                                              FIRST DIVISION
                                              JUNE 29, 2007




No. 1-04-2437


THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
          Plaintiff-Appellee,            )    Cook County.
                                         )
     v.                                  )    No. 01 CR 12422
                                         )
WILLIAM ROBINSON,                        )    The Honorable
                                         )    Preston L. Bowie,
          Defendant-Appellant.           )    Judge Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     On May 17, 2001, the State charged the defendant, William

Robinson, with first degree murder (720 ILCS 5/9-1(a)(1) (West

2000)) and unlawful use of a weapon (720 ILCS 5/24-1(a)(7)(ii)

(West 2000)).   The trial court found the defendant guilty of

involuntary manslaughter and unlawful use of a weapon.    At

sentencing, the court found that because the defendant and victim

were in a dating relationship, the victim was a "household

member" as defined by section 112A-3(3) of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/112A-3(3) (West 2000)).     The

"household member" finding elevated the offense from a Class 3 to
No. 1-04-2437

a Class 2.    The court sentenced the defendant to a 12-year prison

term for involuntary manslaughter and a concurrent 5-year term

for unlawful use of a weapon.   The court later denied the

defendant's motions to reconsider his sentence and for a new

trial, and his motion in arrest of judgment.   The defendant

appeals, arguing: (1) his due process rights were violated when

he was convicted of the uncharged offense of involuntary

manslaughter of a household member; (2) the State failed to

comply with section 111-3(c-5) of the Code because it did not

give the defendant notice that it would seek an enhanced sentence

for involuntary manslaughter; (3) section 9-3(f) of the Criminal

Code of 1961 (Criminal Code) (720 ILCS 5/9-3(f) (West 2000)),

which provides for the sentence enhancement, is unconstitutional;

and (4) the compulsory extraction of his blood and storage of his

DNA violated his right to be free from unreasonable searches and

seizures.    We affirm.

                            BACKGROUND

     In May 2001, the defendant was charged by indictment with

six counts of first degree murder for the murder of Joi Jefferson

and one count of felony unlawful use of a weapon.   None of the

first degree murder counts alleged that Jefferson was the

defendant's girlfriend or that she was a member of the

defendant's household.    Before trial, the State nol-prossed five


                                  2
No. 1-04-2437

of the first degree murder counts and proceeded on one count of

first degree murder and felony unlawful use of a weapon.   The

defendant's trial began as a jury trial, but prior to closing

arguments, the defendant waived his right to a jury trial and the

case was decided by the trial court.

     The evidence at trial showed that on April 13, 2001, the

victim, Joi Jefferson, called the defendant and asked him to

accompany her home from work because she cashed a check and did

not want to ride the bus home alone.   The defendant testified

that Jefferson was his girlfriend and that they had dated off and

on for three years.   After he picked her up from work, they went

to his apartment, where they engaged in sexual intercourse.    They

were interrupted by two phone calls, the first from the

defendant's mother.   The second from Angel Jordan, a woman the

defendant was also dating.

     While the defendant spoke with Jordan, Jefferson became

upset.   After the defendant brushed Jefferson off and told her to

go home, she took a sawed-off shotgun from the defendant's

counter and pointed it at him.   The defendant testified that the

gun was loaded and sitting on the counter.   He indicated that he

placed it on the counter two days earlier after he was threatened

by his sister's boyfriend.

     Jefferson took the gun into the bathroom and closed the


                                 3
No. 1-04-2437

door.    When the defendant finished his conversation with Jordan,

he went to the bathroom to see what Jefferson was doing.      The

defendant knocked on the bathroom door and Jefferson told him to

leave her alone.    The defendant continued to antagonize Jefferson

because he knew it would bother her.

       After a few minutes, the defendant forced the bathroom door

open.    Jefferson was sitting on the toilet with the gun across

her lap and pointed away from the defendant.    The defendant asked

Jefferson what was wrong with her and told her to give him the

gun.    He tried to grab the gun, but she moved it out of his

reach.    He reached for the gun again.   This time he grabbed it,

stepped back, and fired the gun.

       The defendant shot Jefferson in the face.   After she was

shot, she fell between the toilet and the bathtub.     The defendant

tried to move her back onto the toilet and admitted positioning

her arm so that it was in contact with the gun.     The defendant

testified that he was in shock.    He called his mother and told

her that a friend had been shot; he then called 911.     When the

paramedics arrived, Jefferson was pronounced dead.     At the scene,

the defendant told police officers that Jefferson shot herself.

       The defendant was taken to Area 2 police station for

questioning.    After being confronted with evidence that Jefferson

could not have shot herself, the defendant told Assistant State's


                                   4
No. 1-04-2437

Attorney Megan Goldish that when he went into the bathroom, he

and Jefferson struggled over the gun and the gun went off.       This

conversation was not memorialized.      In a videotaped interview

played for the jury, the defendant indicated that Jefferson was

his girlfriend and that they had been dating on and off for three

years.    He stated that after Jefferson took the gun, he got angry

and antagonized her by banging on the bathroom door.      He then

forced the door open and took the gun from her lap.      He called

her a bitch, pointed the gun, and pulled the trigger.      The

defendant testified that he shot the gun, but he did not remember

squeezing the trigger and he did not intend to do so.

     After the parties rested, the defendant executed a jury

waiver and the trial court decided the case.      During closing

argument, both the State and the defendant's attorney referred to

Jefferson as the defendant's girlfriend.      The defendant also

asked the court to find him guilty of involuntary manslaughter

rather than first degree murder.       The court found the defendant

guilty of involuntary manslaughter.

     At sentencing, the State asked the trial court to make a

finding that the defendant and Jefferson were in a dating

relationship and that she was a "household member" for purposes

of a sentence enhancement under section 9-3(f) of the Criminal

Code.    The State then urged the court to sentence the defendant


                                   5
No. 1-04-2437

to the maximum prison term of 14 years.   The defendant argued

that Jefferson was not a household member based on her and the

defendant's on-and-off-again relationship.

     The trial court found that Jefferson was a "household

member" and that the defendant was eligible to be sentenced under

the section 9-3(f) enhancement.   The court sentenced the

defendant to a term of 12 years for involuntary manslaughter and

a concurrent term of 5 years for felony unlawful use of a weapon.

     The defendant filed a motion to reconsider his sentence,

arguing that his sentence violated his due process and equal

protection rights because the victim's status was not included in

the indictment and involuntary manslaughter of a household member

was not a lesser-included offense of first degree murder.    The

court denied the motion, finding that the State was not obligated

to include the nature of the relationship between the defendant

and Jefferson in the charge of first degree murder, and that the

evidence was overwhelming that Jefferson was a "household

member."   The defendant filed a motion for new trial and a motion

in arrest of judgment, which alleged the charging instrument was

insufficient because it failed to allege the fact that Jefferson

was a household member. The court denied the motions.   This

appeal followed.

                             ANALYSIS


                                  6
No. 1-04-2437

     As his principal argument, the defendant maintains that he

was wrongly convicted of the uncharged offense of involuntary

manslaughter of a household member.   He maintains that this

offense is a separate and distinct offense from "simple"

involuntary manslaughter.   And, because it requires proof of an

"element" that the offense of first degree murder does not --

that the victim was a household member -- it is not a lesser-

included offense of first degree murder.   Thus, the issue at the

heart of this appeal is whether the victim's status as a

household member is an "element," as that term is used in

included-offense analysis, of the offense of involuntary

manslaughter of which the defendant was convicted and sentenced,

or whether it is merely a factor that enhances a defendant's

sentence that must be proved beyond a reasonable doubt.

                   I.   Lesser-Included Offense

     An included offense "means an offense which *** [i]s

established by proof of the same or less than all of the facts or

a less culpable mental state (or both), than that which is

required to establish the commission of the offense charged[.]"

720 ILCS 5/2-9(a) (West 2000).   There is no doubt that "simple"

involuntary manslaughter is a lesser-included offense of first

degree murder based on a less culpable mental state (People v.

Givens, 364 Ill. App. 3d 37, 44, 846 N.E.2d 951 (2005)), and the


                                 7
No. 1-04-2437

defendant does not claim otherwise.     The defendant maintains,

however, that because the involuntary manslaughter charge upon

which he was sentenced contains the added "element" of the status

of the victim as a household member, it is a distinct offense

from "simple" involuntary manslaughter.     In other words, because

involuntary manslaughter involving a household member requires

proof of more facts than that which is required to establish the

commission of first degree murder, the offense with which the

defendant was charged, it is not an included offense.

     Generally, involuntary manslaughter is a Class 3 felony.

However, when the victim is a household member, the offense is

classified a Class 2 felony.     Section 9-3(f) of the Criminal Code

provides:

                 "In cases involving involuntary

            manslaughter in which the victim was a family

            or household member as defined in paragraph

            (3) of Section 112A-3 of the Code of Criminal

            Procedure of 1963 [725 ILCS 5/112A-3(3) (West

            2000)], the penalty shall be a Class 2

            felony, for which a person if sentenced to a

            term of imprisonment, shall be sentenced to a

            term of not less than 3 years and not more

            than 14 years."   720 ILCS 5/9-3(f) (West


                                   8
No. 1-04-2437

          2000).

     A family or household member includes: "persons who have or

have had a dating or engagement relationship."   725 ILCS 5/112A-

3(3) (West 2000).   Illinois courts have interpreted a dating

relationship as a serious courtship in that it is "'a

relationship that [is] more serious and intimate than casual.'"

People v. Young, 362 Ill. App. 3d 843, 851, 840 N.E.2d 825

(2005), quoting Alison C. v. Westcott, 343 Ill. App. 3d 648, 653,

798 N.E.2d 813 (2003).   "[A]t a minimum, [it must be] an

established relationship with a significant romantic focus."

Young, 362 Ill. App. 3d at 851.

     We acknowledge and agree with the defendant that section 9-

3(f) requires proof of a factor that first degree murder does not

-- that the victim is a household member.   This factor does not,

however, create a distinct offense of involuntary manslaughter of

a household member.   Instead, it is a factor that enhances the

range of penalties for the offense of involuntary manslaughter.

     The supreme court recently explained that even if an offense

has different classifications based on the status of a victim,

the offense is and remains a "single offense."   People v. Green,

No. 102751, slip op. at 6 (May 24, 2007).   In Green, the

defendant was charged in a one-count indictment with robbery of

"a person 60 years of age or over, *** in violation of 720 ILCS


                                  9
No. 1-04-2437

5/18-1(a)(Class 1 Felony)."   Green, No. 102751, slip op. at 1.

The issue addressed by the supreme court was whether there was a

conflict between the elements instruction that contained the

proposition that the victim was 60 years of age or over and the

verdict form that simply found the defendant guilty of robbery,

with no mention of the age of the victim.     Based on this

perceived "conflict" between the elements instruction and the

verdict form, the appellate court reduced the defendant's

conviction from Class 1 to Class 2 robbery, citing as authority

Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.

Ct. 2348 (2000).   Green, No. 102751, slip op. at 5.    The supreme

court rejected the appellate court's analysis, finding no

conflict existed between the elements instruction and the signed

verdict form.   Green, No. 102751, slip op. at 7.    The Court

rejected the appellate court's pronouncement that "'robbery' and

'robbery of a person 60 years of age or over'" are distinct

crimes.   Green, No. 102751, slip op. at 6.

          "'[R]obbery' and 'robbery of a person 60

          years of age or over' are not distinct

          crimes, a fact that even a cursory

          examination of the robbery statute reveals.

          Rather, Illinois has a single offense called

          'robbery' that is either a Class 1 or a Class


                                10
No. 1-04-2437

          2 felony, depending upon the nature of the

          victim:

                     '(a) A person commits robbery

                when he or she takes property ***

                from the person or presence of

                another by the use of force or by

                threatening the imminent use of

                force.

                     (b) Sentence.

                     Robbery is a Class 2 felony.

                However, if the victim is 60 years

                of age or over *** robbery is a

                Class 1 felony.'    (Emphasis added.)

                720 ILCS 5/18-1 (West 2004).

          Thus, under the statute's plain language,

          even when charged as a Class 1 felony because

          of the victim's age, the name of the offense

          committed remains 'robbery.'"     Green, No.

          102751, slip op. at 6.

     The rationale expressed by Chief Justice Thomas in Green for

the unanimous court applies equally here.    Like the robbery

statute, the involuntary manslaughter statute establishes a

single offense of involuntary manslaughter, which is either a


                                   11
No. 1-04-2437

Class 3 or a Class 2 felony, depending on the status of the

victim.   720 ILCS 5/9-3 (West 2000).     The status of the victim as

a household or family member acts only as a factor to enhance the

defendant's sentence; the offense committed remains involuntary

manslaughter.

     The statutory elements of involuntary manslaughter are set

out in section 9-3(a).    Upon proof beyond a reasonable doubt of

each of the statutory elements, the offense of involuntary

manslaughter is established.   Only upon establishing the

commission of the offense do we look to the sentencing

classification.   Under section 9-3(d) involuntary manslaughter is

a Class 3 felony unless there is proof beyond a reasonable doubt

that the victim was a household member, then under section 9-3(f)

it is a Class 2 felony.   Whether a Class 2 or Class 3 felony, the

offense committed remains involuntary manslaughter.      See Green,

No. 102751, slip op. at 6; 720 ILCS 5/2-12 (West 2000) (defining

"offense" as a violation of any Illinois penal statute).      It is

the offense of involuntary manslaughter set out in section 9-3

that is a lesser-included offense of first degree murder.      See

Givens, 364 Ill. App. 3d at 44.        To hold otherwise would render

the term "offense" as used in section 2-9(a) of the Criminal Code

at odds with the supreme court's holding in Green.

     Thus, we hold the status of the victim is not an "element"


                                  12
No. 1-04-2437

of the offense of involuntary manslaughter for purposes of

included-offense analysis.1    That the statutory elements of

involuntary manslaughter are set out in section 9-3(a) is further

supported by section 111-3(c-5) of the Code.     This section

recognizes that there are sentence-enhancing factors that must be

proved beyond a reasonable doubt but are not elements of the

charged offense:

            "[I]f an alleged fact (other than the fact of

            a prior conviction) is not an element of an

            offense but is sought to be used to increase

            the range of penalties for the offense beyond

            the statutory maximum that could otherwise be

            imposed for the offense, the alleged fact

            must be included in the charging instrument

            or otherwise provided to the defendant

            through a written notification before trial,

            submitted to a trier of fact as an

     1
         The term "elements" has a slightly broader meaning in the

"elements instruction" to a jury; it describes the "propositions"

that the State must prove beyond a reasonable doubt, which may

include a sentence enhancing factor.    See Green, No. 102751, slip

op. at 6-7, citing Illinois Pattern Jury Instructions, Criminal,

(2000), No. 14.04.

                                 13
No. 1-04-2437

          aggravating factor, and proved beyond a

          reasonable doubt."   (Emphasis added.) 725

          ILCS 5/111-3(c-5) (West 2000).

     We, therefore, reject the defendant's assertion that

involuntary manslaughter of a household member is a distinct

offense from "simple" involuntary manslaughter.   In doing so, we

choose not to follow the holding in People v. DeBord, 344 Ill.

App. 3d 321, 328, 800 N.E.2d 809 (2003), where the court found

involuntary manslaughter of a family member was not a lesser-

included offense of first degree murder.   We note our supreme

court cast doubt on this holding in Davis: "To the extent that

DeBord is inconsistent with this opinion, it is overruled."

People v. Davis, 217 Ill. 2d 472, 480, 841 N.E.2d 884 (2005).

Our supreme court's holding in Green that proof of a sentence

enhancing factor to elevate the classification does not create a

distinct offense, leads to but one conclusion: there is but one

offense of involuntary manslaughter and that offense is a lesser-

included offense of first degree murder.

                           II. Notice

     In the first of three alternative arguments, the defendant

maintains that his sentence is void because the State failed to

provide him with sufficient notice that it was seeking an

enhanced sentence for involuntary manslaughter in violation of


                                14
No. 1-04-2437

section 111-3(c-5) of the Code.    Section 111-3(c-5) provides:

                "Notwithstanding any other provision of

          law, *** if an alleged fact (other than the

          fact of a prior conviction) is not an element

          of an offense but is sought to be used to

          increase the range of penalties for the

          offense beyond the statutory maximum that

          could otherwise be imposed for the offense,

          the alleged fact must be included in the

          charging instrument or otherwise provided to

          the defendant through a written notification

          before trial, submitted to a trier of fact as

          an aggravating factor, and proved beyond a

          reasonable doubt.   Failure to prove the fact

          beyond a reasonable doubt is not a bar to a

          conviction for commission of the offense, but

          is a bar to increasing, based on that fact,

          the range of penalties for the offense beyond

          the statutory maximum that could otherwise be

          imposed for that offense."    (Emphasis added.)

          725 ILCS 5/111-3(c-5) (West 2000).

     The defendant cites People v. Champ, 329 Ill. App. 3d 127,

768 N.E.2d 237 (2002), to support his argument that when a


                                  15
No. 1-04-2437

sentence is not imposed pursuant to statutory requirements, the

sentence is void.   In Champ, the defendant, a minor, was charged

with first degree murder.   A jury found him guilty of involuntary

manslaughter and a trial court sentenced him as an adult to five

years in prison.    On appeal, the defendant argued that he should

have been sentenced as a juvenile, not an adult, because the

State failed to request a hearing pursuant to section 5-

4(6)(c)(ii) of the Juvenile Court Act.    Champ, 329 Ill. App. 3d

at 128-29.   Section 5-4(6)(c)(ii) mandated that before a juvenile

could be sentenced as an adult for any crime not specifically

listed in section 5-4(6)(a), the State was required to request a

hearing within 10 days of "'the entry of a finding or the return

of a verdict.'" Champ, 329 Ill. App. 3d at 130, quoting 705 ILCS

405/5-4(6)(c)(ii) (West 1996) (now, as amended, 705 ILCS 405/5-

130(1)(c)(ii) (West 2000)).   First degree murder was an offense

listed in section 5-4(6)(a); involuntary manslaughter was not.

Champ, 329 Ill. App. 3d at 130.

     The Champ court vacated the defendant's sentence.      It held

that because the language of section 5-4(6)(c)(ii) was

unambiguous and the defendant was convicted of an offense that

was not covered by section 5-4(6)(a), the State was required to

request a hearing to determine whether the defendant should be

sentenced as an adult.    Champ, 329 Ill. App. 3d at 133.    Because


                                  16
No. 1-04-2437

the State failed to request such a hearing, the defendant's adult

sentence was void.    Champ, 329 Ill. App. 3d at 135-36.   While not

cited by Champ, the court could just as well have quoted our

supreme court: "A sentence which does not conform to a statutory

requirement is void."    People v. Arna, 168 Ill. 2d 107, 113, 658

N.E.2d 445 (1995).

     Section 111-3(c-5) is not analogous to the section at issue

in Champ.    There is no statutory requirement here that was unmet

by the State.    By its plain language, section 111-3(c-5) applies

to the offense charged, not to any lesser-included offense.       The

section requires notice "before trial," and indicates that the

alleged fact is one that increases the penalty of an offense set

out in the charging instrument, but not a statutory element of

the offense.    725 ILCS 5/111-3(c-5) (West 2000).   We also note,

it was the defendant that asked the trier of fact, the trial

judge, to find him guilty of the lesser-included offense of

involuntary manslaughter.2    Involuntary manslaughter, elevated to

a Class 2 offense based on the status of the victim as a

     2
         See People v. Schickel, 347 Ill. App. 3d 889, 897, 807

N.E.2d 1195 (2004), quoting People v. Carter, 208 Ill. 2d 309,

319, 802 N.E.2d 1185 (2003) ("'Action taken at defendant's

request precludes defendant from raising such course of conduct

as error on appeal'").

                                 17
No. 1-04-2437

household member, was set out in our Criminal Code "and therefore

defendant was on notice that his conduct might fall within its

scope."   People v. Harvey, 366 Ill. App. 3d 119, 133, 851 N.E.2d

182 (2006).

     We reject any claim by the defendant that, when confronted

by the defendant's request that he be found guilty of a lesser-

included offense that provides for a sentence enhancing factor,

the State must give the defendant notice of the elevated range of

sentences at the risk of injecting error if it fails to do so.

Under the circumstances present in this case, the State did not

violate section 111-3(c-5).   The Class 2 sentence imposed was not

void based on lack of notice.

                         III. Due Process

     In his next alternative claim, the defendant frames his

argument as a deficient-charging-instrument claim, alleging that

his due process rights were violated when he was convicted of an

offense that was not a lesser-included offense of first degree

murder.   Because we have found that involuntary manslaughter

involving a household member is a lesser-included offense of

first degree murder, much of his charging-instrument argument has

no application.

     In fact, based on the dilemmas posed by each party, we

question whether a case involving a sentence enhancement presents


                                18
No. 1-04-2437

a deficient-instrument type of claim at all.    But compare Davis,

217 Ill. 2d at 478 (the defendant's argument that he was

improperly convicted of involuntary manslaughter of a family

member based on an indictment charging first degree murder was

analyzed as a deficient-instrument type of claim, requiring a

showing of prejudice when first raised on appeal).    The State, in

response to this argument, points out that the defendant's

deficient-charging-instrument argument requires the State to

become "clairvoyant" or add the superfluous fact of the victim's

status to every murder indictment where the victim is a household

member to provide notice prior to trial in the event the accused

should be convicted of involuntary manslaughter so as to face a

Class 2 sentencing range rather than a Class 3.    In reply to the

State's claim that this issue was not preserved because the

defendant did not object prior to trial, the defendant points out

he could not have been expected to object to the charging

instrument based on a "speculative prediction" that he might

later be convicted of an uncharged offense.    The predicaments

envisioned by each party suggest that the anticipatory actions

set out by each side are not required under established law.

     In general, a defendant's due process rights are violated

where he is convicted of an offense that was never charged.

People v. Baldwin, 199 Ill. 2d 1, 6, 764 N.E.2d 1126 (2002).


                               19
No. 1-04-2437

Illinois courts, however, have held that there is no violation

if: (1) the uncharged offense is identified by the charging

instrument as a lesser offense of the one charged; and (2) the

evidence adduced at trial rationally supports the conviction on

the lesser-included offense.   Baldwin, 199 Ill. 2d at 6.

     As made clear, involuntary manslaughter is a lesser-included

offense of first degree murder.    Givens, 364 Ill. App. 3d at 44.

Proof beyond a reasonable doubt that the victim is a household

member elevates the involuntary manslaughter charge from Class 3

to Class 2.   720 ILCS 5/9-3 (West 2000).   The status of the

victim, however, is not a statutory element of the offense of

involuntary manslaughter.   In the instant case, that offense is

clearly identified in the charging instrument and there was

sufficient evidence to support the charge.    Because involuntary

manslaughter involving a household member is a lesser-included

offense of first degree murder, the State was not required to

include the non-element fact of the victim's status as a

household member in the first degree murder charging instrument

in order to provide notice to the defendant that if convicted of

involuntary manslaughter he might face a Class 2 sentencing

range; nor do we believe was the defendant required to object to

the charging instrument prior to trial in anticipation of being

found guilty of involuntary manslaughter of a household member in


                                  20
No. 1-04-2437

order to preserve a claim that the charging instrument did not

charge the lesser offense.   See People v. Kolton, 219 Ill. 2d

353, 367, 848 N.E.2d 950 (2006) (if elements of a lesser offense

are explicit or can be reasonably inferred from the factual

description of the charged offense, it is "included" in the

charged offense).   In any event, because involuntary manslaughter

of a household member is a lesser-included offense of first

degree murder, the defendant's due process rights were not

violated upon being convicted of that included offense.

     Assuming merit in the defendant's claim of a due process

violation based on a deficient charging instrument, we would find

no prejudice.   See People v. Benitez, 169 Ill. 2d 245, 257-58,

661 N.E.2d 344 (1996) (explaining that where an indictment is

challenged for the first time in a posttrial motion in arrest of

judgment or on appeal, it is subject to the prejudice standard of

review).   The indictment apprised him of the precise offense

charged with sufficient specificity to prepare his defense and to

bar future prosecution arising out of the same conduct.   See

Davis, 217 Ill. 2d at 479.   The first degree murder charge named

Jefferson as the victim and the defendant was certainly aware of

his relationship with her.

     The defendant, in his videotaped statement, when he talked

to police, and in his trial testimony, identified Jefferson as


                                21
No. 1-04-2437

his "girlfriend."    He does not point to any evidence that would

put in controversy the nature of their relationship.    See Davis,

217 Ill. 2d at 479-80.    Although the defendant's trial attorney

argued that she would not have requested consideration of an

involuntary manslaughter conviction had she known the defendant

would be sentenced for a Class 2 rather than a Class 3 felony,

she failed to specifically state what she would have done during

the course of the trial to refute the testimony regarding the

relationship between the defendant and the victim.    If the

defendant were convicted of first degree murder, he faced a

minimum sentence of 20 years.    His implicit argument post trial

that he wanted only to face a maximum of 5 years for a Class 3

felony rather than 14 years for a Class 2 felony, else he would

have chosen to proceed on the first degree murder charges, is

unpersuasive at best.3

     In any event, something more than trial counsel's bald

assertion that the defendant would not have sought consideration

     3
         See Schickel, 347 Ill. App. 3d at 902 (Quinn, P.J.,

concurring) ("Had the trial court not done as the defendant

requested, the only alternatives for the trial court would have

been to find defendant either guilty or not guilty of [first

degree] murder.    While the State was willing to take this risk,

the defendant was not").

                                 22
No. 1-04-2437

of a lesser-included offense had he known the full range of

sentences that he faced is required to establish prejudice on his

due process claim.    This is so because both trial counsel and the

defendant were on notice as to the range of sentences by the very

provision of the Criminal Code the defendant requested be applied

to him.    See 720 ILCS 5/9-3 (West 2000) (under section 9-3(d)

involuntary manslaughter is a Class 3 felony; under section 9-

3(f) it is a Class 2 felony); People v. Molnar, 222 Ill. 2d 495,

514, 857 N.E.2d 209 (2006) (no due process violation where

Registration Act itself provides notice that failure to comply

will result in a 10-year extension of registration period).

Although the defendant now objects to being sentenced by the

trial court under the enhancement, it was within the court's

power to do so.    No prejudice ensued to the defendant based on

the trial court's finding that Jefferson was a household member

mandating a Class 2 sentence.

                        IV. Constitutionality

     In his final alternative argument, the defendant challenges

the constitutionality of section 9-3(f) of the Criminal Code,

arguing that the purpose for the enhancement, to fight and deter

domestic violence, is not rationally related to the enhanced

penalty.

     Statutes are presumed to be constitutional, and the party


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No. 1-04-2437

challenging a statute has the burden of demonstrating its

invalidity.     People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d

433 (2000).   We will "construe a statute in a manner that upholds

its validity and constitutionality if it can be reasonably done.

We review de novo whether a statute is constitutional."     Malchow,

193 Ill. 2d at 418.

     The First District recently found that section 9-3(f) is

constitutional.     People v. Adams, 363 Ill. App. 3d 34, 39, 842

N.E.2d 1187 (2006).    In Adams, the defendant argued that section

9-3(f) was unconstitutional and violated his right to due process

because the statute bore no rational relationship to the

legislature's stated purpose of fighting and deterring domestic

violence.   Adams, 363 Ill. App. 3d at 36.

     The Adams court considered the numerous cases that found

that involuntary manslaughter cannot be deterred by an enhanced

penalty, which are also cited by the defendant in this appeal.

Adams, 363 Ill. App. 3d at 37, citing People v. Martin, 119 Ill.

2d 453, 519 N.E.2d 884 (1988); People v. Fernetti, 104 Ill. 2d

19, 470 N.E.2d 501 (1984); People v. Alejos, 97 Ill. 2d 502, 455

N.E.2d 48 (1983);     People v. Land, 169 Ill. App. 3d 342, 523

N.E.2d 711 (1988).    The court distinguished those cases as

focusing on statutory construction, not due process, and held

that none of them suggested that a defendant's due process rights


                                  24
No. 1-04-2437

would be violated by statutorily increasing the class level of an

involuntary manslaughter offense under certain specific

circumstances.   Adams, 363 Ill. App. 3d at 38.

      The court looked to the legislative history of section 9-

3(f), but found it "vague at best, not helpful."   Adams, 363 Ill.

App. 3d at 38.   It instead focused on the plain language of the

statute: "The plain language of section 9-3(f), however, makes it

clear the legislature intended the penalty for involuntary

manslaughter to be more severe under certain circumstances."

Adams, 363 Ill. App. 3d at 38.   Because the legislature has wide

discretion when establishing penalties for criminal offenses, the

court found that section 9-3(f) was reasonably tailored to

accomplish the legislature's goals.   Adams, 363 Ill. App. 3d at

39.   The defendant presents no argument that requires us to

revisit this issue.

                         V. DNA Extraction

      The defendant's final argument is that the compulsory

extraction of his blood and the perpetual storage of his DNA

profile violated his fourth amendments right to be free from

unreasonable search and seizure.

      This argument was rejected by the supreme court in People v.

Garvin, 219 Ill. 2d 104, 125, 847 N.E.2d 82 (2006).




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No. 1-04-2437



                           CONCLUSION

     For the reasons stated, we affirm the judgment of the trial

court.

     Affirmed.

     McBRIDE, P.J., and R. GORDON, J., concur.




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