HB3423ham001 99TH GENERAL ASSEMBLY

Rep. Christian L. Mitchell

Filed: 3/23/2015

09900HB3423ham001 LRB099 09115 MRW 33111 a

AMENDMENT TO HOUSE BILL 3423

AMENDMENT NO. ______. Amend House Bill 3423 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Criminal Procedure of 1963 is amended by changing Sections 122-1, 122-2.1, and 122-6 and by adding Section 122-0.5 as follows:

(725 ILCS 5/122-0.5 new)

Sec. 122-0.5. Definitions. As used in this Article:

"Domestic violence" means "abuse" as defined in Section 103 of the Illinois Domestic Violence Act of 1986.

"Forcible felony" has the meaning ascribed to the term in Section 2-8 of the Criminal Code of 2012.

"Intimate partner" means spouses, former spouses, persons who have or allegedly have a child in common, or persons who have or have had a dating or engagement relationship.

(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)

Sec. 122-1. Petition in the trial court.

(a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:

(1) in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both; or

(2) the death penalty was imposed and there is newly discovered evidence not available to the person at the time of the proceeding that resulted in his or her conviction that establishes a substantial basis to believe that the defendant is actually innocent by clear and convincing evidence; or .

(3) his or her participation in the forcible felony for which he or she was convicted was a result of having been a victim of domestic violence as perpetrated by an intimate partner, and evidence of the domestic violence was not presented at trial or sentencing.

(a-5) A proceeding under paragraph (2) of subsection (a) may be commenced within a reasonable period of time after the person's conviction notwithstanding any other provisions of this Article. In such a proceeding regarding actual innocence, if the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.

(b) The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit. Petitioner shall also serve another copy upon the State's Attorney by any of the methods provided in Rule 7 of the Supreme Court. The clerk shall docket the petition for consideration by the court pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same promptly to the attention of the court.

(c) Except as otherwise provided in subsection (a-5) or (c-5), if the petitioner is under sentence of death and a petition for writ of certiorari is filed, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.

When a defendant has a sentence other than death, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence or the petitioner has instituted a proceeding under paragraph (3) of subsection (a) of this Section. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence or the petitioner has instituted a proceeding under paragraph (3) of subsection (a) of this Section. If a defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3 years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence or the petitioner has instituted a proceeding under paragraph (3) of subsection (a) of this Section.

This limitation does not apply to a petition advancing a claim of actual innocence.

(c-5) A proceeding under paragraph (3) of subsection (a) of this Section may be commenced (1) within 3 years following the entry of a verdict or finding of guilty, or (2) within 2 years of beginning counseling services while incarcerated directly related to the domestic violence suffered, whichever occurs latest, provided that reasonable notice of the proceeding shall be served upon the State and the victim as defined by the Rights of Crime Victims and Witnesses Act. No limitations under this subsection or subsection (d) apply to a petition advancing a claim of actual innocence.

(d) A person seeking relief by filing a petition under this Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.

(e) A proceeding under this Article may not be commenced on behalf of a defendant who has been sentenced to death without the written consent of the defendant, unless the defendant, because of a mental or physical condition, is incapable of asserting his or her own claim.

(f) Unless the petitioner has instituted a proceeding under paragraph (3) of subsection (a) of this Section, only Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process. A proceeding under paragraph (3) of subsection (a) of this Section may be instituted concurrently with any other proceeding under this Article.

(Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; 93-972, eff. 8-20-04.)

(725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)

Sec. 122-2.1. (a) Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.

(1) If the petitioner is under sentence of death and is without counsel and alleges that he or she is without means to procure counsel, he or she shall state whether or not he or she wishes counsel to be appointed to represent him or her. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.

(2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.

(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6. If the petitioner is under sentence of death, the court shall order the petition to be docketed for further consideration and hearing within one year of the filing of the petition. Continuances may be granted as the court deems appropriate.

(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.

(Source: P.A. 93-605, eff. 11-19-03.)

(725 ILCS 5/122-6) (from Ch. 38, par. 122-6)

Sec. 122-6. Disposition in trial court.

The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. If the petitioner has instituted a proceeding under paragraph (3) of subsection (a) of Section 122-1, the petition shall state why the facts giving rise to this petition were not presented to the trial court. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his or her conviction. Argument and citations and discussion of authorities shall be omitted from the petition. As evidence that petitioner's participation in the forcible felony for which he or she was convicted was a result of having been a victim of domestic violence as perpetrated by an intimate partner, the court may receive evidence that may include, but is not limited to:

(1) certified records of federal or State court proceedings which demonstrate that the defendant was a victim of an offender charged with a domestic violence offense under Section 12-3.2, 12-3.3, 12-3.4 or 12-30, 12-3.5, or 12-3.6 of the Criminal Code of 1961 or the Criminal Code of 2012, or under 18 U.S.C 922(g)(8) or 18 U.S.C. 922(g)(9);

(2) certified records of 'approval notices" or "law enforcement certifications" generated from federal immigration proceedings available to the victims under the Victims of Trafficking and Violence Prevention Act of 2000 or the Violence Against Women Reauthorization Act of 2013;

(3) a sworn statement from a licensed medical or mental health care provider, employee of a court acting within the scope of his or her employment, clergy, attorney, social worker, or rape crisis counselor, advocate from an agency assisting victims of domestic violence, or other professional from whom the defendant has sought assistance in addressing the trauma associated with domestic violence; or

(4) any other evidence as it deems of sufficient credibility and probative value in determining whether the defendant is a victim of domestic violence.

If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.

(Source: Laws 1963, p. 2836.)

Section 10. The Unified Code of Corrections is amended by changing Section 5-5-3.1 as follows:

(730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)

Sec. 5-5-3.1. Factors in Mitigation.

(a) The following grounds shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment:

(1) The defendant's criminal conduct neither caused nor threatened serious physical harm to another.

(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another.

(3) The defendant acted under a strong provocation.

(4) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense.

(5) The defendant's criminal conduct was induced or facilitated by someone other than the defendant.

(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.

(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.

(8) The defendant's criminal conduct was the result of circumstances unlikely to recur.

(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.

(10) The defendant is particularly likely to comply with the terms of a period of probation.

(11) The imprisonment of the defendant would entail excessive hardship to his dependents.

(12) The imprisonment of the defendant would endanger his or her medical condition.

(13) The defendant was intellectually disabled as defined in Section 5-1-13 of this Code.

(14) The defendant sought or obtained emergency medical assistance for an overdose and was convicted of a Class 3 felony or higher possession, manufacture, or delivery of a controlled, counterfeit, or look-alike substance or a controlled substance analog under the Illinois Controlled Substances Act or a Class 2 felony or higher possession, manufacture or delivery of methamphetamine under the Methamphetamine Control and Community Protection Act.

(15) 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. As used in this paragraph, "domestic violence" means "abuse" as defined in Section 103 of the Illinois Domestic Violence Act of 1986.

(b) If the court, having due regard for the character of the offender, the nature and circumstances of the offense and the public interest finds that a sentence of imprisonment is the most appropriate disposition of the offender, or where other provisions of this Code mandate the imprisonment of the offender, the grounds listed in paragraph (a) of this subsection shall be considered as factors in mitigation of the term imposed.

(Source: P.A. 97-227, eff. 1-1-12; 97-678, eff. 6-1-12; 98-463, eff. 8-16-13.)".