Full Text of HB3423 99th General Assembly
HB3423ham001 99TH GENERAL ASSEMBLY | Rep. Christian L. Mitchell Filed: 3/23/2015
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| 1 | | AMENDMENT TO HOUSE BILL 3423
| 2 | | AMENDMENT NO. ______. Amend House Bill 3423 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended by changing Sections 122-1, 122-2.1, and 122-6 and by | 6 | | adding Section 122-0.5 as follows: | 7 | | (725 ILCS 5/122-0.5 new) | 8 | | Sec. 122-0.5. Definitions. As used in this Article: | 9 | | "Domestic violence" means "abuse" as defined in Section 103 | 10 | | of the Illinois Domestic
Violence Act of 1986. | 11 | | "Forcible felony" has the meaning ascribed to the term in | 12 | | Section 2-8 of the Criminal
Code of 2012. | 13 | | "Intimate partner" means spouses, former spouses, persons | 14 | | who have or allegedly have
a child in common, or persons who | 15 | | have or have had a dating or engagement
relationship.
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| 1 | | (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
| 2 | | Sec. 122-1. Petition in the trial court.
| 3 | | (a) Any person imprisoned in the penitentiary may institute | 4 | | a proceeding under this Article if the person asserts that: | 5 | | (1) in the
proceedings which resulted in his or her | 6 | | conviction there was a substantial
denial of his or her | 7 | | rights under the Constitution of the United States or
of | 8 | | the State of Illinois or both; or
| 9 | | (2) the death penalty was imposed and there is
newly | 10 | | discovered evidence not available to the person at
the time | 11 | | of the proceeding that resulted in his or her
conviction | 12 | | that establishes a substantial basis to believe that the | 13 | | defendant
is actually innocent by clear and convincing | 14 | | evidence ; or .
| 15 | | (3) his or her participation in the forcible felony for | 16 | | which he or she was convicted was
a result of having been a | 17 | | victim of domestic violence as perpetrated by an intimate
| 18 | | partner, and evidence of the domestic violence was not | 19 | | presented at trial or sentencing. | 20 | | (a-5) A proceeding under paragraph (2) of subsection (a)
| 21 | | may be commenced within a reasonable period of time after the | 22 | | person's
conviction
notwithstanding any other provisions of
| 23 | | this Article. In such a proceeding regarding
actual innocence, | 24 | | if the court determines the petition is
frivolous or is | 25 | | patently without merit, it shall dismiss the
petition in a | 26 | | written order, specifying the findings of fact
and conclusions |
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| 1 | | of law it made in reaching its decision.
Such order of | 2 | | dismissal is a final judgment and shall be
served upon the | 3 | | petitioner by certified mail within 10 days
of its entry.
| 4 | | (b) The proceeding shall be commenced by filing with the | 5 | | clerk of the court
in which the conviction took place a | 6 | | petition (together with a copy thereof)
verified by affidavit. | 7 | | Petitioner shall also serve another copy upon the
State's | 8 | | Attorney by any of the methods provided in Rule 7 of the | 9 | | Supreme
Court. The clerk shall docket the petition for | 10 | | consideration by the court
pursuant to Section 122-2.1 upon his | 11 | | or her receipt thereof and bring the same
promptly to the | 12 | | attention of the court.
| 13 | | (c) Except as otherwise provided in subsection (a-5) or | 14 | | (c-5) , if
the petitioner is under sentence of death and a | 15 | | petition for writ of certiorari is filed,
no proceedings under | 16 | | this Article shall be commenced more than 6 months after
the | 17 | | conclusion of proceedings in the United States Supreme Court, | 18 | | unless the petitioner alleges facts showing that the delay
was
| 19 | | not due to his or her culpable negligence. If a petition for | 20 | | certiorari is not filed, no proceedings under this Article | 21 | | shall be commenced more than 6 months from the date for filing | 22 | | a certiorari petition, unless the petitioner alleges facts | 23 | | showing that the delay was not due to his or her culpable | 24 | | negligence.
| 25 | | When a defendant has a sentence other than death, no | 26 | | proceedings under this
Article shall be commenced more than 6 |
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| 1 | | months after the conclusion of proceedings in the United States | 2 | | Supreme Court, unless the petitioner
alleges facts showing that | 3 | | the delay was not due to his or her culpable
negligence or the | 4 | | petitioner has instituted a
proceeding under paragraph (3) of | 5 | | subsection (a) of this Section .
If a petition for certiorari is | 6 | | not filed, no proceedings under this Article shall be commenced | 7 | | more than 6 months from the date for filing a certiorari | 8 | | petition, unless the petitioner alleges facts showing that the | 9 | | delay was not due to his or her culpable negligence or the | 10 | | petitioner has instituted a
proceeding under paragraph (3) of | 11 | | subsection (a) of this Section . If a defendant does not file a | 12 | | direct appeal, the post-conviction petition shall be filed no | 13 | | later than 3 years from the date of conviction, unless the | 14 | | petitioner alleges facts showing that the delay was not due to | 15 | | his or her culpable negligence or the petitioner has instituted | 16 | | a
proceeding under paragraph (3) of subsection (a) of this | 17 | | Section .
| 18 | | This limitation does not apply to a petition advancing a | 19 | | claim of actual
innocence. | 20 | | (c-5) A proceeding under paragraph (3) of subsection (a) of | 21 | | this Section may be
commenced (1) within 3 years following the | 22 | | entry of a verdict or finding of guilty, or (2)
within 2 years | 23 | | of beginning counseling services while incarcerated directly | 24 | | related to the domestic
violence suffered, whichever occurs | 25 | | latest, provided that reasonable notice of the
proceeding shall | 26 | | be served upon the State and the victim as defined by the |
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| 1 | | Rights of
Crime Victims and Witnesses Act.
No limitations under | 2 | | this subsection or subsection (d) apply to a petition advancing | 3 | | a
claim of actual innocence. | 4 | | (d) A person seeking relief by filing a petition under this | 5 | | Section must
specify in the petition or its heading that it is | 6 | | filed under this Section.
A trial court that has received a | 7 | | petition complaining of a conviction or
sentence that fails to | 8 | | specify in the petition or its heading that it is
filed under | 9 | | this Section need not evaluate the petition to determine
| 10 | | whether it could otherwise have stated some grounds for relief | 11 | | under
this Article.
| 12 | | (e) A proceeding under this Article may not be commenced on | 13 | | behalf of a
defendant who has been sentenced to death without | 14 | | the written consent of the
defendant, unless the defendant, | 15 | | because of a mental or physical condition, is
incapable of | 16 | | asserting his or her own claim.
| 17 | | (f) Unless the petitioner has instituted a proceeding under | 18 | | paragraph (3) of subsection (a) of this Section, only Only one | 19 | | petition may be filed by a petitioner under this Article
| 20 | | without leave of the court.
Leave of court may be granted only | 21 | | if a petitioner demonstrates
cause for his or her failure to | 22 | | bring the claim in his or her initial
post-conviction | 23 | | proceedings and prejudice results from that failure. For
| 24 | | purposes
of this subsection (f): (1) a prisoner shows cause by | 25 | | identifying an objective
factor that impeded his or her ability | 26 | | to raise a specific claim during his or
her initial |
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| 1 | | post-conviction proceedings; and (2) a prisoner shows | 2 | | prejudice by
demonstrating that the claim not raised during his | 3 | | or her initial
post-conviction proceedings so infected the | 4 | | trial that the resulting conviction
or
sentence violated due | 5 | | process. A proceeding under paragraph (3) of subsection (a) of | 6 | | this Section may be instituted concurrently with any
other | 7 | | proceeding under this Article.
| 8 | | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | 9 | | 93-972, eff. 8-20-04.)
| 10 | | (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
| 11 | | Sec. 122-2.1. (a) Within 90 days after the filing and | 12 | | docketing of each
petition, the court shall examine such | 13 | | petition and enter an order thereon
pursuant to this Section.
| 14 | | (1) If the petitioner is under sentence of death and is | 15 | | without
counsel and alleges that he or she is without means | 16 | | to procure counsel, he or she shall
state whether or not he | 17 | | or she wishes counsel to be appointed to represent him or | 18 | | her .
If appointment of counsel is so requested, the court | 19 | | shall appoint counsel
if satisfied that the petitioner has | 20 | | no means to procure counsel.
| 21 | | (2) If the petitioner is sentenced to imprisonment and | 22 | | the court
determines the petition is frivolous or is | 23 | | patently without merit, it shall
dismiss the petition in a | 24 | | written order, specifying the findings of fact and
| 25 | | conclusions of law it made in reaching its decision. Such |
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| 1 | | order of
dismissal is a final judgment and shall be served | 2 | | upon the petitioner by
certified mail within 10 days of its | 3 | | entry.
| 4 | | (b) If the petition is not dismissed pursuant to this | 5 | | Section, the court
shall order the petition to be docketed for | 6 | | further consideration in accordance
with Sections 122-4 | 7 | | through 122-6.
If the petitioner is under sentence of death, | 8 | | the court shall order the
petition to be docketed for further | 9 | | consideration and hearing within one year
of the filing of the | 10 | | petition. Continuances may be granted as the court deems
| 11 | | appropriate.
| 12 | | (c) In considering a petition pursuant to this Section, the | 13 | | court may
examine the court file of the proceeding in which the | 14 | | petitioner was convicted,
any action taken by an appellate | 15 | | court in such proceeding and any transcripts
of such | 16 | | proceeding.
| 17 | | (Source: P.A. 93-605, eff. 11-19-03.)
| 18 | | (725 ILCS 5/122-6) (from Ch. 38, par. 122-6)
| 19 | | Sec. 122-6. Disposition in trial court.
| 20 | | The court may receive proof by affidavits, depositions, | 21 | | oral testimony,
or other evidence. In its discretion the court | 22 | | may order the petitioner
brought before the court for the | 23 | | hearing. If the petitioner has instituted a proceeding under | 24 | | paragraph (3) of subsection (a) of Section 122-1, the petition | 25 | | shall state why the facts giving rise to this petition were not |
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| 1 | | presented to
the trial court. The petition shall identify any | 2 | | previous proceedings that the petitioner
may have taken to | 3 | | secure relief from his or her conviction. Argument and | 4 | | citations and
discussion of authorities shall be omitted from | 5 | | the petition.
As evidence that petitioner's participation in | 6 | | the forcible felony for which he or she was
convicted was a | 7 | | result of having been a victim of domestic violence as | 8 | | perpetrated by an
intimate partner, the court may receive | 9 | | evidence that may include, but is not limited to: | 10 | | (1) certified records of federal or State court | 11 | | proceedings which demonstrate that the
defendant was a | 12 | | victim of an offender charged with a domestic violence | 13 | | offense under
Section 12-3.2, 12-3.3, 12-3.4 or 12-30, | 14 | | 12-3.5, or 12-3.6 of the Criminal Code of 1961
or the | 15 | | Criminal Code of 2012, or under 18 U.S.C 922(g)(8) or 18 | 16 | | U.S.C. 922(g)(9); | 17 | | (2) certified records of 'approval notices" or "law | 18 | | enforcement certifications" generated
from federal | 19 | | immigration proceedings available to the victims under the | 20 | | Victims of
Trafficking and Violence Prevention Act of 2000 | 21 | | or the Violence Against Women
Reauthorization Act of 2013; | 22 | | (3) a sworn statement from a licensed medical or mental | 23 | | health care provider, employee
of a court acting within the | 24 | | scope of his or her employment, clergy, attorney, social
| 25 | | worker, or rape crisis counselor, advocate from an agency | 26 | | assisting victims of domestic
violence, or other |
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| 1 | | professional from whom the defendant has sought assistance | 2 | | in
addressing the trauma associated with domestic | 3 | | violence; or | 4 | | (4) any other evidence as it deems of sufficient | 5 | | credibility and
probative value in determining whether the | 6 | | defendant is a victim of domestic violence. | 7 | | If the court finds in favor of
the petitioner, it shall | 8 | | enter an appropriate order with respect to the
judgment or | 9 | | sentence in the former proceedings and such supplementary
| 10 | | orders as to rearraignment, retrial, custody, bail or discharge | 11 | | as may be
necessary and proper.
| 12 | | (Source: Laws 1963, p. 2836.)
| 13 | | Section 10. The Unified Code of Corrections is amended by | 14 | | changing Section 5-5-3.1 as follows:
| 15 | | (730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)
| 16 | | Sec. 5-5-3.1. Factors in Mitigation.
| 17 | | (a) The following
grounds shall be accorded weight in favor | 18 | | of withholding or
minimizing a sentence of imprisonment:
| 19 | | (1) The defendant's criminal conduct neither caused | 20 | | nor
threatened serious physical harm to another.
| 21 | | (2) The defendant did not contemplate that his criminal | 22 | | conduct would
cause or threaten serious physical harm to | 23 | | another.
| 24 | | (3) The defendant acted under a strong provocation.
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| 1 | | (4) There were substantial grounds tending to excuse or | 2 | | justify
the defendant's criminal conduct, though failing | 3 | | to establish a
defense.
| 4 | | (5) The defendant's criminal conduct was induced or | 5 | | facilitated
by someone other than the defendant.
| 6 | | (6) The defendant has compensated or will compensate | 7 | | the victim
of his criminal conduct for the damage or injury | 8 | | that he sustained.
| 9 | | (7) The defendant has no history of prior delinquency | 10 | | or
criminal activity or has led a law-abiding life for a | 11 | | substantial
period of time before the commission of the | 12 | | present crime.
| 13 | | (8) The defendant's criminal conduct was the result of
| 14 | | circumstances unlikely to recur.
| 15 | | (9) The character and attitudes of the defendant | 16 | | indicate that he is
unlikely to commit another crime.
| 17 | | (10) The defendant is particularly likely to comply | 18 | | with the terms of
a period of probation.
| 19 | | (11) The imprisonment of the defendant would entail | 20 | | excessive
hardship to his dependents.
| 21 | | (12) The imprisonment of the defendant would endanger | 22 | | his or her medical
condition.
| 23 | | (13) The defendant was intellectually disabled as | 24 | | defined in Section 5-1-13 of
this Code.
| 25 | | (14) The defendant sought or obtained emergency | 26 | | medical assistance for an overdose and was convicted of a |
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| 1 | | Class 3 felony or higher possession, manufacture, or | 2 | | delivery of a controlled, counterfeit, or look-alike | 3 | | substance or a controlled substance analog under the | 4 | | Illinois Controlled Substances Act or a Class 2 felony or | 5 | | higher possession, manufacture or delivery of | 6 | | methamphetamine under the Methamphetamine Control and | 7 | | Community Protection Act. | 8 | | (15) At the time of the offense, the defendant is or | 9 | | had been the victim of domestic violence and the effects of | 10 | | the domestic violence tended to excuse or justify the | 11 | | defendant's criminal conduct. As used in this paragraph, | 12 | | "domestic violence" means "abuse" as defined in Section 103 | 13 | | of the Illinois Domestic Violence Act of 1986. | 14 | | (b) If the court, having due regard for the character of | 15 | | the
offender, the nature and circumstances of the offense and | 16 | | the
public interest finds that a sentence of imprisonment is | 17 | | the
most appropriate disposition of the offender, or where | 18 | | other
provisions of this Code mandate the imprisonment of the | 19 | | offender,
the grounds listed in paragraph (a) of this | 20 | | subsection shall be
considered as factors in mitigation of the | 21 | | term imposed.
| 22 | | (Source: P.A. 97-227, eff. 1-1-12; 97-678, eff. 6-1-12; 98-463, | 23 | | eff. 8-16-13.)".
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