The opinion of the court was delivered by: Justice Doyle delivered the opinion of the court:
Appeal from the Circuit Court of Du Page County.
Honorable Ronald B. Mehling, Judge, Presiding.
In August 1992, petitioner, Ronald Tonaldi, was convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)(2) (now 720 ILCS 570/401(c)(2) (West 1996))) and sentenced to seven years' incarceration. He was released on an appeal bond in August 1992. In October 1993 this court affirmed petitioner's conviction and sentence, and petitioner then petitioned for leave to appeal to the Illinois Supreme Court. The supreme court denied petitioner's petition and issued its mandate to this court in February 1994. On March 25, 1994, this court issued its mandate, which was filed in the trial court on March 28, 1994. Petitioner's attorney informed petitioner that he had lost his appeal and that the case had been sent back to the circuit court. On January 30, 1996, the State filed a motion requiring petitioner to appear and surrender.
Petitioner filed a petition for relief under the Habeas Corpus Act (735 ILCS 5/10--124(2) (West 1994)), asserting that, during the 22-month delay from the issuance of the appellate court's mandate until the State moved to "spread the mandate of record" before the trial court, substantial changes had occurred in his life. Therefore, requiring him to serve a prison sentence would result in a denial of his rights of due process of law. After an evidentiary hearing, the trial court denied the petition. This appeal ensued.
On appeal, petitioner contends that (1) the trial court erred in denying his habeas corpus petition and (2) alternatively the trial court should have granted petitioner's motion for credit toward his sentence of imprisonment for the time that elapsed between the date the appellate court's mandate was filed with the circuit court clerk and the date on which the State filed its motion for petitioner to appear and surrender.
In his first contention petitioner argues that the trial court's denial of his petition for habeas corpus relief was erroneous, as a 22-month delay between the time of the filing of the appellate court's mandate in the circuit court and the State's motion for petitioner to appear and surrender on his appeal bond was unreasonable. Petitioner acknowledges that any delay that occurs once the appellate court mandate is spread of record in the circuit court is attributable to him, not the State (Walker v. Hardiman, 116 Ill. 2d 413, 423 (1987)), but maintains that the mandate is not spread of record until the State affirmatively moves to place a defendant's case on the trial court's call. Thus, petitioner asserts, the 22-month delay that occurred in the present case was chargeable to the State and not to petitioner. Petitioner further asserts that because he experienced substantial character and life changes during the delay the trial court erred in ordering him to serve his prison sentence. To support his contention, petitioner relies on People ex rel. Millet v. Woods, 55 Ill. 2d 1 (1973) and People v. Ripa, 115 Ill. App. 3d 1 (1983). Both cases establish that the reasonableness of a delay and adequacy of its explanation must rest upon an examination of the circumstances of each case.
In Millet, our supreme court determined that the unexplained passage of five years between the filing of the supreme court's mandate in the appellate court and the filing of the appellate court's mandate in the circuit court constituted an "extraordinary circumstance." 55 Ill. 2d at 4. During that period of time, the defendant had led a law-abiding and productive life, which included the assumption of the obligations of custody and support for his two minor children following the death of his estranged wife. Also, at the time the supreme court issued its mandate (in 1965) to the appellate court, the established local practice in Cook County was for the State to request the issuance of the appellate court mandate and move it be spread of record in the circuit court. 55 Ill. 2d at 5. Based on these factors, the court concluded that the defendant's incarceration at such a late date would serve neither the principles of fundamental Justice nor the defendant's rehabilitation. The court affirmed the judgment releasing the defendant from custody pursuant to his petition for habeas corpus relief. 55 Ill. 2d at 5.
In the present case, unlike Millet, the appellate court mandate was promptly filed in the circuit court, and petitioner was aware that the mandate had issued and that he had lost his appeal.
In Ripa, the defendant's drug convictions were affirmed by this court, and the mandate was filed in the circuit court on July 9, 1980. 115 Ill. App. 3d at 1. The defendant's attorney informed him of the appeal's outcome and told the defendant he would receive a letter advising him when to surrender to complete his sentence. The defendant never received the letter. On January 27, 1982, the State filed a motion in the trial court for an order directing the defendant to surrender in court to commence serving his sentence. 115 Ill. App. 3d at 2. The defendant filed a petition for habeas corpus relief, alleging that substantial changes had occurred in his life, that requiring him to serve his sentence after an 18½-month delay between the issuance of the mandate and the order to surrender was prejudicial, and that he was entitled to discharge. The trial court granted the relief requested, and this court affirmed.
Relying on Millet, we determined that the State had not offered any explanation for the 18½-month delay and had not sought to rebut the evidence the defendant had presented at the hearing on his petition that during the delay he had changed his life-style and become a responsible, law-abiding citizen. Ripa, 115 Ill. App. 3d at 5. The defendant's evidence had shown that he had worked for the same employer for five years and that the employer considered the defendant one of his finest employees; that the defendant had lived at the same address for two years; that he had married, and his wife was pregnant; that his wife's father and sister had died, resulting in psychological treatment for both the wife and her mother; that the defendant was very supportive, had taken the mother into his home, and had handled family matters; and that the defendant had not been arrested or in any trouble since the 1976 charges for which he was sentenced. We also noted that the State had not asserted that the defendant had an independent obligation to surrender himself under the terms of the appeal bond. We further noted that, on the advice of his attorney, the defendant had waited to be notified by the State to surrender and that such notification was apparently local practice.
As in Ripa, according to the affidavit of petitioner's attorney, it was apparently a local practice in the present case for a defendant to wait for notification by the State to surrender. Unlike Ripa, however, here the State did assert that petitioner had an independent obligation to surrender himself under the terms of his appeal bond. That obligation was specifically set forth on the appeal bond signed by petitioner. It stated:
"In consideration of the said principal's release, the undersigned as principal and surety, ...