By:  Kimberly Glasford

Section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401) generally provides a vehicle for a petitioner to obtain collateral relief for a meritorious claim or defense, even in criminal cases. Subject to certain limited exceptions, a section 2-1401 petition must be filed no later than two years after the challenged judgment was entered. 735 ILCS 5/2-1401(c) (West 2016).

On January 1, 2016, Public Act 99-384 took effect and added subsection (b-5), which recognizes a “meritorious claim” for a defendant convicted of a forcible felony where he or she was a victim of domestic violence by an intimate partner. 735 ILCS 5/2-1401(b-5) (West 2016).

Subsection (b-5) requires the petitioner to show, among other things, that evidence of domestic violence was not presented at sentencing, and he or she could not have learned sooner through due diligence that such evidence was mitigating. 735 ILCS 5/2-1401(b-5) (West 2016).

Public Act 99-384 did not, however, amend section 2-1401(c) to create an exception to the two-year statute of limitations for claims based on the new subsection. The upshot is that under the express language of section 2-1401(c), relief is largely unavailable to those defendants convicted in the decades before subsection (b-5) was enacted. Yet, that hasn’t stopped defendants from trying.

Recently, in People v. Bowers, 2021 IL App (4th) 200509, the Illinois Appellate Court, Fourth District, held that the two-year statute of limitations applies to claims under subsection (b-5). Because that defendant was convicted in 1990, the trial court properly dismissed her petition.

The reviewing court found that the plain language of section 2-1401(c) clearly established a two-year statute of limitations and contained no exception for claims under subsection (b-5). Given that the legislature clearly would have been aware of the statute of limitations, this omission was unlikely to have been mere oversight.

The court also rejected the defendant’s contention that the due diligence requirement set forth in subsection (b-5) was intended to take the place of the statute of limitations. The court noted that litigants frequently had to overcome multiple hurdles to obtain relief.

While the reviewing court was sympathetic to the defendant’s argument that it was seemingly strange to limit relief to only those defendants who were recently sentenced, the court found the legislature may have started with a small number of eligible petitioners, lest the court be overburdened by a sudden rush of petitions. Thus, applying the statute of limitations would not produce an absurd result.

Having already found that the statue was clear, the Bowers court did not delve into various legislators’ comments on the amendment. The court stated, “legislators can have differing interpretations of a law, and parties can have strong policy disagreements about the law without that law being absurd.” Bowers, 2021 IL App (4th) 200509, ¶ 42.

It’s worth noting, however, that one legislator spoke directly to the statute of limitations. According to Representative Mitchell, “[i]t is an option for judges to provide post-judgment relief for up to two years after the original sentencing.” 99th Ill. Gen. Assem., House Proceedings, May 25, 2015, at 29. Additionally, “[t]he time lapse is because often, given the nature of domestic violence, it takes some time for a partner through counseling through time to understand what’s happened to them.” Id.

Although not discussed in Bowers, it’s also worth noting that Public Act 99-384 amended the Unified Code of Corrections by adding a new factor that sentencing courts must consider as mitigating. Specifically, a mitigating factor exists if “[a]t 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.” Id.; 730 ILCS 5/5-5-3.1(a)(15) (West 2016). This may reduce the number of defendants who need relief under section 2-1401(b-5).

The beneficiaries of subsection (b-5) may be few, but if the legislator intended something different, they’ll have to go back to the drawing board.