
                             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

_________________________________________________________________



     JUSTICE SLATER delivered the opinion of the court:

_________________________________________________________________



     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.



