Illinois Official Reports 

Appellate Court

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

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

RICHARD D. CISCO, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-16-0515

Filed January 28, 2019

Decision Under 

Review

Appeal from the Circuit Court of Champaign County, No. 16-CF-70; 

the Hon. Thomas J. Difanis, Judge, presiding.

Judgment Affirmed as modified and remanded with directions.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Stephen L. Gentry, of State 

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. 
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 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 11⁄2- 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 201⁄2 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.