102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB2745

 

Introduced 2/19/2021, by Rep. La Shawn K. Ford

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/122-1  from Ch. 38, par. 122-1
725 ILCS 5/122-2.1  from Ch. 38, par. 122-2.1

    Amends the Code of Criminal Procedure of 1963. Provides that a person who has been convicted of an offense and sentenced to a term of imprisonment for a felony or misdemeanor and who is serving or has served his or her sentence of imprisonment (rather than imprisoned in the penitentiary) may institute a proceeding under the Post-Conviction Hearing Article of the Code.


LRB102 15679 RLC 21043 b

 

 

A BILL FOR

 

HB2745LRB102 15679 RLC 21043 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 Sections 122-1 and 122-2.1 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 who has been convicted of an offense and
9sentenced to a term of imprisonment for a felony or
10misdemeanor and who is serving or has served his or her
11sentence of imprisonment imprisoned in the penitentiary may
12institute a proceeding under this Article if the person
13asserts that:
14        (1) in the proceedings which resulted in his or her
15    conviction there was a substantial denial of his or her
16    rights under the Constitution of the United States or of
17    the State of Illinois or both;
18        (2) the death penalty was imposed and there is newly
19    discovered evidence not available to the person at the
20    time of the proceeding that resulted in his or her
21    conviction that establishes a substantial basis to believe
22    that the defendant is actually innocent by clear and
23    convincing evidence; or

 

 

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1        (3) (blank).
2    (a-5) A proceeding under paragraph (2) of subsection (a)
3may be commenced within a reasonable period of time after the
4person's conviction notwithstanding any other provisions of
5this Article. In such a proceeding regarding actual innocence,
6if the court determines the petition is frivolous or is
7patently without merit, it shall dismiss the petition in a
8written order, specifying the findings of fact and conclusions
9of law it made in reaching its decision. Such order of
10dismissal is a final judgment and shall be served upon the
11petitioner by certified mail within 10 days of its entry.
12    (b) The proceeding shall be commenced by filing with the
13clerk of the court in which the conviction took place a
14petition (together with a copy thereof) verified by affidavit.
15Petitioner shall also serve another copy upon the State's
16Attorney by any of the methods provided in Rule 7 of the
17Supreme Court. The clerk shall docket the petition for
18consideration by the court pursuant to Section 122-2.1 upon
19his or her receipt thereof and bring the same promptly to the
20attention of the court.
21    (c) Except as otherwise provided in subsection (a-5), if
22the petitioner is under sentence of death and a petition for
23writ of certiorari is filed, no proceedings under this Article
24shall be commenced more than 6 months after the conclusion of
25proceedings in the United States Supreme Court, unless the
26petitioner alleges facts showing that the delay was not due to

 

 

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1his or her culpable negligence. If a petition for certiorari
2is not filed, no proceedings under this Article shall be
3commenced more than 6 months from the date for filing a
4certiorari petition, unless the petitioner alleges facts
5showing that the delay was not due to his or her culpable
6negligence.
7    When a defendant has a sentence other than death, no
8proceedings under this Article shall be commenced more than 6
9months after the conclusion of proceedings in the United
10States Supreme Court, unless the petitioner alleges facts
11showing that the delay was not due to his or her culpable
12negligence. If a petition for certiorari is not filed, no
13proceedings under this Article shall be commenced more than 6
14months from the date for filing a certiorari petition, unless
15the petitioner alleges facts showing that the delay was not
16due to his or her culpable negligence. If a defendant does not
17file a direct appeal, the post-conviction petition shall be
18filed no later than 3 years from the date of conviction, unless
19the petitioner alleges facts showing that the delay was not
20due to his or her culpable negligence.
21    This limitation does not apply to a petition advancing a
22claim of actual innocence.
23    (d) A person seeking relief by filing a petition under
24this Section must specify in the petition or its heading that
25it is filed under this Section. A trial court that has received
26a petition complaining of a conviction or sentence that fails

 

 

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1to specify in the petition or its heading that it is filed
2under this Section need not evaluate the petition to determine
3whether it could otherwise have stated some grounds for relief
4under this Article.
5    (e) A proceeding under this Article may not be commenced
6on behalf of a defendant who has been sentenced to death
7without the written consent of the defendant, unless the
8defendant, because of a mental or physical condition, is
9incapable of asserting his or her own claim.
10    (f) Only one petition may be filed by a petitioner under
11this Article without leave of the court. Leave of court may be
12granted only if a petitioner demonstrates cause for his or her
13failure to bring the claim in his or her initial
14post-conviction proceedings and prejudice results from that
15failure. For purposes of this subsection (f): (1) a prisoner
16shows cause by identifying an objective factor that impeded
17his or her ability to raise a specific claim during his or her
18initial post-conviction proceedings; and (2) a prisoner shows
19prejudice by demonstrating that the claim not raised during
20his or her initial post-conviction proceedings so infected the
21trial that the resulting conviction or sentence violated due
22process.
23(Source: P.A. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
 
24    (725 ILCS 5/122-2.1)  (from Ch. 38, par. 122-2.1)
25    Sec. 122-2.1. (a) Within 90 days after the filing and

 

 

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1docketing of each petition, the court shall examine such
2petition and enter an order thereon pursuant to this Section.
3        (1) If the petitioner is under sentence of death and
4    is without counsel and alleges that he is without means to
5    procure counsel, he shall state whether or not he wishes
6    counsel to be appointed to represent him. If appointment
7    of counsel is so requested, the court shall appoint
8    counsel if satisfied that the petitioner has no means to
9    procure counsel.
10        (2) If the petitioner is sentenced to imprisonment or
11    has served his or her sentence of imprisonment and the
12    court determines the petition is frivolous or is patently
13    without merit, it shall dismiss the petition in a written
14    order, specifying the findings of fact and conclusions of
15    law it made in reaching its decision. Such order of
16    dismissal is a final judgment and shall be served upon the
17    petitioner by certified mail within 10 days of its entry.
18    (b) If the petition is not dismissed pursuant to this
19Section, the court shall order the petition to be docketed for
20further consideration in accordance with Sections 122-4
21through 122-6. If the petitioner is under sentence of death,
22the court shall order the petition to be docketed for further
23consideration and hearing within one year of the filing of the
24petition. Continuances may be granted as the court deems
25appropriate.
26    (c) In considering a petition pursuant to this Section,

 

 

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1the court may examine the court file of the proceeding in which
2the petitioner was convicted, any action taken by an appellate
3court in such proceeding and any transcripts of such
4proceeding.
5(Source: P.A. 93-605, eff. 11-19-03.)