101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB0055

 

Introduced 1/9/2019, by Rep. Mary E. Flowers

 

SYNOPSIS AS INTRODUCED:
 
730 ILCS 5/5-4-1  from Ch. 38, par. 1005-4-1

    Amends the Unified Code of Corrections. Provides if the defendant has been found guilty by a judge or jury after a trial, the prosecutor shall file with the court at the sentencing hearing a verified written statement signed by the prosecutor setting forth the prosecutor's final offer, if any, of any specified sentence and any charge to be dismissed or not charged in a plea discussion in exchange for a plea of guilty from the defendant and waiver of his or her right to trial. Also provides in any sentence, a defendant shall not be punished by the imposition of a heavier or greater sentence merely because he or she exercises his or her constitutional right to be tried before an impartial judge or jury.


LRB101 04688 SLF 49697 b

 

 

A BILL FOR

 

HB0055LRB101 04688 SLF 49697 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 5-4-1 as follows:
 
6    (730 ILCS 5/5-4-1)  (from Ch. 38, par. 1005-4-1)
7    Sec. 5-4-1. Sentencing hearing.
8    (a) Except when the death penalty is sought under hearing
9procedures otherwise specified, after a determination of
10guilt, a hearing shall be held to impose the sentence. However,
11prior to the imposition of sentence on an individual being
12sentenced for an offense based upon a charge for a violation of
13Section 11-501 of the Illinois Vehicle Code or a similar
14provision of a local ordinance, the individual must undergo a
15professional evaluation to determine if an alcohol or other
16drug abuse problem exists and the extent of such a problem.
17Programs conducting these evaluations shall be licensed by the
18Department of Human Services. However, if the individual is not
19a resident of Illinois, the court may, in its discretion,
20accept an evaluation from a program in the state of such
21individual's residence. The court may in its sentencing order
22approve an eligible defendant for placement in a Department of
23Corrections impact incarceration program as provided in

 

 

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1Section 5-8-1.1 or 5-8-1.3. The court may in its sentencing
2order recommend a defendant for placement in a Department of
3Corrections substance abuse treatment program as provided in
4paragraph (a) of subsection (1) of Section 3-2-2 conditioned
5upon the defendant being accepted in a program by the
6Department of Corrections. At the hearing the court shall:
7        (1) consider the evidence, if any, received upon the
8    trial;
9        (2) consider any presentence reports;
10        (3) consider the financial impact of incarceration
11    based on the financial impact statement filed with the
12    clerk of the court by the Department of Corrections;
13        (4) consider evidence and information offered by the
14    parties in aggravation and mitigation;
15        (4.5) consider substance abuse treatment, eligibility
16    screening, and an assessment, if any, of the defendant by
17    an agent designated by the State of Illinois to provide
18    assessment services for the Illinois courts;
19        (5) hear arguments as to sentencing alternatives;
20        (6) afford the defendant the opportunity to make a
21    statement in his own behalf;
22        (7) afford the victim of a violent crime or a violation
23    of Section 11-501 of the Illinois Vehicle Code, or a
24    similar provision of a local ordinance, the opportunity to
25    present an oral or written statement, as guaranteed by
26    Article I, Section 8.1 of the Illinois Constitution and

 

 

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1    provided in Section 6 of the Rights of Crime Victims and
2    Witnesses Act. The court shall allow a victim to make an
3    oral statement if the victim is present in the courtroom
4    and requests to make an oral or written statement. An oral
5    or written statement includes the victim or a
6    representative of the victim reading the written
7    statement. The court may allow persons impacted by the
8    crime who are not victims under subsection (a) of Section 3
9    of the Rights of Crime Victims and Witnesses Act to present
10    an oral or written statement. A victim and any person
11    making an oral statement shall not be put under oath or
12    subject to cross-examination. All statements offered under
13    this paragraph (7) shall become part of the record of the
14    court. In this paragraph (7), "victim of a violent crime"
15    means a person who is a victim of a violent crime for which
16    the defendant has been convicted after a bench or jury
17    trial or a person who is the victim of a violent crime with
18    which the defendant was charged and the defendant has been
19    convicted under a plea agreement of a crime that is not a
20    violent crime as defined in subsection (c) of 3 of the
21    Rights of Crime Victims and Witnesses Act;
22        (7.5) afford a qualified person affected by: (i) a
23    violation of Section 405, 405.1, 405.2, or 407 of the
24    Illinois Controlled Substances Act or a violation of
25    Section 55 or Section 65 of the Methamphetamine Control and
26    Community Protection Act; or (ii) a Class 4 felony

 

 

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1    violation of Section 11-14, 11-14.3 except as described in
2    subdivisions (a)(2)(A) and (a)(2)(B), 11-15, 11-17, 11-18,
3    11-18.1, or 11-19 of the Criminal Code of 1961 or the
4    Criminal Code of 2012, committed by the defendant the
5    opportunity to make a statement concerning the impact on
6    the qualified person and to offer evidence in aggravation
7    or mitigation; provided that the statement and evidence
8    offered in aggravation or mitigation shall first be
9    prepared in writing in conjunction with the State's
10    Attorney before it may be presented orally at the hearing.
11    Sworn testimony offered by the qualified person is subject
12    to the defendant's right to cross-examine. All statements
13    and evidence offered under this paragraph (7.5) shall
14    become part of the record of the court. In this paragraph
15    (7.5), "qualified person" means any person who: (i) lived
16    or worked within the territorial jurisdiction where the
17    offense took place when the offense took place; or (ii) is
18    familiar with various public places within the territorial
19    jurisdiction where the offense took place when the offense
20    took place. "Qualified person" includes any peace officer
21    or any member of any duly organized State, county, or
22    municipal peace officer unit assigned to the territorial
23    jurisdiction where the offense took place when the offense
24    took place;
25        (8) in cases of reckless homicide afford the victim's
26    spouse, guardians, parents or other immediate family

 

 

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1    members an opportunity to make oral statements;
2        (9) in cases involving a felony sex offense as defined
3    under the Sex Offender Management Board Act, consider the
4    results of the sex offender evaluation conducted pursuant
5    to Section 5-3-2 of this Act; and
6        (10) make a finding of whether a motor vehicle was used
7    in the commission of the offense for which the defendant is
8    being sentenced.
9    (a-5) If the defendant has been found guilty by a judge or
10jury after a trial, the prosecutor shall file with the court a
11verified written statement signed by the prosecutor setting
12forth the prosecutor's final offer, if any, of any specified
13sentence and any charge to be dismissed or not charged in a
14plea discussion in exchange for a plea of guilty from the
15defendant and waiver of his or her right to trial.
16    (b) All sentences shall be imposed by the judge based upon
17his independent assessment of the elements specified above and
18any agreement as to sentence reached by the parties. In any
19sentence, a defendant shall not be punished by the imposition
20of a heavier or greater sentence merely because he or she
21exercises his or her constitutional right to be tried before an
22impartial judge or jury. The judge who presided at the trial or
23the judge who accepted the plea of guilty shall impose the
24sentence unless he is no longer sitting as a judge in that
25court. Where the judge does not impose sentence at the same
26time on all defendants who are convicted as a result of being

 

 

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1involved in the same offense, the defendant or the State's
2Attorney may advise the sentencing court of the disposition of
3any other defendants who have been sentenced.
4    (b-1) In imposing a sentence of imprisonment or periodic
5imprisonment for a Class 3 or Class 4 felony for which a
6sentence of probation or conditional discharge is an available
7sentence, if the defendant has no prior sentence of probation
8or conditional discharge and no prior conviction for a violent
9crime, the defendant shall not be sentenced to imprisonment
10before review and consideration of a presentence report and
11determination and explanation of why the particular evidence,
12information, factor in aggravation, factual finding, or other
13reasons support a sentencing determination that one or more of
14the factors under subsection (a) of Section 5-6-1 of this Code
15apply and that probation or conditional discharge is not an
16appropriate sentence.
17    (c) In imposing a sentence for a violent crime or for an
18offense of operating or being in physical control of a vehicle
19while under the influence of alcohol, any other drug or any
20combination thereof, or a similar provision of a local
21ordinance, when such offense resulted in the personal injury to
22someone other than the defendant, the trial judge shall specify
23on the record the particular evidence, information, factors in
24mitigation and aggravation or other reasons that led to his
25sentencing determination. The full verbatim record of the
26sentencing hearing shall be filed with the clerk of the court

 

 

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1and shall be a public record.
2    (c-1) In imposing a sentence for the offense of aggravated
3kidnapping for ransom, home invasion, armed robbery,
4aggravated vehicular hijacking, aggravated discharge of a
5firearm, or armed violence with a category I weapon or category
6II weapon, the trial judge shall make a finding as to whether
7the conduct leading to conviction for the offense resulted in
8great bodily harm to a victim, and shall enter that finding and
9the basis for that finding in the record.
10    (c-2) If the defendant is sentenced to prison, other than
11when a sentence of natural life imprisonment or a sentence of
12death is imposed, at the time the sentence is imposed the judge
13shall state on the record in open court the approximate period
14of time the defendant will serve in custody according to the
15then current statutory rules and regulations for sentence
16credit found in Section 3-6-3 and other related provisions of
17this Code. This statement is intended solely to inform the
18public, has no legal effect on the defendant's actual release,
19and may not be relied on by the defendant on appeal.
20    The judge's statement, to be given after pronouncing the
21sentence, other than when the sentence is imposed for one of
22the offenses enumerated in paragraph (a)(4) of Section 3-6-3,
23shall include the following:
24    "The purpose of this statement is to inform the public of
25the actual period of time this defendant is likely to spend in
26prison as a result of this sentence. The actual period of

 

 

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1prison time served is determined by the statutes of Illinois as
2applied to this sentence by the Illinois Department of
3Corrections and the Illinois Prisoner Review Board. In this
4case, assuming the defendant receives all of his or her
5sentence credit, the period of estimated actual custody is ...
6years and ... months, less up to 180 days additional earned
7sentence credit. If the defendant, because of his or her own
8misconduct or failure to comply with the institutional
9regulations, does not receive those credits, the actual time
10served in prison will be longer. The defendant may also receive
11an additional one-half day sentence credit for each day of
12participation in vocational, industry, substance abuse, and
13educational programs as provided for by Illinois statute."
14    When the sentence is imposed for one of the offenses
15enumerated in paragraph (a)(2) of Section 3-6-3, other than
16first degree murder, and the offense was committed on or after
17June 19, 1998, and when the sentence is imposed for reckless
18homicide as defined in subsection (e) of Section 9-3 of the
19Criminal Code of 1961 or the Criminal Code of 2012 if the
20offense was committed on or after January 1, 1999, and when the
21sentence is imposed for aggravated driving under the influence
22of alcohol, other drug or drugs, or intoxicating compound or
23compounds, or any combination thereof as defined in
24subparagraph (F) of paragraph (1) of subsection (d) of Section
2511-501 of the Illinois Vehicle Code, and when the sentence is
26imposed for aggravated arson if the offense was committed on or

 

 

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1after July 27, 2001 (the effective date of Public Act 92-176),
2and when the sentence is imposed for aggravated driving under
3the influence of alcohol, other drug or drugs, or intoxicating
4compound or compounds, or any combination thereof as defined in
5subparagraph (C) of paragraph (1) of subsection (d) of Section
611-501 of the Illinois Vehicle Code committed on or after
7January 1, 2011 (the effective date of Public Act 96-1230), the
8judge's statement, to be given after pronouncing the sentence,
9shall include the following:
10    "The purpose of this statement is to inform the public of
11the actual period of time this defendant is likely to spend in
12prison as a result of this sentence. The actual period of
13prison time served is determined by the statutes of Illinois as
14applied to this sentence by the Illinois Department of
15Corrections and the Illinois Prisoner Review Board. In this
16case, the defendant is entitled to no more than 4 1/2 days of
17sentence credit for each month of his or her sentence of
18imprisonment. Therefore, this defendant will serve at least 85%
19of his or her sentence. Assuming the defendant receives 4 1/2
20days credit for each month of his or her sentence, the period
21of estimated actual custody is ... years and ... months. If the
22defendant, because of his or her own misconduct or failure to
23comply with the institutional regulations receives lesser
24credit, the actual time served in prison will be longer."
25    When a sentence of imprisonment is imposed for first degree
26murder and the offense was committed on or after June 19, 1998,

 

 

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1the judge's statement, to be given after pronouncing the
2sentence, shall include the following:
3    "The purpose of this statement is to inform the public of
4the actual period of time this defendant is likely to spend in
5prison as a result of this sentence. The actual period of
6prison time served is determined by the statutes of Illinois as
7applied to this sentence by the Illinois Department of
8Corrections and the Illinois Prisoner Review Board. In this
9case, the defendant is not entitled to sentence credit.
10Therefore, this defendant will serve 100% of his or her
11sentence."
12    When the sentencing order recommends placement in a
13substance abuse program for any offense that results in
14incarceration in a Department of Corrections facility and the
15crime was committed on or after September 1, 2003 (the
16effective date of Public Act 93-354), the judge's statement, in
17addition to any other judge's statement required under this
18Section, to be given after pronouncing the sentence, shall
19include the following:
20    "The purpose of this statement is to inform the public of
21the actual period of time this defendant is likely to spend in
22prison as a result of this sentence. The actual period of
23prison time served is determined by the statutes of Illinois as
24applied to this sentence by the Illinois Department of
25Corrections and the Illinois Prisoner Review Board. In this
26case, the defendant shall receive no earned sentence credit

 

 

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1under clause (3) of subsection (a) of Section 3-6-3 until he or
2she participates in and completes a substance abuse treatment
3program or receives a waiver from the Director of Corrections
4pursuant to clause (4.5) of subsection (a) of Section 3-6-3."
5    (c-4) Before the sentencing hearing and as part of the
6presentence investigation under Section 5-3-1, the court shall
7inquire of the defendant whether the defendant is currently
8serving in or is a veteran of the Armed Forces of the United
9States. If the defendant is currently serving in the Armed
10Forces of the United States or is a veteran of the Armed Forces
11of the United States and has been diagnosed as having a mental
12illness by a qualified psychiatrist or clinical psychologist or
13physician, the court may:
14        (1) order that the officer preparing the presentence
15    report consult with the United States Department of
16    Veterans Affairs, Illinois Department of Veterans'
17    Affairs, or another agency or person with suitable
18    knowledge or experience for the purpose of providing the
19    court with information regarding treatment options
20    available to the defendant, including federal, State, and
21    local programming; and
22        (2) consider the treatment recommendations of any
23    diagnosing or treating mental health professionals
24    together with the treatment options available to the
25    defendant in imposing sentence.
26    For the purposes of this subsection (c-4), "qualified

 

 

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1psychiatrist" means a reputable physician licensed in Illinois
2to practice medicine in all its branches, who has specialized
3in the diagnosis and treatment of mental and nervous disorders
4for a period of not less than 5 years.
5    (c-6) In imposing a sentence, the trial judge shall
6specify, on the record, the particular evidence and other
7reasons which led to his or her determination that a motor
8vehicle was used in the commission of the offense.
9    (d) When the defendant is committed to the Department of
10Corrections, the State's Attorney shall and counsel for the
11defendant may file a statement with the clerk of the court to
12be transmitted to the department, agency or institution to
13which the defendant is committed to furnish such department,
14agency or institution with the facts and circumstances of the
15offense for which the person was committed together with all
16other factual information accessible to them in regard to the
17person prior to his commitment relative to his habits,
18associates, disposition and reputation and any other facts and
19circumstances which may aid such department, agency or
20institution during its custody of such person. The clerk shall
21within 10 days after receiving any such statements transmit a
22copy to such department, agency or institution and a copy to
23the other party, provided, however, that this shall not be
24cause for delay in conveying the person to the department,
25agency or institution to which he has been committed.
26    (e) The clerk of the court shall transmit to the

 

 

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1department, agency or institution, if any, to which the
2defendant is committed, the following:
3        (1) the sentence imposed;
4        (2) any statement by the court of the basis for
5    imposing the sentence;
6        (3) any presentence reports;
7        (3.5) any sex offender evaluations;
8        (3.6) any substance abuse treatment eligibility
9    screening and assessment of the defendant by an agent
10    designated by the State of Illinois to provide assessment
11    services for the Illinois courts;
12        (4) the number of days, if any, which the defendant has
13    been in custody and for which he is entitled to credit
14    against the sentence, which information shall be provided
15    to the clerk by the sheriff;
16        (4.1) any finding of great bodily harm made by the
17    court with respect to an offense enumerated in subsection
18    (c-1);
19        (5) all statements filed under subsection (d) of this
20    Section;
21        (6) any medical or mental health records or summaries
22    of the defendant;
23        (7) the municipality where the arrest of the offender
24    or the commission of the offense has occurred, where such
25    municipality has a population of more than 25,000 persons;
26        (8) all statements made and evidence offered under

 

 

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1    paragraph (7) of subsection (a) of this Section; and
2        (9) all additional matters which the court directs the
3    clerk to transmit.
4    (f) In cases in which the court finds that a motor vehicle
5was used in the commission of the offense for which the
6defendant is being sentenced, the clerk of the court shall,
7within 5 days thereafter, forward a report of such conviction
8to the Secretary of State.
9(Source: P.A. 99-861, eff. 1-1-17; 99-938, eff. 1-1-18;
10100-961, eff. 1-1-19; revised 10-3-18.)