
from previous phone calls” and told Dawkins “not to answer.” Edwards testified she answered
the call and that the caller was a man who asked to speak with Dawkins. Edwards told the
caller that Dawkins was not working. She stated the man called back about 10 minutes later
and said he was with a flower company and had a flower delivery for Dawkins. She further
testified as follows:
“I said that they could be delivered to the front main lobby desk. He said that somebody
would have to sign for them. And I said well, anyone can sign for flowers, that we do
this pretty often and that he didn’t need to know where she worked. He said he had to
check with his manager and he would call me back in [10] minutes and never did.”
Edwards stated she had, again, informed the man that Dawkins was not working and he
“seemed aggravated.”
¶ 10 Finally, Rebecca Scott, Dawkins’s mother, testified regarding Dawkins’s relationship with
defendant and their breakup. She asserted that she also obtained an order of protection against
defendant because he was harassing her. Scott testified defendant threatened her on the day she
got the order of protection, stating that he mouthed “ ‘I’ll get you’ ” while they were in the
courtroom. Scott further stated that Dawkins had a son who was “terrified” and constantly
wondered where defendant was and whether defendant would be able to hurt him or Dawkins.
¶ 11 Other matters considered by the trial court included a victim impact statement prepared by
Dawkins, a letter written by defendant’s parents, and a presentence investigation report. The
report showed that defendant was 29 years old. As a child, his biological father was “in and out
of jail/prison” and his biological mother had substance abuse issues. At age seven, defendant
was adopted. He reported that he had a good relationship with his adoptive parents. In 2004,
defendant graduated high school. During his senior year, he also attended a vocational school
and received a certificate of completion in media communications. He attended college for
about a year and a half before dropping out to work full time. Defendant’s employment history
included working as a cook at various restaurants.
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¶ 12 The report showed that defendant was the father of two children. He was in arrears with
respect to child support payments for his oldest child; however, no child support order had
been entered with respect to defendant’s youngest child, who was only five months old.
Additionally, defendant reported that he suffered from depression and anxiety and that alcohol
had been a problem for him in the past.
¶ 13 According to the report, defendant had a criminal history that included convictions for
numerous traffic-related offenses and misdemeanor convictions for criminal damage to
property in 2009, violation of an order of protection in 2010, driving under the influence of
drugs in 2012, and resisting a peace officer in 2012 and 2014. In August 2015, defendant was
sentenced to 24 months of “second chance probation” for theft, a Class 3 felony offense, in a
Sangamon County case. In April 2016, the State filed a petition to revoke defendant’s
probation. A hearing on the petition to revoke was scheduled to take place after the date of
defendant’s sentencing in the case at bar.
¶ 14 The report further showed that between June 2009 and November 2015, 12 requests were
made by 10 different women for orders of protection or no contact orders against defendant.
For 9 of those requests, plenary orders of protection or plenary stalking no contact orders were
ultimately entered against defendant. Of the remaining 3 requests, emergency, but not plenary,
orders of protection were entered against defendant. Defendant also had pending felony
charges for forgery, financial institution fraud, violation of an order of protection, and
harassment through electronic communications. Finally, when questioned about his pending
sentencing in this case, defendant reported that the “ ‘offense ha[d] been blown out of
proportion’ ” and “ ‘that it was entrapment.’ ”
¶ 15 The State recommended that the trial court impose the maximum possible penalty for
defendant, arguing that he had a significant criminal history and noting that he committed the
offenses at issue while on probation. Defendant’s counsel argued that a sentence of probation
was appropriate, asserting that this case represented defendant’s first felony conviction as his
August 2015 conviction involved “a second chance probation plea” and had “not been
officially disposed of yet” due to his pending cases. He also pointed out that defendant had a
supportive family, obtained his high school diploma, had some college experience, and had an
ability to obtain and maintain employment. Defense counsel maintained that a
community-based sentence would allow defendant the opportunity to address his mental
health, substance abuse, and relationship issues. Defendant spoke on his own behalf and
asserted he took “full responsibility for [his] actions.” He apologized for his actions and asked
for the opportunity to address his “problems from the outside.”
¶ 16 In rendering its decision, the trial court noted that there was “some mitigation” in the
record, in that defendant was relatively young, had obtained his high school diploma, and had
“been able to obtain at some points minimum wage employment.” The court found statutory
factors in aggravation were defendant’s “substantial” criminal history and “the deterrent
factor.” The court also noted the numerous requests for orders of protection against defendant.
It determined that a community-based sentence would be “totally inappropriate” and would
deprecate the seriousness of defendant’s conduct. Ultimately, the court sentenced defendant to
“an extended term sentence of six years” for domestic battery and a three-year sentence for
violation of an order of protection. It ordered defendant’s sentences to be served consecutively,
again, noting that defendant had been the subject of numerous order of protection requests.
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Additionally, the court stated defendant was entitled to credit for 95 days served and “credit for
$475 for time spent in custody.”
¶ 17 After the trial court set forth its sentencing decision, defendant’s counsel informed the
court that defendant was not extended-term eligible. The court, however, did not alter its ruling
and stated that the matter could be taken up in a motion to reconsider. In May 2016, defendant
filed a motion to reconsider his sentence, arguing he had been admonished at the start of trial
that he was not extended-term eligible and asserting as follows:
“[Defendant] does not have a prior felony conviction. [Defendant] was granted a
sentence of Second Chance Probation in [the Sangamon County theft case] under
[section 5-6-3.4 of the Unified Code of Corrections (Code) (730 ILCS 5/5-6-3.4 (West
2014))]. This probation was in effect at the time of the commission of the crime, trial[,]
and sentencing in [the case at issue]. The [s]tatute requires deferment of further
proceedings until the filing of a petition alleging violation of a term of probation.
Additionally, under [section 5-6-3.4] upon a violation of a term of probation[,] the
court may enter a judgment of guilt. None of these events occurred.”
Defendant also argued the sentences imposed by the court were excessive, in that the court
placed too much weight on aggravating factors and gave inadequate consideration to
defendant’s potential for rehabilitation and mitigating evidence.
¶ 18 In July 2016, the trial court conducted a hearing on defendant’s motion to reconsider his
sentence. Defendant’s counsel reasserted that defendant had been sentenced outside of the
applicable sentencing range for the domestic battery offense. She further argued that the court
should have imposed concurrent rather than consecutive sentences. In response, the State
argued as follows:
“Your Honor, I would note that the Defendant did not have a prior felony
conviction. He was on statutory second chance [probation] in the Sangamon County
[theft] case.
However, the sentence can remain at six years because he was admonished before
trial of permissive consecutive sentence [sic], and he was found guilty of two Class 4
felony counts. So I believe six years is the legal sentence, and I’d ask that it stand.”
The court then denied defendant’s motion to reconsider without further comment.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 A. Extended-Term Sentence
¶ 22 On appeal, defendant first argues the trial court erred by imposing six-year, extended-term
sentence in connection with his domestic battery conviction. He contends that under the
extended-term sentencing statute, the only “nearly relevant factor” that might have permitted
an extended-term sentence in his case required him to have a previous felony conviction.
Defendant maintains, however, that although he had previously been found guilty of felony
theft, he did not technically have a conviction for that offense because he received “second
chance probation.” The State concedes this issue.
¶ 23 “[W]hether the trial court has imposed an unauthorized sentence is a question of law which
we will review de novo.” People v. Smith, 345 Ill. App. 3d 179, 189, 802 N.E.2d 876, 884
(2004). When a defendant has a prior conviction for violation of an order of protection, like
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defendant did in this case, the offense of domestic battery is a Class 4 felony. 720 ILCS
5/12-3.2(b) (West 2014). The applicable sentencing range for a Class 4 felony is one to three
years’ imprisonment. 730 ILCS 5/5-4.5-45(a) (West 2014). However, if a defendant is subject
to an extended-term sentence, the applicable sentencing range is three to six years’
imprisonment. Id.
¶ 24 Section 5-5-3.2(b) of the Code (id. § 5-5-3.2(b)) sets forth several factors that may be
considered by the trial court as reasons to impose an extended-term sentence. One factor
concerns whether the defendant has been
“convicted of any felony, after having been previously convicted *** of the same or
similar class felony or greater class felony, when such conviction has occurred within
10 years after the previous conviction *** and such charges are separately brought and
tried and arise out of different series of acts.” Id. § 5-5-3.2(b)(1).
¶ 25 Additionally, the Code provides that, under certain circumstances, a trial court may
sentence a defendant who has pleaded guilty or been found guilty of certain enumerated
offenses, including felony theft, to second chance probation “without entering a judgment.” Id.
§ 5-6-3.4(a).
“When a defendant is placed on [second chance] probation, the court shall enter an
order specifying a period of probation of not less than 24 months and shall defer further
proceedings in the case until the conclusion of the period or until the filing of a petition
alleging violation of a term or condition of probation.” Id. § 5-6-3.4(b).
“Upon fulfillment of the terms and conditions of probation, the court shall discharge the person
and dismiss the proceedings against the person.” Id. § 5-6-3.4(f). However, “[u]pon violation
of a term or condition of probation, the court may enter a judgment on its original finding of
guilt and proceed as otherwise provided by law.” Id. § 5-6-3.4(e).
¶ 26 Here, the State initially asserted in the charging instrument that defendant was subject to
extended-term sentencing for both the offenses of felony domestic battery and felony violation
of an order of protection. However, prior to trial, it informed the court that it was mistaken and
defendant was not actually subject to an extended term for either offense. Although
defendant’s criminal history indicates he either pleaded guilty or was found guilty of a greater
class felony—theft, a Class 3 felony—within the previous 10 years, it also shows that he was
sentenced to second chance probation in connection with that offense. Moreover, the record
fails to support a finding that, prior to sentencing in this case, the trial court in defendant’s theft
case ever revoked defendant’s probation or entered a judgment on its finding of guilt in that
case. Accordingly, we agree with the parties that the trial court in this case was not authorized
to impose an extended-term sentence.
¶ 27 Defendant asks this court to strike the extended-term portion of his six-year domestic
battery sentence, reducing it to three years, or to remand for the imposition of a new sentence.
The State contends we should reduce defendant’s sentence for domestic battery to the
maximum nonextended term of three years in prison and that remanding the cause for
resentencing is unnecessary “since the record establishes the [trial] court’s intent to impose a
sentence beyond the maximum non-extended term.” See People v. Taylor, 368 Ill. App. 3d
703, 709, 859 N.E.2d 20, 26 (2006) (finding it was not necessary to remand the case after
finding the defendant had improperly been sentenced to an extended term where the record
established that the trial judge “intended to impose the maximum available sentence for each
conviction”).
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¶ 28 Here, defendant does not dispute the State’s argument on appeal, and we agree that the
record demonstrates an intention by the trial court to sentence defendant to the maximum
available sentence for both of his convictions. Therefore, as suggested by both parties, we
reduce defendant’s sentence for domestic battery to three years’ imprisonment.
¶ 29 B. Excessive Sentence
¶ 30 On appeal, defendant also argues that his sentence was excessive. He asserts that the
imposition of a sentence at the maximum aggregate term was not justified because he had no
prior felony convictions entered against him and had not previously been sentenced to a term
of imprisonment in the Illinois Department of Corrections (DOC). Defendant also maintains
that his case involved substantial mitigating factors, including a difficult upbringing, as well as
substance abuse and mental health issues. Further, he maintains that he was “not without
rehabilitative potential” and that imposition of the maximum aggregate sentence results in
sentences that are disproportionate to the nature of the offenses. Defendant asks this court to
exercise its authority and reduce his aggregate sentence to “somewhere lower in the
permissible one-to-six year aggregate” range or to remand for resentencing.
¶ 31 The Illinois Constitution provides that “[a]ll penalties shall be determined both according
to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11. “In determining an appropriate sentence, a
defendant’s history, character, and rehabilitative potential, along with the seriousness of the
offense, the need to protect society, and the need for deterrence and punishment, must be
equally weighed.” (Internal quotation marks omitted.) People v. Lawson, 2018 IL App (4th)
170105, ¶ 33, 102 N.E.3d 761. “[A] defendant’s rehabilitative potential and other mitigating
factors are not entitled to greater weight than the seriousness of the offense.” People v. Shaw,
351 Ill. App. 3d 1087, 1093-94, 815 N.E.2d 469, 474 (2004). Further, “[t]he existence of
mitigating factors does not require the trial court to reduce a sentence from the maximum
allowed.” People v. Pippen, 324 Ill. App. 3d 649, 652, 756 N.E.2d 474, 477 (2001). On review,
“[t]he sentence imposed by the trial court is entitled to great deference and will not be reversed
*** absent an abuse of discretion.” People v. McGuire, 2017 IL App (4th) 150695, ¶ 38, 92
N.E.3d 494.
¶ 32 In this case, defendant was convicted of domestic battery and violation of an order of
protection, both of which were Class 4 felonies due to defendant’s prior conviction for
violating an order of protection. 720 ILCS 5/12-3.2(b), 12-3.4(d) (West 2014). The applicable
sentencing range for both offenses was one to three years in prison. 730 ILCS 5/5-4.5-45(a)
(West 2014). Additionally, under the Code, a trial court was permitted to impose consecutive
terms of imprisonment on the following basis:
“If, having regard to the nature and circumstances of the offense and the history and
character of the defendant, it is the opinion of the court that consecutive sentences are
required to protect the public from further criminal conduct by the defendant, the basis
for which the court shall set forth in the record.” Id. § 5-8-4(c)(1).
¶ 33 As stated, the record reflects the trial court intended to impose the maximum allowable
sentence for both of defendant’s convictions. The State contends that although the court erred
in sentencing defendant to an extended-term sentence for domestic battery, it did not otherwise
abuse its discretion in imposing the maximum allowable sentence. We agree with the State.
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¶ 34 Here, the record reflects the trial court considered all of the relevant factors when imposing
defendant’s sentences and that it explicitly referenced defendant’s age, education, and work
history as evidence in mitigation. Nevertheless, the court’s judgment indicates that it found
aggravating factors and the seriousness of the offenses outweighed the mitigating evidence,
and we can find no error in that determination.
¶ 35 On appeal, defendant attempts to minimize his criminal history by pointing out that he had
no previous felony convictions and that he had never been sentenced to DOC. However, we
agree with the court’s characterization of his criminal history as “substantial.” Defendant had
numerous convictions for traffic-related offenses, as well as convictions for the offenses of
criminal damage to property, violation of an order of protection, driving under the influence of
drugs, and on two occasions, resisting a peace officer. Further, while defendant had no
technical felony conviction in his past, he had either pleaded guilty or been found guilty of the
felony offense of theft, for which he received a sentence of second chance probation.
Defendant was on probation at the time he committed the offenses at issue and a petition to
revoke his probation was pending in his theft case.
¶ 36 Additionally, defendant ignores evidence showing that over a period of approximately six
years, he was the subject of 12 requests by 10 different women for orders of protection or no
contact orders. For 9 of those requests, plenary orders were ultimately entered. Like the trial
court, we find this evidence significant as it speaks to defendant’s character, rehabilitative
potential, and the issue of deterrence. Further, we note that the State presented evidence at
sentencing that indicated defendant continued to contact and threaten the victim in this case
after the December 2015 incident and after charges had been filed against him. In particular,
Meadows testified he answered a call on Dawkins’s phone and was able to identify the caller as
defendant from speaking with defendant in the past. According to Meadows, defendant
threatened both him and Dawkins. Further, although defendant appeared to accept
responsibility for his actions at sentencing, the presentence investigation report indicated
otherwise, showing that defendant stated the “ ‘present offense ha[d] been blown out of
proportion’ ” and “ ‘that it was entrapment.’ ”
¶ 37 Finally, contrary to defendant’s assertions on appeal, we do not find the court’s sentence
was disproportionate to the nature of the offense. Defendant argues on appeal that the only
physical injury to Dawkins was slight bruising to her upper arms. Nevertheless, evidence
presented by the State at trial demonstrated that defendant forced his way into Dawkins’s
residence and, over a 1½- to 2-hour period, threatened her and another individual in the home
and took her keys and cell phone. According to the State’s evidence, defendant repeatedly hit
Dawkins on the face, grabbed her by her arms, and threw her to the ground.
¶ 38 As set forth above, the trial court erred in imposing an extended-term sentence in
connection with defendant’s domestic battery conviction. However, the record reflects the
court’s intent to sentence defendant to the maximum sentence allowable for both of his
convictions, and given the evidence presented, we can find no abuse of discretion in that
determination.
¶ 39 C. Monetary Credit
¶ 40 On appeal, defendant lastly contends that he was entitled to $475 in monetary credit toward
his fines for the 95 days he spent in custody prior to being sentenced. He argues that the trial
court imposed fines in excess of that amount and, although the court awarded him $475 in
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monetary credit in its oral ruling, the credit was not properly reflected on the court’s written
sentencing orders.
¶ 41 Pursuant to section 110-14(a) of the Code of Criminal Procedure of 1963 (725 ILCS
5/110-14(a) (West 2014)), “[a]ny person incarcerated on a bailable offense who does not
supply bail and against whom a fine is levied on conviction of such offense shall be allowed a
credit of $5 for each day so incarcerated upon application of the defendant.” “However, in no
case shall the amount so allowed or credited exceed the amount of the fine.” Id.
¶ 42 Here, the parties do not dispute that when setting forth its oral ruling, the trial court found
defendant entitled to 95 days’ presentence credit, as well as “credit for $475 for time spent in
custody.” There is also no dispute that the court entered written orders, titled “ORDER FOR
FINES” and “SUPPLEMENTAL SENTECING ORDER IMPOSING FINES,” which set forth
fines in excess of that amount. However, neither of the court’s written orders as to fines, nor its
written sentencing judgment, set forth defendant’s entitlement to monetary credit.
¶ 43 We note that a court’s oral pronouncement controls over a conflicting written order. People
v. Roberson, 401 Ill. App. 3d 758, 774, 927 N.E.2d 1277, 1291 (2010). Additionally, a claim
for monetary credit under section 110-14 “may be raised at any time and at any stage of court
proceedings, even on appeal.” People v. Caballero, 228 Ill. 2d 79, 88, 885 N.E.2d 1044, 1049
(2008). Accordingly, as the record reflects defendant’s entitlement to section 110-14 credit, we
direct the trial court to modify its written fine orders to conform with its oral ruling to reflect
defendant’s entitlement to $475 in monetary credit for his presentence incarceration.
¶ 44 III. EPILOGUE
¶ 45 On appeal, the Office of the State Appellate Defender (OSAD) has filed a “motion to
expedite decision and for immediate issuance of the mandate.” It references the State’s
concession in its appellee’s brief that defendant was not eligible for an extended-term sentence
for domestic battery and asserts that “[i]n the interests of justice, it is imperative that
[defendant’s] appeal be resolved and his sentence be reduced as expeditiously as possible.”
OSAD continues, stating “[e]ach day that passes without a reduction in the sentence increases
the likelihood that [defendant] will spend unwarranted time in prison during the pendency of
this litigation.” We agree that in cases like this, where a defendant’s prison sentence must be
reduced and he faces the prospect of serving time in excess of the revised term of years, it is
incumbent on all parties to be diligent in their work and make every effort to avoid or limit
such possible deleterious consequences. Here, however, the urgency OSAD notes in its
“motion to expedite decision” is one that it alone created.
¶ 46 The record shows the parties were aware of the trial court’s mistake in ordering an
extended-term sentence for defendant’s domestic battery conviction as they sought to explain
that mistake to the court during the hearing on defendant’s motion to reconsider sentence on
July 7, 2016. The same day, defendant filed his notice of appeal and OSAD was appointed to
represent him. However, notwithstanding that a clear mistake had been made by the court
when sentencing defendant, OSAD did not file its initial brief in this court until May 9, 2018,
22 months after defendant’s appeal was filed. We do not understand the reason for, nor do we
condone, this delay by OSAD. The State subsequently filed its brief on September 20, 2018,
and defendant filed his reply brief on October 10, 2018. Defendant then filed his “motion to
expedite decision” on December 3, 2018. In the motion to expedite, OSAD suggests that upon
reduction of his sentence from nine years to six years, defendant’s “new out-date will be
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January 28, 2019.” We have made an effort to expedite our decision in this case. However,
there is simply no justification for OSAD to have let defendant’s appeal, which held obvious
merit, lay dormant for almost two years. We are not unmindful of the tremendous workload
faced by OSAD and are appreciative of the generally high-quality representation its attorneys
provide defendants throughout this state. Nevertheless, a mechanism for the early
identification of appeals such as this, which have obvious merit and require remedial action be
taken to avoid unwarranted incarceration of a defendant, is overdue.
¶ 47 IV. CONCLUSION
¶ 48 For the reasons stated, we reduce defendant’s sentence for domestic battery to the
maximum nonextended term of three years’ imprisonment and remand with directions that the
trial court modify its written order setting forth imposed fines to conform with its oral ruling
and show defendant’s entitlement to section 110-14(a) monetary credit. We otherwise affirm
the trial court’s judgment. The mandate shall issue immediately, but we retain jurisdiction for
the filing in due course of Justice Steigmann’s special concurrence.
¶ 49 Affirmed as modified and remanded with directions.
¶ 50 JUSTICE STEIGMANN, specially concurring:
¶ 51 I. BACKGROUND AND ANALYSIS
¶ 52 I fully agree with the majority but write this special concurrence only to highlight that the
problem with OSAD’s representation—namely, the lack of any triage procedure regarding
new cases to which OSAD has been appointed—has existed for decades. The time is long
overdue for OSAD to recognize this problem and change its practices so that the injustice that
almost occurred in this case—and others—is not repeated.
¶ 53 I, too, agree that OSAD normally does an excellent job representing its clients. However,
an unusual case occasionally arises that should not be handled in a routine matter. The present
case is one, and an earlier case dealt with by this court, People v. Shakirov, 2017 IL App (4th)
140578, is another. What these cases have in common is that both of these
defendants—Richard Cisco in the present case and Mansur Shakirov in the earlier
case—needed to have their appeals expedited to avoid injustice. Fortunately, this court was
able to expedite our handling of Cisco’s case and take the unusual step of issuing our mandate
early—without the State’s objection—so that Cisco would not be kept in prison because of an
inappropriate sentence.
¶ 54 However, Shakirov was not so fortunate and suffered a true injustice when this court
reversed his conviction after we concluded that the State failed to prove him guilty of reckless
homicide beyond a reasonable doubt. That ruling occurred only after he had already served his
prison sentence on the conviction this court reversed. That should never have happened.
¶ 55 A. The Shakirov Case
¶ 56 The OSAD attorney who wrote the brief to this court on Shakirov’s behalf did an excellent
job. That brief was very helpful to this court in our coming to a full understanding of that
complicated case. Unfortunately—and due to no fault of the OSAD attorney—Shakirov’s case
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was not briefed in a timely manner, with the result that he served his prison sentence on a
conviction that this court reversed.
¶ 57 1. The Procedural History of the Shakirov Case
¶ 58 In 2014, the trial court sentenced Shakirov to four years in prison on his reckless homicide
conviction. Later that month, the court denied Shakirov’s motion to reconsider sentence and
appointed OSAD to represent him on appeal. On July 9, 2014, OSAD sent a letter to the
McLean County circuit clerk, informing that office that OSAD had been appointed to represent
defendant and requesting the preparation of the record on appeal. On August 29, 2014, the
McLean County circuit clerk filed the common-law record and the report of proceedings with
this court.
¶ 59 According to Illinois Supreme Court Rule 343(a) (eff. July 1, 2008), “[T]he brief of the
appellant shall be filed in the reviewing court within 35 days from the filing of the record on
appeal.” Thus, Rule 343(a) required OSAD to file its brief on Shakirov’s behalf by October 3,
2014. Instead, OSAD took no court action in his case until June 20, 2016, when it made a
motion in this court for leave to file appellant’s brief instanter, which this court allowed. Thus,
OSAD filed Shakirov’s brief 20½ months after its initial due date. Meanwhile, Shakirov began
his four-year prison sentence on June 3, 2014, and was released on mandatory supervisory
release (MSR) on November 13, 2015. His then-projected MSR discharge date was November
13, 2017.
¶ 60 Under the circumstances of Shakirov’s case, OSAD’s delay in filing his brief was
unconscionable.
¶ 61 An experienced and competent appellate lawyer should have been able to quickly review
portions of the record in the Shakirov case and recognize it had some unusual features that
required closer examination. For example, the presentence report showed Shakirov appeared
as directed in the McLean County circuit court from his residence in Spokane, Washington,
after posting bond and had no prior criminal record of any kind. Additionally, a review of
closing arguments at trial would have revealed a serious question of whether the State’s case
contained any evidence that defendant “consciously disregarded a substantial and unjustifiable
risk” so as to justify his conviction for reckless homicide.
¶ 62 Had a triage procedure been employed in the Shakirov case, OSAD likely would
have—and should have—filed Shakirov’s brief in this court far in advance of when it actually
did, and perhaps OSAD might even have filed a motion for bail pending appeal. In any event,
had OSAD filed its brief in a timely fashion, there is every reason to believe that Shakirov
would have been released from prison before serving 17 months on a conviction that this court
ultimately reversed.
¶ 63 2. OSAD’s Explanation
¶ 64 From conversations I have had over the years with both lawyers and administrators of the
Fourth District OSAD office, the delay in the Shakirov case appears due to OSAD’s policy of
placing newly filed appeals at the bottom of OSAD’s “to-do list” and working on a brief in a
particular case only when that case, over time, has risen to the top of the list. In other words,
OSAD follows a “first-in, first-out” procedure regarding its appointments to represent indigent
defendants on appeal.
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¶ 65 In response to my inquiries, as well as those of some of my Fourth District colleagues,
OSAD’s administration indicated that it employs no triage procedure, wherein an OSAD
lawyer would review a case once the record on appeal had been filed to determine whether it
should be given a higher priority for the preparation of briefs and, perhaps, even the filing of a
motion for bail pending appeal. The OSAD administration has explained that, in its opinion,
such a procedure would take too much time and OSAD does not have the necessary staff to
perform it.
¶ 66 I emphatically reject OSAD’s explanations and deem what happened to Shakirov (and
almost happened to Cisco) to be a gross injustice. And I wish to emphasize that the Shakirov
and Cisco cases are hardly exceptional; they are merely two of the most recent examples of the
harm OSAD’s failure to use triage procedures has caused. During my 30 years on the Fourth
District Appellate Court, I have seen far too many similar cases.
¶ 67 3. Potential Triage Procedures
¶ 68 An appropriate triage procedure would require an OSAD attorney to review the record on
appeal when filed to determine whether the case had any unusual features, such as (like
Shakirov’s case) a short prison sentence that a defendant would likely serve if the case were
not given higher priority or any unusual factual circumstances or legal issues that would
suggest (1) it was not a run-of-the-mill case and (2) it needed to be advanced on the “to-do
list.” Examples of such circumstances might be strong legal arguments that would warrant
reversal or compelling evidence that the defendant is actually innocent.
¶ 69 In conducting such a review when the record on appeal first comes across his or her desk,
an experienced appellate lawyer could review specific portions of the record on appeal, such as
filings in the common-law record (like the charging instrument and any motions to suppress, or
motions in limine), the defendant’s posttrial motion, the trial court’s docket sheet, and perhaps
the closing arguments of counsel. The attorney would thereby get a sense of whether the case
being reviewed is unusual, meriting giving that case a higher priority than other, routine
matters.
¶ 70 I do not believe that an OSAD triage procedure need be unduly time-consuming. Indeed, it
should be fairly easy to determine that a given case need not be given a higher priority because
an attorney could conclude that the case is relatively routine or lacks merit.
¶ 71 4. This Court’s Lack of Scrutiny of OSAD’s Motions to Continue
¶ 72 Perhaps this court deserves some of the blame for the injustice suffered by Shakirov and
almost suffered by Cisco. That is, this court established the policy by which we trusted OSAD
to handle the cases assigned to it in a competent and timely manner. It appears we were
mistaken to do so.
¶ 73 Although OSAD (to its credit) has generally done an excellent job writing briefs on behalf
of indigent appellants, OSAD’s failure to employ a triage procedure is something this court has
been aware of for some time and has not previously addressed, except in informal discussions
with OSAD’s administration. Thus, we have permitted OSAD, as in the Shakirov case, to
ignore deadlines under Rule 343(a) for the filing of its briefs and to instead (again, as in the
Shakirov case) file its brief when ready with a motion for leave to do so instanter.
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¶ 74 B. OSAD Needs to Employ a Triage Procedure
¶ 75 In the event that OSAD continues to be unwilling (for whatever reason) to employ a triage
procedure as described herein, then this court may be forced to require the OSAD
administration to appear in person to move for any extensions of time. We could then require
this appearance before a panel of this court that is otherwise present on a date set for oral
argument and require the OSAD administrator (1) to speak in support of the motion for
continuance OSAD has filed and (2) to respond to the court’s questions regarding what, if
anything, OSAD has done regarding that particular case, so as to avoid repeating the
unconscionable circumstances of the Shakirov case. We could also require that motions for
continuance include the defendant’s sentence and his likely release date on MSR.
¶ 76 Like my colleagues, I do not like that OSAD takes so long to file its briefs, and I think they
could and should be doing so more quickly. However, I do not see how this court can
meaningfully force them to do so. Nevertheless, this court can and should take steps to strongly
encourage OSAD to engage in a triage procedure. I think the OSAD administrators would soon
discover that it would be easier and less time-consuming to engage in a triage procedure (as I
have described it in this special concurrence) than it would be to appear in person before our
court and explain what steps, if any, OSAD had taken so we can ensure that what almost
happened in this case and what did happen in the Shakirov case never happens again. Adopting
a triage procedure would also prove to be much less unpleasant.
¶ 77 II. CONCLUSION
¶ 78 I enthusiastically reiterate the point the majority made in this case: “[T]here is simply no
justification for OSAD to have let defendant’s appeal, which held obvious merit, lay dormant
for almost two years. *** [A] mechanism for the early identification of appeals such as this,
which have obvious merit and require remedial action be taken to avoid unwarranted
incarceration of a defendant, is overdue.” (Emphasis in original.) Supra ¶ 46.
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