103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB5646

 

Introduced 2/9/2024, by Rep. Kelly M. Cassidy

 

SYNOPSIS AS INTRODUCED:
 
735 ILCS 5/2-1401  from Ch. 110, par. 2-1401

    Amends the Code of Civil Procedure. Provides a conviction that was the result of a negotiated plea may be challenged under the post-judgment relief provisions that require evidence of a forcible felony, domestic violence, or gender-based violence.


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A BILL FOR

 

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1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Civil Procedure is amended by
5changing Section 2-1401 as follows:
 
6    (735 ILCS 5/2-1401)  (from Ch. 110, par. 2-1401)
7    Sec. 2-1401. Relief from judgments.
8    (a) Relief from final orders and judgments, after 30 days
9from the entry thereof, may be had upon petition as provided in
10this Section. Writs of error coram nobis and coram vobis,
11bills of review, and bills in the nature of bills of review are
12abolished. All relief heretofore obtainable and the grounds
13for such relief heretofore available, whether by any of the
14foregoing remedies or otherwise, shall be available in every
15case, by proceedings hereunder, regardless of the nature of
16the order or judgment from which relief is sought or of the
17proceedings in which it was entered. Except as provided in the
18Illinois Parentage Act of 2015, there shall be no distinction
19between actions and other proceedings, statutory or otherwise,
20as to availability of relief, grounds for relief, or the
21relief obtainable.
22    (b) The petition must be filed in the same proceeding in
23which the order or judgment was entered but is not a

 

 

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1continuation thereof. The petition must be supported by an
2affidavit or other appropriate showing as to matters not of
3record. A petition to reopen a foreclosure proceeding must
4include as parties to the petition, but is not limited to, all
5parties in the original action in addition to the current
6record title holders of the property, current occupants, and
7any individual or entity that had a recorded interest in the
8property before the filing of the petition. All parties to the
9petition shall be notified as provided by rule.
10    (b-5) A movant may present a meritorious claim under this
11Section if the allegations in the petition establish each of
12the following by a preponderance of the evidence:
13        (1) the movant was convicted of a forcible felony;
14        (2) the movant's participation in the offense was
15    related to him or her previously having been a victim of
16    domestic violence or gender-based violence;
17        (3) there is substantial evidence of domestic violence
18    or gender-based violence against the movant that was not
19    presented at the movant's sentencing hearing;
20        (4) (blank); and
21        (5) the evidence of domestic violence or gender-based
22    violence against the movant is material and noncumulative
23    to other evidence offered at the sentencing hearing, or
24    previous hearing under this Section filed on or after the
25    effective date of this amendatory Act of the 103rd General
26    Assembly, and is of such a conclusive character that it

 

 

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1    would likely change the sentence imposed by the original
2    trial court.
3    Nothing in this subsection (b-5) shall prevent a movant
4from applying for any other relief under this Section or any
5other law otherwise available to him or her. This subsection
6(b-5) applies to all eligible convictions, including, but not
7limited to, if the judge renders the sentence based on a
8negotiated plea agreement. Relief under this Section allows
9for the modification of the length of sentence without
10affecting the conviction.
11    As used in this subsection (b-5):
12        "Domestic violence" means abuse as defined in Section
13    103 of the Illinois Domestic Violence Act of 1986.
14        "Forcible felony" has the meaning ascribed to the term
15    in Section 2-8 of the Criminal Code of 2012.
16        "Gender-based violence" includes evidence of
17    victimization as a trafficking victim, as defined by
18    paragraph (10) of subsection (a) of Section 10-9 of the
19    Criminal Code of 2012, evidence of victimization under the
20    Illinois Domestic Violence Act of 1986, evidence of
21    victimization under the Stalking No Contact Order Act, or
22    evidence of victimization of any offense under Article 11
23    of the Criminal Code of 2012, irrespective of criminal
24    prosecution or conviction.
25        "Intimate partner" means a spouse or former spouse,
26    persons who have or allegedly have had a child in common,

 

 

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1    or persons who have or have had a dating or engagement
2    relationship.
3        "Substantial evidence" means evidence that a
4    reasonable mind might accept as adequate to support a
5    conclusion.
6    (b-10) A movant may present a meritorious claim under this
7Section if the allegations in the petition establish each of
8the following by a preponderance of the evidence:
9        (A) she was convicted of a forcible felony;
10        (B) her participation in the offense was a direct
11    result of her suffering from postpartum post-partum
12    depression or postpartum post-partum psychosis;
13        (C) no evidence of postpartum post-partum depression
14    or postpartum post-partum psychosis was presented by a
15    qualified medical person at trial or sentencing, or both;
16        (D) she was unaware of the mitigating nature of the
17    evidence or, if aware, was at the time unable to present
18    this defense due to suffering from postpartum post-partum
19    depression or postpartum post-partum psychosis, or, at the
20    time of trial or sentencing, neither was a recognized
21    mental illness and as such, she was unable to receive
22    proper treatment; and
23        (E) evidence of postpartum post-partum depression or
24    postpartum post-partum psychosis as suffered by the person
25    is material and noncumulative to other evidence offered at
26    the time of trial or sentencing, and it is of such a

 

 

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1    conclusive character that it would likely change the
2    sentence imposed by the original court.
3    Nothing in this subsection (b-10) prevents a person from
4applying for any other relief under this Article or any other
5law otherwise available to her. This subsection (b-10) applies
6to all eligible convictions, including, but not limited to, if
7the judge renders the sentence based on a negotiated plea
8agreement. Relief under this Section allows for the
9modification of the length of sentence without affecting the
10conviction.
11    As used in this subsection (b-10):
12        "Postpartum Post-partum depression" means a mood
13    disorder which strikes many women during and after
14    pregnancy and usually occurs during pregnancy and up to 12
15    months after delivery. This depression can include anxiety
16    disorders.
17        "Postpartum Post-partum psychosis" means an extreme
18    form of postpartum post-partum depression which can occur
19    during pregnancy and up to 12 months after delivery. This
20    can include losing touch with reality, distorted thinking,
21    delusions, auditory and visual hallucinations, paranoia,
22    hyperactivity and rapid speech, or mania.
23    (c) Except as provided in Section 20b of the Adoption Act
24and Section 2-32 of the Juvenile Court Act of 1987, in a
25petition based upon Section 116-3 of the Code of Criminal
26Procedure of 1963 or subsection (b-5) or (b-10) of this

 

 

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1Section, or in a motion to vacate and expunge convictions
2under the Cannabis Control Act as provided by subsection (i)
3of Section 5.2 of the Criminal Identification Act, the
4petition must be filed not later than 2 years after the entry
5of the order or judgment. Time during which the person seeking
6relief is under legal disability or duress or the ground for
7relief is fraudulently concealed shall be excluded in
8computing the period of 2 years.
9    (c-5) Any individual may at any time file a petition and
10institute proceedings under this Section if his or her final
11order or judgment, which was entered based on a plea of guilty
12or nolo contendere, has potential consequences under federal
13immigration law.
14    (d) The filing of a petition under this Section does not
15affect the order or judgment, or suspend its operation.
16    (e) Unless lack of jurisdiction affirmatively appears from
17the record proper, the vacation or modification of an order or
18judgment pursuant to the provisions of this Section does not
19affect the right, title, or interest in or to any real or
20personal property of any person, not a party to the original
21action, acquired for value after the entry of the order or
22judgment but before the filing of the petition, nor affect any
23right of any person not a party to the original action under
24any certificate of sale issued before the filing of the
25petition, pursuant to a sale based on the order or judgment.
26When a petition is filed pursuant to this Section to reopen a

 

 

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1foreclosure proceeding, notwithstanding the provisions of
2Section 15-1701 of this Code, the purchaser or successor
3purchaser of real property subject to a foreclosure sale who
4was not a party to the mortgage foreclosure proceedings is
5entitled to remain in possession of the property until the
6foreclosure action is defeated or the previously foreclosed
7defendant redeems from the foreclosure sale if the purchaser
8has been in possession of the property for more than 6 months.
9    (f) Nothing contained in this Section affects any existing
10right to relief from a void order or judgment, or to employ any
11existing method to procure that relief.
12(Source: P.A. 102-639, eff. 8-27-21; 102-813, eff. 5-13-22;
13103-403, eff. 1-1-24.)