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

HB1764ham002 100TH GENERAL ASSEMBLY

Rep. Linda Chapa LaVia

Filed: 3/24/2017

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 1764

2    AMENDMENT NO. ______. Amend House Bill 1764 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Section 122-1 as follows:
 
6    (725 ILCS 5/122-1)  (from Ch. 38, par. 122-1)
7    Sec. 122-1. Petition in the trial court.
8    (a) Any person imprisoned in the penitentiary may institute
9a proceeding under this Article if the person asserts that:
10        (1) in the proceedings which resulted in his or her
11    conviction there was a substantial denial of his or her
12    rights under the Constitution of the United States or of
13    the State of Illinois or both; or
14        (2) the death penalty was imposed and there is newly
15    discovered evidence not available to the person at the time
16    of the proceeding that resulted in his or her conviction

 

 

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1    that establishes a substantial basis to believe that the
2    defendant is actually innocent by clear and convincing
3    evidence; or .
4        (3) by a preponderance of the evidence that each of the
5    following allegations in the petition establish:
6            (A) he or she was convicted of a forcible felony;
7            (B) his or her participation in the offense was a
8        direct result of the person's mental state either
9        suffering from post-partum depression or post-partum
10        psychosis;
11            (C) no evidence of post-partum depression or
12        post-partum psychosis was presented by a qualified
13        medical person at trial or sentencing, or both;
14            (D) he or she was unaware of the mitigating nature
15        of the evidence or if aware was at the time unable to
16        present this defense due to suffering from post-partum
17        depression or post-partum psychosis or at the time of
18        trial or sentencing neither was a recognized mental
19        illness and as such unable to receive proper treatment;
20        and
21            (E) evidence of post-partum depression or
22        post-partum psychosis as suffered by the person is
23        material and noncumulative to other evidence offered
24        at the time of trial or sentencing and it is of such a
25        conclusive character that it would likely change the
26        sentence imposed by the original court.

 

 

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1        Nothing in this paragraph (3) prevents a person from
2    applying for any other relief under this Article or any
3    other law otherwise available to him or her.
4        As used in this paragraph (3):
5            "Post-partum depression" means a mood disorder
6        which strikes many women during and after pregnancy
7        which usually occurs during pregnancy and up to 12
8        months after delivery. This depression can include
9        anxiety disorders.
10            "Post-partum psychosis" means an extreme form of
11        post-partum depression which can occur during
12        pregnancy and up to 12 months after delivery. This can
13        include losing touch with reality, distorted thinking,
14        delusions, auditory and visual hallucinations,
15        paranoia, hyperactivity and rapid speech, or mania.
16    (a-5) A proceeding under paragraph (2) of subsection (a)
17may be commenced within a reasonable period of time after the
18person's conviction notwithstanding any other provisions of
19this Article. In such a proceeding regarding actual innocence,
20if the court determines the petition is frivolous or is
21patently without merit, it shall dismiss the petition in a
22written order, specifying the findings of fact and conclusions
23of law it made in reaching its decision. Such order of
24dismissal is a final judgment and shall be served upon the
25petitioner by certified mail within 10 days of its entry.
26    (b) The proceeding shall be commenced by filing with the

 

 

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1clerk of the court in which the conviction took place a
2petition (together with a copy thereof) verified by affidavit.
3Petitioner shall also serve another copy upon the State's
4Attorney by any of the methods provided in Rule 7 of the
5Supreme Court. The clerk shall docket the petition for
6consideration by the court pursuant to Section 122-2.1 upon his
7or her receipt thereof and bring the same promptly to the
8attention of the court.
9    (c) Except as otherwise provided in subsection (a-5), if
10the petitioner is under sentence of death and a petition for
11writ of certiorari is filed, no proceedings under this Article
12shall be commenced more than 6 months after the conclusion of
13proceedings in the United States Supreme Court, unless the
14petitioner alleges facts showing that the delay was not due to
15his or her culpable negligence. If a petition for certiorari is
16not filed, no proceedings under this Article shall be commenced
17more than 6 months from the date for filing a certiorari
18petition, unless the petitioner alleges facts showing that the
19delay was not due to his or her culpable negligence.
20    When a defendant has a sentence other than death, no
21proceedings under this Article shall be commenced more than 6
22months after the conclusion of proceedings in the United States
23Supreme Court, unless the petitioner alleges facts showing that
24the delay was not due to his or her culpable negligence. If a
25petition for certiorari is not filed, no proceedings under this
26Article shall be commenced more than 6 months from the date for

 

 

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1filing a certiorari petition, unless the petitioner alleges
2facts showing that the delay was not due to his or her culpable
3negligence. If a defendant does not file a direct appeal, the
4post-conviction petition shall be filed no later than 3 years
5from the date of conviction, unless the petitioner alleges
6facts showing that the delay was not due to his or her culpable
7negligence.
8    This limitation does not apply to a petition advancing a
9claim of actual innocence.
10    (d) A person seeking relief by filing a petition under this
11Section must specify in the petition or its heading that it is
12filed under this Section. A trial court that has received a
13petition complaining of a conviction or sentence that fails to
14specify in the petition or its heading that it is filed under
15this Section need not evaluate the petition to determine
16whether it could otherwise have stated some grounds for relief
17under this Article.
18    (e) A proceeding under this Article may not be commenced on
19behalf of a defendant who has been sentenced to death without
20the written consent of the defendant, unless the defendant,
21because of a mental or physical condition, is incapable of
22asserting his or her own claim.
23    (f) Except for petitions brought under paragraph (3) of
24subsection (a) of this Section, only Only one petition may be
25filed by a petitioner under this Article without leave of the
26court. Leave of court may be granted only if a petitioner

 

 

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1demonstrates cause for his or her failure to bring the claim in
2his or her initial post-conviction proceedings and prejudice
3results from that failure. For purposes of this subsection (f):
4(1) a prisoner shows cause by identifying an objective factor
5that impeded his or her ability to raise a specific claim
6during his or her initial post-conviction proceedings; and (2)
7a prisoner shows prejudice by demonstrating that the claim not
8raised during his or her initial post-conviction proceedings so
9infected the trial that the resulting conviction or sentence
10violated due process.
11(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03;
1293-972, eff. 8-20-04.)
 
13    Section 10. The Unified Code of Corrections is amended by
14changing 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
18of 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 a person with an intellectual
24    disability as 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    (15), "domestic violence" means abuse as defined in Section
13    103 of the Illinois Domestic Violence Act of 1986.
14        (16) At the time of the offense, the defendant was
15    suffering from a serious mental illness which, though
16    insufficient to establish the defense of insanity,
17    substantially affected his or her ability to understand the
18    nature of his or her acts or to conform his or her conduct
19    to the requirements of the law.
20        (17) At the time of the offense, the defendant was
21    suffering from post-partum depression or post-partum
22    psychosis which was either undiagnosed or untreated, or
23    both, and this temporary mental illness tended to excuse or
24    justify the defendant's criminal conduct and the defendant
25    has been diagnosed as suffering from post-partum
26    depression or post-partum psychosis, or both, by a

 

 

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1    qualified medical person and the diagnoses or testimony, or
2    both, was not used at trial. In this paragraph (17):
3            "Post-partum depression" means a mood disorder
4        which strikes many women during and after pregnancy
5        which usually occurs during pregnancy and up to 12
6        months after delivery. This depression can include
7        anxiety disorders.
8            "Post-partum psychosis" means an extreme form of
9        post-partum depression which can occur during
10        pregnancy and up to 12 months after delivery. This can
11        include losing touch with reality, distorted thinking,
12        delusions, auditory and visual hallucinations,
13        paranoia, hyperactivity and rapid speech, or mania.
14    (b) If the court, having due regard for the character of
15the offender, the nature and circumstances of the offense and
16the public interest finds that a sentence of imprisonment is
17the most appropriate disposition of the offender, or where
18other provisions of this Code mandate the imprisonment of the
19offender, the grounds listed in paragraph (a) of this
20subsection shall be considered as factors in mitigation of the
21term imposed.
22(Source: P.A. 98-463, eff. 8-16-13; 99-143, eff. 7-27-15;
2399-384, eff. 1-1-16; 99-642, eff. 7-28-16; 99-877, eff.
248-22-16.)".