SB3629 103RD GENERAL ASSEMBLY

LRB103 37510 RLC 69596 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3629

Introduced 2/9/2024, by Sen. Karina Villa

SYNOPSIS AS INTRODUCED:

725 ILCS 5/113-8
725 ILCS 5/122-10 new

Amends the Code of Criminal Procedure of 1963. Provides that a defendant who, prior to the effective date of the amendatory Act, had been barred by time limitations from filing a motion to vacate because the court failed to advise the defendant and the defendant shows that conviction of the offense to which the defendant pleaded guilty, guilty but mentally ill, or nolo contendere may have the consequence for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States, may pursue the following remedies. Provides that any person, regardless of criminal custody status, may file a petition to vacate a conviction or sentence if the person asserts any of the following reasons: (1) the conviction or sentence is legally invalid due to prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence; or (2) newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. Establishes time periods for filing the petition and establishes when the petitions are not timely filed. Provides that there is a presumption of legal invalidity if the petitioner pleaded guilty or nolo contendere under a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, if the petitioner complied with these requirements, and if the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences. Provides that crime victims shall be given notice by the State's Attorney's office of petitions filed under this provision as required in the Rights of Crime Victims and Witnesses Act. Provides that remedies under this provision shall apply to convictions and sentences in existence prior to the effective date of the amendatory Act.

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is amended by changing Section 113-8 and adding Section 122-10 as follows:

(725 ILCS 5/113-8)

Sec. 113-8. Advisement concerning status as a noncitizen.

(a) Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.".

(b) If the defendant is arraigned on or after the effective date of this amendatory Act of the 101st General Assembly, and the court fails to advise the defendant as required by subsection (a) of this Section, and the defendant shows that conviction of the offense to which the defendant pleaded guilty, guilty but mentally ill, or nolo contendere may have the consequence for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States, the court, upon the defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty, guilty but mentally ill, or nolo contendere and enter a plea of not guilty. A defendant who, prior to the effective date of this amendatory Act of the 103rd General Assembly, had been barred by time limitations from filing a motion to vacate, may pursue remedies under this Section or Section 122-10. The motion shall be filed within 2 years of the date of the defendant's conviction.

(Source: P.A. 101-409, eff. 1-1-20; 102-1030, eff. 5-27-22.)

(725 ILCS 5/122-10 new)

Sec. 122-10. Petition to vacate certain convictions in the trial court.

(a) In this Section, "conviction" is defined under 8 U.S.C. 1101(a)(48).

(b) Any person, regardless of criminal custody status, including imprisonment in a penal institution for a felony, parole, mandatory supervised release, probation, or conditional discharge, may file a petition to vacate a conviction or sentence under this Section if the person asserts any of the following reasons:

(1) the conviction or sentence is legally invalid due to prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel, and includes but is not limited to failure to admonish noncitizens under Section 113-8 or Rule 402 of the Illinois Supreme Court; or

(2) newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.

(c)(1) Except as provided in paragraph (2) of subsection (b), a petition under paragraph (1) of subsection (b) shall be deemed timely filed at any time notwithstanding any other provision of law. The time limitations for petitions filed in the trial court under Section 122-1 does not apply to a petition filed under paragraph (1) of subsection (b).

(2) A petition under paragraph (1) of subsection (b) may be deemed untimely filed if it was not filed with reasonable diligence after the latest of any of the following:

(A) the petitioner receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization;

(B) the petitioner becomes aware that his or her criminal conviction or sentence has adverse immigration consequences;

(C) the petitioner received notice that they have been ordered removed from the United States with a final removal order; or

(D) the effective date of this amendatory Act of the 103rd General Assembly.

(d) A petition under paragraph (2) of subsection (b) shall be filed without undue delay from the date the petitioner discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this Section.

(e) The petition shall identify the proceeding in which the petitioner was convicted or sentenced, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which petitioner's rights were violated under subsection (b). The petition may have attached thereto affidavits, records, or other evidence supporting its allegations or may state why the same are not attached.

(f) If the petition alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Rule of the Supreme Court. If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.

(g) All petitions filed under this Section shall be entitled to a hearing. Upon the request of the petitioner, the court may hold the hearing without the personal presence of the petitioner provided that it finds good cause as to why the petitioner cannot be present. If the State's Attorney for the jurisdiction in which the petition is filed does not file an objection to the petition, the court may grant the petition to vacate the conviction or sentence without a hearing.

(1) Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon setting for calendar a hearing date on the petition, except that this timeline shall be 45 days in any case in which the petitioner is in the custody of Immigration and Customs Enforcement or otherwise faces imminent removal from the United States.

(2) Within 30 days after the making of an order under paragraph (1) of subsection (g), or within such further time as the court may set, the State may file an answer. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party. The court may in its discretion grant leave, at any stage of the proceeding prior to entry of judgment, to withdraw the petition. The court may in its discretion make such order as to amendment of the petition or any other pleading, or as to pleading over, or filing further pleadings, or extending the time of filing any pleading other than the original petition, as shall be appropriate, just and reasonable and as is generally provided in civil cases.

(h) When ruling on the petition:

(1) The court shall grant the petition to vacate the conviction or sentence if the petitioner establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subsection (b). For a motion made under paragraph (1) of subsection (b), the petitioner shall also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization.

(2) A court's judicial admonishment under Section 113-8 at the time of the conviction or sentencing at issue in the petition shall not be considered a sufficient basis to cure or correct the prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. Nor does this admonishment mitigate a finding of ineffective assistance of counsel relating to the same conviction or sentencing under this Section.

(3) There is a presumption of legal invalidity for the purposes of paragraph (1) of subsection (b) if the petitioner pleaded guilty or nolo contendere under a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, if the petitioner complied with these requirements, and if the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences.

(4) If the court grants the petition to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the petitioner to withdraw the plea.

(5) When ruling on a petition under paragraph (1) of subsection (b), the only finding that the court is required to make is whether the conviction is legally invalid due to prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. When ruling on a petition under paragraph (2) of subsection (b), the court shall specify the basis for its conclusion.

(i) An order granting or denying the petition is appealable and any final judgment entered upon such petition shall be reviewed in a manner under the rules of the Supreme Court.

(j) A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subsection (b) if the attorney found to be ineffective was given timely advance notice of the petition hearing by the petitioner or the State's Attorney for the jurisdiction in which the petition is filed, under Rule 102 of the Illinois Supreme Court Rules.

(k) If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, conditions of pretrial release or discharge as may be necessary and proper.

(l) Crime victims shall be given notice by the State's Attorney's office of petitions filed under this Section as required in Section 4.5 of the Rights of Crime Victims and Witnesses Act.

(m) Remedies under this Section shall apply to convictions and sentences in existence prior to the effective date of this amendatory Act of the 103rd General Assembly.