SB1627 EnrolledLRB101 00249 RLC 45253 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 changing Section 122-1 as follows:
 
6    (725 ILCS 5/122-1)  (from Ch. 38, par. 122-1)
7    Sec. 122-1. Petition in the trial court.
8    (a) Any person imprisoned in the penitentiary may institute
9a proceeding under this Article if the person asserts that:
10        (1) in the proceedings which resulted in his or her
11    conviction there was a substantial denial of his or her
12    rights under the Constitution of the United States or of
13    the State of Illinois or both;
14        (2) the death penalty was imposed and there is newly
15    discovered evidence not available to the person at the time
16    of the proceeding that resulted in his or her conviction
17    that establishes a substantial basis to believe that the
18    defendant is actually innocent by clear and convincing
19    evidence; or
20        (3) (blank). by a preponderance of the evidence that
21    each of the following allegations in the petition
22    establish:
23            (A) he or she was convicted of a forcible felony;

 

 

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1            (B) his or her participation in the offense was a
2        direct result of the person's mental state either
3        suffering from post-partum depression or post-partum
4        psychosis;
5            (C) no evidence of post-partum depression or
6        post-partum psychosis was presented by a qualified
7        medical person at trial or sentencing, or both;
8            (D) he or she was unaware of the mitigating nature
9        of the evidence or if aware was at the time unable to
10        present this defense due to suffering from post-partum
11        depression or post-partum psychosis or at the time of
12        trial or sentencing neither was a recognized mental
13        illness and as such unable to receive proper treatment;
14        and
15            (E) evidence of post-partum depression or
16        post-partum psychosis as suffered by the person is
17        material and noncumulative to other evidence offered
18        at the time of trial or sentencing and it is of such a
19        conclusive character that it would likely change the
20        sentence imposed by the original court.
21        Nothing in this paragraph (3) prevents a person from
22    applying for any other relief under this Article or any
23    other law otherwise available to him or her.
24        As used in this paragraph (3):
25            "Post-partum depression" means a mood disorder
26        which strikes many women during and after pregnancy

 

 

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1        which usually occurs during pregnancy and up to 12
2        months after delivery. This depression can include
3        anxiety disorders.
4            "Post-partum psychosis" means an extreme form of
5        post-partum depression which can occur during
6        pregnancy and up to 12 months after delivery. This can
7        include losing touch with reality, distorted thinking,
8        delusions, auditory and visual hallucinations,
9        paranoia, hyperactivity and rapid speech, or mania.
10    (a-5) A proceeding under paragraph (2) of subsection (a)
11may be commenced within a reasonable period of time after the
12person's conviction notwithstanding any other provisions of
13this Article. In such a proceeding regarding actual innocence,
14if the court determines the petition is frivolous or is
15patently without merit, it shall dismiss the petition in a
16written order, specifying the findings of fact and conclusions
17of law it made in reaching its decision. Such order of
18dismissal is a final judgment and shall be served upon the
19petitioner by certified mail within 10 days of its entry.
20    (b) The proceeding shall be commenced by filing with the
21clerk of the court in which the conviction took place a
22petition (together with a copy thereof) verified by affidavit.
23Petitioner shall also serve another copy upon the State's
24Attorney by any of the methods provided in Rule 7 of the
25Supreme Court. The clerk shall docket the petition for
26consideration by the court pursuant to Section 122-2.1 upon his

 

 

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1or her receipt thereof and bring the same promptly to the
2attention of the court.
3    (c) Except as otherwise provided in subsection (a-5), if
4the petitioner is under sentence of death and a petition for
5writ of certiorari is filed, no proceedings under this Article
6shall be commenced more than 6 months after the conclusion of
7proceedings in the United States Supreme Court, unless the
8petitioner alleges facts showing that the delay was not due to
9his or her culpable negligence. If a petition for certiorari is
10not filed, no proceedings under this Article shall be commenced
11more than 6 months from the date for filing a certiorari
12petition, unless the petitioner alleges facts showing that the
13delay was not due to his or her culpable negligence.
14    When a defendant has a sentence other than death, no
15proceedings under this Article shall be commenced more than 6
16months after the conclusion of proceedings in the United States
17Supreme Court, unless the petitioner alleges facts showing that
18the delay was not due to his or her culpable negligence. If a
19petition for certiorari is not filed, no proceedings under this
20Article shall be commenced more than 6 months from the date for
21filing a certiorari petition, unless the petitioner alleges
22facts showing that the delay was not due to his or her culpable
23negligence. If a defendant does not file a direct appeal, the
24post-conviction petition shall be filed no later than 3 years
25from the date of conviction, unless the petitioner alleges
26facts showing that the delay was not due to his or her culpable

 

 

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1negligence.
2    This limitation does not apply to a petition advancing a
3claim of actual innocence.
4    (d) A person seeking relief by filing a petition under this
5Section must specify in the petition or its heading that it is
6filed under this Section. A trial court that has received a
7petition complaining of a conviction or sentence that fails to
8specify in the petition or its heading that it is filed under
9this Section need not evaluate the petition to determine
10whether it could otherwise have stated some grounds for relief
11under this Article.
12    (e) A proceeding under this Article may not be commenced on
13behalf of a defendant who has been sentenced to death without
14the written consent of the defendant, unless the defendant,
15because of a mental or physical condition, is incapable of
16asserting his or her own claim.
17    (f) Only Except for petitions brought under paragraph (3)
18of subsection (a) of this Section, only one petition may be
19filed by a petitioner under this Article without leave of the
20court. Leave of court may be granted only if a petitioner
21demonstrates cause for his or her failure to bring the claim in
22his or her initial post-conviction proceedings and prejudice
23results from that failure. For purposes of this subsection (f):
24(1) a prisoner shows cause by identifying an objective factor
25that impeded his or her ability to raise a specific claim
26during his or her initial post-conviction proceedings; and (2)

 

 

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1a prisoner shows prejudice by demonstrating that the claim not
2raised during his or her initial post-conviction proceedings so
3infected the trial that the resulting conviction or sentence
4violated due process.
5(Source: P.A. 100-574, eff. 6-1-18.)
 
6    Section 10. The Code of Civil Procedure is amended by
7changing Section 2-1401 as follows:
 
8    (735 ILCS 5/2-1401)  (from Ch. 110, par. 2-1401)
9    Sec. 2-1401. Relief from judgments.
10    (a) Relief from final orders and judgments, after 30 days
11from the entry thereof, may be had upon petition as provided in
12this Section. Writs of error coram nobis and coram vobis, bills
13of review and bills in the nature of bills of review are
14abolished. All relief heretofore obtainable and the grounds for
15such relief heretofore available, whether by any of the
16foregoing remedies or otherwise, shall be available in every
17case, by proceedings hereunder, regardless of the nature of the
18order or judgment from which relief is sought or of the
19proceedings in which it was entered. Except as provided in the
20Illinois Parentage Act of 2015, there shall be no distinction
21between actions and other proceedings, statutory or otherwise,
22as to availability of relief, grounds for relief or the relief
23obtainable.
24    (b) The petition must be filed in the same proceeding in

 

 

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1which the order or judgment was entered but is not a
2continuation thereof. The petition must be supported by
3affidavit or other appropriate showing as to matters not of
4record. A petition to reopen a foreclosure proceeding must
5include as parties to the petition, but is not limited to, all
6parties in the original action in addition to the current
7record title holders of the property, current occupants, and
8any individual or entity that had a recorded interest in the
9property before the filing of the petition. All parties to the
10petition shall be notified as provided by rule.
11    (b-5) A movant may present a meritorious claim under this
12Section if the allegations in the petition establish each of
13the following by a preponderance of the evidence:
14        (1) the movant was convicted of a forcible felony;
15        (2) the movant's participation in the offense was
16    related to him or her previously having been a victim of
17    domestic violence as perpetrated by an intimate partner;
18        (3) no evidence of domestic violence against the movant
19    was presented at the movant's sentencing hearing;
20        (4) the movant was unaware of the mitigating nature of
21    the evidence of the domestic violence at the time of
22    sentencing and could not have learned of its significance
23    sooner through diligence; and
24        (5) the new evidence of domestic violence against the
25    movant is material and noncumulative to other evidence
26    offered at the sentencing hearing, and is of such a

 

 

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1    conclusive character that it would likely change the
2    sentence imposed by the original trial court.
3    Nothing in this subsection (b-5) shall prevent a movant
4from applying for any other relief under this Section or any
5other law otherwise available to him or her.
6    As used in this subsection (b-5):
7        "Domestic violence" means abuse as defined in Section
8    103 of the Illinois Domestic Violence Act of 1986.
9        "Forcible felony" has the meaning ascribed to the term
10    in Section 2-8 of the Criminal Code of 2012.
11        "Intimate partner" means a spouse or former spouse,
12    persons who have or allegedly have had a child in common,
13    or persons who have or have had a dating or engagement
14    relationship.
15    (b-10) A movant may present a meritorious claim under this
16Section if the allegations in the petition establish each of
17the following by a preponderance of the evidence:
18        (A) she was convicted of a forcible felony;
19        (B) her participation in the offense was a direct
20    result of her suffering from post-partum depression or
21    post-partum psychosis;
22        (C) no evidence of post-partum depression or
23    post-partum psychosis was presented by a qualified medical
24    person at trial or sentencing, or both;
25        (D) she was unaware of the mitigating nature of the
26    evidence or, if aware, was at the time unable to present

 

 

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1    this defense due to suffering from post-partum depression
2    or post-partum psychosis, or, at the time of trial or
3    sentencing, neither was a recognized mental illness and as
4    such, she was unable to receive proper treatment; and
5        (E) evidence of post-partum depression or post-partum
6    psychosis as suffered by the person is material and
7    noncumulative to other evidence offered at the time of
8    trial or sentencing, and it is of such a conclusive
9    character that it would likely change the sentence imposed
10    by the original court.
11    Nothing in this subsection (b-10) prevents a person from
12applying for any other relief under this Article or any other
13law otherwise available to her.
14    As used in this subsection (b-10):
15        "Post-partum depression" means a mood disorder which
16    strikes many women during and after pregnancy and usually
17    occurs during pregnancy and up to 12 months after delivery.
18    This depression can include anxiety disorders.
19        "Post-partum psychosis" means an extreme form of
20    post-partum depression which can occur during pregnancy
21    and up to 12 months after delivery. This can include losing
22    touch with reality, distorted thinking, delusions,
23    auditory and visual hallucinations, paranoia,
24    hyperactivity and rapid speech, or mania.
25    (c) Except as provided in Section 20b of the Adoption Act
26and Section 2-32 of the Juvenile Court Act of 1987 or in a

 

 

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1petition based upon Section 116-3 of the Code of Criminal
2Procedure of 1963 or subsection (b-10) of this Section, the
3petition must be filed not later than 2 years after the entry
4of the order or judgment. Time during which the person seeking
5relief is under legal disability or duress or the ground for
6relief is fraudulently concealed shall be excluded in computing
7the period of 2 years.
8    (d) The filing of a petition under this Section does not
9affect the order or judgment, or suspend its operation.
10    (e) Unless lack of jurisdiction affirmatively appears from
11the record proper, the vacation or modification of an order or
12judgment pursuant to the provisions of this Section does not
13affect the right, title or interest in or to any real or
14personal property of any person, not a party to the original
15action, acquired for value after the entry of the order or
16judgment but before the filing of the petition, nor affect any
17right of any person not a party to the original action under
18any certificate of sale issued before the filing of the
19petition, pursuant to a sale based on the order or judgment.
20When a petition is filed pursuant to this Section to reopen a
21foreclosure proceeding, notwithstanding the provisions of
22Section 15-1701 of this Code, the purchaser or successor
23purchaser of real property subject to a foreclosure sale who
24was not a party to the mortgage foreclosure proceedings is
25entitled to remain in possession of the property until the
26foreclosure action is defeated or the previously foreclosed

 

 

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1defendant redeems from the foreclosure sale if the purchaser
2has been in possession of the property for more than 6 months.
3    (f) Nothing contained in this Section affects any existing
4right to relief from a void order or judgment, or to employ any
5existing method to procure that relief.
6(Source: P.A. 99-85, eff. 1-1-16; 99-384, eff. 1-1-16; 99-642,
7eff. 7-28-16; 100-1048, eff. 8-23-18.)
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.