Illinois General Assembly - Full Text of SB2078
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Full Text of SB2078  103rd General Assembly

SB2078 103RD GENERAL ASSEMBLY

  
  

 


 
103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2078

 

Introduced 2/9/2023, by Sen. Robert Peters

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/9-1  from Ch. 38, par. 9-1
720 ILCS 5/9-2  from Ch. 38, par. 9-2
735 ILCS 5/2-1401  from Ch. 110, par. 2-1401

    Amends the Criminal Code of 2012. Eliminates the felony murder provisions from the first degree murder statute. Provides that a person commits second degree murder when he or she, acting alone or with one or more participants, commits or attempts to commit a forcible felony, other than first degree murder, and in the course of or in furtherance of the crime or flight from the crime, he or she or another participant causes the death of a person, other than one of the participants. Provides that it is an affirmative defense to the charge that the defendant: (1) was not the only participant in the underlying crime; (2) did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid in the commission of the crime; (3) was not armed with a deadly weapon; and (4) did not engage himself or herself in or intend to engage in and had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury. Amends the Code of Civil Procedure. Provides for relief from judgment for defendants convicted of first degree murder committed before the effective date of the amendatory Act. Provides that nothing in these provisions prevents a movant from applying for any other relief.


LRB103 25684 RLC 52033 b

 

 

A BILL FOR

 

SB2078LRB103 25684 RLC 52033 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 Criminal Code of 2012 is amended by
5changing Sections 9-1 and 9-2 as follows:
 
6    (720 ILCS 5/9-1)  (from Ch. 38, par. 9-1)
7    Sec. 9-1. First degree murder; death penalties;
8exceptions; separate hearings; proof; findings; appellate
9procedures; reversals.
10    (a) A person who kills an individual without lawful
11justification commits first degree murder if, in performing
12the acts which cause the death:
13        (1) he or she either intends to kill or do great bodily
14    harm to that individual or another, or knows that such
15    acts will cause death to that individual or another; or
16        (2) he or she knows that such acts create a strong
17    probability of death or great bodily harm to that
18    individual or another; or
19        (3) (Blank). he or she, acting alone or with one or
20    more participants, commits or attempts to commit a
21    forcible felony other than second degree murder, and in
22    the course of or in furtherance of such crime or flight
23    therefrom, he or she or another participant causes the

 

 

SB2078- 2 -LRB103 25684 RLC 52033 b

1    death of a person.
2    (b) Aggravating Factors. A defendant who at the time of
3the commission of the offense has attained the age of 18 or
4more and who has been found guilty of first degree murder may
5be sentenced to death if:
6        (1) the murdered individual was a peace officer or
7    fireman killed in the course of performing his official
8    duties, to prevent the performance of his or her official
9    duties, or in retaliation for performing his or her
10    official duties, and the defendant knew or should have
11    known that the murdered individual was a peace officer or
12    fireman; or
13        (2) the murdered individual was an employee of an
14    institution or facility of the Department of Corrections,
15    or any similar local correctional agency, killed in the
16    course of performing his or her official duties, to
17    prevent the performance of his or her official duties, or
18    in retaliation for performing his or her official duties,
19    or the murdered individual was an inmate at such
20    institution or facility and was killed on the grounds
21    thereof, or the murdered individual was otherwise present
22    in such institution or facility with the knowledge and
23    approval of the chief administrative officer thereof; or
24        (3) the defendant has been convicted of murdering two
25    or more individuals under subsection (a) of this Section
26    or under any law of the United States or of any state which

 

 

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1    is substantially similar to subsection (a) of this Section
2    regardless of whether the deaths occurred as the result of
3    the same act or of several related or unrelated acts so
4    long as the deaths were the result of either an intent to
5    kill more than one person or of separate acts which the
6    defendant knew would cause death or create a strong
7    probability of death or great bodily harm to the murdered
8    individual or another; or
9        (4) the murdered individual was killed as a result of
10    the hijacking of an airplane, train, ship, bus, or other
11    public conveyance; or
12        (5) the defendant committed the murder pursuant to a
13    contract, agreement, or understanding by which he or she
14    was to receive money or anything of value in return for
15    committing the murder or procured another to commit the
16    murder for money or anything of value; or
17        (6) (blank); or the murdered individual was killed in
18    the course of another felony if:
19            (a) the murdered individual:
20                (i) was actually killed by the defendant, or
21                (ii) received physical injuries personally
22            inflicted by the defendant substantially
23            contemporaneously with physical injuries caused by
24            one or more persons for whose conduct the
25            defendant is legally accountable under Section 5-2
26            of this Code, and the physical injuries inflicted

 

 

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1            by either the defendant or the other person or
2            persons for whose conduct he is legally
3            accountable caused the death of the murdered
4            individual; and
5            (b) in performing the acts which caused the death
6        of the murdered individual or which resulted in
7        physical injuries personally inflicted by the
8        defendant on the murdered individual under the
9        circumstances of subdivision (ii) of subparagraph (a)
10        of paragraph (6) of subsection (b) of this Section,
11        the defendant acted with the intent to kill the
12        murdered individual or with the knowledge that his
13        acts created a strong probability of death or great
14        bodily harm to the murdered individual or another; and
15            (c) the other felony was an inherently violent
16        crime or the attempt to commit an inherently violent
17        crime. In this subparagraph (c), "inherently violent
18        crime" includes, but is not limited to, armed robbery,
19        robbery, predatory criminal sexual assault of a child,
20        aggravated criminal sexual assault, aggravated
21        kidnapping, aggravated vehicular hijacking, aggravated
22        arson, aggravated stalking, residential burglary, and
23        home invasion; or
24        (7) the murdered individual was under 12 years of age
25    and the death resulted from exceptionally brutal or
26    heinous behavior indicative of wanton cruelty; or

 

 

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1        (8) the defendant committed the murder with intent to
2    prevent the murdered individual from testifying or
3    participating in any criminal investigation or prosecution
4    or giving material assistance to the State in any
5    investigation or prosecution, either against the defendant
6    or another; or the defendant committed the murder because
7    the murdered individual was a witness in any prosecution
8    or gave material assistance to the State in any
9    investigation or prosecution, either against the defendant
10    or another; for purposes of this paragraph (8),
11    "participating in any criminal investigation or
12    prosecution" is intended to include those appearing in the
13    proceedings in any capacity such as trial judges,
14    prosecutors, defense attorneys, investigators, witnesses,
15    or jurors; or
16        (9) the defendant, while committing an offense
17    punishable under Sections 401, 401.1, 401.2, 405, 405.2,
18    407 or 407.1 or subsection (b) of Section 404 of the
19    Illinois Controlled Substances Act, or while engaged in a
20    conspiracy or solicitation to commit such offense,
21    intentionally killed an individual or counseled,
22    commanded, induced, procured or caused the intentional
23    killing of the murdered individual; or
24        (10) the defendant was incarcerated in an institution
25    or facility of the Department of Corrections at the time
26    of the murder, and while committing an offense punishable

 

 

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1    as a felony under Illinois law, or while engaged in a
2    conspiracy or solicitation to commit such offense,
3    intentionally killed an individual or counseled,
4    commanded, induced, procured or caused the intentional
5    killing of the murdered individual; or
6        (11) the murder was committed in a cold, calculated
7    and premeditated manner pursuant to a preconceived plan,
8    scheme or design to take a human life by unlawful means,
9    and the conduct of the defendant created a reasonable
10    expectation that the death of a human being would result
11    therefrom; or
12        (12) the murdered individual was an emergency medical
13    technician - ambulance, emergency medical technician -
14    intermediate, emergency medical technician - paramedic,
15    ambulance driver, or other medical assistance or first aid
16    personnel, employed by a municipality or other
17    governmental unit, killed in the course of performing his
18    official duties, to prevent the performance of his
19    official duties, or in retaliation for performing his
20    official duties, and the defendant knew or should have
21    known that the murdered individual was an emergency
22    medical technician - ambulance, emergency medical
23    technician - intermediate, emergency medical technician -
24    paramedic, ambulance driver, or other medical assistance
25    or first aid personnel; or
26        (13) the defendant was a principal administrator,

 

 

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1    organizer, or leader of a calculated criminal drug
2    conspiracy consisting of a hierarchical position of
3    authority superior to that of all other members of the
4    conspiracy, and the defendant counseled, commanded,
5    induced, procured, or caused the intentional killing of
6    the murdered person; or
7        (14) the murder was intentional and involved the
8    infliction of torture. For the purpose of this Section
9    torture means the infliction of or subjection to extreme
10    physical pain, motivated by an intent to increase or
11    prolong the pain, suffering or agony of the victim; or
12        (15) the murder was committed as a result of the
13    intentional discharge of a firearm by the defendant from a
14    motor vehicle and the victim was not present within the
15    motor vehicle; or
16        (16) the murdered individual was 60 years of age or
17    older and the death resulted from exceptionally brutal or
18    heinous behavior indicative of wanton cruelty; or
19        (17) the murdered individual was a person with a
20    disability and the defendant knew or should have known
21    that the murdered individual was a person with a
22    disability. For purposes of this paragraph (17), "person
23    with a disability" means a person who suffers from a
24    permanent physical or mental impairment resulting from
25    disease, an injury, a functional disorder, or a congenital
26    condition that renders the person incapable of adequately

 

 

SB2078- 8 -LRB103 25684 RLC 52033 b

1    providing for his or her own health or personal care; or
2        (18) the murder was committed by reason of any
3    person's activity as a community policing volunteer or to
4    prevent any person from engaging in activity as a
5    community policing volunteer; or
6        (19) the murdered individual was subject to an order
7    of protection and the murder was committed by a person
8    against whom the same order of protection was issued under
9    the Illinois Domestic Violence Act of 1986; or
10        (20) the murdered individual was known by the
11    defendant to be a teacher or other person employed in any
12    school and the teacher or other employee is upon the
13    grounds of a school or grounds adjacent to a school, or is
14    in any part of a building used for school purposes; or
15        (21) the murder was committed by the defendant in
16    connection with or as a result of the offense of terrorism
17    as defined in Section 29D-14.9 of this Code; or
18        (22) the murdered individual was a member of a
19    congregation engaged in prayer or other religious
20    activities at a church, synagogue, mosque, or other
21    building, structure, or place used for religious worship.
22    (b-5) Aggravating Factor; Natural Life Imprisonment. A
23defendant who has been found guilty of first degree murder and
24who at the time of the commission of the offense had attained
25the age of 18 years or more may be sentenced to natural life
26imprisonment if (i) the murdered individual was a physician,

 

 

SB2078- 9 -LRB103 25684 RLC 52033 b

1physician assistant, psychologist, nurse, or advanced practice
2registered nurse, (ii) the defendant knew or should have known
3that the murdered individual was a physician, physician
4assistant, psychologist, nurse, or advanced practice
5registered nurse, and (iii) the murdered individual was killed
6in the course of acting in his or her capacity as a physician,
7physician assistant, psychologist, nurse, or advanced practice
8registered nurse, or to prevent him or her from acting in that
9capacity, or in retaliation for his or her acting in that
10capacity.
11    (c) Consideration of factors in Aggravation and
12Mitigation.
13    The court shall consider, or shall instruct the jury to
14consider any aggravating and any mitigating factors which are
15relevant to the imposition of the death penalty. Aggravating
16factors may include but need not be limited to those factors
17set forth in subsection (b). Mitigating factors may include
18but need not be limited to the following:
19        (1) the defendant has no significant history of prior
20    criminal activity;
21        (2) the murder was committed while the defendant was
22    under the influence of extreme mental or emotional
23    disturbance, although not such as to constitute a defense
24    to prosecution;
25        (3) the murdered individual was a participant in the
26    defendant's homicidal conduct or consented to the

 

 

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1    homicidal act;
2        (4) the defendant acted under the compulsion of threat
3    or menace of the imminent infliction of death or great
4    bodily harm;
5        (5) the defendant was not personally present during
6    commission of the act or acts causing death;
7        (6) the defendant's background includes a history of
8    extreme emotional or physical abuse;
9        (7) the defendant suffers from a reduced mental
10    capacity.
11    Provided, however, that an action that does not otherwise
12mitigate first degree murder cannot qualify as a mitigating
13factor for first degree murder because of the discovery,
14knowledge, or disclosure of the victim's sexual orientation as
15defined in Section 1-103 of the Illinois Human Rights Act.
16    (d) Separate sentencing hearing.
17    Where requested by the State, the court shall conduct a
18separate sentencing proceeding to determine the existence of
19factors set forth in subsection (b) and to consider any
20aggravating or mitigating factors as indicated in subsection
21(c). The proceeding shall be conducted:
22        (1) before the jury that determined the defendant's
23    guilt; or
24        (2) before a jury impanelled for the purpose of the
25    proceeding if:
26            A. the defendant was convicted upon a plea of

 

 

SB2078- 11 -LRB103 25684 RLC 52033 b

1        guilty; or
2            B. the defendant was convicted after a trial
3        before the court sitting without a jury; or
4            C. the court for good cause shown discharges the
5        jury that determined the defendant's guilt; or
6        (3) before the court alone if the defendant waives a
7    jury for the separate proceeding.
8    (e) Evidence and Argument.
9    During the proceeding any information relevant to any of
10the factors set forth in subsection (b) may be presented by
11either the State or the defendant under the rules governing
12the admission of evidence at criminal trials. Any information
13relevant to any additional aggravating factors or any
14mitigating factors indicated in subsection (c) may be
15presented by the State or defendant regardless of its
16admissibility under the rules governing the admission of
17evidence at criminal trials. The State and the defendant shall
18be given fair opportunity to rebut any information received at
19the hearing.
20    (f) Proof.
21    The burden of proof of establishing the existence of any
22of the factors set forth in subsection (b) is on the State and
23shall not be satisfied unless established beyond a reasonable
24doubt.
25    (g) Procedure - Jury.
26    If at the separate sentencing proceeding the jury finds

 

 

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1that none of the factors set forth in subsection (b) exists,
2the court shall sentence the defendant to a term of
3imprisonment under Chapter V of the Unified Code of
4Corrections. If there is a unanimous finding by the jury that
5one or more of the factors set forth in subsection (b) exist,
6the jury shall consider aggravating and mitigating factors as
7instructed by the court and shall determine whether the
8sentence of death shall be imposed. If the jury determines
9unanimously, after weighing the factors in aggravation and
10mitigation, that death is the appropriate sentence, the court
11shall sentence the defendant to death. If the court does not
12concur with the jury determination that death is the
13appropriate sentence, the court shall set forth reasons in
14writing including what facts or circumstances the court relied
15upon, along with any relevant documents, that compelled the
16court to non-concur with the sentence. This document and any
17attachments shall be part of the record for appellate review.
18The court shall be bound by the jury's sentencing
19determination.
20    If after weighing the factors in aggravation and
21mitigation, one or more jurors determines that death is not
22the appropriate sentence, the court shall sentence the
23defendant to a term of imprisonment under Chapter V of the
24Unified Code of Corrections.
25    (h) Procedure - No Jury.
26    In a proceeding before the court alone, if the court finds

 

 

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1that none of the factors found in subsection (b) exists, the
2court shall sentence the defendant to a term of imprisonment
3under Chapter V of the Unified Code of Corrections.
4    If the Court determines that one or more of the factors set
5forth in subsection (b) exists, the Court shall consider any
6aggravating and mitigating factors as indicated in subsection
7(c). If the Court determines, after weighing the factors in
8aggravation and mitigation, that death is the appropriate
9sentence, the Court shall sentence the defendant to death.
10    If the court finds that death is not the appropriate
11sentence, the court shall sentence the defendant to a term of
12imprisonment under Chapter V of the Unified Code of
13Corrections.
14    (h-5) Decertification as a capital case.
15    In a case in which the defendant has been found guilty of
16first degree murder by a judge or jury, or a case on remand for
17resentencing, and the State seeks the death penalty as an
18appropriate sentence, on the court's own motion or the written
19motion of the defendant, the court may decertify the case as a
20death penalty case if the court finds that the only evidence
21supporting the defendant's conviction is the uncorroborated
22testimony of an informant witness, as defined in Section
23115-21 of the Code of Criminal Procedure of 1963, concerning
24the confession or admission of the defendant or that the sole
25evidence against the defendant is a single eyewitness or
26single accomplice without any other corroborating evidence. If

 

 

SB2078- 14 -LRB103 25684 RLC 52033 b

1the court decertifies the case as a capital case under either
2of the grounds set forth above, the court shall issue a written
3finding. The State may pursue its right to appeal the
4decertification pursuant to Supreme Court Rule 604(a)(1). If
5the court does not decertify the case as a capital case, the
6matter shall proceed to the eligibility phase of the
7sentencing hearing.
8    (i) Appellate Procedure.
9    The conviction and sentence of death shall be subject to
10automatic review by the Supreme Court. Such review shall be in
11accordance with rules promulgated by the Supreme Court. The
12Illinois Supreme Court may overturn the death sentence, and
13order the imposition of imprisonment under Chapter V of the
14Unified Code of Corrections if the court finds that the death
15sentence is fundamentally unjust as applied to the particular
16case. If the Illinois Supreme Court finds that the death
17sentence is fundamentally unjust as applied to the particular
18case, independent of any procedural grounds for relief, the
19Illinois Supreme Court shall issue a written opinion
20explaining this finding.
21    (j) Disposition of reversed death sentence.
22    In the event that the death penalty in this Act is held to
23be unconstitutional by the Supreme Court of the United States
24or of the State of Illinois, any person convicted of first
25degree murder shall be sentenced by the court to a term of
26imprisonment under Chapter V of the Unified Code of

 

 

SB2078- 15 -LRB103 25684 RLC 52033 b

1Corrections.
2    In the event that any death sentence pursuant to the
3sentencing provisions of this Section is declared
4unconstitutional by the Supreme Court of the United States or
5of the State of Illinois, the court having jurisdiction over a
6person previously sentenced to death shall cause the defendant
7to be brought before the court, and the court shall sentence
8the defendant to a term of imprisonment under Chapter V of the
9Unified Code of Corrections.
10    (k) Guidelines for seeking the death penalty.
11    The Attorney General and State's Attorneys Association
12shall consult on voluntary guidelines for procedures governing
13whether or not to seek the death penalty. The guidelines do not
14have the force of law and are only advisory in nature.
15(Source: P.A. 100-460, eff. 1-1-18; 100-513, eff. 1-1-18;
16100-863, eff. 8-14-18; 101-223, eff. 1-1-20; 101-652, eff.
177-1-21.)
 
18    (720 ILCS 5/9-2)  (from Ch. 38, par. 9-2)
19    Sec. 9-2. Second degree murder.
20    (a) A person commits the offense of second degree murder
21when:
22        (.01) he or she, acting alone or with one or more
23    participants, commits or attempts to commit a forcible
24    felony, other than first degree murder, and in the course
25    of or in furtherance of the crime or flight from the crime,

 

 

SB2078- 16 -LRB103 25684 RLC 52033 b

1    he or she or another participant causes the death of a
2    person, other than one of the participants; or
3        (.02) he or she commits the offense of first degree
4    murder as defined in paragraph (1) or (2) of subsection
5    (a) of Section 9-1 of this Code and either of the following
6    mitigating factors are present:
7            (A) (1) at the time of the killing he or she is
8        acting under a sudden and intense passion resulting
9        from serious provocation by the individual killed or
10        another whom the offender endeavors to kill, but he or
11        she negligently or accidentally causes the death of
12        the individual killed; or
13            (B) (2) at the time of the killing he or she
14        believes the circumstances to be such that, if they
15        existed, would justify or exonerate the killing under
16        the principles stated in Article 7 of this Code, but
17        his or her belief is unreasonable.
18    (b) Serious provocation is conduct sufficient to excite an
19intense passion in a reasonable person provided, however, that
20an action that does not otherwise constitute serious
21provocation cannot qualify as serious provocation because of
22the discovery, knowledge, or disclosure of the victim's sexual
23orientation as defined in Section 1-103 of the Illinois Human
24Rights Act.
25    (c) When evidence of either of the mitigating factors
26defined in subsection (a) of this Section has been presented,

 

 

SB2078- 17 -LRB103 25684 RLC 52033 b

1the burden of proof is on the defendant to prove either
2mitigating factor by a preponderance of the evidence before
3the defendant can be found guilty of second degree murder. The
4burden of proof, however, remains on the State to prove beyond
5a reasonable doubt each of the elements of first degree murder
6and, when appropriately raised, the absence of circumstances
7at the time of the killing that would justify or exonerate the
8killing under the principles stated in Article 7 of this Code.
9    (d) Sentence. Second degree murder is a Class 1 felony.
10    (e) It is an affirmative defense to a charge of violating
11paragraph (.01) of subsection (a) that the defendant:
12        (1) was not the only participant in the underlying
13    crime;
14        (2) did not commit the homicidal act or in any way
15    solicit, request, command, importune, cause, or aid in the
16    commission of the crime;
17        (3) was not armed with a deadly weapon; and
18        (4) did not engage himself or herself in or intend to
19    engage in and had no reasonable ground to believe that any
20    other participant intended to engage in conduct likely to
21    result in death or serious bodily injury.
22(Source: P.A. 100-460, eff. 1-1-18.)
 
23    Section 10. The Code of Civil Procedure is amended by
24changing Section 2-1401 as follows:
 

 

 

SB2078- 18 -LRB103 25684 RLC 52033 b

1    (735 ILCS 5/2-1401)  (from Ch. 110, par. 2-1401)
2    Sec. 2-1401. Relief from judgments.
3    (a) Relief from final orders and judgments, after 30 days
4from the entry thereof, may be had upon petition as provided in
5this Section. Writs of error coram nobis and coram vobis,
6bills of review, and bills in the nature of bills of review are
7abolished. All relief heretofore obtainable and the grounds
8for such relief heretofore available, whether by any of the
9foregoing remedies or otherwise, shall be available in every
10case, by proceedings hereunder, regardless of the nature of
11the order or judgment from which relief is sought or of the
12proceedings in which it was entered. Except as provided in the
13Illinois Parentage Act of 2015, there shall be no distinction
14between actions and other proceedings, statutory or otherwise,
15as to availability of relief, grounds for relief, or the
16relief obtainable.
17    (b) The petition must be filed in the same proceeding in
18which the order or judgment was entered but is not a
19continuation thereof. The petition must be supported by an
20affidavit or other appropriate showing as to matters not of
21record. A petition to reopen a foreclosure proceeding must
22include as parties to the petition, but is not limited to, all
23parties in the original action in addition to the current
24record title holders of the property, current occupants, and
25any individual or entity that had a recorded interest in the
26property before the filing of the petition. All parties to the

 

 

SB2078- 19 -LRB103 25684 RLC 52033 b

1petition shall be notified as provided by rule.
2    (b-5) A movant may present a meritorious claim under this
3Section if the allegations in the petition establish each of
4the following by a preponderance of the evidence:
5        (1) the movant was convicted of a forcible felony;
6        (2) the movant's participation in the offense was
7    related to him or her previously having been a victim of
8    domestic violence as perpetrated by an intimate partner;
9        (3) no evidence of domestic violence against the
10    movant was presented at the movant's sentencing hearing;
11        (4) the movant was unaware of the mitigating nature of
12    the evidence of the domestic violence at the time of
13    sentencing and could not have learned of its significance
14    sooner through diligence; and
15        (5) the new evidence of domestic violence against the
16    movant is material and noncumulative to other evidence
17    offered at the sentencing hearing, and is of such a
18    conclusive character that it would likely change the
19    sentence imposed by the original trial court.
20    Nothing in this subsection (b-5) shall prevent a movant
21from applying for any other relief under this Section or any
22other law otherwise available to him or her.
23    As used in this subsection (b-5):
24        "Domestic violence" means abuse as defined in Section
25    103 of the Illinois Domestic Violence Act of 1986.
26        "Forcible felony" has the meaning ascribed to the term

 

 

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1    in Section 2-8 of the Criminal Code of 2012.
2        "Intimate partner" means a spouse or former spouse,
3    persons who have or allegedly have had a child in common,
4    or persons who have or have had a dating or engagement
5    relationship.
6    (b-10) A movant may present a meritorious claim under this
7Section if the allegations in the petition establish each of
8the following by a preponderance of the evidence:
9        (A) she was convicted of a forcible felony;
10        (B) her participation in the offense was a direct
11    result of her suffering from post-partum depression or
12    post-partum psychosis;
13        (C) no evidence of post-partum depression or
14    post-partum psychosis was presented by a qualified medical
15    person at trial or sentencing, or both;
16        (D) she was unaware of the mitigating nature of the
17    evidence or, if aware, was at the time unable to present
18    this defense due to suffering from post-partum depression
19    or post-partum psychosis, or, at the time of trial or
20    sentencing, neither was a recognized mental illness and as
21    such, she was unable to receive proper treatment; and
22        (E) evidence of post-partum depression or post-partum
23    psychosis as suffered by the person is material and
24    noncumulative to other evidence offered at the time of
25    trial or sentencing, and it is of such a conclusive
26    character that it would likely change the sentence imposed

 

 

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1    by the original court.
2    Nothing in this subsection (b-10) prevents a person from
3applying for any other relief under this Article or any other
4law otherwise available to her.
5    As used in this subsection (b-10):
6        "Post-partum depression" means a mood disorder which
7    strikes many women during and after pregnancy and usually
8    occurs during pregnancy and up to 12 months after
9    delivery. This depression can include anxiety disorders.
10        "Post-partum psychosis" means an extreme form of
11    post-partum depression which can occur during pregnancy
12    and up to 12 months after delivery. This can include
13    losing touch with reality, distorted thinking, delusions,
14    auditory and visual hallucinations, paranoia,
15    hyperactivity and rapid speech, or mania.
16    (b-15) A movant may present a meritorious claim under this
17Section if the allegations in the petition establish each of
18the following by a preponderance of the evidence:
19        (1) the movant was convicted of a first degree felony
20    murder under paragraph (3) of subsection (a) of Section
21    9-1 of the Criminal Code of 2012 committed before the
22    effective date of this amendatory Act of the 103rd General
23    Assembly; and
24        (2) the movant was not prosecuted under paragraph (1)
25    or (2) of subsection (a) of Section 9-1 of the Criminal
26    Code of 2012.

 

 

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1    Nothing in this subsection (b-15) prevents a movant from
2applying for any other relief under this Section or any other
3law otherwise available to him or her.
4    (c) Except as provided in Section 20b of the Adoption Act
5and Section 2-32 of the Juvenile Court Act of 1987, in a
6petition based upon Section 116-3 of the Code of Criminal
7Procedure of 1963 or subsection (b-10) of this Section, or in a
8motion to vacate and expunge convictions under the Cannabis
9Control Act as provided by subsection (i) of Section 5.2 of the
10Criminal Identification Act, the petition must be filed not
11later than 2 years after the entry of the order or judgment.
12Time during which the person seeking relief is under legal
13disability or duress or the ground for relief is fraudulently
14concealed shall be excluded in computing the period of 2
15years.
16    (c-5) Any individual may at any time file a petition and
17institute proceedings under this Section if his or her final
18order or judgment, which was entered based on a plea of guilty
19or nolo contendere, has potential consequences under federal
20immigration law.
21    (d) The filing of a petition under this Section does not
22affect the order or judgment, or suspend its operation.
23    (e) Unless lack of jurisdiction affirmatively appears from
24the record proper, the vacation or modification of an order or
25judgment pursuant to the provisions of this Section does not
26affect the right, title, or interest in or to any real or

 

 

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1personal property of any person, not a party to the original
2action, acquired for value after the entry of the order or
3judgment but before the filing of the petition, nor affect any
4right of any person not a party to the original action under
5any certificate of sale issued before the filing of the
6petition, pursuant to a sale based on the order or judgment.
7When a petition is filed pursuant to this Section to reopen a
8foreclosure proceeding, notwithstanding the provisions of
9Section 15-1701 of this Code, the purchaser or successor
10purchaser of real property subject to a foreclosure sale who
11was not a party to the mortgage foreclosure proceedings is
12entitled to remain in possession of the property until the
13foreclosure action is defeated or the previously foreclosed
14defendant redeems from the foreclosure sale if the purchaser
15has been in possession of the property for more than 6 months.
16    (f) Nothing contained in this Section affects any existing
17right to relief from a void order or judgment, or to employ any
18existing method to procure that relief.
19(Source: P.A. 101-27, eff. 6-25-19; 101-411, eff. 8-16-19;
20102-639, eff. 8-27-21; 102-813, eff. 5-13-22.)