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Rep. Christian L. Mitchell
Filed: 3/23/2015
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1 | | AMENDMENT TO HOUSE BILL 3423
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2 | | AMENDMENT NO. ______. Amend House Bill 3423 by replacing |
3 | | everything after the enacting clause with the following:
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4 | | "Section 5. The Code of Criminal Procedure of 1963 is |
5 | | amended by changing Sections 122-1, 122-2.1, and 122-6 and by |
6 | | adding Section 122-0.5 as follows: |
7 | | (725 ILCS 5/122-0.5 new) |
8 | | Sec. 122-0.5. Definitions. As used in this Article: |
9 | | "Domestic violence" means "abuse" as defined in Section 103 |
10 | | of the Illinois Domestic
Violence Act of 1986. |
11 | | "Forcible felony" has the meaning ascribed to the term in |
12 | | Section 2-8 of the Criminal
Code of 2012. |
13 | | "Intimate partner" means spouses, former spouses, persons |
14 | | who have or allegedly have
a child in common, or persons who |
15 | | have or have had a dating or engagement
relationship.
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1 | | (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
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2 | | Sec. 122-1. Petition in the trial court.
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3 | | (a) Any person imprisoned in the penitentiary may institute |
4 | | a proceeding under this Article if the person asserts that: |
5 | | (1) in the
proceedings which resulted in his or her |
6 | | conviction there was a substantial
denial of his or her |
7 | | rights under the Constitution of the United States or
of |
8 | | the State of Illinois or both; or
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9 | | (2) the death penalty was imposed and there is
newly |
10 | | discovered evidence not available to the person at
the time |
11 | | of the proceeding that resulted in his or her
conviction |
12 | | that establishes a substantial basis to believe that the |
13 | | defendant
is actually innocent by clear and convincing |
14 | | evidence ; or .
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15 | | (3) his or her participation in the forcible felony for |
16 | | which he or she was convicted was
a result of having been a |
17 | | victim of domestic violence as perpetrated by an intimate
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18 | | partner, and evidence of the domestic violence was not |
19 | | presented at trial or sentencing. |
20 | | (a-5) A proceeding under paragraph (2) of subsection (a)
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21 | | may be commenced within a reasonable period of time after the |
22 | | person's
conviction
notwithstanding any other provisions of
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23 | | this Article. In such a proceeding regarding
actual innocence, |
24 | | if the court determines the petition is
frivolous or is |
25 | | patently without merit, it shall dismiss the
petition in a |
26 | | written order, specifying the findings of fact
and conclusions |
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1 | | of law it made in reaching its decision.
Such order of |
2 | | dismissal is a final judgment and shall be
served upon the |
3 | | petitioner by certified mail within 10 days
of its entry.
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4 | | (b) The proceeding shall be commenced by filing with the |
5 | | clerk of the court
in which the conviction took place a |
6 | | petition (together with a copy thereof)
verified by affidavit. |
7 | | Petitioner shall also serve another copy upon the
State's |
8 | | Attorney by any of the methods provided in Rule 7 of the |
9 | | Supreme
Court. The clerk shall docket the petition for |
10 | | consideration by the court
pursuant to Section 122-2.1 upon his |
11 | | or her receipt thereof and bring the same
promptly to the |
12 | | attention of the court.
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13 | | (c) Except as otherwise provided in subsection (a-5) or |
14 | | (c-5) , if
the petitioner is under sentence of death and a |
15 | | petition for writ of certiorari is filed,
no proceedings under |
16 | | this Article shall be commenced more than 6 months after
the |
17 | | conclusion of proceedings in the United States Supreme Court, |
18 | | unless the petitioner alleges facts showing that the delay
was
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19 | | not due to his or her culpable negligence. If a petition for |
20 | | certiorari is not filed, no proceedings under this Article |
21 | | shall be commenced more than 6 months from the date for filing |
22 | | a certiorari petition, unless the petitioner alleges facts |
23 | | showing that the delay was not due to his or her culpable |
24 | | negligence.
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25 | | When a defendant has a sentence other than death, no |
26 | | proceedings under this
Article shall be commenced more than 6 |
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1 | | months after the conclusion of proceedings in the United States |
2 | | Supreme Court, unless the petitioner
alleges facts showing that |
3 | | the delay was not due to his or her culpable
negligence or the |
4 | | petitioner has instituted a
proceeding under paragraph (3) of |
5 | | subsection (a) of this Section .
If a petition for certiorari is |
6 | | not filed, no proceedings under this Article shall be commenced |
7 | | more than 6 months from the date for filing a certiorari |
8 | | petition, unless the petitioner alleges facts showing that the |
9 | | delay was not due to his or her culpable negligence or the |
10 | | petitioner has instituted a
proceeding under paragraph (3) of |
11 | | subsection (a) of this Section . If a defendant does not file a |
12 | | direct appeal, the post-conviction petition shall be filed no |
13 | | later than 3 years from the date of conviction, unless the |
14 | | petitioner alleges facts showing that the delay was not due to |
15 | | his or her culpable negligence or the petitioner has instituted |
16 | | a
proceeding under paragraph (3) of subsection (a) of this |
17 | | Section .
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18 | | This limitation does not apply to a petition advancing a |
19 | | claim of actual
innocence. |
20 | | (c-5) A proceeding under paragraph (3) of subsection (a) of |
21 | | this Section may be
commenced (1) within 3 years following the |
22 | | entry of a verdict or finding of guilty, or (2)
within 2 years |
23 | | of beginning counseling services while incarcerated directly |
24 | | related to the domestic
violence suffered, whichever occurs |
25 | | latest, provided that reasonable notice of the
proceeding shall |
26 | | be served upon the State and the victim as defined by the |
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1 | | Rights of
Crime Victims and Witnesses Act.
No limitations under |
2 | | this subsection or subsection (d) apply to a petition advancing |
3 | | a
claim of actual innocence. |
4 | | (d) A person seeking relief by filing a petition under this |
5 | | Section must
specify in the petition or its heading that it is |
6 | | filed under this Section.
A trial court that has received a |
7 | | petition complaining of a conviction or
sentence that fails to |
8 | | specify in the petition or its heading that it is
filed under |
9 | | this Section need not evaluate the petition to determine
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10 | | whether it could otherwise have stated some grounds for relief |
11 | | under
this Article.
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12 | | (e) A proceeding under this Article may not be commenced on |
13 | | behalf of a
defendant who has been sentenced to death without |
14 | | the written consent of the
defendant, unless the defendant, |
15 | | because of a mental or physical condition, is
incapable of |
16 | | asserting his or her own claim.
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17 | | (f) Unless the petitioner has instituted a proceeding under |
18 | | paragraph (3) of subsection (a) of this Section, only Only one |
19 | | petition may be filed by a petitioner under this Article
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20 | | without leave of the court.
Leave of court may be granted only |
21 | | if a petitioner demonstrates
cause for his or her failure to |
22 | | bring the claim in his or her initial
post-conviction |
23 | | proceedings and prejudice results from that failure. For
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24 | | purposes
of this subsection (f): (1) a prisoner shows cause by |
25 | | identifying an objective
factor that impeded his or her ability |
26 | | to raise a specific claim during his or
her initial |
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1 | | post-conviction proceedings; and (2) a prisoner shows |
2 | | prejudice by
demonstrating that the claim not raised during his |
3 | | or her initial
post-conviction proceedings so infected the |
4 | | trial that the resulting conviction
or
sentence violated due |
5 | | process. A proceeding under paragraph (3) of subsection (a) of |
6 | | this Section may be instituted concurrently with any
other |
7 | | proceeding under this Article.
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8 | | (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; |
9 | | 93-972, eff. 8-20-04.)
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10 | | (725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
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11 | | Sec. 122-2.1. (a) Within 90 days after the filing and |
12 | | docketing of each
petition, the court shall examine such |
13 | | petition and enter an order thereon
pursuant to this Section.
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14 | | (1) If the petitioner is under sentence of death and is |
15 | | without
counsel and alleges that he or she is without means |
16 | | to procure counsel, he or she shall
state whether or not he |
17 | | or she wishes counsel to be appointed to represent him or |
18 | | her .
If appointment of counsel is so requested, the court |
19 | | shall appoint counsel
if satisfied that the petitioner has |
20 | | no means to procure counsel.
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21 | | (2) If the petitioner is sentenced to imprisonment and |
22 | | the court
determines the petition is frivolous or is |
23 | | patently without merit, it shall
dismiss the petition in a |
24 | | written order, specifying the findings of fact and
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25 | | conclusions of law it made in reaching its decision. Such |
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1 | | order of
dismissal is a final judgment and shall be served |
2 | | upon the petitioner by
certified mail within 10 days of its |
3 | | entry.
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4 | | (b) If the petition is not dismissed pursuant to this |
5 | | Section, the court
shall order the petition to be docketed for |
6 | | further consideration in accordance
with Sections 122-4 |
7 | | through 122-6.
If the petitioner is under sentence of death, |
8 | | the court shall order the
petition to be docketed for further |
9 | | consideration and hearing within one year
of the filing of the |
10 | | petition. Continuances may be granted as the court deems
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11 | | appropriate.
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12 | | (c) In considering a petition pursuant to this Section, the |
13 | | court may
examine the court file of the proceeding in which the |
14 | | petitioner was convicted,
any action taken by an appellate |
15 | | court in such proceeding and any transcripts
of such |
16 | | proceeding.
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17 | | (Source: P.A. 93-605, eff. 11-19-03.)
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18 | | (725 ILCS 5/122-6) (from Ch. 38, par. 122-6)
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19 | | Sec. 122-6. Disposition in trial court.
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20 | | The court may receive proof by affidavits, depositions, |
21 | | oral testimony,
or other evidence. In its discretion the court |
22 | | may order the petitioner
brought before the court for the |
23 | | hearing. If the petitioner has instituted a proceeding under |
24 | | paragraph (3) of subsection (a) of Section 122-1, the petition |
25 | | shall state why the facts giving rise to this petition were not |
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1 | | presented to
the trial court. The petition shall identify any |
2 | | previous proceedings that the petitioner
may have taken to |
3 | | secure relief from his or her conviction. Argument and |
4 | | citations and
discussion of authorities shall be omitted from |
5 | | the petition.
As evidence that petitioner's participation in |
6 | | the forcible felony for which he or she was
convicted was a |
7 | | result of having been a victim of domestic violence as |
8 | | perpetrated by an
intimate partner, the court may receive |
9 | | evidence that may include, but is not limited to: |
10 | | (1) certified records of federal or State court |
11 | | proceedings which demonstrate that the
defendant was a |
12 | | victim of an offender charged with a domestic violence |
13 | | offense under
Section 12-3.2, 12-3.3, 12-3.4 or 12-30, |
14 | | 12-3.5, or 12-3.6 of the Criminal Code of 1961
or the |
15 | | Criminal Code of 2012, or under 18 U.S.C 922(g)(8) or 18 |
16 | | U.S.C. 922(g)(9); |
17 | | (2) certified records of 'approval notices" or "law |
18 | | enforcement certifications" generated
from federal |
19 | | immigration proceedings available to the victims under the |
20 | | Victims of
Trafficking and Violence Prevention Act of 2000 |
21 | | or the Violence Against Women
Reauthorization Act of 2013; |
22 | | (3) a sworn statement from a licensed medical or mental |
23 | | health care provider, employee
of a court acting within the |
24 | | scope of his or her employment, clergy, attorney, social
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25 | | worker, or rape crisis counselor, advocate from an agency |
26 | | assisting victims of domestic
violence, or other |
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1 | | professional from whom the defendant has sought assistance |
2 | | in
addressing the trauma associated with domestic |
3 | | violence; or |
4 | | (4) any other evidence as it deems of sufficient |
5 | | credibility and
probative value in determining whether the |
6 | | defendant is a victim of domestic violence. |
7 | | If the court finds in favor of
the petitioner, it shall |
8 | | enter an appropriate order with respect to the
judgment or |
9 | | sentence in the former proceedings and such supplementary
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10 | | orders as to rearraignment, retrial, custody, bail or discharge |
11 | | as may be
necessary and proper.
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12 | | (Source: Laws 1963, p. 2836.)
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13 | | Section 10. The Unified Code of Corrections is amended by |
14 | | changing Section 5-5-3.1 as follows:
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15 | | (730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)
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16 | | Sec. 5-5-3.1. Factors in Mitigation.
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17 | | (a) The following
grounds shall be accorded weight in favor |
18 | | of withholding or
minimizing a sentence of imprisonment:
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19 | | (1) The defendant's criminal conduct neither caused |
20 | | nor
threatened serious physical harm to another.
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21 | | (2) The defendant did not contemplate that his criminal |
22 | | conduct would
cause or threaten serious physical harm to |
23 | | another.
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24 | | (3) The defendant acted under a strong provocation.
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1 | | (4) There were substantial grounds tending to excuse or |
2 | | justify
the defendant's criminal conduct, though failing |
3 | | to establish a
defense.
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4 | | (5) The defendant's criminal conduct was induced or |
5 | | facilitated
by someone other than the defendant.
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6 | | (6) The defendant has compensated or will compensate |
7 | | the victim
of his criminal conduct for the damage or injury |
8 | | that he sustained.
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9 | | (7) The defendant has no history of prior delinquency |
10 | | or
criminal activity or has led a law-abiding life for a |
11 | | substantial
period of time before the commission of the |
12 | | present crime.
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13 | | (8) The defendant's criminal conduct was the result of
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14 | | circumstances unlikely to recur.
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15 | | (9) The character and attitudes of the defendant |
16 | | indicate that he is
unlikely to commit another crime.
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17 | | (10) The defendant is particularly likely to comply |
18 | | with the terms of
a period of probation.
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19 | | (11) The imprisonment of the defendant would entail |
20 | | excessive
hardship to his dependents.
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21 | | (12) The imprisonment of the defendant would endanger |
22 | | his or her medical
condition.
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23 | | (13) The defendant was intellectually disabled as |
24 | | defined in Section 5-1-13 of
this Code.
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25 | | (14) The defendant sought or obtained emergency |
26 | | medical assistance for an overdose and was convicted of a |
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1 | | Class 3 felony or higher possession, manufacture, or |
2 | | delivery of a controlled, counterfeit, or look-alike |
3 | | substance or a controlled substance analog under the |
4 | | Illinois Controlled Substances Act or a Class 2 felony or |
5 | | higher possession, manufacture or delivery of |
6 | | methamphetamine under the Methamphetamine Control and |
7 | | Community Protection Act. |
8 | | (15) At the time of the offense, the defendant is or |
9 | | had been the victim of domestic violence and the effects of |
10 | | the domestic violence tended to excuse or justify the |
11 | | defendant's criminal conduct. As used in this paragraph, |
12 | | "domestic violence" means "abuse" as defined in Section 103 |
13 | | of the Illinois Domestic Violence Act of 1986. |
14 | | (b) If the court, having due regard for the character of |
15 | | the
offender, the nature and circumstances of the offense and |
16 | | the
public interest finds that a sentence of imprisonment is |
17 | | the
most appropriate disposition of the offender, or where |
18 | | other
provisions of this Code mandate the imprisonment of the |
19 | | offender,
the grounds listed in paragraph (a) of this |
20 | | subsection shall be
considered as factors in mitigation of the |
21 | | term imposed.
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22 | | (Source: P.A. 97-227, eff. 1-1-12; 97-678, eff. 6-1-12; 98-463, |
23 | | eff. 8-16-13.)".
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