Bill Text: IL SB3629 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Amends the Code of Criminal Procedure of 1963. Provides that a defendant who, prior to the effective date of the amendatory Act, had been barred by time limitations from filing a motion to vacate because the court failed to advise the defendant 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, may pursue the following remedies. Provides that any person, regardless of criminal custody status, may file a petition to vacate a conviction or sentence if the person asserts any of the following reasons: (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. Establishes time periods for filing the petition and establishes when the petitions are not timely filed. Provides that there is a presumption of legal invalidity if the petitioner pleaded guilty or nolo contendere under a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, 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. Provides that crime victims shall be given notice by the State's Attorney's office of petitions filed under this provision as required in the Rights of Crime Victims and Witnesses Act. Provides that remedies under this provision shall apply to convictions and sentences in existence prior to the effective date of the amendatory Act.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced) 2024-09-27 - Added as Co-Sponsor Sen. Javier L. Cervantes [SB3629 Detail]

Download: Illinois-2023-SB3629-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB3629 Introduced 2/9/2024, by Sen. Karina Villa SYNOPSIS AS INTRODUCED:
725 ILCS 5/113-8
725 ILCS 5/122-10 new
Amends the Code of Criminal Procedure of 1963. Provides that a defendant who, prior to the effective date of the amendatory Act, had been barred by time limitations from filing a motion to vacate because the court failed to advise the defendant 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, may pursue the following remedies. Provides that any person, regardless of criminal custody status, may file a petition to vacate a conviction or sentence if the person asserts any of the following reasons: (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. Establishes time periods for filing the petition and establishes when the petitions are not timely filed. Provides that there is a presumption of legal invalidity if the petitioner pleaded guilty or nolo contendere under a statute that provided that, upon completion of specific requirements, the arrest and conviction shall be deemed never to have occurred, 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. Provides that crime victims shall be given notice by the State's Attorney's office of petitions filed under this provision as required in the Rights of Crime Victims and Witnesses Act. Provides that remedies under this provision shall apply to convictions and sentences in existence prior to the effective date of the amendatory Act.
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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 Section 113-8 and adding Section 122-10 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

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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 103rd General Assembly, had been barred
by time limitations from filing a motion to vacate, may pursue
remedies under this Section or Section 122-10. 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 5/122-10 new)
Sec. 122-10. Petition to vacate certain convictions in the
trial court.
(a) In this Section, "conviction" is defined under 8
U.S.C. 1101(a)(48).
(b) Any person, regardless of criminal custody status,
including imprisonment in a penal institution for a felony,
parole, mandatory supervised release, probation, or
conditional discharge, may file a petition to vacate a
conviction or sentence under this Section if the person
asserts any of the following reasons:
(1) the conviction or sentence is legally invalid due

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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 or Rule 402 of the Illinois Supreme Court; 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)(1) Except as provided in paragraph (2) of subsection
(b), a petition under paragraph (1) of subsection (b) shall be
deemed timely filed at any time notwithstanding any other
provision of law. The time limitations for petitions filed in
the trial court under Section 122-1 does not apply to a
petition filed under paragraph (1) of subsection (b).
(2) A petition under paragraph (1) of subsection (b) may
be deemed untimely filed if it was not filed with reasonable
diligence after the latest of any of the following:
(A) the petitioner receives a notice to appear in
immigration court or other notice from immigration
authorities that asserts the conviction or sentence as a
basis for removal or the denial of an application for an
immigration benefit, lawful status, or naturalization;
(B) the petitioner becomes aware that his or her

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criminal conviction or sentence has adverse immigration
consequences;
(C) the petitioner received notice that they have been
ordered removed from the United States with a final
removal order; or
(D) the effective date of this amendatory Act of the
103rd General Assembly.
(d) A petition under paragraph (2) of subsection (b) shall
be filed without undue delay from the date the petitioner
discovered, or could have discovered with the exercise of due
diligence, the evidence that provides a basis for relief under
this Section.
(e) The petition 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 petitioner's rights were
violated under subsection (b). The petition may have attached
thereto affidavits, records, or other evidence supporting its
allegations or may state why the same are not attached.
(f) 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 Rule of the Supreme Court. If the
petitioner is without counsel and alleges that he is without
means to procure counsel, he shall state whether or not he

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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.
(g) 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 provided that 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 such petition and enter an
order thereon 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 making of an order under
paragraph (1) of subsection (g), 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

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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.
(h) 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 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. Nor does this admonishment mitigate a finding of
ineffective assistance of counsel relating to the same

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conviction or sentencing under this Section.
(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, the arrest and conviction shall be deemed
never to have occurred, 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 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. When
ruling on a petition under paragraph (2) of subsection
(b), the court shall specify the basis for its conclusion.
(i) An order granting or denying the petition is
appealable and any final judgment entered upon such petition
shall be reviewed in a manner under the rules of the Supreme

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