No. 3--94--0600
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
JOHNNY HENDON, ) Appeal from the Circuit Court
) for the 10th Judicial Circuit
Petitioner-Appellant, ) Peoria County, Illinois
)
v. ) No. 72--CF--4290
)
ILLINOIS DEPARTMENT OF )
CORRECTIONS, ) Honorable
) Robert Cashen
Respondent-Appellee. ) Judge, Presiding
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JUSTICE SLATER delivered the opinion of the court:
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The petitioner, Johnny Hendon, filed a petition for habeas
corpus against the respondent, Illinois Department of Corrections
(IDOC). The petitioner argued that he should be discharged from
his sentence of incarceration because an unreasonably long time
had elapsed between his conviction and the imposition of
sentence. The trial court denied the petition. We affirm.
The petitioner was convicted of rape. On August 23, 1973,
he was sentenced to serve not less than 4 years nor more than 20
years in prison. He appealed his conviction. During the
pendency of the appeal, on December 11, 1974, the petitioner was
released on an appeal bond.
This court affirmed the petitioner's conviction on
November 28, 1975, (People v. Hendon, 33 Ill. App. 3d 745, 338
N.E.2d 472 (1975)), and the Illinois Supreme Court denied his
petition for leave to appeal on March 25, 1976. The appellate
court's mandate was issued on April 19, 1976, and was filed by
the Peoria County Circuit Clerk's Office the following day.
No further action was taken on this matter until February 8,
1982, when the petitioner's appeal bond was returned to him. On
October 6, 1989, the State filed a motion requesting that the
petitioner be directed to report to the Peoria County Jail for
transport to IDOC. A warrant for the petitioner's arrest was
issued on October 11, 1989. However, he was not taken into
custody until August 8, 1991. He was released on bond until
September 5, 1991, when he was remanded to IDOC to serve the
remainder of his sentence.
On October 20, 1992, the petitioner filed the instant
petition for habeas corpus. In his petition, he claimed that he
should be released from prison because the delay in taking him
into custody waived the State's right to lawfully incarcerate
him. Thereafter, the State filed a motion to dismiss the peti-
tion.
When no action had been taken on his habeas petition by July
1994, the petitioner filed a petition for writ of mandamus
seeking to force the circuit court to act. He alleged that the
unreasonable delay between his conviction and the imposition of
sentence entitled him to discharge. On July 7, 1994, the circuit
court dismissed the petitioner's petition for writ of mandamus
and denied his habeas petition.
On appeal, the petitioner contends that the trial court
erred in summarily dismissing his habeas petition. He claims
that he was entitled to an evidentiary hearing to determine: (1)
whether he received notice of the issuance of the appellate
court's mandate; and (2) whether his due process rights were
violated by the lengthy delay.
A defendant released on an appeal bond has a duty to remain
apprised of the status of his appeal. People v. Santos, 146 Ill.
App. 3d 818, 497 N.E.2d 374 (1986). Once the mandate of the
appellate court has been issued, it is incumbent upon the defen-
dant to surrender himself to serve his sentence. Walker v.
Hardiman, 116 Ill. 2d 413, 507 N.E.2d 849 (1987); Crump v. Lane,
117 Ill. 2d 181, 510 N.E.2d 893 (1987).
In the case at bar, the lengthy delay between the
defendant's conviction and his incarceration was not caused by
any failure on the part of the State. The delay was caused by
the defendant's failure to keep abreast of developments in his
case and to turn himself over to authorities upon the issuance of
the appellate court mandate. Consequently, we hold that the
trial court properly denied his petition for habeas corpus.
The judgment of the circuit court of Peoria County is
affirmed.
Affirmed.
MICHELA, J., concurs.
PRESIDING JUSTICE HOLDRIDGE, dissenting:
I respectfully dissent. The petitioner maintains on appeal
that his petition for habeas corpus should not have been denied
without an evidentiary hearing to determine whether he had
received notice of the issuance of the mandate of the appellate
court denying the appeal of his conviction. I agree, and would
reverse the trial court and remand for a hearing to determine
whether the petitioner or his attorney received notice of the
issuance of the appellate court's mandate.
An unreasonable delay between the pronouncement and
imposition of sentence may be a circumstance warranting the
release of a habeas corpus petitioner. People ex rel. Millet v.
Woods, 55 Ill. 2d 1 (1973), citing, People ex rel. Powers v.
Shattuck, 274 Ill. 491 (1916). It is well-settled, however, that
once the mandate of the appellate court has been issued, and
spread of record in the circuit court, any ensuing delay in the
petitioner serving his sentence is attributable to him. Walker
v. Hardiman, 116 Ill. 2d 413 (1987); Crump v. Lane, 117 Ill. 2d
181 (1987).
The petitioner maintains that implicit in the Walker and
Crump holdings is a requirement that he or his attorney receive
notice that the mandate was issued and spread of record. I
agree. In Walker, the our supreme court stated:
"We also believe that our decision in this case
will now make it clear that once the State moves
to have the appellate court mandate spread of
record in the circuit court, and the defendant is
so notified, any delay in surrendering will be
attributable to the defendant." (Emphasis added.)
Walker, 116 Ill. 2d at 424.
Likewise, the Crump court expressly followed the language
from Walker:
"Thus, as we held in Walker, the appellate court
mandate having been spread of record in the
circuit court promptly after the denial of Crump's
petition for leave to appeal and Crump's attorney
having been notified, the ensuing delay in Crump's
incarceration was chargeable to him and not the
State." (Emphasis added.) Crump, 117 Ill. 2d at
185.
I also note that the Walker court discussed with approval
People ex rel. Rogers v. Elrod, 35 Ill. App. 3d 26 (1975) wherein
the court framed the issue before it as:
"[W]hether counsel for petitioner and the
petitioner, who had been admitted to bail, had
notice of the issuance of the mandate so as to
have established an affirmative duty on petitioner
to surrender in compliance with section
110-10(b)(5) of the Code of Criminal
Procedure***." Rogers, 35 Ill. App. 3d at 27.
In the matter sub judice, the mandate was issued from the
appellate court to the circuit court of Peoria County on April
19, 1976. On April 20, 1976 the mandate was filed in the circuit
court. The record does not establish, however, whether the
petitioner or his attorney received notice of the issuance of the
mandate so as to have established his duty to surrender himself
without further notice. In order to properly rule on the
petitioner's petition for habeas corpus, the trial court must
take evidence and make a factual determination as to whether the
petitioner or his attorney was notified of the issuance of the
mandate.
For the foregoing reasons, I respectfully dissent.