99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB3423

 

Introduced , by Rep. Christian L. Mitchell

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/116-2.2 new
725 ILCS 120/4.5
730 ILCS 5/5-5-3.1  from Ch. 38, par. 1005-5-3.1

    Amends the Code of Criminal Procedure of 1963. Provides that a defendant may file a petition for resentencing in the circuit court of the county in which he or she was originally sentenced, when the conviction was for a felony or for solicitation, attempt, or conspiracy to commit a felony; provided that: (1) at the time of the offense the defendant is or had been the victim of domestic violence perpetrated by an intimate partner; (2) the effects of the domestic violence tended to excuse or justify the defendant's criminal conduct; (3) the petition shall present evidence supporting the defendant's assertion of (1) and (2) that was not presented at sentencing, and shall state why that evidence was not presented at sentencing; and (4) the defendant is incarcerated at the time the petition is filed. Provides that the burden of proof is on the defendant to establish, by a preponderance of the evidence, that at the time of the offense the defendant is or had been the victim of domestic violence perpetrated by an intimate partner, and that the effects of the domestic violence tended to excuse or justify the defendant's criminal conduct. Provides that the court may grant the petition if it determines that at the time of the offense the defendant is or had been the victim of domestic violence, and the effects of the domestic violence tended to excuse or justify the defendant's criminal conduct. Provides that if the court finds in favor of the defendant, it shall reduce the sentence in accordance with the current factors in mitigation in sentencing under the Unified Code of Corrections, as may be necessary and proper. Amends the Rights of Crime Victims and Witnesses Act and the Unified Code of Corrections to make conforming changes.


LRB099 09115 RLC 29310 b

 

 

A BILL FOR

 

HB3423LRB099 09115 RLC 29310 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 Code of Criminal Procedure of 1963 is
5amended by adding Section 116-2.2 as follows:
 
6    (725 ILCS 5/116-2.2 new)
7    Sec. 116-2.2. Petition for sentence modification for
8domestic violence victims.
9    (a) As used in this Section:
10    "Domestic violence" means "abuse" as defined in Section 103
11of the Illinois Domestic Violence Act of 1986.
12    "Felony" has the meaning ascribed to the term in Section
132-7 of the Criminal Code of 2012.
14    "Intimate partner" means spouses, former spouses, persons
15who have or allegedly have a child in common, or persons who
16have or have had a dating or engagement relationship.
17    (b) A defendant may file a petition for resentencing in the
18circuit court of the county in which he or she was originally
19sentenced, when the conviction was for a felony or for
20solicitation, attempt, or conspiracy to commit a felony;
21provided that:
22        (1) at the time of the offense the defendant is or had
23    been the victim of domestic violence perpetrated by an

 

 

HB3423- 2 -LRB099 09115 RLC 29310 b

1    intimate partner;
2        (2) the effects of the domestic violence tended to
3    excuse or justify the defendant's criminal conduct;
4        (3) the petition shall present evidence supporting the
5    defendant's assertion of paragraphs (1) and (2) of this
6    subsection that were not presented at sentencing, and shall
7    state why that evidence was not presented at sentencing;
8    and
9        (4) the defendant is incarcerated at the time the
10    petition is filed.
11    (c) The defendant has the burden of proof to establish, by
12a preponderance of the evidence, that at the time of the
13offense the defendant is or had been the victim of domestic
14violence perpetrated by an intimate partner, and that the
15effects of the domestic violence tended to excuse or justify
16the defendant's criminal conduct. The petition shall be
17supported by an affidavit. Evidence of the domestic violence
18may include, but is not limited to:
19        (1) civil or criminal court records, proceedings,
20    pre-sentence reports, social services records, hospital
21    records, sworn statements from a witness, law enforcement
22    records, domestic incident reports, police reports,
23    witness statements prepared or elicited by law enforcement
24    officers, or orders of protection;
25        (2) local and Department of Corrections records; or
26        (3) verification of consultation with a licensed

 

 

HB3423- 3 -LRB099 09115 RLC 29310 b

1    medical or mental health care provider, employee of a court
2    acting within the scope of his or her employment, clergy,
3    attorney, social worker, or rape crisis counselor,
4    advocate from an agency assisting victims of domestic
5    violence, or other professional from whom the defendant has
6    sought assistance in addressing the trauma associated with
7    domestic violence.
8    Alternatively, the court may consider any other evidence it
9deems of sufficient credibility and probative value in
10determining whether the defendant was or had been the victim of
11domestic violence at the time of the offense, and whether the
12effects of the domestic violence tended to excuse or justify
13the defendant's criminal conduct. This other evidence may
14include, but is not limited to, the court file of the
15proceeding in which the defendant was convicted, any action
16taken by an appellate court in the proceeding, and any
17transcripts of the proceeding. In its discretion the court may
18order the defendant brought before the court for the hearing.
19    (d) Within 90 days after the filing and docketing of a
20petition, the court shall examine the petition and enter an
21order on the petition under this Section.
22        (1) If the defendant is without counsel and alleges
23    that he or she is without means to procure counsel, he or
24    she shall state whether or not he or she wishes counsel to
25    be appointed to represent the defendant. If appointment of
26    counsel is requested, the court shall appoint counsel if

 

 

HB3423- 4 -LRB099 09115 RLC 29310 b

1    satisfied that the defendant has no means to procure
2    counsel.
3        (2) If the court determines the petition is frivolous
4    or is patently without merit, it shall dismiss the petition
5    in a written order, specifying the findings of fact and
6    conclusions of law it made in reaching its decision. The
7    order of dismissal is a final and appealable judgment and
8    shall be served upon the defendant by certified mail within
9    10 days of its entry.
10        (3) If the petition is not dismissed under this
11    Section, the court shall order the petition to be docketed
12    for further consideration and hearing within 180 days of
13    the filing of the petition. Continuances may be granted as
14    the court deems appropriate.
15    (e) Within 30 days after the making of an order under
16paragraph (3) of subsection (d) or within any further time as
17the court may set, the State shall answer or move to dismiss.
18In the event that a petition to dismiss is filed and denied,
19the State must file an answer within 20 days after the denial.
20No other or further pleadings shall be filed except as the
21court may order on its own petition or on that of either party.
22The court may in its discretion grant leave, at any stage of
23the proceeding prior to entry of judgment, to withdraw the
24defendant's petition. The court may in its discretion make the
25order as to amendment of the petition or any other pleading, or
26as to pleading over, or filing further pleadings, or extending

 

 

HB3423- 5 -LRB099 09115 RLC 29310 b

1the time of filing any pleading other than the original
2petition, as shall be appropriate, just, and reasonable and as
3generally provided in civil cases.
4    (f) The court may grant the petition if it determines that
5at the time of the offense the defendant is or had been the
6victim of domestic violence, and the effects of the domestic
7violence tended to excuse or justify the defendant's criminal
8conduct.
9    (g) If the court finds in favor of the defendant, it shall
10reduce the sentence in accordance with the factors in
11mitigation under Section 5-5-3.1 of the Unified Code of
12Corrections, as may be necessary and proper.
 
13    Section 10. The Rights of Crime Victims and Witnesses Act
14is amended by changing Section 4.5 as follows:
 
15    (725 ILCS 120/4.5)
16    Sec. 4.5. Procedures to implement the rights of crime
17victims. To afford crime victims their rights, law enforcement,
18prosecutors, judges and corrections will provide information,
19as appropriate of the following procedures:
20    (a) At the request of the crime victim, law enforcement
21authorities investigating the case shall provide notice of the
22status of the investigation, except where the State's Attorney
23determines that disclosure of such information would
24unreasonably interfere with the investigation, until such time

 

 

HB3423- 6 -LRB099 09115 RLC 29310 b

1as the alleged assailant is apprehended or the investigation is
2closed.
3    (a-5) When law enforcement authorities re-open a closed
4case to resume investigating, they shall provide notice of the
5re-opening of the case, except where the State's Attorney
6determines that disclosure of such information would
7unreasonably interfere with the investigation.
8    (b) The office of the State's Attorney:
9        (1) shall provide notice of the filing of information,
10    the return of an indictment by which a prosecution for any
11    violent crime is commenced, or the filing of a petition to
12    adjudicate a minor as a delinquent for a violent crime;
13        (2) shall provide notice of the date, time, and place
14    of trial;
15        (3) or victim advocate personnel shall provide
16    information of social services and financial assistance
17    available for victims of crime, including information of
18    how to apply for these services and assistance;
19        (3.5) or victim advocate personnel shall provide
20    information about available victim services, including
21    referrals to programs, counselors, and agencies that
22    assist a victim to deal with trauma, loss, and grief;
23        (4) shall assist in having any stolen or other personal
24    property held by law enforcement authorities for
25    evidentiary or other purposes returned as expeditiously as
26    possible, pursuant to the procedures set out in Section

 

 

HB3423- 7 -LRB099 09115 RLC 29310 b

1    115-9 of the Code of Criminal Procedure of 1963;
2        (5) or victim advocate personnel shall provide
3    appropriate employer intercession services to ensure that
4    employers of victims will cooperate with the criminal
5    justice system in order to minimize an employee's loss of
6    pay and other benefits resulting from court appearances;
7        (6) shall provide information whenever possible, of a
8    secure waiting area during court proceedings that does not
9    require victims to be in close proximity to defendant or
10    juveniles accused of a violent crime, and their families
11    and friends;
12        (7) shall provide notice to the crime victim of the
13    right to have a translator present at all court proceedings
14    and, in compliance with the federal Americans with
15    Disabilities Act of 1990, the right to communications
16    access through a sign language interpreter or by other
17    means;
18        (8) in the case of the death of a person, which death
19    occurred in the same transaction or occurrence in which
20    acts occurred for which a defendant is charged with an
21    offense, shall notify the spouse, parent, child or sibling
22    of the decedent of the date of the trial of the person or
23    persons allegedly responsible for the death;
24        (9) shall inform the victim of the right to have
25    present at all court proceedings, subject to the rules of
26    evidence, an advocate or other support person of the

 

 

HB3423- 8 -LRB099 09115 RLC 29310 b

1    victim's choice, and the right to retain an attorney, at
2    the victim's own expense, who, upon written notice filed
3    with the clerk of the court and State's Attorney, is to
4    receive copies of all notices, motions and court orders
5    filed thereafter in the case, in the same manner as if the
6    victim were a named party in the case;
7        (9.5) shall inform the victim of (A) the victim's right
8    under Section 6 of this Act to make a victim impact
9    statement at the sentencing hearing; (B) the right of the
10    victim's spouse, guardian, parent, grandparent and other
11    immediate family and household members under Section 6 of
12    this Act to present an impact statement at sentencing; and
13    (C) if a presentence report is to be prepared, the right of
14    the victim's spouse, guardian, parent, grandparent and
15    other immediate family and household members to submit
16    information to the preparer of the presentence report about
17    the effect the offense has had on the victim and the
18    person;
19        (10) at the sentencing hearing shall make a good faith
20    attempt to explain the minimum amount of time during which
21    the defendant may actually be physically imprisoned. The
22    Office of the State's Attorney shall further notify the
23    crime victim of the right to request from the Prisoner
24    Review Board information concerning the release of the
25    defendant under subparagraph (d)(1) of this Section;
26        (11) shall request restitution at sentencing and shall

 

 

HB3423- 9 -LRB099 09115 RLC 29310 b

1    consider restitution in any plea negotiation, as provided
2    by law; and
3        (12) shall, upon the court entering a verdict of not
4    guilty by reason of insanity, inform the victim of the
5    notification services available from the Department of
6    Human Services, including the statewide telephone number,
7    under subparagraph (d)(2) of this Section.
8    (c) At the written request of the crime victim, the office
9of the State's Attorney shall:
10        (1) provide notice a reasonable time in advance of the
11    following court proceedings: preliminary hearing, any
12    hearing the effect of which may be the release of defendant
13    from custody, or to alter the conditions of bond and the
14    sentencing hearing. The crime victim shall also be notified
15    of the cancellation of the court proceeding in sufficient
16    time, wherever possible, to prevent an unnecessary
17    appearance in court;
18        (2) provide notice within a reasonable time after
19    receipt of notice from the custodian, of the release of the
20    defendant on bail or personal recognizance or the release
21    from detention of a minor who has been detained for a
22    violent crime;
23        (3) explain in nontechnical language the details of any
24    plea or verdict of a defendant, or any adjudication of a
25    juvenile as a delinquent for a violent crime;
26        (4) where practical, consult with the crime victim

 

 

HB3423- 10 -LRB099 09115 RLC 29310 b

1    before the Office of the State's Attorney makes an offer of
2    a plea bargain to the defendant or enters into negotiations
3    with the defendant concerning a possible plea agreement,
4    and shall consider the written victim impact statement, if
5    prepared prior to entering into a plea agreement;
6        (5) provide notice of the ultimate disposition of the
7    cases arising from an indictment or an information, or a
8    petition to have a juvenile adjudicated as a delinquent for
9    a violent crime;
10        (6) provide notice of any appeal taken by the defendant
11    and information on how to contact the appropriate agency
12    handling the appeal;
13        (7) provide notice of any request for post-conviction
14    review filed by the defendant under Article 122 of the Code
15    of Criminal Procedure of 1963, and of the date, time and
16    place of any hearing concerning the petition. Whenever
17    possible, notice of the hearing shall be given in advance;
18        (7.5) provide notice of any request for resentencing
19    filed by the defendant under Section 116-2.2 of the Code of
20    Criminal Procedure of 1963, and of the date, time, and
21    place of any hearing concerning the petition;
22        (8) forward a copy of any statement presented under
23    Section 6 to the Prisoner Review Board to be considered by
24    the Board in making its determination under subsection (b)
25    of Section 3-3-8 of the Unified Code of Corrections.
26    (d)(1) The Prisoner Review Board shall inform a victim or

 

 

HB3423- 11 -LRB099 09115 RLC 29310 b

1any other concerned citizen, upon written request, of the
2prisoner's release on parole, aftercare release, mandatory
3supervised release, electronic detention, work release,
4international transfer or exchange, or by the custodian of the
5discharge of any individual who was adjudicated a delinquent
6for a violent crime from State custody and by the sheriff of
7the appropriate county of any such person's final discharge
8from county custody. The Prisoner Review Board, upon written
9request, shall provide to a victim or any other concerned
10citizen a recent photograph of any person convicted of a
11felony, upon his or her release from custody. The Prisoner
12Review Board, upon written request, shall inform a victim or
13any other concerned citizen when feasible at least 7 days prior
14to the prisoner's release on furlough of the times and dates of
15such furlough. Upon written request by the victim or any other
16concerned citizen, the State's Attorney shall notify the person
17once of the times and dates of release of a prisoner sentenced
18to periodic imprisonment. Notification shall be based on the
19most recent information as to victim's or other concerned
20citizen's residence or other location available to the
21notifying authority.
22    (2) When the defendant has been committed to the Department
23of Human Services pursuant to Section 5-2-4 or any other
24provision of the Unified Code of Corrections, the victim may
25request to be notified by the releasing authority of the
26approval by the court of an on-grounds pass, a supervised

 

 

HB3423- 12 -LRB099 09115 RLC 29310 b

1off-grounds pass, an unsupervised off-grounds pass, or
2conditional release; the release on an off-grounds pass; the
3return from an off-grounds pass; transfer to another facility;
4conditional release; escape; death; or final discharge from
5State custody. The Department of Human Services shall establish
6and maintain a statewide telephone number to be used by victims
7to make notification requests under these provisions and shall
8publicize this telephone number on its website and to the
9State's Attorney of each county.
10    (3) In the event of an escape from State custody, the
11Department of Corrections or the Department of Juvenile Justice
12immediately shall notify the Prisoner Review Board of the
13escape and the Prisoner Review Board shall notify the victim.
14The notification shall be based upon the most recent
15information as to the victim's residence or other location
16available to the Board. When no such information is available,
17the Board shall make all reasonable efforts to obtain the
18information and make the notification. When the escapee is
19apprehended, the Department of Corrections or the Department of
20Juvenile Justice immediately shall notify the Prisoner Review
21Board and the Board shall notify the victim.
22    (4) The victim of the crime for which the prisoner has been
23sentenced shall receive reasonable written notice not less than
2430 days prior to the parole or aftercare release hearing and
25may submit, in writing, on film, videotape or other electronic
26means or in the form of a recording or in person at the parole

 

 

HB3423- 13 -LRB099 09115 RLC 29310 b

1or aftercare release hearing or if a victim of a violent crime,
2by calling the toll-free number established in subsection (f)
3of this Section, information for consideration by the Prisoner
4Review Board. The victim shall be notified within 7 days after
5the prisoner has been granted parole or aftercare release and
6shall be informed of the right to inspect the registry of
7parole or aftercare release decisions, established under
8subsection (g) of Section 3-3-5 of the Unified Code of
9Corrections. The provisions of this paragraph (4) are subject
10to the Open Parole Hearings Act.
11    (5) If a statement is presented under Section 6, the
12Prisoner Review Board shall inform the victim of any order of
13discharge entered by the Board pursuant to Section 3-3-8 of the
14Unified Code of Corrections.
15    (6) At the written request of the victim of the crime for
16which the prisoner was sentenced or the State's Attorney of the
17county where the person seeking parole or aftercare release was
18prosecuted, the Prisoner Review Board shall notify the victim
19and the State's Attorney of the county where the person seeking
20parole or aftercare release was prosecuted of the death of the
21prisoner if the prisoner died while on parole or aftercare
22release or mandatory supervised release.
23    (7) When a defendant who has been committed to the
24Department of Corrections, the Department of Juvenile Justice,
25or the Department of Human Services is released or discharged
26and subsequently committed to the Department of Human Services

 

 

HB3423- 14 -LRB099 09115 RLC 29310 b

1as a sexually violent person and the victim had requested to be
2notified by the releasing authority of the defendant's
3discharge, conditional release, death, or escape from State
4custody, the releasing authority shall provide to the
5Department of Human Services such information that would allow
6the Department of Human Services to contact the victim.
7    (8) When a defendant has been convicted of a sex offense as
8defined in Section 2 of the Sex Offender Registration Act and
9has been sentenced to the Department of Corrections or the
10Department of Juvenile Justice, the Prisoner Review Board shall
11notify the victim of the sex offense of the prisoner's
12eligibility for release on parole, aftercare release,
13mandatory supervised release, electronic detention, work
14release, international transfer or exchange, or by the
15custodian of the discharge of any individual who was
16adjudicated a delinquent for a sex offense from State custody
17and by the sheriff of the appropriate county of any such
18person's final discharge from county custody. The notification
19shall be made to the victim at least 30 days, whenever
20possible, before release of the sex offender.
21    (e) The officials named in this Section may satisfy some or
22all of their obligations to provide notices and other
23information through participation in a statewide victim and
24witness notification system established by the Attorney
25General under Section 8.5 of this Act.
26    (f) To permit a victim of a violent crime to provide

 

 

HB3423- 15 -LRB099 09115 RLC 29310 b

1information to the Prisoner Review Board for consideration by
2the Board at a parole or aftercare release hearing of a person
3who committed the crime against the victim in accordance with
4clause (d)(4) of this Section or at a proceeding to determine
5the conditions of mandatory supervised release of a person
6sentenced to a determinate sentence or at a hearing on
7revocation of mandatory supervised release of a person
8sentenced to a determinate sentence, the Board shall establish
9a toll-free number that may be accessed by the victim of a
10violent crime to present that information to the Board.
11(Source: P.A. 97-457, eff. 1-1-12; 97-572, eff. 1-1-12; 97-813,
12eff. 7-13-12; 97-815, eff. 1-1-13; 98-372, eff. 1-1-14; 98-558,
13eff. 1-1-14; 98-756, eff. 7-16-14.)
 
14    Section 15. The Unified Code of Corrections is amended by
15changing Section 5-5-3.1 as follows:
 
16    (730 ILCS 5/5-5-3.1)  (from Ch. 38, par. 1005-5-3.1)
17    Sec. 5-5-3.1. Factors in Mitigation.
18    (a) The following grounds shall be accorded weight in favor
19of withholding or minimizing a sentence of imprisonment:
20        (1) The defendant's criminal conduct neither caused
21    nor threatened serious physical harm to another.
22        (2) The defendant did not contemplate that his criminal
23    conduct would cause or threaten serious physical harm to
24    another.

 

 

HB3423- 16 -LRB099 09115 RLC 29310 b

1        (3) The defendant acted under a strong provocation.
2        (4) There were substantial grounds tending to excuse or
3    justify the defendant's criminal conduct, though failing
4    to establish a defense.
5        (5) The defendant's criminal conduct was induced or
6    facilitated by someone other than the defendant.
7        (6) The defendant has compensated or will compensate
8    the victim of his criminal conduct for the damage or injury
9    that he sustained.
10        (7) The defendant has no history of prior delinquency
11    or criminal activity or has led a law-abiding life for a
12    substantial period of time before the commission of the
13    present crime.
14        (8) The defendant's criminal conduct was the result of
15    circumstances unlikely to recur.
16        (9) The character and attitudes of the defendant
17    indicate that he is unlikely to commit another crime.
18        (10) The defendant is particularly likely to comply
19    with the terms of a period of probation.
20        (11) The imprisonment of the defendant would entail
21    excessive hardship to his dependents.
22        (12) The imprisonment of the defendant would endanger
23    his or her medical condition.
24        (13) The defendant was intellectually disabled as
25    defined in Section 5-1-13 of this Code.
26        (14) The defendant sought or obtained emergency

 

 

HB3423- 17 -LRB099 09115 RLC 29310 b

1    medical assistance for an overdose and was convicted of a
2    Class 3 felony or higher possession, manufacture, or
3    delivery of a controlled, counterfeit, or look-alike
4    substance or a controlled substance analog under the
5    Illinois Controlled Substances Act or a Class 2 felony or
6    higher possession, manufacture or delivery of
7    methamphetamine under the Methamphetamine Control and
8    Community Protection Act.
9        (15) At the time of the offense, the defendant is or
10    had been the victim of domestic violence and the effects of
11    the domestic violence tended to excuse or justify the
12    defendant's criminal conduct. As used in this paragraph,
13    "domestic violence" means "abuse" as defined in Section 103
14    of the Illinois Domestic Violence Act of 1986.
15    (b) If the court, having due regard for the character of
16the offender, the nature and circumstances of the offense and
17the public interest finds that a sentence of imprisonment is
18the most appropriate disposition of the offender, or where
19other provisions of this Code mandate the imprisonment of the
20offender, the grounds listed in paragraph (a) of this
21subsection shall be considered as factors in mitigation of the
22term imposed.
23(Source: P.A. 97-227, eff. 1-1-12; 97-678, eff. 6-1-12; 98-463,
24eff. 8-16-13.)