SB1035sam001 97TH GENERAL ASSEMBLY

Sen. Toi W. Hutchinson

Filed: 4/11/2011

09700SB1035sam001 LRB097 04764 RLC 54340 a

AMENDMENT TO SENATE BILL 1035

AMENDMENT NO. ______. Amend Senate Bill 1035 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Criminal Procedure of 1963 is amended by adding Section 115-17b as follows:

(725 ILCS 5/115-17b new)

Sec. 115-17b. Administrative subpoenas.

(a) Definitions. As used in this Section:

"Electronic communication services" and "remote computing services" have the same meaning as provided in the Electronic Communications Privacy Act in Chapter 121 (commencing with Section 2701) of Part I of Title 18 of the United States Code Annotated.

"Offense involving the sexual exploitation of children" means an offense under Section 11-6, 11-6.5, 11-9.1, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 11-19.2, 11-20.1, 11-20.3, 11-21, 11-23, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 or any attempt to commit any of these offenses.

(b) Subpoenas duces tecum. In any criminal investigation of an offense involving the sexual exploitation of children, the Attorney General, or his or her designee, or a State's Attorney, or his or her designee, may issue in writing and cause to be served subpoenas duces tecum to providers of electronic communication services or remote computing services requiring the production of records relevant to the investigation. Any such request for records shall not extend beyond requiring the provider to disclose the information specified in 18 U.S.C. 2703(c)(2). Any subpoena duces tecum issued under this Section shall be made returnable to the Chief Judge of the Circuit Court for the Circuit in which the State's Attorney resides, or his or her designee, or for subpoenas issued by the Attorney General, the subpoena shall be made returnable to the Chief Judge of the Circuit Court for the Circuit to which the investigation pertains, or his or her designee, to determine whether the documents are privileged and whether the subpoena is unreasonable or oppressive.

(c) Contents of subpoena. A subpoena under this Section shall describe the records or other things required to be produced and prescribe a return date within a reasonable period of time within which the objects or records can be assembled and made available.

(c-5) Contemporaneous notice to Chief Judge. Whenever a subpoena is issued under this Section the Attorney General or his or her designee or the State's Attorney or his of her designee shall be required to provide a copy of the subpoena to the Chief Judge of the county in which the subpoena is returnable.

(d) Modifying or quashing subpoena. At any time before the return date specified in the subpoena, the person or entity to whom the subpoena is directed may petition for an order modifying or quashing the subpoena on the grounds that the subpoena is oppressive or unreasonable or that the subpoena seeks privileged documents or records.

(e) Ex parte order. An Illinois circuit court for the circuit in which the subpoena is or will be issued, upon application of the Attorney General, or his or her designee, or State's Attorney, or his or her designee, may issue an ex parte order that no person or entity disclose to any other person or entity (other than persons necessary to comply with the subpoena) the existence of such subpoena for a period of up to 90 days.

(1) Such order may be issued upon a showing that the things being sought may be relevant to the investigation and there is reason to believe that such disclosure may result in:

(A) endangerment to the life or physical safety of any person;

(B) flight to avoid prosecution;

(C) destruction of or tampering with evidence;

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

(2) An order under this Section may be renewed for additional periods of up to 90 days upon a showing that the circumstances described in paragraph (1) of this subsection (e) continue to exist.

(f) Enforcement. A witness who is duly subpoenaed who neglects or refuses to comply with the subpoena shall be proceeded against and punished for contempt of the court. A subpoena duces tecum issued under this Section may be enforced pursuant to the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.

(g) Immunity From civil liability. Notwithstanding any federal, State, or local law, any person, including officers, agents, and employees, receiving a subpoena under this Section, who complies in good faith with the subpoena and thus produces the materials sought, shall not be liable in any court of Illinois to any customer or other person for such production or for nondisclosure of that production to the customer.

Section 10. The Unified Code of Corrections is amended by changing Section 5-8-4 as follows:

(730 ILCS 5/5-8-4) (from Ch. 38, par. 1005-8-4)

Sec. 5-8-4. Concurrent and consecutive terms of imprisonment.

(a) Concurrent terms; multiple or additional sentences. When an Illinois court (i) imposes multiple sentences of imprisonment on a defendant at the same time or (ii) imposes a sentence of imprisonment on a defendant who is already subject to a sentence of imprisonment imposed by an Illinois court, a court of another state, or a federal court, then the sentences shall run concurrently unless otherwise determined by the Illinois court under this Section.

(b) Concurrent terms; misdemeanor and felony. A defendant serving a sentence for a misdemeanor who is convicted of a felony and sentenced to imprisonment shall be transferred to the Department of Corrections, and the misdemeanor sentence shall be merged in and run concurrently with the felony sentence.

(c) Consecutive terms; permissive. The court may impose consecutive sentences in any of the following circumstances:

(1) If, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is the opinion of the court that consecutive sentences are required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.

(2) If one of the offenses for which a defendant was convicted was a violation of Section 32-5.2 (aggravated false personation of a peace officer) of the Criminal Code of 1961 (720 ILCS 5/32-5.2) and the offense was committed in attempting or committing a forcible felony.

(d) Consecutive terms; mandatory. The court shall impose consecutive sentences in each of the following circumstances:

(1) One of the offenses for which the defendant was convicted was first degree murder or a Class X or Class 1 felony and the defendant inflicted severe bodily injury.

(2) The defendant was convicted of a violation of Section 11-20.1 (child pornography), 11-20.3 (aggravated child pornography), 12-13 (criminal sexual assault), 12-14 (aggravated criminal sexual assault), or 12-14.1 (predatory criminal sexual assault of a child) of the Criminal Code of 1961 (720 ILCS 5/11-20.1, 5/11-20.3, 5/12-13, 5/12-14, or 5/12-14.1).

(3) The defendant was convicted of armed violence based upon the predicate offense of any of the following: solicitation of murder, solicitation of murder for hire, heinous battery, aggravated battery of a senior citizen, criminal sexual assault, a violation of subsection (g) of Section 5 of the Cannabis Control Act (720 ILCS 550/5), cannabis trafficking, a violation of subsection (a) of Section 401 of the Illinois Controlled Substances Act (720 ILCS 570/401), controlled substance trafficking involving a Class X felony amount of controlled substance under Section 401 of the Illinois Controlled Substances Act (720 ILCS 570/401), a violation of the Methamphetamine Control and Community Protection Act (720 ILCS 646/), calculated criminal drug conspiracy, or streetgang criminal drug conspiracy.

(4) The defendant was convicted of the offense of leaving the scene of a motor vehicle accident involving death or personal injuries under Section 11-401 of the Illinois Vehicle Code (625 ILCS 5/11-401) and either: (A) aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof under Section 11-501 of the Illinois Vehicle Code (625 ILCS 5/11-501), (B) reckless homicide under Section 9-3 of the Criminal Code of 1961 (720 ILCS 5/9-3), or (C) both an offense described in item (A) and an offense described in item (B).

(5) The defendant was convicted of a violation of Section 9-3.1 (concealment of homicidal death) or Section 12-20.5 (dismembering a human body) of the Criminal Code of 1961 (720 ILCS 5/9-3.1 or 5/12-20.5).

(5.5) The defendant was convicted of a violation of Section 24-3.7 (use of a stolen firearm in the commission of an offense) of the Criminal Code of 1961.

(6) If the defendant was in the custody of the Department of Corrections at the time of the commission of the offense, the sentence shall be served consecutive to the sentence under which the defendant is held by the Department of Corrections. If, however, the defendant is sentenced to punishment by death, the sentence shall be executed at such time as the court may fix without regard to the sentence under which the defendant may be held by the Department.

(7) A sentence under Section 3-6-4 (730 ILCS 5/3-6-4) for escape or attempted escape shall be served consecutive to the terms under which the offender is held by the Department of Corrections.

(8) If a person charged with a felony commits a separate felony while on pretrial release or in pretrial detention in a county jail facility or county detention facility, then the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.

(8.5) If a person commits a battery against a county correctional officer or sheriff's employee while serving a sentence or in pretrial detention in a county jail facility, then the sentence imposed upon conviction of the battery shall be served consecutively with the sentence imposed upon conviction of the earlier misdemeanor or felony, regardless of the order in which the judgments of conviction are entered.

(9) If a person admitted to bail following conviction of a felony commits a separate felony while free on bond or if a person detained in a county jail facility or county detention facility following conviction of a felony commits a separate felony while in detention, then any sentence following conviction of the separate felony shall be consecutive to that of the original sentence for which the defendant was on bond or detained.

(10) If a person is found to be in possession of an item of contraband, as defined in clause (c)(2) of Section 31A-1.1 of the Criminal Code of 1961, while serving a sentence in a county jail or while in pre-trial detention in a county jail, the sentence imposed upon conviction for the offense of possessing contraband in a penal institution shall be served consecutively to the sentence imposed for the offense in which the person is serving sentence in the county jail or serving pretrial detention, regardless of the order in which the judgments of conviction are entered.

(11) If a person is sentenced for a violation of bail bond under Section 32-10 of the Criminal Code of 1961, any sentence imposed for that violation shall be served consecutive to the sentence imposed for the charge for which bail had been granted and with respect to which the defendant has been convicted.

(e) Consecutive terms; subsequent non-Illinois term. If an Illinois court has imposed a sentence of imprisonment on a defendant and the defendant is subsequently sentenced to a term of imprisonment by a court of another state or a federal court, then the Illinois sentence shall run consecutively to the sentence imposed by the court of the other state or the federal court. That same Illinois court, however, may order that the Illinois sentence run concurrently with the sentence imposed by the court of the other state or the federal court, but only if the defendant applies to that same Illinois court within 30 days after the sentence imposed by the court of the other state or the federal court is finalized.

(f) Consecutive terms; aggregate maximums and minimums. The aggregate maximum and aggregate minimum of consecutive sentences shall be determined as follows:

(1) For sentences imposed under law in effect prior to February 1, 1978, the aggregate maximum of consecutive sentences shall not exceed the maximum term authorized under Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of Chapter V for the 2 most serious felonies involved. The aggregate minimum period of consecutive sentences shall not exceed the highest minimum term authorized under Section 5-8-1 (730 ILCS 5/5-8-1) or Article 4.5 of Chapter V for the 2 most serious felonies involved. When sentenced only for misdemeanors, a defendant shall not be consecutively sentenced to more than the maximum for one Class A misdemeanor.

(2) For sentences imposed under the law in effect on or after February 1, 1978, the aggregate of consecutive sentences for offenses that were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective shall not exceed the sum of the maximum terms authorized under Article 4.5 of Chapter V for the 2 most serious felonies involved, but no such limitation shall apply for offenses that were not committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. When sentenced only for misdemeanors, a defendant shall not be consecutively sentenced to more than the maximum for one Class A misdemeanor.

(g) Consecutive terms; manner served. In determining the manner in which consecutive sentences of imprisonment, one or more of which is for a felony, will be served, the Department of Corrections shall treat the defendant as though he or she had been committed for a single term subject to each of the following:

(1) The maximum period of a term of imprisonment shall consist of the aggregate of the maximums of the imposed indeterminate terms, if any, plus the aggregate of the imposed determinate sentences for felonies, plus the aggregate of the imposed determinate sentences for misdemeanors, subject to subsection (f) of this Section.

(2) The parole or mandatory supervised release term shall be as provided in paragraph (e) of Section 5-4.5-50 (730 ILCS 5/5-4.5-50) for the most serious of the offenses involved.

(3) The minimum period of imprisonment shall be the aggregate of the minimum and determinate periods of imprisonment imposed by the court, subject to subsection (f) of this Section.

(4) The defendant shall be awarded credit against the aggregate maximum term and the aggregate minimum term of imprisonment for all time served in an institution since the commission of the offense or offenses and as a consequence thereof at the rate specified in Section 3-6-3 (730 ILCS 5/3-6-3).

(Source: P.A. 95-379, eff. 8-23-07; 95-766, eff. 1-1-09; 95-1052, eff. 7-1-09; 96-190, eff. 1-1-10; 96-1000, eff. 7-2-10; 96-1200, eff. 7-22-10.)

Section 99. Effective date. This Act takes effect upon becoming law.".