People v. Tonaldi

No. 3--97--0375
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Du Page County.
)
Respondent-Appellee, ) No. 91--CF--604
)
v. )
)
RONALD F. TONALDI, ) Honorable
) Ronald B. Mehling,
Petitioner-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:
In August 1992, petitioner, Ronald Tonaldi, was convicted of
possession of a controlled substance with intent to deliver (Ill.
Rev. Stat. 1989, ch. 56«, 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 18«-
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 18«-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, respectively, covenant
and agree:
***
2. That the said principal shall

***
F. If the judgment is affirmed or the cause reversed
and remanded for a new trial, forthwith surrender
to the officer from whose custody he/she was
released."
In signing the appeal bond petitioner accepted this obligation.
Moreover, pursuant to statute, petitioner was obligated to
surrender once the judgment against him was affirmed. As pointed
out by our supreme court in Walker v. Hardiman, 116 Ill. 2d 413
(1987) and Crump v. Lane, 117 Ill. 2d 181 (1987), a defendant
admitted to bail is required, pursuant to the conditions of bail
set out in section 110--10(f)(5) of the Code of Criminal Procedure
of 1963 (Code) (725 ILCS 5/110--10(f)(5) (West 1994)), to surrender
forthwith upon the affirmance of the judgment against him. He
cannot avoid serving his sentence by claiming that the State failed
to notify him when he should surrender (Crump, 117 Ill. 2d at 185;
Walker, 116 Ill. 2d at 424), as he has a duty to remain apprised of
the status of his appeal (People v. Santos, 146 Ill. App. 3d 818,
822-23 (1986)).
In Walker, the supreme court considered the factual scenario
presented in Ripa but rejected the contention that delay occurring
after the mandate was "spread of record" in the circuit court could
be regarded as having been caused by the State. The supreme court
made clear that the distinguishing infirmity in Millet which led to
the court's charging the State with the delay was the extraordinary
circumstance that the mandate had not reached the circuit court, in
part due to the State's lack of diligence in complying with a Cook
County local practice of requesting the issuance of the appellate
court mandate. Here, as we have already noted, the appellate court
mandate was promptly filed in the circuit court.
Citing no authority for his position, petitioner now contends
that the appellate court's mandate, although promptly filed in the
circuit court with his knowledge, was legally impotent to trigger
his statutory and contractual duty to surrender upon the affirmance
of his conviction because the State failed to move affirmatively to
spread the mandate of record. We disagree.
Supreme Court Rule 369(b) provides:
"When the reviewing court dismisses the appeal or affirms
the judgment and the mandate is filed in the circuit court,
enforcement of the judgment may be had and other proceedings
may be conducted as if no appeal had been taken." (Emphasis
added.) 134 Ill. 2d R. 369(b).
Considering that section 110--10(f)(5) of the Code
specifically states that a defendant admitted to bail shall
forthwith surrender upon the affirmance of the judgment against
him, we reject petitioner's contention that he had no duty to
respond until the State filed a motion to spread the mandate of
record. We recognize that the phrase "spread of record" has been
used by courts in varying contexts. For example, the supreme court
in Walker observed that the appellate court's mandate in the Ripa
case was "spread of record in the circuit court" on July 9, 1980.
116 Ill. 2d at 422. This court in Ripa reported only that the
mandate was filed in the circuit court on that date. Arguably, the
supreme court equated filing with spreading of record.
In any event, recognizing that local practices may vary
somewhat in procedures following the affirmance of convictions, it
is sufficient for our resolution of the present case to know that
the mandate had been promptly filed in the circuit court and that
petitioner had actual knowledge of the status of his case. Under
these circumstances, consistent with the reasoning in Walker, we
conclude that petitioner's delay in surrendering cannot be
attributed to inaction by the State. Although we agree with the
statement in Santos that a defendant has a duty to remain apprised
of the status of his appeal (146 Ill. App. 3d at 822-23), it is
unnecessary here to address the effect of the filing of a mandate
where the defendant may have been unaware of the status of his
case.
Even if we were to conclude that the delay in the
implementation of petitioner's sentence was not caused by his own
omission, we would not find that the facts presented here warrant
discharging the judgment under principles of due process. The
present case is primarily distinguishable from Ripa because, unlike
the defendant, there, the petitioner, here, did not experience
substantial changes in his character or life-style during the 22-
month delay in question. At the hearing on his petition,
petitioner testified that he was self-employed, as he always had
been, managing some property he owned, although he said he had a
promise of employment with Pepper Water Beds and at McCormick
Place. Petitioner also testified that he had had no further
arrests or trouble with the law since his arrest in March 1991.
Carol Musurlian, the woman with whom petitioner had lived for
over 20 years, testified that "to her knowledge" petitioner had had
no further arrests. According to Musurlian, she had never seen him
use, handle, or be under the influence of drugs since his arrest.
She admitted, however, that prior to petitioner's arrest, she also
had never seen any drugs or drug paraphernalia in their home.
Petitioner's daughter, Christina LoBrillo, testified to the
emotional and financial support petitioner had provided her and her
daughter during LoBrillo s bout with cancer in 1995. LoBrillo
admitted, however, that although petitioner was a tremendous help
to her during her illness, his behavior toward her during her
cancer was no different from that which he had displayed during her
entire life. According to LoBrillo, petitioner always had taken
good care of her, had given her money when she needed it, and had
had a close relationship with her daughter.
LoBrillo testified that she had experienced no recurrence of
her cancer since her 1995 surgery and radiation treatments. She
presently worked between 30 and 35 hours per week and drove herself
to work. The man she had lived with for 11 years worked full time
as a concrete laborer. Her daughter attended kindergarten and then
went to day-care each day following kindergarten. This testimony
established that LoBrillo no longer needed petitioner's financial
or emotional support. The fact that her cancer might return
someday was not a sufficient reason to release petitioner from
serving his sentence. As the trier of fact at a hearing on a
petition for habeas corpus relief, the trial judge is in a position
superior to the reviewing court to observe the conduct of the
witnesses while testifying, to determine their credibility, and to
weigh the evidence and determine the preponderance thereof. People
v. Cheek, 93 Ill. 2d 82, 94 (1982). Here, after hearing the
testimony of petitioner's witnesses and then comparing the facts of
the pertinent case law with the facts of the present case, the
trial judge found that petitioner's situation did not "reach the
extremes" of Ripa but was more similar to the defendant's situation
in People v. Bartlett, 123 Ill. App. 3d 172 (1984).
In Bartlett, we determined that during the 14-month delay
following the circuit court's receipt of this court's mandate, the
defendant s life-style had not changed as substantially as had the
defendant's in Ripa. In Bartlett, the facts showed that the
defendant's grandfather died and that the family consisting of his
mother, two sisters, and their children had to move out of the
grandfather's house and into an apartment; that the defendant s
mother, who was ill when the defendant was sentenced, was diagnosed
with cancer; that the defendant had held several different jobs but
was employed on a regular basis; and that his income went to
support his family. The defendant was aware that the mandate had
issued and that he had lost his appeal but was told by his attorney
that he was going to "take it up further." 123 Ill. App. 3d at
175. We determined that this statement did not equate with the
statement by Ripa's attorney that Ripa would receive a letter
notifying him when he should surrender. Also, we noted in Bartlett
that one of the statutory conditions of the defendant's bail, while
he appealed his conviction and sentence, was that if the judgment
was affirmed, he would forthwith surrender to the officer from
whose custody he was bailed. 123 Ill. App. 3d at 176. We
concluded that all these circumstances supported the trial court's
determination that the defendant was not entitled to discharge.
As in Bartlett, an examination of the circumstances in the
present case convinces us that the trial court properly denied
petitioner's petition for habeas corpus relief. Petitioner failed
to establish that he had substantially changed his character or
life-style.
Petitioner next contends that the trial court should have
granted his motion for credit for time spent at liberty during the
22-month delay. As the State points out, petitioner cites no
Illinois authority that supports his contention. Rather, he relies
on a federal case, Kiendra v. Hadden, 763 F.2d 69 (2d Cir. 1985).
We note first that decisions of the United States Court of Appeals
are not binding upon the state courts and are held to no more than
persuasive authority. People v. Qualls, 233 Ill. App. 3d 394, 397
(1992). Given the particular facts of Kiendra, however, we do not
consider it as persuasive authority for petitioner's position.
In Kiendra, while incarcerated in the Rhode Island State
penitentiary, the defendant was convicted in a federal court and
sentenced to three years' imprisonment. The defendant's sentence
was to commence when he was released from the sentence being served
in the state penitentiary. At the expiration of his state sentence
on September 16, 1981, federal marshals refused to take the
defendant into custody.
Shortly thereafter, the defendant was arrested on an unrelated
state charge and sentenced to a four-year prison term. Being aware
of the federal detainer, the court ordered that the defendant serve
his sentence in a federal penitentiary and that the sentence run
concurrently with his three-year federal sentence. The state court
notified the federal marshals, who again declined to take custody.
As a result, the defendant was placed in a state penitentiary.
Twice, while serving his sentence, the state court ordered the
defendant's immediate transfer to federal custody. Each time, the
marshals failed to implement the transfer. Not until the
completion of the defendant's state sentence did the federal
marshals take him into custody to begin serving the three-year
federal sentence.
The Kiendra court determined that, even though the federal
marshals failed to take custody, the defendant's federal sentence
began to run on September 16, 1981, when he was released from the
initial state sentence he had been serving. 763 F.2d at 73. The
court's determination was based in part on prior federal case law
holding that where a prisoner is discharged from a penal
institution, without any contributing fault on his part or
violations of the conditions of parole, his sentence continues to
run while he is at liberty. 763 F.2d at 73.
However, as pointed out by the court, another factor strongly
urged the result the court reached. That factor was that in
sentencing the defendant to a four-year term on his second state
conviction the state court intended that the four years should
overlap the federal sentence, and it specifically ordered that the
four-year sentence be served concurrently with the three-year
federal sentence. 763 F.2d at 73. The state court did not
contemplate that its four-year sentence would be served after the
federal sentence. Also, the federal court contemplated that its
sentence would follow immediately upon the first state sentence.
The Kiendra court concluded that, by refusing to take the defendant
into federal custody until after the completion of the second state
sentence, the federal marshals not only transformed the state
judge's concurrent sentence into a consecutive sentence but also
disregarded the order of the federal court. 763 F.2d at 73.
The court modified the defendant's three-year sentence so that
it commenced on September 16, 1981, the date he was originally
released from his first state sentence and scheduled to be
committed to the custody of the federal marshals. The court
determined that, as modified, the defendant's sentence had already
expired and therefore he should be released immediately from
prison. 763 F.2d at 73.
We agree with the State that Kiendra provides no support for
petitioner's petition, as it is both factually and legally
dissimilar to the case before us.
In the present case, it was petitioner's request for an appeal
bond that initiated his release from the mittimus during his appeal
from his conviction and seven-year sentence. Petitioner's
signature on the appeal bond evidenced his agreement, under the
terms of the bond, to surrender forthwith upon the affirmance of
the judgment against him. Petitioner testified at the hearing on
his habeas corpus petition that he knew in February 1994 that his
petition for leave to appeal to the supreme court had been denied
and that he knew in April 1994 that his case had been returned to
the trial court. Yet, upon the advice of his attorney as to "local
practice," petitioner did not surrender himself but elected to wait
for the State to notify him to surrender. Petitioner testified
that, if the State had never notified him, he did not know how long
he would have waited for notification. But, he stated, he had no
plans to return to court (on his own). Under these circumstances,
where it appears petitioner had no intention of surrendering on his
own and, therefore, of fulfilling the obligation of his bail and
the condition upon which he was released from jail, petitioner
should not be afforded credit for the time he remained at liberty.
He acquiesced in the delay of his return to court by not
surrendering.
We note, parenthetically, that petitioner's presentence report
indicates that he is no stranger to the criminal justice system,
having previously been convicted of unlawful possession of a
controlled substance, having been incarcerated on two occasions,
and having taken several appeals both at the state and federal
levels. The report also suggests that petitioner was familiar with
the appeal bond process, as after his conviction and sentencing to
the Department of Corrections (DOC) on the unlawful possession
charge he was not "Received" at DOC to serve his sentence until
more than two years later "following appeals."
The part of petitioner's penalty not served remained in full
force and effect and could not be satisfied except by actual
imprisonment or by act of some legal authority. People ex rel.
Kelly v. Ragen, 392 Ill. 423, 427 (1946). Having been sentenced by
a court having jurisdiction, petitioner could only be discharged
from serving his sentence if the sentence had been remitted in some
manner provided by law. People ex rel. Hesley v. Ragen, 396 Ill. 554, 558 (1947). As the State points out, that manner was to seek
a discharge pursuant to a petition for habeas corpus relief (735
ILCS 5/10--124(2) (West 1994)), and that request was properly
denied as determined above.
Accordingly, we conclude the trial court's order denying
petitioner credit against his sentence for time spent at liberty
during the 22-month delay was proper.
For the reasons stated above, we affirm the judgment of the
circuit court of Du Page County denying petitioner's petition for
habeas corpus relief and his motion for credit against his
sentence.
Affirmed.
COLWELL and RATHJE, JJ., concur.