Public Act 100-0574
 
HB1764 EnrolledLRB100 04687 RLC 14693 b


  
    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.)