                                   2019 IL App (4th) 160515                       FILED
                                                                                 January 28, 2019
                                        NO. 4-16-0515                              Carla Bender
                                                                               4th District Appellate
                                IN THE APPELLATE COURT                               Court, IL

                                         OF ILLINOIS

                                     FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,           )     Appeal from the
           Plaintiff-Appellee,                 )     Circuit Court of
           v.                                  )     Champaign County
RICHARD D. CISCO,                              )     No. 16CF70
           Defendant-Appellant.	               )
                                               )     Honorable
                                               )     Thomas J. Difanis,
                                               )     Judge Presiding.
______________________________________________________________________________

              JUSTICE HARRIS delivered the judgment of the court, with opinion. 

              Justice Knecht concurred in the judgment and opinion. 

              Justice Steigmann specially concurred, with opinion to follow. 


                                           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


                                               -2­
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

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


                                                   -3­
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


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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.

¶ 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


                                               -5­
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 nine of those requests, plenary orders of protection or plenary stalking no contact

orders were ultimately entered against defendant. Of the remaining three 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


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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.

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


                                                -7­
               (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.


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¶ 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

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


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                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


                                                - 10 ­
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”).

¶ 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


                                                - 11 ­
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


                                               - 12 ­
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.

¶ 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


                                              - 13 ­
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 nine 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


                                                  - 14 ­
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 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


                                                - 15 ­
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


                                               - 16 ­
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 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


                                               - 17 ­
¶ 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.




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