delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hutchinson concurred in the judgment and opinion.
OPINION
Defendant, Favian G. Gomez, appeals from the second-stage dismissal of his amended postconviction 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February 20, 2004, until March 9, 2004, which is when defendant posted bond. 1 On February 4, 2005, defendant’s bond was revoked.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. 2 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 “[fit’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.
Soon thereafter, defendant petitioned pro se for postconviction 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 postconviction 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
In evaluating whether defendant made a substantial showing that he was denied the effective assistance of counsel when counsel failed to move to withdraw defendant’s guilty plea, we are guided by Strickland v. Washington,
Although Strickland clearly requires a defendant to establish prejudice, defendant, citing Roe v. Flores-Ortega,
In People v. Edwards,
Here, unlike in Edwards, defendant did not enter a fully negotiated guilty plea. Thus, unlike the defendant in Edwards, the filing of a motion to withdraw defendant’s guilty plea was not necessary for defendant to take a direct appeal. Rather, as happened in this case, the filing of a motion to reconsider defendant’s sentence preserved for direct appeal the sentencing issues that defendant raised in the trial court. See Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Because defendant was not subject to the forfeiture of a proceeding itself, i.e., denied the ability to seek a direct appeal, prejudice was not to be presumed at any stage.
Moreover, unlike in Edwards, defendant’s petition was not summarily dismissed at the first stage of postconviction proceedings. Instead, the trial court found that defendant’s petition stated the gist of a claim that trial counsel was ineffective for, among other things, failing to move to withdraw defendant’s guilty plea. Because defendant’s petition survived summary dismissal, he had to establish at stage two, pursuant to Edwards, on what justifiable basis he could have moved to withdraw his guilty plea and that there was a reasonable probability that the motion would have been granted allowing defendant to withdraw his plea of guilty. Defendant has failed to do this.
Liberally construed, defendant’s petition asserted that he wanted to withdraw his guilty plea because he allegedly did not commit the offense. The problem with defendant’s contention is that defendant has not always claimed that he is innocent. Rather, when defendant pleaded guilty, was sentenced, and moved to reconsider, he admitted several times that he sexually assaulted the victim. In fact, a central issue in defendant’s direct appeal was whether he should have been granted a continuance for the sole purpose of admitting in the PSI that he committed the offense. When a defendant does not consistently maintain his innocence, courts generally do not allow the defendant to withdraw his guilty plea based on a claim of actual innocence. Cf. People v. Mercado,
Relatedly, because defendant has not consistently maintained his innocence, the record positively rebuts defendant’s claim that he, through many different means, asked his trial counsel to withdraw his guilty plea based on a claim that he did not commit the crime. Specifically, defendant alleges that he attempted to contact his attorney numerous times to ask his attorney to withdraw his guilty plea and that he contacted his mother so that she could talk to his attorney about such matters. Nothing other than these affidavits, prepared by defendant and his mother long after the incident, supports these claims. In contrast to these allegations, the record includes several instances where, during the proceedings that resulted in defendant’s guilty plea and sentence, defendant expressed a desire to persist in pleading guilty precisely because he committed the offense. At no point during any of these proceedings or in the letters defendant sent to the court did defendant express a desire to withdraw his guilty plea for any reason. Given these facts that rebut defendant’s postconviction claim, the trial court did not err in dismissing defendant’s petition. See People v. Arbuckle,
Having concluded that defendant’s petition failed to present a substantial showing that defendant was denied the effective assistance of counsel when his counsel did not move to withdraw his guilty plea, we next address whether defendant is entitled to additional days of sentencing credit. People v. Flores,
A defendant is entitled to a day of credit for each day, or part of any day, the defendant spent in presentence custody as a result of the offense for which the sentence was imposed. People v. Johnson,
Here, pursuant to Flores, defendant may raise for the first time in this appeal his claim that he is entitled to additional days of sentencing credit. Further, examination of the record confirms that defendant is entitled to additional days of sentencing credit. Specifically, the record shows that defendant was arrested on February 20, 2004. Defendant remained in custody for the next 19 days, until March 9, 2004.
3
Defendant was free on bond from March 9, 2004, until February 4, 2005, which is when defendant’s bond was revoked. Defendant remained in custody from February 4, 2005, until he was sentenced on August 22, 2005, or for 200 days. Given that the record reflects that defendant was in custody for 219 days but was credited with only 200 days, we, pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), modify the mittimus to reflect that defendant was in custody for 219 days. See Flores,
For these reasons, the judgment of the circuit court of Du Page County is affirmed, and the mittimus is modified.
Affirmed; mittimus modified.
Notes
The record reflects that defendant’s bond was “issued” on March 9, 2004, and filed in the trial court on March 10, 2004.