                                                                      FIFTH DIVISION
                                                                      May 18, 2007




No. 1-04-2704


THE PEOPLE OF THE STATE OF ILLINOIS,                             )    Appeal from the
                                                                 )    Circuit Court of
                Plaintiff-Appellee,                              )    Cook County
                                                                 )
       v.                                                        )
                                                                 )
LATONYA STARNES,                                                 )    Honorable
                                                                 )    Lawrence P. Fox,
                Defendant-Appellant.                             )    Judge Presiding.


       JUSTICE O’MARA FROSSARD delivered the opinion of the court:

       Latonya Starnes was convicted following a jury trial of the first-degree murder of her

infant son, Bryant, and sentenced to 50 years in prison. Defendant raises five issues on appeal.

Defendant argues she was denied a fair trial because the prosecutor during rebuttal argument said

the defense theory of the case amounted to an accusation of conspiracy against the State’s

witnesses. The defendant contends the jury was improperly instructed on the law as to her

eligibility for an extended-term sentence and her 50-year sentence was excessive. She also seeks

correction of her mittimus to reflect credit for an additional 60 days of time served. Finally,

defendant argues that the required extraction of her blood and storage of her DNA profile violates

her fourth amendment rights. For the reasons set forth below, we affirm.

                                         BACKGROUND

       Shortly after 8:30 p.m. on December 29, 2001, paramedics were called to a home at 5800
1-04-2704

S. Wolcott Avenue in Chicago to treat 11-month-old Bryant Starnes. When they arrived, Bryant

was unconscious and not breathing. He was rushed by ambulance to Holy Cross Hospital, and

paramedics administered CPR. Their efforts were unsuccessful, however, and Bryant was

pronounced dead later that night at the hospital.

       Shortly after Bryant was pronounced dead, around 9:20 p.m., Chicago police officer

Rachel Krass received a call to report to Holy Cross Hospital regarding a death investigation. At

the hospital, Officer Krass spoke to defendant Latonya Starnes, who told Krass that her baby had

been crying, shaking, and acting strangely all evening. She told Officer Krass that she was

dressing the baby in a snowsuit and preparing to take him outside when she discovered he had

stopped breathing.

       The following day, Dr. Kendall Crowns of the Cook County medical examiner’s office

performed an autopsy on the child and determined that Bryant had died from blunt trauma to the

abdomen, causing laceration of the liver and hemoperiteneum, or blood in the abdominal cavity.

Dr. Crowns ruled the death a homicide, and he would later testify during defendant’s criminal trial

that Bryant’s liver laceration was the largest he had ever seen in a child.

       On the morning of January 1, 2002, Chicago police detective Michael Adams was

assigned to investigate Bryant’s death. Adams and his partner went to the home at 5800 S.

Wolcott Avenue, where they asked defendant and her mother, Allean Eurby, to come to Area One

police headquarters for questioning. When the women arrived at Area One headquarters, they

were placed in separate rooms and given their Miranda warnings. During questioning, defendant

told police that around 6 p.m. on December 29, 2001, she went to McDonald’s to pick up dinner,


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leaving Bryant alone with defendant’s boyfriend, Antwon McBride (McBride). After defendant

returned home 15 to 20 minutes later, she ate her dinner and went into her bedroom, where

Bryant was sleeping. She noticed that Bryant was acting strangely, and she called an ambulance.

She then began dressing Bryant in a snowsuit in preparation for taking him to the hospital.

       Defendant remained at Area One headquarters while police left to question McBride.

When the officers returned and informed defendant that her boyfriend had not corroborated her

account, she changed her story. Defendant on videotape stated that during the evening of

December 29, 2001, she was alone with Bryant in McBride’s bedroom (defendant, Bryant,

McBride, McBride’s mother, and several members of his family all lived together in the house on

Wolcott). McBride had left the house earlier to go to a party, and the defendant was depressed

and frustrated that she had to watch the baby and could not accompany him to the party.

Defendant then went to McDonald’s to pick up dinner for herself, McBride’s mother, and some

other relatives, and she returned 15 to 20 minutes later. After eating her dinner, defendant

returned to McBride’s room, where Bryant was sleeping. She watched television and once again

began feeling depressed. She thought about taking her own life, but then thought it would be

better to end Bryant’s life. She then straddled the baby, put her hands on his right abdomen, and

pushed down three times, increasing the pressure each time until, by the third time, she was

pushing with all of her body weight during her videotaped statement, which was played for the

jury at trial, defendant demonstrated on a doll how she pushed on Bryant’s abdomen. The baby

began moaning and, after a few minutes, his lips began changing color, and the defendant said in

her statement that she knew he was in pain.


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       Defendant then called her mother, called a friend from church, and told members of the

McBride family who were at the apartment that something was wrong with her baby, though she

did not tell them that she had pushed on his abdomen. She then began dressing Bryant in a snow

suit and prepared to take him to the hospital. Eventually, an ambulance was called, and Bryant

was rushed to the hospital, where he was pronounced dead.

                   PROSECUTOR’S REMARKS DURING REBUTTAL
                ARGUMENT DID NOT DENY DEFENDANT A FAIR TRIAL

       Defendant argues she was denied a fair trial because the prosecutor stated during rebuttal

argument that the defense theory of the case amounted to an accusation of a conspiracy by the

police, medical personnel and the McBride family. Defendant contends such argument “shifted

the burden of proof to Starnes to disprove the existence of such a conspiracy by showing that the

police officers, medical personnel, and the McBride family had lied.”

       Prosecutors must demonstrate respect and due regard for a defendant’s constitutional

right to a fair and impartial trial. People v. Clark, 114 Ill. App. 3d 252, 256 (1983). Prosecutors

are, however, allowed great latitude in closing argument, and improper comments generally do

not require reversal unless they result in substantial prejudice to the accused. People v. Sutton,

316 Ill. App. 3d 874, 893 (2000). While a prosecutor may not make arguments or assumptions

that have no basis in evidence, improper comments or remarks are not reversible error unless they

are a material factor in the conviction or cause substantial prejudice to the accused. People v.

Tipton, 207 Ill. App. 3d 688, 699-700 (1990).

       “In determining whether a prosecutor’s closing comments are prejudicial, reference must

be made to the content of the language used, its relation to the evidence, and the effect of the

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argument on the rights of the accused to a fair and impartial trial.” People v. Brown, 113 Ill.

App. 3d 625, 630-31 (1983). Where there are allegations of prosecutorial misconduct, the

arguments of both the prosecutor and the defense attorney must be reviewed in their entirety so

that the prosecutor’s statements can be put in their proper context. Sutton, 316 Ill. App. 3d at

893. Finally, where the challenged comments are part of rebuttal closing argument, “they will not

be held improper if they appear to have been provoked or invited by the defense counsel’s

argument.” People v. Crowder, 256 Ill. App. 3d 91, 100 (1993).

       In the instant case, regarding the prosecution’s theory of the case, defense counsel stated

during various points in closing argument as follows:

               “They had a theory and that theory was Latonya. They didn’t talk

               to her until 10:30.

                       The purpose of going into that room was to get a statement

               out of her in order to get the medical examiner to make some kind

               of ruling and they had a theory. Even the medical examiner now

               has gone in with this theory.

                                               ***

                       So they keep trying to fit this theory, like there’s something

               wrong with her putting her child in a snow suit.

                                               ***

                       What you know - - Think about that tape. I know the tape

               was hard for each and every one of you to watch. But the thing is

               those are things that were fed to her. She never hurt that baby.

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1-04-2704

               She tried to get help. She went out there, they laughed at her; well,

               you don’t know anything about babies. Not one of them called an

               ambulance. They had a car there. One of the people there had a

               car - -

                                               ***

                         Laceration to a liver. You know the baby bled out. But

               what the medical examiner says as far as how it happened does not

               match his report. What they have her say in the video does not

               match his report. And what that shows you is that you do not

               know beyond a reasonable doubt whether the baby’s death, the

               laceration was caused intentionally by human hand or by an

               accident. You don’t know that.”

       During rebuttal closing argument, the prosecutor responded to defense counsel’s

argument that various witnesses, including police officers and medical personnel, conspired to

frame defendant for the death of her son. The prosecutor began the rebuttal as follows:

                         “What are they asking you to believe happened here? What

               happened here? What are they asking you to believe? That she is

               the victim of a conspiracy? That somehow the police officers, the

               detectives, Adams and Lewis, the medical examiner, the paramedic,

               Jim Stohl, the police officer, Officer Krass, they all got together,

               and they got together with the McBride family and they decided,

               hey, you know what we’re going to do, we’ve got a dead baby and

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1-04-2704

            we’re going to put it on her. Maybe they met in a coffee shop,

            maybe right before the murder, hey, you know, we’re going to pin

            this case on her, we got a dead baby, we’re going to put it on

            someone, we’ll put it on her.

                   Is that what they’re asking you to believe? What a joke.

            How outrageous. That’s what they want you to believe, that this is

            some sort of conspiracy, that some detectives, Adams and Lewis,

            got together with the McBrides and said, okay, we’ll put - - we’re

            going to murder the baby and then put it on her.

                   Well, let’s see we need some help. Hey, give Dr. Crowns a

            call at the Medical Examiner’s Office. He’ll help us. You know,

            we will need a police officer, paramedic. Let’s give Jim Stohl a

            call. Let’s give - - We need some other people. Let’s get the

            McBrides here. We’ll get Antwon involved in this.

                   Is that what happened here? What a joke. That’s not what

            happened.

                                            ***

                   You know, with regard to this conspiracy, the conspiracy

            they want you to believe that somehow everyone got together to

            put it on her, why not put it on Antwon? Why not put the case on

            Antwon? Why her? Out of the blue Detective Lewis, Detective

            Adams, Dr. Crowns, they haven’t testified they know her and have

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               anything against her, and they are going to conspire with the

               McBride family to put this case on her for no reason and let the real

               baby killer go and then force her to confess?

                                               ***

                       What they are asking you to believe is ridiculous. It’s

               ridiculous and outrageous, that there is some sort of conspiracy

               here against her.”

       In addressing defendant’s argument that these comments by the prosecution deprived her

of a fair trial, we find People v. Jackson, 299 Ill. App. 3d 104 (1998), instructive. In Jackson the

defendant contended the prosecution in rebuttal argument shifted the burden of proof by

characterizing the defense theory as an accusation of conspiracy against the defendant by various

persons, including the prosecution, police, and the victim. In rejecting this argument, Jackson

found the prosecution’s argument was invited by defense counsel’s argument that the police

fabricated evidence and lied to defendant to obtain a confession. Jackson, 299 Ill. App. 3d at

109-10. The court in Jackson concluded as follows:

               “The remarks made by the State regarding a conspiracy were in

               response to the defense counsel’s remarks that the detectives

               fabricated evidence and lied to defendant. Moreover, the State did

               not tell the jury that it had to believe that all the State’s witnesses

               were lying in order to acquit defendant. We find there was no

               error.” Jackson, 299 Ill. App. 3d at 110.



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         In the instant case, similar to Jackson, the prosecution in rebuttal was responding to

defense counsel’s arguments that the police had a theory, fed it to defendant, and had her say

things on the videotape that did not match the medical examiner’s report. The prosecution was

responding to defense counsel’s argument that “[e]ven the medical examiner now has gone in with

this theory” and what the police “have her say in the video does not match his report.” When

viewed in context of defense counsel’s argument that the police had a “theory,” the medical

examiner was in on it, and the police “fed” defendant the statements she made, the prosecutor’s

response was proper. Jackson, 299 Ill. App. 3d at 110. Indeed, the comments were clearly

invited by defense counsel’s argument and, as such, they are proper. People v. Crowder, 256 Ill.

App. 3d 91, 100 (1993) (remarks by prosecution in rebuttal argument are not improper if

provoked or invited by defense counsel’s argument).

         However, even if the prosecutor’s comments were improper, the record does not reflect

the defendant was prejudiced or deprived of a fair trial. On the contrary, the trial judge instructed

the jurors that anything either of the attorneys said during closing arguments should not be

considered as evidence and any comments not based on the evidence should be disregarded. The

record reflects no reason to conclude that the jury disregarded these instructions. People v.

Illgen, 145 Ill. 2d 353, 376 (1991) (it is presumed the jury will follow the instructions).

Moreover, any error would be harmless beyond a reasonable doubt based on the strength of the

evidence demonstrating defendant’s guilt. People v. Cisewski, 118 Ill. 2d 163, 175 (1987);

People v. Wood, 341 Ill. App. 3d 599, 614-15 (2003). For the reasons previously discussed, we

reject defendant’s argument that the prosecution’s comments during rebuttal denied defendant a

fair trial.

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1-04-2704

                          JURY INSTRUCTIONS REGARDING
                   ELIGIBILITY FOR AN EXTENDED-TERM SENTENCE

       Defendant contends the jury was improperly instructed regarding her eligibility for an

extended-term sentence, thereby depriving her of a fair trial. In support of that argument,

defendant relies on the fact that instructions and verdict forms were defective because they

required the jury to determine unanimously that defendant’s conduct was not “brutal or heinous”

beyond a reasonable doubt.

       Under the due process clause of the fifth amendment, as well as the notice and jury trial

guarantees of the sixth amendment, “ ‘any fact (other than [a] prior conviction) that increases the

maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt.’ ” Apprendi v. New Jersey, 530 U.S. 466, 476, 147 L. Ed. 2d 435,

446, 120 S. Ct. 2348, 2355 (2000), quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L.

Ed. 2d 311, 326 n.6, 119 S. Ct. 1215, 1224 n.6 (1999).

       In Illinois, trial courts are responsible for making sure that the jury is properly instructed

on the elements of the charged offense (People v. Davis, 313 Ill. App. 3d 585, 589 (2000)), as

well as any factors that may increase the maximum penalty for an offense (Apprendi, 530 U.S. at

476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355). A trial court need not rely on pattern jury

instructions, however, and may in its discretion use nonpattern jury instructions. People v.

Pollock, 202 Ill. 2d 189, 211 (2002) (decision to use nonpattern jury instructions reviewed for

abuse of discretion); People v. Hudson, 222 Ill. 2d 392, 407-08 (2006) (finding no reversible

error, even where a clearer and more concise instruction could have been given).




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       In the instant case, because a finding by the jury that the defendant’s crime was

accompanied by “brutal or heinous behavior” was an aggravating factor that could potentially

increase the maximum penalty for the offense, that fact had to be submitted to the jury and proven

beyond a reasonable doubt. Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355.

Similarly, the fact that the victim was less than 12 years old was an aggravating factor that

subjected the defendant to potentially greater punishment and, as such, this fact had to be

submitted to the jury and proven beyond a reasonable doubt.

       Defendant contends the instructions and verdict forms were defective because in order to

preclude consideration of the aggravating factor they required the jury to unanimously determine

beyond a reasonable doubt that the defendant’s conduct was not brutal or heinous. The jury in

the instant case was instructed as follows:

                       “We, the jury, find the fact does not exist, beyond a

               reasonable doubt, that the offense of first degree murder was

               accompanied by exceptionally brutal or heinous behavior indicative

               of wanton cruelty and that the victim was under 12 years of age.”

               [followed by lines for 12 signatures]

And

                       “We, the jury, find the fact does exist, beyond a reasonable

               doubt, that the offense of first degree murder was accompanied by

               exceptionally brutal or heinous behavior indicative of wanton

               cruelty and that the victim was under 12 years of age.”

               [followed by lines for 12 signatures]

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       Defendant, relying on People v. Ramey, 152 Ill. 2d 41, 77 (1992), contends the

instructions and verdict forms were “seriously flawed in requiring a unanimous decision that

Starnes’ conduct was not brutal and heinous.” In Ramey, the court resolved a similar challenge as

to whether a verdict against the death penalty need be unanimous and concluded that “the belief

by one juror that any one mitigating factor sufficient to preclude the death penalty exists is

sufficient to do so.” Ramey, 152 Ill. 2d at 77; see People v. Miller, 173 Ill. 2d 167, 196-98

(1996) (a verdict against the death penalty need not be unanimous).

       Defendant argues the Illinois Pattern Jury Instructions, specifically, IPI Criminal 3d Nos.

7B.10 and 7B.12, used in first-stage death penalty hearings, are instructive. Illinois Pattern Jury

Instructions, Criminal, Nos. 7B.10, 7B.12 (3d ed. 1992). We agree that the format of those

instructions could be helpful in developing more clear instructions for the jury regarding the issues

raised by the State’s requirement to prove beyond a reasonable doubt any factor that qualifies a

defendant for an enhanced sentence.

       In the instant case, the verdict forms could have provided as follows:

                       We, the jury, unanimously find beyond a reasonable doubt

               that the defendant Latonya Starnes is eligible for an enhanced

               sentence under the law. We unanimously find beyond a reasonable

               doubt that the offense of first degree murder was accompanied by

               exceptionally brutal or heinous behavior indicative of wanton

               cruelty and that the victim was under 12 years of age.

               [lines for 12 signatures follow]



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                      We, the jury, cannot unanimously find beyond a reasonable

               doubt that the defendant Latonya Starnes is eligible for an enhanced

               sentence under the law. We cannot unanimously find beyond a

               reasonable doubt that the offense of first degree murder was

               accompanied by exceptionally brutal or heinous behavior indicative

               of wanton cruelty and that the victim was under 12 years of age.

               [lines for 12 signatures follow]

The other instruction reflecting this issue could similarly have been modified. The above

language, unlike the language used in the instant case, cannot be argued to have shifted the

burden of proof to the defense.

       In the instant case, the defendant recognizes that the trial court did not impose an

extended-term sentence based on the jury’s finding that defendant’s conduct was brutal or

heinous. However, defendant argues “it cannot be determined whether the trial court would have

sentenced Starnes to a term closer to the minimum (20 years), had the improper jury finding of an

aggravating factor not been made.” We recognize that the trial court sentenced defendant close

to an extended-term sentence and the trial court acknowledged that fact.

       We note, the record does not reflect that the experienced trial judge in any way relied on

the brutal or heinous findings made by the jury in imposing sentence. Such findings would

become relevant if the sentencing judge was considering an extended-term sentence or a life

sentence. Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63; see People v.

Rovito, 327 Ill. App. 3d 164, 178 (2001). In resolving defendant’s motion for new trial, which

immediately preceded the sentencing hearing, the trial judge demonstrated an accurate

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understanding of the law as it related to the issue of enhancing defendant’s sentence based on

exceptionally brutal or heinous conduct as reflected by the following:

                       “THE COURT: And, of course, all of this stuff with respect

               to brutal and heinous would only come into play if the defendant is

               eventually sentenced to extended term in this case, and if she isn’t

               sentenced to an extended term, then there isn’t any issue as far as

               I’m concerned.”

       The unenhanced sentencing range for first degree murder is 20 to 60 years. 730 ILCS

5/5-8-1(a)(1)(a) (West 2000). Defendant was sentenced to 50 years in the Illinois state

penitentiary. Had the judge relied on the jury’s findings that the victim was under age 12 and that

the offense was accompanied by exceptionally brutal or heinous behavior, indicative of wanton

cruelty, the defendant would have been eligible for an extended-range sentence of 60 years’ to

100 years’ imprisonment or natural life imprisonment. 730 ILCS 5/5-5-3.2(b)(2), (b)(4), 5-8-

2(a)(1) (West 2000). We are mindful that defendant challenges the instructions related to the

finding of brutal or heinous behavior by the jury, and further challenges the impact of that finding

on the 50-year sentence imposed by the trial judge. However, the record reflects that no

enhanced sentence was imposed and no comment by the judge suggested an enhanced sentence

was under consideration. As previously noted, the trial court acknowledged the 50-year sentence

was close to an extended-term sentence, but also correctly recognized that issues regarding

“brutal and heinous would only come into play if the defendant is eventually sentenced to

extended term in this case.”



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       In determining whether a mistake or misunderstanding of the law by the trial judge

influenced the sentencing decision and deprived defendant of a fair sentencing hearing, we note

that reviewing courts “look to whether the trial court’s comments show that the court relied on

the mistaken belief or used the mistaken belief as a reference point in fashioning the sentence.”

People v. Hill, 294 Ill. App. 3d 962, 970 (1998). This is unlike the situation where the judge

imposes a sentence based on an incorrect understanding of the law or a faulty factual finding.

People v. Hausman, 287 Ill. App. 3d 1069, 1072 (1997) (and cases cited therein). Moreover, not

every misstatement or misunderstanding by the trial judge actually influences the sentencing

decision. People v. Beals, 162 Ill. 2d 497, 510-11 (1994) (finding no plain error existed where

the trial court improperly stated the maximum sentence was natural life and sentenced the

defendant to 80 years in prison). As previously discussed, the trial judge in the instant case was

not operating under any misunderstanding when he imposed the 50-year unenhanced sentence.

       We further note that the decision to use a non-IPI jury instruction is within the discretion

of the trial court. People v. Pollock, 202 Ill. 2d 189, 211 (2002). At the point in time when this

case was tried, the IPI instructions had not been modified to comply with Apprendi. “Where

there is no IPI jury instruction on a subject on which the court determines the jury should be

instructed, the court has the discretion to give a non-IPI instruction.” Hudson, 222 Ill. 2d at 400.

While it would have been preferable to have used a more precise instruction and verdict form in

order to communicate to the jury that a single juror’s “no” vote would prevent an affirmative

verdict of brutal or heinous conduct, we find no abuse of discretion.

       Moreover, the record reflects that any confusion or error was harmless beyond a

reasonable doubt and had no impact on the sentence imposed by the trial judge. People v. Rovito,

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327 Ill. App. 3d 164, 178 (2001) (Apprendi error was harmless where the trial court did not

impose an extended-term sentence). The trial judge did not impose either a natural life sentence

or an extended term; accordingly, Apprendi concerns were not implicated. The record reflects the

brutal or heinous finding by the jury was not a sentencing factor considered by the trial judge in

imposing the unenhanced 50-year sentence. For the reasons previously discussed, we reject

defendant’s argument that she was prejudiced by any instruction error.

           TRIAL COURT DID NOT ABUSE ITS DISCRETION BY SENTENCING
            DEFENDANT TO 50 YEARS IN PRISON FOR THE FIRST-DEGREE
                          MURDER OF HER INFANT SON

        Defendant contends the trial court abused its discretion in sentencing her to 50 years in

prison for the first-degree murder of her infant son because the sentence gave inadequate

consideration to defendant’s youth, lack of criminal history, background, and potential for

rehabilitation.

        A trial court’s imposition of sentence is entitled to great deference. People v. O’Neal, 125

Ill. 2d 291, 297 (1988). Although a reviewing court has the authority to reduce a sentence, the

court may only exercise this authority if the trial court abused its discretion in imposing the

sentence. 134 Ill. 2d R. 615(b)(4); People v. Porter, 277 Ill. App. 3d 194, 200 (1995). A

reviewing court should not, however, substitute its judgment for that of the trial court and reduce

an offender’s sentence merely because it would have weighed the factors differently and reached a

different result. People v. Streit, 142 Ill. 2d 13, 19 (1991). Generally, the trial court is in a better

position than a court of review to determine an appropriate sentence considering the particular

facts and circumstances of each individual case. People v. Perruquet, 68 Ill. 2d 149 (1977). The

trial court is the proper forum for the determination of a defendant’s sentence, and the trial

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court’s sentencing decisions are entitled to great deference and weight. Perruquet, 68 Ill. 2d at

154. If the sentence imposed is within the statutory range, it will not be deemed excessive unless

it is greatly at variance with the spirit and purpose of the law or is manifestly disproportionate to

the nature of the offense. People v. Fern,189 Ill. 2d 48, 54 (1999).

       Under Illinois law, a defendant convicted of first-degree murder shall be sentenced to no

less than 20 and no more than 60 years in the Illinois state penitentiary. 730 ILCS 5/5-8-

1(a)(1)(a) (West 2000). In the instant case, a review of the record indicates the judge relied on

proper aggravating and mitigating factors in imposing sentence. The record reflects the trial court

was fully aware of the circumstances surrounding the crime and of defendant’s lack of criminal

history. Relevant factors in determining an appropriate sentence include the nature of the crime,

protection of the public, deterrence, and punishment, as well as the defendant’s rehabilitative

prospects and youth. People v. Whitehead, 171 Ill. App. 3d 900, 908 (1988). Additionally, the

sentencing judge may consider such factors as the defendant’s credibility, demeanor, general

moral character, mentality, social environment, habits, and age. Fern, 189 Ill. 2d at 53. The

weight attributed to each factor in aggravation and mitigation in imposing a sentence depends on

the particular circumstances in each case. People v. D’Arezzo, 229 Ill. App. 3d 428 (1992).

       We note that a trial court need not articulate the process by which it determines the

appropriateness of a given sentence. People v. Wright, 272 Ill. App. 3d 1033, 1045-46 (1995).

In the instant case, the experienced trial judge properly considered factors in aggravation and

mitigation and sentenced defendant within the statutory range. He concluded as follows:

                       “This was an absolutely senseless, selfish, and premeditated

               act on the part of the defendant. And I believe that the evidence

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               shows that her motive was basically that the child was cramping her

               life-style and that she just wanted to get rid of it.

                       I’m also negatively impressed by her testimony at trial and

               what she said when she testified and her lack of remorse that the

               State has appropriately argued here.

                       But, I don’t think under the totality of the circumstances it’s

               necessary to sentence her to an extended term sentence. I do,

               however, think it’s necessary to sentence her to close to an

               extended term sentence. And I have given this case a lot of

               thought, and I have considered all of the factors in aggravation and

               mitigation provided by statute that I’m required to consider, and I

               think that the appropriate sentence based on the evidence that I

               heard in this case and the history and character of the defendant is a

               sentence of 50 years Illinois Department of Corrections.”

       The trial court was informed of the defendant’s youth, her difficult background, her lack

of a criminal history, and her potential for rehabilitation. Defendant murdered her own

defenseless, infant son by pressing on his abdomen with such force that his liver was lacerated

nearly in half. She then watched for several minutes as the baby moaned and lost consciousness.

She did this, as reflected in her videotaped statement, because she wanted to attend a party with

her boyfriend and felt the baby was holding her back. When she addressed the court during

sentencing she expressed no remorse, but only articulated concern regarding what sentencing

credits she would receive.

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       For the reasons previously discussed, we do not find that the sentence imposed in this case

is at odds with the purpose and spirit of the law or disproportionate to the nature of the offense.

Accordingly, we conclude the experienced trial judge considered the appropriate factors in

sentencing defendant. The sentence imposed was an appropriate exercise of discretion and the

50-year term was not excessive.

             DEFENDANT’S MITTIMUS WILL BE CORRECTED TO REFLECT
                THAT SHE SERVED 943 DAYS PRIOR TO SENTENCING

       Defendant’s fourth claim on appeal is that she was incarcerated for 943 days prior to

sentencing but received credit for only 883 days. She therefore asks this court to correct her

mittimus to reflect an additional 60 days of sentencing credit. The State concedes that defendant

is entitled to an additional 60 days of sentencing credit and notes that this court may correct the

mittimus itself and need not remand to the trial court. People v. McCray, 273 Ill. App. 3d 396,

403 (1995). Accordingly, we instruct the clerk of the circuit court to correct defendant’s

mittimus to reflect credit for 943 days defendant spent in custody prior to sentencing.

               THE FORCED EXTRACTION OF DEFENDANT’S BLOOD AND
                  STORAGE OF HER DNA PROFILE DO NOT VIOLATE
                    DEFENDANT’S FOURTH AMENDMENT RIGHTS

       Finally, defendant argues that the Illinois DNA databank statute (730 ILCS 5/5-4-3 (West

2004)), which provides that anyone found guilty of a qualifying felony must provide a blood,

saliva, or tissue sample to the Illinois Department of State Police for DNA analysis and

categorization into genetic marker groupings, violates the fourth amendment prohibition against

unreasonable searches and seizures. We reject this argument, however, because the Illinois

Supreme Court has recently held that the statute is constitutional. People v. Garvin, 219 Ill. 2d


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1-04-2704

104, 125 (2006).

                                          CONCLUSION

       For the reasons previously discussed, we affirm defendant’s conviction and sentence. We

order the clerk of the circuit court to correct the mittimus to reflect credit for 943 days defendant

spent in custody prior to sentencing. We reject’s defendant’s argument that the DNA statute is

unconstitutional (730 ILCS 5/5-4-3 (West 2004)) and, accordingly, refuse to expunge her DNA

records from the DNA database.

       Affirmed; mittimus ordered corrected.

       O’BRIEN, P.J., and GALLAGHER, J., concur.




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