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 | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended 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 | 9 | | a 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)
| 17 | | may be commenced within a reasonable period of time after the | 18 | | person's
conviction
notwithstanding any other provisions of
| 19 | | this Article. In such a proceeding regarding
actual innocence, | 20 | | if the court determines the petition is
frivolous or is | 21 | | patently without merit, it shall dismiss the
petition in a | 22 | | written order, specifying the findings of fact
and conclusions | 23 | | of law it made in reaching its decision.
Such order of | 24 | | dismissal is a final judgment and shall be
served upon the | 25 | | petitioner by certified mail within 10 days
of its entry.
| 26 | | (b) The proceeding shall be commenced by filing with the |
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| 1 | | clerk of the court
in which the conviction took place a | 2 | | petition (together with a copy thereof)
verified by affidavit. | 3 | | Petitioner shall also serve another copy upon the
State's | 4 | | Attorney by any of the methods provided in Rule 7 of the | 5 | | Supreme
Court. The clerk shall docket the petition for | 6 | | consideration by the court
pursuant to Section 122-2.1 upon his | 7 | | or her receipt thereof and bring the same
promptly to the | 8 | | attention of the court.
| 9 | | (c) Except as otherwise provided in subsection (a-5), if
| 10 | | the petitioner is under sentence of death and a petition for | 11 | | writ of certiorari is filed,
no proceedings under this Article | 12 | | shall be commenced more than 6 months after
the conclusion of | 13 | | proceedings in the United States Supreme Court, unless the | 14 | | petitioner alleges facts showing that the delay
was
not due to | 15 | | his or her culpable negligence. If a petition for certiorari is | 16 | | not filed, no proceedings under this Article shall be commenced | 17 | | more than 6 months from the date for filing a certiorari | 18 | | petition, unless the petitioner alleges facts showing that the | 19 | | delay was not due to his or her culpable negligence.
| 20 | | When a defendant has a sentence other than death, no | 21 | | proceedings under this
Article shall be commenced more than 6 | 22 | | months after the conclusion of proceedings in the United States | 23 | | Supreme Court, unless the petitioner
alleges facts showing that | 24 | | the delay was not due to his or her culpable
negligence.
If a | 25 | | petition for certiorari is not filed, no proceedings under this | 26 | | Article shall be commenced more than 6 months from the date for |
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| 1 | | filing a certiorari petition, unless the petitioner alleges | 2 | | facts showing that the delay was not due to his or her culpable | 3 | | negligence. If a defendant does not file a direct appeal, the | 4 | | post-conviction petition shall be filed no later than 3 years | 5 | | from the date of conviction, unless the petitioner alleges | 6 | | facts showing that the delay was not due to his or her culpable | 7 | | negligence.
| 8 | | This limitation does not apply to a petition advancing a | 9 | | claim of actual
innocence. | 10 | | (d) A person seeking relief by filing a petition under this | 11 | | Section must
specify in the petition or its heading that it is | 12 | | filed under this Section.
A trial court that has received a | 13 | | petition complaining of a conviction or
sentence that fails to | 14 | | specify in the petition or its heading that it is
filed under | 15 | | this Section need not evaluate the petition to determine
| 16 | | whether it could otherwise have stated some grounds for relief | 17 | | under
this Article.
| 18 | | (e) A proceeding under this Article may not be commenced on | 19 | | behalf of a
defendant who has been sentenced to death without | 20 | | the written consent of the
defendant, unless the defendant, | 21 | | because of a mental or physical condition, is
incapable of | 22 | | asserting his or her own claim.
| 23 | | (f) Except for petitions brought under paragraph (3) of | 24 | | subsection (a) of this Section, only Only one petition may be | 25 | | filed by a petitioner under this Article
without leave of the | 26 | | court.
Leave of court may be granted only if a petitioner |
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| 1 | | demonstrates
cause for his or her failure to bring the claim in | 2 | | his or her initial
post-conviction proceedings and prejudice | 3 | | results from that failure. For
purposes
of this subsection (f): | 4 | | (1) a prisoner shows cause by identifying an objective
factor | 5 | | that impeded his or her ability to raise a specific claim | 6 | | during his or
her initial post-conviction proceedings; and (2) | 7 | | a prisoner shows prejudice by
demonstrating that the claim not | 8 | | raised during his or her initial
post-conviction proceedings so | 9 | | infected the trial that the resulting conviction
or
sentence | 10 | | violated due process.
| 11 | | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | 12 | | 93-972, eff. 8-20-04.)
| 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 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 | 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. 98-463, eff. 8-16-13; 99-143, eff. 7-27-15; | 23 | | 99-384, eff. 1-1-16; 99-642, eff. 7-28-16; 99-877, eff. | 24 | | 8-22-16.)".
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