Bill Text: IL HB4070 | 2019-2020 | 101st General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-06-23 - Rule 19(b) / Re-referred to Rules Committee [HB4070 Detail]

Download: Illinois-2019-HB4070-Introduced.html

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101ST GENERAL ASSEMBLY State of Illinois 2019 and 2020 HB4070 Introduced , 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.
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A BILL FOR
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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 Sections 122-1 and 122-2.1 as follows:
(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
Sec. 122-1. Petition in the trial court.
(a) Any person 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 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;
(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) (blank).

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(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

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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

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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) 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. 100-574, eff. 6-1-18; 101-411, eff. 8-16-19.)
(725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
Sec. 122-2.1. (a) Within 90 days after the filing and
docketing of each petition, the court shall examine such
petition and enter an order thereon pursuant to this Section.

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(1) If the petitioner is under sentence of death and is
without counsel and alleges that he is without means to
procure counsel, he shall state whether or not he wishes
counsel to be appointed to represent him. If appointment of
counsel is so requested, the court shall appoint counsel if
satisfied that the petitioner has no means to procure
counsel.
(2) If the petitioner is sentenced to imprisonment or
has served his or her sentence of imprisonment and 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) If the petition is not dismissed pursuant to this
Section, the court shall order the petition to be docketed for
further consideration in accordance with Sections 122-4
through 122-6. If the petitioner is under sentence of death,
the court shall order the petition to be docketed for further
consideration and hearing within one year of the filing of the
petition. Continuances may be granted as the court deems
appropriate.
(c) In considering a petition pursuant to this Section, the
court may examine the court file of the proceeding in which the
petitioner was convicted, any action taken by an appellate

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court in such proceeding and any transcripts of such
proceeding.
(Source: P.A. 93-605, eff. 11-19-03.)