Illinois General Assembly - Full Text of HB1764
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Full Text of HB1764  100th General Assembly

HB1764 100TH GENERAL ASSEMBLY

  
  

 


 
100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB1764

 

Introduced , by Rep. Linda Chapa LaVia

 

SYNOPSIS AS INTRODUCED:
 
730 ILCS 5/5-5-3.1  from Ch. 38, par. 1005-5-3.1
735 ILCS 5/2-1401  from Ch. 110, par. 2-1401

    Amends the Unified Code of Corrections. Provides that it is a mitigating factor in sentencing that at the time of the offense, the defendant was suffering from post-partum depression or post-partum psychosis which was either undiagnosed or untreated, or both, and this temporary mental illness tended to excuse or justify the defendant's criminal conduct and the defendant has, after sentencing, been diagnosed as suffering from post-partum depression or post-partum psychosis, or both, by a qualified medical person and the diagnoses or testimony, or both, was not used at trial or sentencing, or both. Amends the Code of Civil Procedure concerning relief from final orders and judgments, after 30 days from the entry of the judgment. Provides that a meritorious claim may be made for that relief if the allegations in the petition establish each of the following by a preponderance of the evidence: (1) the movant was convicted of a forcible felony; (2) the movant's participation in the offense was a direct result of the movant's mental state either suffering from post-partum depression or post-partum psychosis; (3) no evidence of post-partum depression or post-partum psychosis was presented by a qualified medical person at trial or sentencing, or both; (4) the movant was unaware of the mitigating nature of the evidence or if aware was at the time unable to present this defense due to suffering from post-partum depression or post-partum psychosis or at the time of trial or sentencing neither was a recognized mental illness and as such unable to receive proper treatment; and (5) evidence of post-partum depression or post-partum psychosis as suffered by the movant is material and noncumulative to other evidence offered at the time of trial or sentencing and it is of such a conclusive character that it would likely change the sentence imposed by the original court. Defines "post-partum depression" and "post-partum psychosis".


LRB100 04687 RLC 14693 b

 

 

A BILL FOR

 

HB1764LRB100 04687 RLC 14693 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Unified Code of Corrections is amended by
5changing Section 5-5-3.1 as follows:
 
6    (730 ILCS 5/5-5-3.1)  (from Ch. 38, par. 1005-5-3.1)
7    Sec. 5-5-3.1. Factors in mitigation.
8    (a) The following grounds shall be accorded weight in favor
9of withholding or minimizing a sentence of imprisonment:
10        (1) The defendant's criminal conduct neither caused
11    nor threatened serious physical harm to another.
12        (2) The defendant did not contemplate that his criminal
13    conduct would cause or threaten serious physical harm to
14    another.
15        (3) The defendant acted under a strong provocation.
16        (4) There were substantial grounds tending to excuse or
17    justify the defendant's criminal conduct, though failing
18    to establish a defense.
19        (5) The defendant's criminal conduct was induced or
20    facilitated by someone other than the defendant.
21        (6) The defendant has compensated or will compensate
22    the victim of his criminal conduct for the damage or injury
23    that he sustained.

 

 

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1        (7) The defendant has no history of prior delinquency
2    or criminal activity or has led a law-abiding life for a
3    substantial period of time before the commission of the
4    present crime.
5        (8) The defendant's criminal conduct was the result of
6    circumstances unlikely to recur.
7        (9) The character and attitudes of the defendant
8    indicate that he is unlikely to commit another crime.
9        (10) The defendant is particularly likely to comply
10    with the terms of a period of probation.
11        (11) The imprisonment of the defendant would entail
12    excessive hardship to his dependents.
13        (12) The imprisonment of the defendant would endanger
14    his or her medical condition.
15        (13) The defendant was a person with an intellectual
16    disability as defined in Section 5-1-13 of this Code.
17        (14) The defendant sought or obtained emergency
18    medical assistance for an overdose and was convicted of a
19    Class 3 felony or higher possession, manufacture, or
20    delivery of a controlled, counterfeit, or look-alike
21    substance or a controlled substance analog under the
22    Illinois Controlled Substances Act or a Class 2 felony or
23    higher possession, manufacture or delivery of
24    methamphetamine under the Methamphetamine Control and
25    Community Protection Act.
26        (15) At the time of the offense, the defendant is or

 

 

HB1764- 3 -LRB100 04687 RLC 14693 b

1    had been the victim of domestic violence and the effects of
2    the domestic violence tended to excuse or justify the
3    defendant's criminal conduct. As used in this paragraph
4    (15), "domestic violence" means abuse as defined in Section
5    103 of the Illinois Domestic Violence Act of 1986.
6        (16) At the time of the offense, the defendant was
7    suffering from a serious mental illness which, though
8    insufficient to establish the defense of insanity,
9    substantially affected his or her ability to understand the
10    nature of his or her acts or to conform his or her conduct
11    to the requirements of the law.
12        (17) At the time of the offense, the defendant was
13    suffering from post-partum depression or post-partum
14    psychosis which was either undiagnosed or untreated, or
15    both, and this temporary mental illness tended to excuse or
16    justify the defendant's criminal conduct and the defendant
17    has, after sentencing, been diagnosed as suffering from
18    post-partum depression or post-partum psychosis, or both,
19    by a qualified medical person and the diagnoses or
20    testimony, or both, was not used at trial or sentencing, or
21    both. In this paragraph (17):
22            "Post-partum depression" means a mood disorder
23        which strikes many women during and after pregnancy
24        which usually occurs during pregnancy and up to 12
25        months after delivery. This depression can include
26        anxiety disorders.

 

 

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1            "Post-partum psychosis" means an extreme form of
2        post-partum depression which can occur during
3        pregnancy and up to 12 months after delivery. This can
4        include losing touch with reality, distorted thinking,
5        delusions, auditory and visual hallucinations,
6        paranoia, hyperactivity and rapid speech, or mania.
7    (b) If the court, having due regard for the character of
8the offender, the nature and circumstances of the offense and
9the public interest finds that a sentence of imprisonment is
10the most appropriate disposition of the offender, or where
11other provisions of this Code mandate the imprisonment of the
12offender, the grounds listed in paragraph (a) of this
13subsection shall be considered as factors in mitigation of the
14term imposed.
15(Source: P.A. 98-463, eff. 8-16-13; 99-143, eff. 7-27-15;
1699-384, eff. 1-1-16; 99-642, eff. 7-28-16; 99-877, eff.
178-22-16.)
 
18    Section 10. The Code of Civil Procedure is amended by
19changing Section 2-1401 as follows:
 
20    (735 ILCS 5/2-1401)  (from Ch. 110, par. 2-1401)
21    Sec. 2-1401. Relief from judgments.
22    (a) Relief from final orders and judgments, after 30 days
23from the entry thereof, may be had upon petition as provided in
24this Section. Writs of error coram nobis and coram vobis, bills

 

 

HB1764- 5 -LRB100 04687 RLC 14693 b

1of review and bills in the nature of bills of review are
2abolished. All relief heretofore obtainable and the grounds for
3such relief heretofore available, whether by any of the
4foregoing remedies or otherwise, shall be available in every
5case, by proceedings hereunder, regardless of the nature of the
6order or judgment from which relief is sought or of the
7proceedings in which it was entered. Except as provided in the
8Illinois Parentage Act of 2015, there shall be no distinction
9between actions and other proceedings, statutory or otherwise,
10as to availability of relief, grounds for relief or the relief
11obtainable.
12    (b) The petition must be filed in the same proceeding in
13which the order or judgment was entered but is not a
14continuation thereof. The petition must be supported by
15affidavit or other appropriate showing as to matters not of
16record. All parties to the petition shall be notified as
17provided by rule.
18    (b-5) A movant may present a meritorious claim under this
19Section if the allegations in the petition establish each of
20the following by a preponderance of the evidence:
21        (1) the movant was convicted of a forcible felony;
22        (2) the movant's participation in the offense was
23    related to him or her previously having been a victim of
24    domestic violence as perpetrated by an intimate partner;
25        (3) no evidence of domestic violence against the movant
26    was presented at the movant's sentencing hearing;

 

 

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1        (4) the movant was unaware of the mitigating nature of
2    the evidence of the domestic violence at the time of
3    sentencing and could not have learned of its significance
4    sooner through diligence; and
5        (5) the new evidence of domestic violence against the
6    movant is material and noncumulative to other evidence
7    offered at the sentencing hearing, and is of such a
8    conclusive character that it would likely change the
9    sentence imposed by the original trial court.
10    Nothing in this subsection (b-5) shall prevent a movant
11from applying for any other relief under this Section or any
12other law otherwise available to him or her.
13    As used in this subsection (b-5):
14        "Domestic violence" means abuse as defined in Section
15    103 of the Illinois Domestic Violence Act of 1986.
16        "Forcible felony" has the meaning ascribed to the term
17    in Section 2-8 of the Criminal Code of 2012.
18        "Intimate partner" means a spouse or former spouse,
19    persons who have or allegedly have had a child in common,
20    or persons who have or have had a dating or engagement
21    relationship.
22    (b-6) A movant may present a meritorious claim under this
23Section if the allegations in the petition establish each of
24the following by a preponderance of the evidence:
25        (1) the movant was convicted of a forcible felony;
26        (2) the movant's participation in the offense was a

 

 

HB1764- 7 -LRB100 04687 RLC 14693 b

1    direct result of the movant's mental state either suffering
2    from post-partum depression or post-partum psychosis;
3        (3) no evidence of post-partum depression or
4    post-partum psychosis was presented by a qualified medical
5    person at trial or sentencing, or both;
6        (4) the movant was unaware of the mitigating nature of
7    the evidence or if aware was at the time unable to present
8    this defense due to suffering from post-partum depression
9    or post-partum psychosis or at the time of trial or
10    sentencing neither was a recognized mental illness and as
11    such unable to receive proper treatment; and
12        (5) evidence of post-partum depression or post-partum
13    psychosis as suffered by the movant is material and
14    noncumulative to other evidence offered at the time of
15    trial or sentencing and it is of such a conclusive
16    character that it would likely change the sentence imposed
17    by the original court.
18    Nothing in this subsection (b-6) shall prevent a movant
19from applying for any other relief under this Section or any
20other law otherwise available to him or her.
21    As used in this subsection (b-6):
22        "Post-partum depression" means a mood disorder which
23    strikes many women during and after pregnancy which usually
24    occurs during pregnancy and up to 12 months after delivery.
25    This depression can include anxiety disorders.
26        "Post-partum psychosis" means an extreme form of

 

 

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1    post-partum depression which can occur during pregnancy
2    and up to 12 months after delivery. This can include losing
3    touch with reality, distorted thinking, delusions,
4    auditory and visual hallucinations, paranoia,
5    hyperactivity and rapid speech, or mania.
6    (c) Except as provided in Section 20b of the Adoption Act
7and Section 2-32 of the Juvenile Court Act of 1987 or in a
8petition based upon Section 116-3 of the Code of Criminal
9Procedure of 1963, the petition must be filed not later than 2
10years after the entry of the order or judgment. Time during
11which the person seeking relief is under legal disability or
12duress or the ground for relief is fraudulently concealed shall
13be excluded in computing the period of 2 years.
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.
26    (f) Nothing contained in this Section affects any existing

 

 

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1right to relief from a void order or judgment, or to employ any
2existing method to procure that relief.
3(Source: P.A. 99-85, eff. 1-1-16; 99-384, eff. 1-1-16; 99-642,
4eff. 7-28-16.)