                              NO. 4-04-1054        Filed: 2/14/06

                          IN THE APPELLATE COURT

                               OF ILLINOIS

                             FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from
          Plaintiff-Appellee,           )    Circuit Court of
          v.                            )    McLean County
LISA DAWN SCOTT,                        )    No. 03CF944
          Defendant-Appellant.          )
                                        )    Honorable
                                        )    James E. Souk,
                                        )    Judge Presiding.
_________________________________________________________________

            JUSTICE COOK delivered the opinion of the court:

            In June 2004, defendant, Lisa Dawn Scott, pleaded

guilty to one count of involuntary manslaughter for unintention-

ally and recklessly killing her newborn daughter (720 ILCS 5/9-

3(a) (West 2002)).    She was sentenced to 12 years in prison.      The

trial court denied defendant's motion to reconsider.       Defendant

appealed.    We affirm.

                              I. BACKGROUND

            On March 7, 2003, a garbage collector emptied a Dump-

ster from behind an apartment complex.        As he started the compac-

tor, he noticed what looked like an infant's hand and umbilical

cord hanging from the trash compactor.        The police were called.

An infant, packaged in a trash bag along with a bloodstained T-

shirt, sock, and towel, was extracted from the compactor and

taken to the morgue for an autopsy.

            The doctor conducting the autopsy, Dr. Bryan Mitchell,

determined the infant to be a full-term female weighing slightly

under 6 pounds and measuring 18 1/4 inches long.       The umbilical
cord was cut.   An air bubble in the infant's stomach and air in

her lungs indicated she was born alive and took a breath.    Dr.

Mitchell could not determine how many breaths were taken.

According to Dr. Mitchell, the cause of death was asphyxia caused

by one of the following:   (1) placement in the closed plastic

bag, (2) smothering without oral or nasal trauma, (3) hemorrhage

as a result of severing the umbilical cord without clamping, or

(4) a combination of these.

           Five days after the infant was discovered, the police,
acting on a tip, contacted Cody Wimp, who lived in a mobile home

with David Whalen, defendant's on-again, off-again boyfriend of

four years.   Cody consented to a search of the trailer and told

police that on the evening of March 7, 2003, he noticed the bath

mat was wet with blood and saw smeared blood on the shower and

shower curtain as well as blood in front of the toilet.    Cody had

called his mother to ask how to clean up the blood, then cleaned

the bathroom with a bleach solution.

           On the same day the police searched Cody's trailer,

defendant learned that the police were looking for her and called

them.   At that time, defendant, a student at the local community

college, was in Florida on a spring-break trip.    She and some

girlfriends had left for the trip the night of March 8.    During

the phone call, defendant denied being pregnant.    Defendant

returned home early from Florida.

           After defendant returned home, deoxyribonucleic acid

(DNA) testing was conducted using the infant and defendant's DNA.


                               - 2 -
 The DNA test confirmed the infant was defendant's daughter.

Police eventually determined that on the night of March 6, 2003,

defendant spent the night with David Whalen at his trailer.

Between 3:45 a.m. and 6:45 a.m. on March 7, defendant entered the

trailer's bathroom, which was immediately adjacent to Whalen's

bedroom, and gave birth to the infant.     Defendant claims she

never saw the baby breathe, heard the baby cry, or saw the baby

move.    Defendant does not remember cutting the umbilical cord.

After the birth, defendant cleaned the bathroom, got a trash bag
from the trailer's kitchen, and placed the baby and other blood-

soaked items into the trash bag.     She went back to bed with

Whalen but got up before he did and told him she would take out

the trash.    On her way back to her apartment, defendant dumped

the trash bag containing the infant in a full Dumpster behind an

apartment complex.    Defendant then went to work for most of the

day.    That night she left with seven other friends for Florida.

             In September 2003, a grand jury indicted defendant for

two counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2)

(West 2002)), involuntary manslaughter (720 ILCS 5/9-3(a) (West

2002)), and concealment of a homicidal death (720 ILCS 5/9-3.1(a)

(West 2002)).    The State later charged defendant with another

count of involuntary manslaughter to which defendant agreed to

plead guilty in exchange for the State to nol-pros the other

counts.    According to the charge, defendant either separated or

caused the separation of her child from the placenta.     Errone-

ously believing the child to be dead, defendant failed to clamp


                                 - 3 -
the umbilical cord, clear the airway passage, or seek medical

attention.    Defendant then placed the infant in a plastic bag.

The act or combination of acts resulted in the death of defen-

dant's daughter.    The plea agreement stated defendant could be

sentenced to a minimum of 3 years and a maximum of 14 years in

prison with no possibility of probation.

             At the sentencing hearing, the State called officers

who testified to the manner in which the infant was found and the

items found in the search of defendant's room.     The State intro-
duced pictures of the infant after it was extracted from the

garbage compactor and pictures of a jar of stretch-mark cream,

anatomy and physiology books, and pictures of defendant in

Florida, all items found during a search of defendant's room.

             The State subpoenaed some of the girls who accompanied

defendant to Florida.    The girls testified that no one knew

defendant was pregnant or had just given birth.     While in

Florida, defendant drank and "partied" like everyone else.      The

State presented photographs of her in Florida smiling, sunbath-

ing, and drinking.    None of the girls knew why defendant left the

trip early at the time except that the police were looking for

her.   The girls testified that they were acquainted with defen-

dant through the community college.      Defendant had been taking an

anatomy and physiology course at the community college in hopes

of pursuing a career in nursing.

             None of defendant's family or friends knew defendant

was pregnant.    Defendant's older sister was subpoenaed by the


                                 - 4 -
State and testified that she had a son out of wedlock and her

parents and family had been very supportive of her.     Defendant

was close with her family, good with children, and spent many

nights out of the week with her recently widowed grandmother.

The sister testified defendant was extremely shy when not under

the influence of alcohol.

           Defendant presented a number of witnesses.   Defendant's

childhood friend testified she was extremely shy when not drink-

ing.   The friend stated defendant was good with children and took
care of others but would never ask for help for herself.    Defen-

dant's aunt and mother testified along the same lines.    None of

defendant's family or friends knew that defendant had previously

been pregnant in 2001 and had a miscarriage.   A church leader

testified at the sentencing hearing that defendant met with him

regularly after the incident.   He characterized her as involved

in the church from a young age and recommitted to her spiritual-

ity.

           Finally, Dr. Robert Chapman, a forensic psychiatrist,

testified defendant suffered from four disorders:   (1) social

anxiety disorder; (2) adult attention deficit disorder, inatten-

tive type; (3) dysthymic disorder, which is chronic, long-stand-

ing, low-grade depression; and (4) personality disorder,

obsessive-compulsive type.   Dr. Chapman explained defendant's

social anxiety disorder made her painfully shy, but she could

gain temporary relief from excessive use of alcohol.    Using

alcohol excessively and frequently allowed her to have friends,


                                - 5 -
date, go out, and seem outgoing and fun.    Defendant's adult

attention deficit disorder manifested itself in excessive day-

dreaming and creation of a fantasy life.    According to Dr.

Chapman, defendant could make herself believe that bad, painful,

or stressful things were not happening.    Defendant dealt with

anything unpleasant by believing if she ignored it and went into

her fantasy life, the unpleasantness would go away and everything

would turn out all right.   Dr. Chapman's testimony was not

refuted.
           Aside from traffic tickets, defendant had no prior

record.

           In sentencing defendant consistent with the State's

recommendation of 12 years in prison, the trial court stated it

had "substantial questions about whether the facts of this case,

as related to the court, supported [the plea]."    The court

continued, "After due consideration, research[,] and input from

counsel, the [c]ourt accepted this plea.    It was reached between

the defendant and the State, allowing the defendant to have

murder charges against her dismissed."    The court then expressed

what a difficult case this was.   After acknowledging defendant's

claim that she had been in denial leading up to the event on

March 7, the court stated "that is rather difficult for the

[c]ourt to process very well, considering what else is known

about Miss Scott."   The court went on to relate that when this

happened, defendant was 20 years old, bright, educated, studying

nursing, and had previously been pregnant.    The court found there


                               - 6 -
was "much evidence" to contradict Dr. Chapman's diagnoses, namely

"[t]here is no indication in the life of this young woman of

anyone thinking that she was strange or bizarre or needed mental

health treatment."

          The trial court then recounted the following concerning

the victim in this case,

          "There is a victim in this case named only

          Jane Doe, and once that child was born and

          took breath, that child became a citizen of
          our community and of our country and had the

          right to live.   Because of circumstances that

          were created by the reckless and irresponsible

          behavior of Miss Scott, this child lived only

          a few minutes ***.   By [defendant's] behavior,

          this child, the most innocent and precious

          human being that could be imagined, is not

          with us, was denied her right to live when it

          was so preventable. ***        [T]his was a full-

          term baby.   The [c]ourt has before it a picture

          of this child.   This is not a situation in

          which it is an early-term child and might be

          more a blob of tissue or something like that,

          that you might describe as something not dis-

          cernible as a child.    This is a baby that was

          born into a toilet and her mother cut the

          umbilical cord, somehow allowed this child


                                 - 7 -
          to die with no help, no medical care."

          At the hearing on defendant's motion to reconsider

sentence, the trial court reaffirmed what a difficult matter this

case presented.   The court stated:

          "The [c]ourt, in imposing the sentence that it

          did, while taking all the mitigation into

          effect, also considered some other things

          which are facts that the [c]ourt considered

          quite aggravating.   Certainly, the evidence
          alluded to by [the State] regarding the

          defendant's immediately going to Florida and,

          if you will, the impact or, if you will,

          lack of impact on her life from this even

          having just occurred was, well, gave the

          [c]ourt some significant insight into this

          incident and the defendant's, if you will,

          almost blas[é], somewhat callous attitude

          about the whole matter ***.   The defendant's

          prior pregnancy obviously was not a crime,

          but that, coupled with her nursing training,

          her education, and her background, the over-

          all nature of this offense and the, her

          attitude and, reaction to this and, and a

          trip to Florida, and without attempting to

          recite everything about it, the [c]ourt just

          reached the conclusion, *** even with the


                               - 8 -
          mitigation presented, considered that the

          scope of the recklessness which resulted in

          the death of this child, was so egregious that

          a sentence near the maximum was appropriate,

          even for a young woman with the defendant's

          substantially, otherwise substantially miti-

          gating background."

This appeal followed.

                          II. ANALYSIS
          Defendant argues that the trial court erred (1) by

considering and ascribing weight to the victim's character and

status, defendant's behavior after the offense, and defendant's

alleged study of nursing and (2) by using factors inherent in

involuntary manslaughter as aggravating factors.   The State

responds that defendant forfeited her right to appeal by not

filing a motion to withdraw her negotiated guilty plea pursuant

to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)).    Further,

the State argues that, even if defendant may appeal, defendant

forfeited many of the issues she discusses in this appeal by not

including them in her motion to reconsider sentence.    Finally,

the State argues the court did not abuse its discretion in

sentencing defendant.

                 A. Defendant's Right To Appeal

          The State argues this court may not consider the merits

of defendant's claims because defendant failed to file a motion

to withdraw her negotiated plea as required in Supreme Court Rule


                                - 9 -
604(d) (188 Ill. 2d R. 604(d)).   Defendant did not have to file a

motion to withdraw her plea because her plea was not "negotiated"

as defined by Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)).

            The plea agreement provided that the offense was non-

probational and defendant may be sentenced to a term of 3 to 14

years' incarceration.   Under section 9-3(f) of the Criminal Code

of 1961 (Criminal Code), "[i]n cases involving involuntary

manslaughter in which the victim was a family or household member

*** 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 2002).   Aside from removing the possibility of

probation, the plea agreement did no more than restate the

statutorily imposed sentencing range.

            At the sentencing hearing, the trial court admonished

defendant by stating, "when you do a plea such as you have done,

the only way that you are allowed to appeal is to file within 30

days a written motion to withdraw your plea."   During the hearing

on defendant's motion to reconsider sentence, though, the court

stated it would entertain defendant's motion because "14 was

really the maximum here, in which event, while the defendant

bargained away her right to seek probation, it's still in es-

sence, was therefore an open plea as opposed to a cap plea."

            The Supreme Court of Illinois has recognized four types

of pleas.   People v. Diaz, 192 Ill. 2d 211, 218, 735 N.E.2d 605,
608 (2000).   First is the "open" plea, "wherein the defendant


                               - 10 -
pleads guilty 'without receiving any promises from the State in

return'" and both the State and defendant may argue for any

sentence permitted by statute.      Diaz, 192 Ill. 2d at 218, 735

N.E.2d at 609, quoting People v. Evans, 174 Ill. 2d 320, 332, 673

N.E.2d 244, 250 (1996).     Under the open plea, defendant may

appeal after filing a motion to reconsider sentence in the trial

court.    188 Ill. 2d R. 604(d).    The remaining three types of

pleas are categorized as "negotiated pleas."      Diaz, 192 Ill. 2d

at 219, 735 N.E.2d at 609.     If a plea is negotiated, a defendant

must file a motion to withdraw the plea of guilty and vacate the

judgment before she can appeal.      188 Ill. 2d R. 604(d).   One of

the three types of negotiated pleas occurs when a "defendant

pleads guilty in exchange for the State's agreement to dismiss

other pending charges and make sentencing concessions."       Diaz,
192 Ill. 2d at 221-22, 735 N.E.2d at 610.

           The State argues the plea in this case is a negotiated

plea because defendant was eligible for an extended term of 7 to

14 years (730 ILCS 5/5-8-2(a)(4) (West 2002)) as a result of

having committed the felony against a person under 12 years of

age at the time of the offense (730 ILCS 5/5-5-3.2(b)(4)(i) (West

2002)).   The plea was, therefore, a negotiated plea because it

made a sentencing concession by agreeing to a minimum sentence of

three years instead of seven.      Also, the agreement foreclosed the

possibility of probation.

           In recognizing that a plea is negotiated when the State

makes concessions, the Supreme Court of Illinois noted that


                                - 11 -
"[u]nder this circumstance, the State's ability to argue for the

full range of penalties provided for in the Code of Corrections

is constrained by the parameters of its agreement with the

defendant."   Diaz, 192 Ill. 2d at 222, 735 N.E.2d at 610.   In

this case, the State was in no way constrained by the agreement.

 The State could have argued a 7-year sentence was appropriate

and, in fact, did argue that a 12-year sentence was appropriate.

 Further, removing probation as a possibility is clearly not a

concession.   The State was not unfairly bound "to the terms of

the plea agreement while *** defendant [had] the opportunity to

avoid or modify those terms."    People v. Linder, 186 Ill. 2d 67,
74, 708 N.E.2d 1169, 1173 (1999).

                           B. Forfeiture

          The State argues that most of defendant's claims on

appeal are forfeited because she failed to include them in her

motion to reconsider sentence.    According to the State, defen-

dant's motion to reconsider sentence did not raise issues regard-

ing the trial court's improper consideration of nonstatutory

aggravating factors, except for the claim that the trial court

emphasized the nature of the deceased child of defendant.    The

Supreme Court of Illinois has recognized that "[t]he plain[-]

error doctrine may be used in reviewing a sentence if the evi-

dence is closely balanced."   People v. Martin, 119 Ill. 2d 453,
458, 519 N.E.2d 884, 886 (1988).    The evidence at the sentencing

hearing was closely balanced so, regardless of whether defen-

dant's claims were forfeited, we would still apply the plain-


                                - 12 -
error rule and address the appeal on the merits.

                      C. Defendant's Sentence

           Defendant first argues that the trial court considered

improper aggravating factors in sentencing her; specifically, her

alleged study of nursing, her behavior after the offense, and the

victim's character and status.   Further, defendant argues that

the court engaged in double enhancement by considering the

infant's death and her familial relationship as defendant's

daughter as aggravating factors.
           A defendant's sentence will not be overturned unless

the trial court abused its discretion.    People v. Perruquet, 68
Ill. 2d 149, 154, 368 N.E.2d 882, 884 (1977).   While the evidence

presented in the sentence hearing was closely balanced, we cannot

say the court abused its discretion.

                      1. Aggravating Factors

           In determining a sentence, the trial court may consider

nonstatutory factors in aggravation.    People v. Zehr, 143 Ill.

App. 3d 875, 879, 493 N.E.2d 727, 729 (1986).    Defendant argues

the trial court improperly considered three nonstatutory factors

in aggravation.

           Defendant first argues that the trial court placed

weight and importance on the fact that she had studied nursing.

Defendant's education may be considered in determining the

recklessness of the offense.   Defendant, though, was not studying

nursing.   While defendant's career aspiration was to go to

nursing school, she had only taken some science classes at the


                               - 13 -
local community college.   While the court misstated defendant's

education, the court did not appear to give this factor undue

weight.   Misstating defendant's education does not rise to an

abuse of discretion.

           Next, defendant claims the trial court improperly

considered the character and status of the victim.      In support of

this claim, defendant cites the court's comment, "[b]y [defen-

dant's] behavior, this child, the most innocent and precious

human being that could be imagined, is not with us, was denied
her right to live when it was so preventable."    Further the court

stated,

           "Well, this was a full[-]term baby.   The

           [c]ourt has before it a picture of this child.

           This is not a situation in which it is an

           early-term child and it might be more a

           blob of tissue or something like that, that

           you might describe as something not dis-

           cernable as a child.   This is a baby that

           was born into a toilet and her mother cut

           the umbilical cord, somehow allowed this

           child to die with no help, no medical care."

The court's comments, while acknowledging the victim's status as

an infant, taken in context, appear to be comments on the nature

and circumstances of the baby's birth and death.     People v. King,
151 Ill. App. 3d 662, 663, 503 N.E.2d 365, 367 (1987) (courts may

consider the circumstances and nature of the offense).     The


                              - 14 -
comments do not clearly indicate that the court improperly

considered the character and status of the victim.

           Finally, defendant argues the trial court erroneously

penalized her for lawful behavior after the commission of the

offense, namely her going on a spring-break trip.    Considering

defendant's actions of throwing her baby in a plastic bag,

dumping her baby's body in a Dumpster, and then going on a

spring-break trip less than 24 hours later was not improper.    The

court was not penalizing defendant for engaging in lawful behav-
ior.   The court was considering the circumstances surrounding the

offense and disposal of the body.    Defendant's recklessness was

exacerbated by the fact that she not only failed to seek medical

attention for the baby, but she also put her baby in a plastic

bag, dumped her in the garbage, and left the state.

           The record does not indicate that the trial court

abused its discretion by sentencing defendant for improper

reasons.

                        2. Double Enhancement
           Involuntary manslaughter is ordinarily a Class 3 felony

(720 ILCS 5/9-3(d) (West 2002)) unless the victim is a family

member, and then it becomes a Class 2 felony with a sentencing

range double that of a Class 2 felony (720 ILCS 5/9-3(f) (West

2002)).    Defendant argues that, in the enhanced version of

manslaughter to which defendant pleaded guilty, both death and

family status are intrinsic in the charge itself.    According to

defendant, the trial court used the familial relationship as


                               - 15 -
rationale for imposing a sentence two years shy of the maximum.

The State referred to the victim as daughter, niece, and grand-

daughter in its closing remarks, and the trial court referred to

defendant's daughter and "this child" when handing down the

sentence.    Further, defendant cites the following references made

by the court: "this child *** was denied her right to live,"

"somehow allowed this child to die," and "there was one person on

earth who was able to preserve this child's right to live."

            This court has found that a parent holds a special duty
of protection to her child over and above the duty she might owe

another family member.     People v. Burke, 226 Ill. App. 3d 798,
800-01, 589 N.E.2d 996, 998 (1992).      Because of this special

duty, a sentencing court does not err when it considers the

parental relationship at sentencing even when the defendant's

status as a "family member" is an element of the crime.      Burke,

226 Ill. App. 3d at 800-01, 589 N.E.2d at 998.     In this case,

therefore, the trial court did not err in considering the victim

was defendant's daughter.

            Finally, defendant's assertion that the trial court

considered the infant's death in aggravation is not clearly

supported by the record.    While the court referred to the fact

that the child died, the court did so in describing the nature

and circumstances of the offense.    The court never indicated that

it considered the infant's death as an aggravating factor.

            Despite all of the factors in mitigation, including the

forensic psychiatrist's unopposed testimony and defendant's


                                - 16 -
behavior in conformity with the psychiatrist's diagnoses, the

record does not indicate that the trial court abused its discre-

tion in sentencing defendant within the sentencing range, a range

to which defendant specifically agreed in her plea agreement.

See People v. Ratzke, 253 Ill. App. 3d 1054, 1074, 625 N.E.2d

1004, 1018 (1993) (the trial court did not err in giving little

weight to evidence of the defendant's mental disturbance when

sentencing him to a natural life sentence for murder); People v.

Bilski, 333 Ill. App. 3d 808, 820, 776 N.E.2d 882, 891 (2002) (in

sentencing a defendant, the trial court must determine the weight

to be given to evidence of mental illness, and a reviewing court

will not disturb that determination).

                                III. CONCLUSION

          For the reasons stated, we affirm the trial court's judgment.

          Affirmed.

          STEIGMANN and KNECHT, JJ., concur.




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