Appeal from the Circuit Court of Du Page County. Honorable Peter J. Dockery, Judge, Presiding. No. 04-CF-441
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hutchinson concurred in the judgment and opinion.
Defendant, Favian G. Gomez, appeals from the second-stage dismissal of his amended post-conviction petition. On appeal, defendant claims that (1) his trial counsel was ineffective, because, despite defendant's request for him to do so, counsel failed to file a motion to withdraw defendant's guilty plea, and (2) he is entitled to additional days of sentencing credit for the time he served in custody before being sentenced. We affirm the dismissal but modify the mittimus.
The facts relevant to resolving this appeal are as follows. On February 20, 2004, defendant was charged with various offenses that arose from his sexual abuse of two girls for whom his mother babysat. Defendant remained in custody from February 20, 2004, until March 9, 2004, which is when defendant posted bond.*fn1 On February 4, 2005, defendant's bond was revoked. Defendant remained in custody until June 23, 2005. At that time, defendant pleaded guilty to one count of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)), and the State dismissed the remaining charges that were pending against him.*fn2 No agreement was made concerning defendant's sentence.
At sentencing, defendant admitted to having sexually abused the victim. More specifically, after admitting that he initially denied committing any of the offenses, defendant apologized for his actions, indicated that "[i]t's all true," and asserted that "I am guilty of the offense." On August 22, 2005, the trial court sentenced defendant to 15 years' imprisonment and gave defendant credit for 200 days he served in custody before sentencing.
On September 20, 2005, with counsel's help, defendant moved the trial court to reconsider his sentence. At that same time, without counsel's assistance, defendant sent two letters to the trial court. One letter was dated September 17, 2005, and the other letter was dated September 20, 2005. Nowhere in either of these letters did defendant advise the trial court that he wished to withdraw his guilty plea. Rather, consistent with his motion to reconsider, defendant asked the court to reduce his sentence, as he was "terribly sorry for what [he has] done" and "know[s] it was wrong." At the hearing on the motion to reconsider, defendant never indicated that he wished to withdraw his guilty plea. The trial court subsequently denied the motion, and defendant appealed, arguing that his sentence is excessive and that the trial court abused its discretion in refusing to grant him a continuance so that he could obtain an updated presentence investigation (PSI) report. Defendant wanted to admit in the new PSI that he committed the offense. This court affirmed. People v. Gomez, No. 2-05-1055 (2006) (unpublished order under Supreme Court Rule 23). Defendant never challenged in the trial court or on appeal the days of sentencing credit he was due.
Soon thereafter, defendant petitioned pro se for post-conviction relief. In his petition, defendant raised numerous claims, including that his trial counsel was ineffective for failing to file a motion to withdraw defendant's guilty plea after defendant asked counsel to do so. Attached to defendant's petition was his own affidavit. In that affidavit, defendant professed his innocence and asserted that he contacted his attorney by letter in the early part of September 2005 and asked his attorney to file a motion to withdraw his guilty plea. Later, defendant learned that he could not challenge his guilty plea on direct appeal, because he "didn't discuss it with the judge." Nowhere in the petition did defendant contend that he should have been awarded additional days of sentencing credit. The trial court found that the petition stated the gist of a constitutional violation and advanced the petition to the second stage of post-conviction proceedings.
Defendant subsequently filed a pro se supplemental petition that contained, among other things, his mother's affidavit. In that affidavit, defendant's mother asserted that defendant contacted her in the early part of September 2005 and asked her to tell defendant's attorney that defendant wished to withdraw his guilty plea. Pursuant to defendant's request, defendant's mother contacted defendant's attorney's office and "relayed the message to the secretary."
On defendant's behalf, appointed counsel filed an amended petition. In that petition, counsel added that defendant attempted to contact his attorney about withdrawing his guilty plea numerous times between June 23, 2005 (when defendant pleaded guilty), and August 22, 2005 (when defendant was sentenced), as well as after defendant was sentenced. Nowhere in the amended petition did counsel allege that defendant was entitled to additional days of sentencing credit.
The State moved to dismiss the petition, and the trial court granted the motion, observing, among other things, that the record contradicted defendant's claim that he asked his attorney to file a motion to withdraw his guilty plea. This timely appeal followed.
Defendant raises two issues on appeal. He claims that (1) his trial counsel was ineffective, because counsel failed to move to withdraw his guilty plea after defendant asked him to do so and (2) he is entitled to an additional 19 days of sentencing credit. We address each of these arguments in turn.
The first issue we consider is whether defendant's trial counsel was ineffective for failing to move to withdraw defendant's guilty plea. The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) creates a three-stage process for the adjudication of post-conviction petitions and permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. People v. Erickson, 183 Ill. 2d 213, 222 (1998). If a petition survives first-stage review, it proceeds to the second stage, at which an indigent defendant is entitled to appointed counsel, the petition may be amended, and the State may answer or move to dismiss the petition. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the second stage, a defendant must make a "substantial showing" of a constitutional violation. People v. Addison, 371 Ill. App. 3d 941, 946 (2007). Here, at the second stage, the trial court ...