People v. Gomez
947 N.E.2d 343
Ill. App. Ct.2011Background
- Gomez was charged with sexual offenses arising from his mother's babysitting of two girls; he remained in custody from Feb 20, 2004 to Mar 9, 2004 when he posted bond.
- Bond was revoked on Feb 4, 2005; he remained in custody until Jun 23, 2005, when he pled guilty to one count of predatory criminal sexual assault of a child; other charges were dismissed without sentence agreement.
- At sentencing on Aug 22, 2005, Gomez admitted to the abuse and received 15 years' imprisonment with credit for 200 days served pre-sentencing.
- Gomez moved to reconsider the sentence in Sept 2005; he also sent letters to the court, but did not request withdrawal of his guilty plea in those letters.
- Gomez petitioned pro se for postconviction relief; his affidavit claimed innocence and asked counsel to file a motion to withdraw the plea; his mother later submitted an affidavit corroborating contact with counsel.
- Amended postconviction petition, filed by appointed counsel, alleged ineffective assistance for failure to move to withdraw the plea; the petition did not raise additional sentencing-credit claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for failing to move to withdraw the plea | Gomez claims counsel failed to file a motion to withdraw the guilty plea after request. | Gomez argues ineffective assistance entitled to relief under Strickland/Edwards. | Second-stage dismissal affirmed; no substantial showing of prejudice. |
| Entitlement to additional days of sentencing credit | Gomez seeks credit for additional days of presentence custody. | Gomez contends credits were under-calculated. | Mittimus modified to reflect 219 days of presentence custody. |
Key Cases Cited
- People v. Edwards, 197 Ill.2d 239 (2001) (prejudice not presumed when plea not fully negotiated; differs by stage)
- People v. Flores, 378 Ill.App.3d 493 (2008) (may modify mittimus to correct sentencing credits on appeal)
- People v. Johnson, 396 Ill.App.3d 1028 (2009) (presentence custody credit calculation de novo on review)
- People v. McCreary, 393 Ill.App.3d 402 (2009) (de novo review of custody credit calculations)
- People v. Arbuckle, 42 Ill.2d 177 (1969) (illusory plea-induced promises standards for withdrawal context)
- People v. Addison, 371 Ill.App.3d 941 (2007) (substantial showing required at second stage)
- People v. Wendt, 283 Ill.App.3d 947 (1996) (Strickland prejudice standard applied in postconviction context)
- People v. Gaultney, 174 Ill.2d 410 (1996) (second-stage postconviction procedures; appointed counsel)