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Public Act 100-0574 Public Act 0574 100TH GENERAL ASSEMBLY |
Public Act 100-0574 | HB1764 Enrolled | LRB100 04687 RLC 14693 b |
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| AN ACT concerning criminal law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Code of Criminal Procedure of 1963 is | amended by changing Section 122-1 as follows:
| (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
| Sec. 122-1. Petition in the trial court.
| (a) Any person imprisoned in the penitentiary may institute | a proceeding under this Article if the person asserts that: | (1) in the
proceedings which resulted in his or her | conviction there was a substantial
denial of his or her | rights under the Constitution of the United States or
of | the State of Illinois or both; or
| (2) the death penalty was imposed and there is
newly | discovered evidence not available to the person at
the time | of the proceeding that resulted in his or her
conviction | that establishes a substantial basis to believe that the | defendant
is actually innocent by clear and convincing | evidence ; or .
| (3) by a preponderance of the evidence that each of the | following allegations in the petition establish: | (A) he or she was convicted of a forcible felony; | (B) his or her participation in the offense was a |
| direct result of the
person's mental state either | suffering from post-partum depression or
post-partum | psychosis; | (C) no evidence of post-partum depression or | post-partum psychosis
was presented by a qualified | medical person at trial or sentencing, or both; | (D) he or she was unaware of the mitigating nature | of the evidence
or if aware was at the time unable to | present this defense due to suffering
from post-partum | depression or post-partum psychosis or at the time of
| trial or sentencing neither was a recognized mental | illness and as such unable to receive
proper treatment; | and | (E) evidence of post-partum depression or | post-partum psychosis as
suffered by the person is | material and noncumulative to other evidence offered
| at the time of trial or sentencing and it is of such a | conclusive character
that it would likely change the | sentence imposed by the original court. | Nothing in this paragraph (3) prevents a person from | applying for
any other relief under this Article or any | other law otherwise available to him or her. | As used in this paragraph (3): | "Post-partum depression"
means a mood disorder | which strikes many
women during and after pregnancy | which usually occurs during
pregnancy and up to 12 |
| months after delivery. This depression
can include | anxiety disorders. | "Post-partum psychosis" means an extreme form of | post-partum
depression which can occur during | pregnancy and up to 12
months after delivery. This can | include losing touch with
reality, distorted thinking, | delusions, auditory and visual
hallucinations, | paranoia, hyperactivity and rapid speech, or mania. | (a-5) A proceeding under paragraph (2) of subsection (a)
| may be commenced within a reasonable period of time after the | person's
conviction
notwithstanding any other provisions of
| this Article. In such a proceeding regarding
actual innocence, | if the court determines the petition is
frivolous or is | patently without merit, it shall dismiss the
petition in a | written order, specifying the findings of fact
and conclusions | of law it made in reaching its decision.
Such order of | dismissal is a final judgment and shall be
served upon the | petitioner by certified mail within 10 days
of its entry.
| (b) The proceeding shall be commenced by filing with the | clerk of the court
in which the conviction took place a | petition (together with a copy thereof)
verified by affidavit. | Petitioner shall also serve another copy upon the
State's | Attorney by any of the methods provided in Rule 7 of the | Supreme
Court. The clerk shall docket the petition for | consideration by the court
pursuant to Section 122-2.1 upon his | or her receipt thereof and bring the same
promptly to the |
| attention of the court.
| (c) Except as otherwise provided in subsection (a-5), if
| the petitioner is under sentence of death and a petition for | writ of certiorari is filed,
no proceedings under this Article | shall be commenced more than 6 months after
the conclusion of | proceedings in the United States Supreme Court, unless the | petitioner alleges facts showing that the delay
was
not due to | his or her culpable negligence. If a petition for certiorari is | not filed, no proceedings under this Article shall be commenced | more than 6 months from the date for filing a certiorari | petition, unless the petitioner alleges facts showing that the | delay was not due to his or her culpable negligence.
| When a defendant has a sentence other than death, no | proceedings under this
Article shall be commenced more than 6 | months after the conclusion of proceedings in the United States | Supreme Court, unless the petitioner
alleges facts showing that | the delay was not due to his or her culpable
negligence.
If a | petition for certiorari is not filed, no proceedings under this | Article shall be commenced more than 6 months from the date for | filing a certiorari petition, unless the petitioner alleges | facts showing that the delay was not due to his or her culpable | negligence. If a defendant does not file a direct appeal, the | post-conviction petition shall be filed no later than 3 years | from the date of conviction, unless the petitioner alleges | facts showing that the delay was not due to his or her culpable | negligence.
|
| This limitation does not apply to a petition advancing a | claim of actual
innocence. | (d) A person seeking relief by filing a petition under this | Section must
specify in the petition or its heading that it is | filed under this Section.
A trial court that has received a | petition complaining of a conviction or
sentence that fails to | specify in the petition or its heading that it is
filed under | this Section need not evaluate the petition to determine
| whether it could otherwise have stated some grounds for relief | under
this Article.
| (e) A proceeding under this Article may not be commenced on | behalf of a
defendant who has been sentenced to death without | the written consent of the
defendant, unless the defendant, | because of a mental or physical condition, is
incapable of | asserting his or her own claim.
| (f) Except for petitions brought under paragraph (3) of | subsection (a) of this Section, only Only one petition may be | filed by a petitioner under this Article
without leave of the | court.
Leave of court may be granted only if a petitioner | demonstrates
cause for his or her failure to bring the claim in | his or her initial
post-conviction proceedings and prejudice | results from that failure. For
purposes
of this subsection (f): | (1) a prisoner shows cause by identifying an objective
factor | that impeded his or her ability to raise a specific claim | during his or
her initial post-conviction proceedings; and (2) | a prisoner shows prejudice by
demonstrating that the claim not |
| raised during his or her initial
post-conviction proceedings so | infected the trial that the resulting conviction
or
sentence | violated due process.
| (Source: P.A. 93-493, eff. 1-1-04; 93-605, eff. 11-19-03; | 93-972, eff. 8-20-04.)
| Section 10. The Unified Code of Corrections is amended by | changing Section 5-5-3.1 as follows:
| (730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1)
| Sec. 5-5-3.1. Factors in mitigation.
| (a) The following
grounds shall be accorded weight in favor | of withholding or
minimizing a sentence of imprisonment:
| (1) The defendant's criminal conduct neither caused | nor
threatened serious physical harm to another.
| (2) The defendant did not contemplate that his criminal | conduct would
cause or threaten serious physical harm to | another.
| (3) The defendant acted under a strong provocation.
| (4) There were substantial grounds tending to excuse or | justify
the defendant's criminal conduct, though failing | to establish a
defense.
| (5) The defendant's criminal conduct was induced or | facilitated
by someone other than the defendant.
| (6) The defendant has compensated or will compensate | the victim
of his criminal conduct for the damage or injury |
| that he sustained.
| (7) The defendant has no history of prior delinquency | or
criminal activity or has led a law-abiding life for a | substantial
period of time before the commission of the | present crime.
| (8) The defendant's criminal conduct was the result of
| circumstances unlikely to recur.
| (9) The character and attitudes of the defendant | indicate that he is
unlikely to commit another crime.
| (10) The defendant is particularly likely to comply | with the terms of
a period of probation.
| (11) The imprisonment of the defendant would entail | excessive
hardship to his dependents.
| (12) The imprisonment of the defendant would endanger | his or her medical
condition.
| (13) The defendant was a person with an intellectual | disability as defined in Section 5-1-13 of
this Code.
| (14) The defendant sought or obtained emergency | medical assistance for an overdose and was convicted of a | Class 3 felony or higher possession, manufacture, or | delivery of a controlled, counterfeit, or look-alike | substance or a controlled substance analog under the | Illinois Controlled Substances Act or a Class 2 felony or | higher possession, manufacture or delivery of | methamphetamine under the Methamphetamine Control and | Community Protection Act. |
| (15) At the time of the offense, the defendant is or | had been the victim of domestic violence and the effects of | the domestic violence tended to excuse or justify the | defendant's criminal conduct. As used in this paragraph | (15), "domestic violence" means abuse as defined in Section | 103 of the Illinois Domestic Violence Act of 1986. | (16) At the time of the offense, the defendant was | suffering from a serious mental illness which, though | insufficient to establish the defense of insanity, | substantially affected his or her ability to understand the | nature of his or her acts or to conform his or her conduct | to the requirements of the law. | (17) At the time of the offense, the defendant was | suffering from post-partum depression or post-partum | psychosis which was either undiagnosed or untreated, or | both, and this temporary mental illness tended to excuse
or | justify the defendant's criminal conduct and the defendant | has been diagnosed as suffering from post-partum | depression or
post-partum psychosis, or both, by a | qualified medical person and the diagnoses or
testimony, or | both, was not used at trial. In this paragraph (17): | "Post-partum depression"
means a mood disorder | which strikes many
women during and after pregnancy | which usually occurs during
pregnancy and up to 12 | months after delivery. This depression
can include | anxiety disorders. |
| "Post-partum psychosis" means an extreme form of | post-partum
depression which can occur during | pregnancy and up to 12
months after delivery. This can | include losing touch with
reality, distorted thinking, | delusions, auditory and visual
hallucinations, | paranoia, hyperactivity and rapid speech, or mania. | (b) If the court, having due regard for the character of | the
offender, the nature and circumstances of the offense and | the
public interest finds that a sentence of imprisonment is | the
most appropriate disposition of the offender, or where | other
provisions of this Code mandate the imprisonment of the | offender,
the grounds listed in paragraph (a) of this | subsection shall be
considered as factors in mitigation of the | term imposed.
| (Source: P.A. 98-463, eff. 8-16-13; 99-143, eff. 7-27-15; | 99-384, eff. 1-1-16; 99-642, eff. 7-28-16; 99-877, eff. | 8-22-16.)
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Effective Date: 6/1/2018
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