SB1266 104TH GENERAL ASSEMBLY

LRB104 06565 RLC 16601 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
SB1266

Introduced 1/28/2025, by Sen. Karina Villa

SYNOPSIS AS INTRODUCED:

725 ILCS 5/113-8
725 ILCS 5/Art. 124C heading new
725 ILCS 5/124C-1 new
735 ILCS 5/2-1401	from Ch. 110, par. 2-1401

Amends the Code of Criminal Procedure of 1963. Provides that any person may file a petition to vacate a conviction or sentence, regardless of criminal custody status or citizenship or immigration status, as defined in the Illinois TRUST Act, if the person asserts that: (1) the conviction or sentence is legally invalid due to prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence; or (2) newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. Provides that such a petition shall be deemed timely filed at any time notwithstanding any other provision of law. Provides that the time limitations for petitions filed in the trial court under the Post-Conviction Hearing Article of the Code do not apply to a petition filed under this provision. Amends the Code of Civil Procedure. Provides that a provision granting relief from a final order or judgment entered based on a plea of guilty or nolo contendere and that has potential consequences under federal immigration law applies to orders or judgments entered before, on, or after the effective date of the amendatory Act.

A BILL FOR

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 113-8 and by adding Article 124C as follows:

(725 ILCS 5/113-8)

Sec. 113-8. Advisement concerning status as a noncitizen.

(a) Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.".

(b) If the defendant is arraigned on or after the effective date of this amendatory Act of the 101st General Assembly, and the court fails to advise the defendant as required by subsection (a) of this Section, and the defendant shows that conviction of the offense to which the defendant pleaded guilty, guilty but mentally ill, or nolo contendere may have the consequence for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States, the court, upon the defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty, guilty but mentally ill, or nolo contendere and enter a plea of not guilty. A defendant who, prior to the effective date of this amendatory Act of the 104th General Assembly, had been barred by time limitations from filing a motion to vacate, may pursue remedies under this Section or Section 124C-1. The motion shall be filed within 2 years of the date of the defendant's conviction.

(Source: P.A. 101-409, eff. 1-1-20; 102-1030, eff. 5-27-22.)

(725 ILCS 5/Art. 124C heading new)

ARTICLE 124C. PETITION TO VACATE CERTAIN CONVICTIONS IN THE

TRIAL COURT

(725 ILCS 5/124C-1 new)

Sec. 124C-1. Petition to vacate certain convictions in the trial court.

(a) In this Section, "conviction" has the meaning given in 8 U.S.C. 1101(a)(48).

(b) Any person may file a petition to vacate a conviction or sentence under this Section, regardless of criminal custody status or citizenship or immigration status, as defined in Section 10 of the Illinois TRUST Act, if the person asserts that:

(1) the conviction or sentence is legally invalid due to prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence; a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel, and includes but is not limited to failure to admonish noncitizens under Section 113-8 of this Code or Illinois Supreme Court Rule 402; or

(2) newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.

(c) Notwithstanding any other provision of law, a petition under subsection (b) shall be deemed timely filed at any time. The time limitations for petitions filed in the trial court under Section 122-1 do not apply to a petition filed under subsection (b).

(d) A petition filed under this Section shall identify the proceeding in which the petitioner was convicted or sentenced, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which either the petitioner asserts that his or her rights were violated under subsection (b) or that newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interest of justice. The petition may have attached to it affidavits, records, or other evidence supporting its allegations or may state why the same are not attached.

(e) If the petition alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Illinois Supreme Court Rules. If the petitioner is without counsel and alleges being without means to procure counsel, the petitioner shall state whether appointment of counsel is being requested. If appointment of counsel is being requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.

(f) All petitions filed under this Section shall be entitled to a hearing. Upon the request of the petitioner, the court may hold the hearing without the personal presence of the petitioner if it finds good cause as to why the petitioner cannot be present. If the State's Attorney for the jurisdiction in which the petition is filed does not file an objection to the petition, the court may grant the petition to vacate the conviction or sentence without a hearing.

(1) Within 90 days after the filing and docketing of each petition, the court shall examine the petition and enter an order on the petition setting for calendar a hearing date on the petition, except that this timeline shall be 45 days in any case in which the petitioner is in the custody of Immigration and Customs Enforcement or otherwise faces imminent removal from the United States.

(2) Within 30 days after the entry of an order under paragraph (1) of this subsection (f), or within such further time as the court may set, the State may file an answer.

No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party. The court may in its discretion grant leave, at any stage of the proceeding prior to entry of judgment, to withdraw the petition. The court may in its discretion make such order as to amendment of the petition or any other pleading, or as to pleading over, or filing further pleadings, or extending the time of filing any pleading other than the original petition, as shall be appropriate, just, and reasonable and as is generally provided in civil cases.

(g) When ruling on the petition:

(1) The court shall grant the petition to vacate the conviction or sentence if the petitioner establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subsection (b). For a motion made under paragraph (1) of subsection (b), the petitioner shall also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization.

(2) A court's judicial admonishment under Section 113-8 at the time of the conviction or sentencing at issue in the petition shall not be considered:

(A) a sufficient basis to cure or correct the prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence;

(B) mitigation for a finding of ineffective assistance of counsel relating to the same conviction or sentencing under this Section; or

(C) dispositive as to whether the petitioner was aware that the petitioner's criminal conviction or sentence has adverse immigration consequences for purposes of paragraph (2) of subsection (b).

(3) There is a presumption of legal invalidity for the purposes of paragraph (1) of subsection (b) if the petitioner pleaded guilty or nolo contendere under a statute that provided that, upon completion of specific requirements, proceedings would be dismissed without judgment if the petitioner complied with these requirements, and if the disposition under the statute has been, or potentially could be, used as a basis for adverse immigration consequences.

(4) If the court grants the petition to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the petitioner to withdraw the plea.

(5) When ruling on a petition under this Section, the court shall specify the basis for its conclusion. For petitions under paragraph (1) of subsection (b), the only finding that the court is required to make is whether the conviction is legally invalid due to prejudicial error damaging the petitioner's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

(h) An order granting or denying the petition is appealable, and any final judgment entered upon the petition shall be reviewed in the manner provided under the rules of the Supreme Court.

(i) A court may issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subsection (b) only if the attorney found to be ineffective was given, under Illinois Supreme Court Rule 102, timely advance notice of the petition hearing by the petitioner or the State's Attorney for the jurisdiction in which the petition is filed.

(j) If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, conditions of pretrial release or discharge as may be necessary and proper.

(k) Crime victims shall be given notice by the State's Attorney's office of petitions filed under this Section as required in Section 4.5 of the Rights of Crime Victims and Witnesses Act.

(l) Remedies under this Section shall apply to convictions and sentences entered before, on, or after the effective date of this amendatory Act of the 104th General Assembly.

Section 10. The Code of Civil Procedure is amended by changing Section 2-1401 as follows:

(735 ILCS 5/2-1401) (from Ch. 110, par. 2-1401)

Sec. 2-1401. Relief from judgments.

(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. Writs of error coram nobis and coram vobis, bills of review, and bills in the nature of bills of review are abolished. All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered. Except as provided in the Illinois Parentage Act of 2015, there shall be no distinction between actions and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief, or the relief obtainable.

(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by an affidavit or other appropriate showing as to matters not of record. A petition to reopen a foreclosure proceeding must include as parties to the petition, but is not limited to, all parties in the original action in addition to the current record title holders of the property, current occupants, and any individual or entity that had a recorded interest in the property before the filing of the petition. All parties to the petition shall be notified as provided by rule.

(b-5) A movant may present a meritorious claim under this Section if the allegations in the petition establish each of the following by a preponderance of the evidence:

(1) the movant was convicted of a forcible felony;

(2) the movant's participation in the offense was related to him or her previously having been a victim of domestic violence or gender-based violence;

(3) there is substantial evidence of domestic violence or gender-based violence against the movant that was not presented at the movant's sentencing hearing;

(4) (blank); and

(5) the evidence of domestic violence or gender-based violence against the movant is material and noncumulative to other evidence offered at the sentencing hearing, or previous hearing under this Section filed on or after the effective date of this amendatory Act of the 103rd General Assembly, and is of such a conclusive character that it would likely change the sentence imposed by the original trial court.

Nothing in this subsection (b-5) shall prevent a movant from applying for any other relief under this Section or any other law otherwise available to him or her. This subsection (b-5) applies to all eligible convictions, including, but not limited to, if the judge renders the sentence based on a negotiated plea agreement. Relief under this Section allows for the modification of the length of sentence without affecting the conviction.

As used in this subsection (b-5):

"Domestic violence" means abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986.

"Forcible felony" has the meaning ascribed to the term in Section 2-8 of the Criminal Code of 2012.

"Gender-based violence" includes evidence of victimization as a trafficking victim, as defined by paragraph (10) of subsection (a) of Section 10-9 of the Criminal Code of 2012, evidence of victimization under the Illinois Domestic Violence Act of 1986, evidence of victimization under the Stalking No Contact Order Act, or evidence of victimization of any offense under Article 11 of the Criminal Code of 2012, irrespective of criminal prosecution or conviction.

"Intimate partner" means a spouse or former spouse, persons who have or allegedly have had a child in common, or persons who have or have had a dating or engagement relationship.

"Substantial evidence" means evidence that a reasonable mind might accept as adequate to support a conclusion.

(b-10) A movant may present a meritorious claim under this Section if the allegations in the petition establish each of the following by a preponderance of the evidence:

(A) she was convicted of a forcible felony;

(B) her participation in the offense was a direct result of her suffering from postpartum depression or postpartum psychosis;

(C) no evidence of postpartum depression or postpartum psychosis was presented by a qualified medical person at trial or sentencing, or both;

(D) 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 postpartum depression or postpartum psychosis, or, at the time of trial or sentencing, neither was a recognized mental illness and as such, she was unable to receive proper treatment; and

(E) evidence of postpartum depression or postpartum 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 subsection (b-10) prevents a person from applying for any other relief under this Article or any other law otherwise available to her. This subsection (b-10) applies to all eligible convictions, including, but not limited to, if the judge renders the sentence based on a negotiated plea agreement. Relief under this Section allows for the modification of the length of sentence without affecting the conviction.

As used in this subsection (b-10):

"Postpartum depression" means a mood disorder which strikes many women during and after pregnancy and usually occurs during pregnancy and up to 12 months after delivery. This depression can include anxiety disorders.

"Postpartum psychosis" means an extreme form of postpartum 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.

(c) Except as provided in Section 20b of the Adoption Act and Section 2-32 of the Juvenile Court Act of 1987, in a petition based upon Section 116-3 of the Code of Criminal Procedure of 1963 or subsection (b-5), or (b-10), or (c-5) of this Section, or in a motion to vacate and expunge convictions under the Cannabis Control Act as provided by subsection (i) of Section 5.2 of the Criminal Identification Act, the petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.

(c-5) Any individual may at any time file a petition and institute proceedings under this Section if the individual's his or her final order or judgment, which was entered based on a plea of guilty or nolo contendere, has potential consequences under federal immigration law. This subsection applies to orders or judgments entered before, on, or after the effective date of this amendatory Act of the 104th General Assembly.

(d) The filing of a petition under this Section does not affect the order or judgment, or suspend its operation.

(e) Unless lack of jurisdiction affirmatively appears from the record proper, the vacation or modification of an order or judgment pursuant to the provisions of this Section does not affect the right, title, or interest in or to any real or personal property of any person, not a party to the original action, acquired for value after the entry of the order or judgment but before the filing of the petition, nor affect any right of any person not a party to the original action under any certificate of sale issued before the filing of the petition, pursuant to a sale based on the order or judgment. When a petition is filed pursuant to this Section to reopen a foreclosure proceeding, notwithstanding the provisions of Section 15-1701 of this Code, the purchaser or successor purchaser of real property subject to a foreclosure sale who was not a party to the mortgage foreclosure proceedings is entitled to remain in possession of the property until the foreclosure action is defeated or the previously foreclosed defendant redeems from the foreclosure sale if the purchaser has been in possession of the property for more than 6 months.

(f) Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.

(Source: P.A. 102-639, eff. 8-27-21; 102-813, eff. 5-13-22; 103-403, eff. 1-1-24; 103-968, eff. 1-1-25.)