Illinois 2023-2024 Regular Session

Illinois Senate Bill SB3629 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB3629 Introduced 2/9/2024, by Sen. Karina Villa SYNOPSIS AS INTRODUCED: 725 ILCS 5/113-8725 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. LRB103 37510 RLC 69596 b A BILL FOR 103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB3629 Introduced 2/9/2024, by Sen. Karina Villa SYNOPSIS AS INTRODUCED: 725 ILCS 5/113-8725 ILCS 5/122-10 new 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. LRB103 37510 RLC 69596 b LRB103 37510 RLC 69596 b A BILL FOR
2	2	103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB3629 Introduced 2/9/2024, by Sen. Karina Villa SYNOPSIS AS INTRODUCED:
3	3	725 ILCS 5/113-8725 ILCS 5/122-10 new 725 ILCS 5/113-8 725 ILCS 5/122-10 new
4	4	725 ILCS 5/113-8
5	5	725 ILCS 5/122-10 new
6	6	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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9	9	A BILL FOR
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11	11	SB3629 LRB103 37510 RLC 69596 b
12	12	1 AN ACT concerning criminal law.
13	13	2 Be it enacted by the People of the State of Illinois,
14	14	3 represented in the General Assembly:
15	15	4 Section 5. The Code of Criminal Procedure of 1963 is
16	16	5 amended by changing Section 113-8 and adding Section 122-10 as
17	17	6 follows:
18	18	7 (725 ILCS 5/113-8)
19	19	8 Sec. 113-8. Advisement concerning status as a noncitizen.
20	20	9 (a) Before the acceptance of a plea of guilty, guilty but
21	21	10 mentally ill, or nolo contendere to a misdemeanor or felony
22	22	11 offense, the court shall give the following advisement to the
23	23	12 defendant in open court:
24	24	13 "If you are not a citizen of the United States, you are
25	25	14 hereby advised that conviction of the offense for which you
26	26	15 have been charged may have the consequence of deportation,
27	27	16 exclusion from admission to the United States, or denial of
28	28	17 naturalization under the laws of the United States.".
29	29	18 (b) If the defendant is arraigned on or after the
30	30	19 effective date of this amendatory Act of the 101st General
31	31	20 Assembly, and the court fails to advise the defendant as
32	32	21 required by subsection (a) of this Section, and the defendant
33	33	22 shows that conviction of the offense to which the defendant
34	34	23 pleaded guilty, guilty but mentally ill, or nolo contendere
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38	38	103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB3629 Introduced 2/9/2024, by Sen. Karina Villa SYNOPSIS AS INTRODUCED:
39	39	725 ILCS 5/113-8725 ILCS 5/122-10 new 725 ILCS 5/113-8 725 ILCS 5/122-10 new
40	40	725 ILCS 5/113-8
41	41	725 ILCS 5/122-10 new
42	42	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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45	45	A BILL FOR
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71	71	1 may have the consequence for the defendant of deportation,
72	72	2 exclusion from admission to the United States, or denial of
73	73	3 naturalization under the laws of the United States, the court,
74	74	4 upon the defendant's motion, shall vacate the judgment and
75	75	5 permit the defendant to withdraw the plea of guilty, guilty
76	76	6 but mentally ill, or nolo contendere and enter a plea of not
77	77	7 guilty. A defendant who, prior to the effective date of this
78	78	8 amendatory Act of the 103rd General Assembly, had been barred
79	79	9 by time limitations from filing a motion to vacate, may pursue
80	80	10 remedies under this Section or Section 122-10. The motion
81	81	11 shall be filed within 2 years of the date of the defendant's
82	82	12 conviction.
83	83	13 (Source: P.A. 101-409, eff. 1-1-20; 102-1030, eff. 5-27-22.)
84	84	14 (725 ILCS 5/122-10 new)
85	85	15 Sec. 122-10. Petition to vacate certain convictions in the
86	86	16 trial court.
87	87	17 (a) In this Section, "conviction" is defined under 8
88	88	18 U.S.C. 1101(a)(48).
89	89	19 (b) Any person, regardless of criminal custody status,
90	90	20 including imprisonment in a penal institution for a felony,
91	91	21 parole, mandatory supervised release, probation, or
92	92	22 conditional discharge, may file a petition to vacate a
93	93	23 conviction or sentence under this Section if the person
94	94	24 asserts any of the following reasons:
95	95	25 (1) the conviction or sentence is legally invalid due
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106	106	1 to prejudicial error damaging the petitioner's ability to
107	107	2 meaningfully understand, defend against, or knowingly
108	108	3 accept the actual or potential adverse immigration
109	109	4 consequences of a conviction or sentence. A finding of
110	110	5 legal invalidity may, but need not, include a finding of
111	111	6 ineffective assistance of counsel, and includes but is not
112	112	7 limited to failure to admonish noncitizens under Section
113	113	8 113-8 or Rule 402 of the Illinois Supreme Court; or
114	114	9 (2) newly discovered evidence of actual innocence
115	115	10 exists that requires vacation of the conviction or
116	116	11 sentence as a matter of law or in the interests of justice.
117	117	12 (c)(1) Except as provided in paragraph (2) of subsection
118	118	13 (b), a petition under paragraph (1) of subsection (b) shall be
119	119	14 deemed timely filed at any time notwithstanding any other
120	120	15 provision of law. The time limitations for petitions filed in
121	121	16 the trial court under Section 122-1 does not apply to a
122	122	17 petition filed under paragraph (1) of subsection (b).
123	123	18 (2) A petition under paragraph (1) of subsection (b) may
124	124	19 be deemed untimely filed if it was not filed with reasonable
125	125	20 diligence after the latest of any of the following:
126	126	21 (A) the petitioner receives a notice to appear in
127	127	22 immigration court or other notice from immigration
128	128	23 authorities that asserts the conviction or sentence as a
129	129	24 basis for removal or the denial of an application for an
130	130	25 immigration benefit, lawful status, or naturalization;
131	131	26 (B) the petitioner becomes aware that his or her
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142	142	1 criminal conviction or sentence has adverse immigration
143	143	2 consequences;
144	144	3 (C) the petitioner received notice that they have been
145	145	4 ordered removed from the United States with a final
146	146	5 removal order; or
147	147	6 (D) the effective date of this amendatory Act of the
148	148	7 103rd General Assembly.
149	149	8 (d) A petition under paragraph (2) of subsection (b) shall
150	150	9 be filed without undue delay from the date the petitioner
151	151	10 discovered, or could have discovered with the exercise of due
152	152	11 diligence, the evidence that provides a basis for relief under
153	153	12 this Section.
154	154	13 (e) The petition shall identify the proceeding in which
155	155	14 the petitioner was convicted or sentenced, give the date of
156	156	15 the rendition of the final judgment complained of, and clearly
157	157	16 set forth the respects in which petitioner's rights were
158	158	17 violated under subsection (b). The petition may have attached
159	159	18 thereto affidavits, records, or other evidence supporting its
160	160	19 allegations or may state why the same are not attached.
161	161	20 (f) If the petition alleges that the petitioner is unable
162	162	21 to pay the costs of the proceeding, the court may order that
163	163	22 the petitioner be permitted to proceed as a poor person and
164	164	23 order a transcript of the proceedings delivered to petitioner
165	165	24 in accordance with Rule of the Supreme Court. If the
166	166	25 petitioner is without counsel and alleges that he is without
167	167	26 means to procure counsel, he shall state whether or not he
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178	178	1 wishes counsel to be appointed to represent him. If
179	179	2 appointment of counsel is so requested, the court shall
180	180	3 appoint counsel if satisfied that the petitioner has no means
181	181	4 to procure counsel.
182	182	5 (g) All petitions filed under this Section shall be
183	183	6 entitled to a hearing. Upon the request of the petitioner, the
184	184	7 court may hold the hearing without the personal presence of
185	185	8 the petitioner provided that it finds good cause as to why the
186	186	9 petitioner cannot be present. If the State's Attorney for the
187	187	10 jurisdiction in which the petition is filed does not file an
188	188	11 objection to the petition, the court may grant the petition to
189	189	12 vacate the conviction or sentence without a hearing.
190	190	13 (1) Within 90 days after the filing and docketing of each
191	191	14 petition, the court shall examine such petition and enter an
192	192	15 order thereon setting for calendar a hearing date on the
193	193	16 petition, except that this timeline shall be 45 days in any
194	194	17 case in which the petitioner is in the custody of Immigration
195	195	18 and Customs Enforcement or otherwise faces imminent removal
196	196	19 from the United States.
197	197	20 (2) Within 30 days after the making of an order under
198	198	21 paragraph (1) of subsection (g), or within such further time
199	199	22 as the court may set, the State may file an answer. No other or
200	200	23 further pleadings shall be filed except as the court may order
201	201	24 on its own motion or on that of either party. The court may in
202	202	25 its discretion grant leave, at any stage of the proceeding
203	203	26 prior to entry of judgment, to withdraw the petition. The
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214	214	1 court may in its discretion make such order as to amendment of
215	215	2 the petition or any other pleading, or as to pleading over, or
216	216	3 filing further pleadings, or extending the time of filing any
217	217	4 pleading other than the original petition, as shall be
218	218	5 appropriate, just and reasonable and as is generally provided
219	219	6 in civil cases.
220	220	7 (h) When ruling on the petition:
221	221	8 (1) The court shall grant the petition to vacate the
222	222	9 conviction or sentence if the petitioner establishes, by a
223	223	10 preponderance of the evidence, the existence of any of the
224	224	11 grounds for relief specified in subsection (b). For a
225	225	12 motion made under paragraph (1) of subsection (b), the
226	226	13 petitioner shall also establish that the conviction or
227	227	14 sentence being challenged is currently causing or has the
228	228	15 potential to cause removal or the denial of an application
229	229	16 for an immigration benefit, lawful status, or
230	230	17 naturalization.
231	231	18 (2) A court's judicial admonishment under Section
232	232	19 113-8 at the time of the conviction or sentencing at issue
233	233	20 in the petition shall not be considered a sufficient basis
234	234	21 to cure or correct the prejudicial error damaging the
235	235	22 petitioner's ability to meaningfully understand, defend
236	236	23 against, or knowingly accept the actual or potential
237	237	24 adverse immigration consequences of a conviction or
238	238	25 sentence. Nor does this admonishment mitigate a finding of
239	239	26 ineffective assistance of counsel relating to the same
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250	250	1 conviction or sentencing under this Section.
251	251	2 (3) There is a presumption of legal invalidity for the
252	252	3 purposes of paragraph (1) of subsection (b) if the
253	253	4 petitioner pleaded guilty or nolo contendere under a
254	254	5 statute that provided that, upon completion of specific
255	255	6 requirements, the arrest and conviction shall be deemed
256	256	7 never to have occurred, if the petitioner complied with
257	257	8 these requirements, and if the disposition under the
258	258	9 statute has been, or potentially could be, used as a basis
259	259	10 for adverse immigration consequences.
260	260	11 (4) If the court grants the petition to vacate a
261	261	12 conviction or sentence obtained through a plea of guilty
262	262	13 or nolo contendere, the court shall allow the petitioner
263	263	14 to withdraw the plea.
264	264	15 (5) When ruling on a petition under paragraph (1) of
265	265	16 subsection (b), the only finding that the court is
266	266	17 required to make is whether the conviction is legally
267	267	18 invalid due to prejudicial error damaging the petitioner's
268	268	19 ability to meaningfully understand, defend against, or
269	269	20 knowingly accept the actual or potential adverse
270	270	21 immigration consequences of a conviction or sentence. When
271	271	22 ruling on a petition under paragraph (2) of subsection
272	272	23 (b), the court shall specify the basis for its conclusion.
273	273	24 (i) An order granting or denying the petition is
274	274	25 appealable and any final judgment entered upon such petition
275	275	26 shall be reviewed in a manner under the rules of the Supreme
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