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 unintentionally 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 Dumpster from behind an apartment complex. As he started the compactor, 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 Tshirt, 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 
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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. 
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 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 bloodsoaked 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. Erroneously believing the child to be dead, defendant failed to clamp 
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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 defendant'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 introduced 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, sunbathing, 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 defendant 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 
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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 drinking. The friend stated defendant was good with children and took 

care of others but would never ask for help for herself. Defendant'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 spirituality. 

Finally, Dr. Robert Chapman, a forensic psychiatrist, 

testified defendant suffered from four disorders: (1) social 

anxiety disorder; (2) adult attention deficit disorder, inattentive type; (3) dysthymic disorder, which is chronic, long-standing, 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, 
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date, go out, and seem outgoing and fun. Defendant's adult 

attention deficit disorder manifested itself in excessive daydreaming 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 
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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 fullterm 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 discernible as a child. This is a baby that was 

born into a toilet and her mother cut the 

umbilical cord, somehow allowed this child 
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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 overall 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 
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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 mitigating 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 
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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 nonprobational 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 essence, 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 
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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 
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"[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, defendant's motion to reconsider sentence did not raise issues regarding 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 evidence 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 defendant's claims were forfeited, we would still apply the plain-
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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 
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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 [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." 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 discernable 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 
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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 behavior. 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 
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rationale for imposing a sentence two years shy of the maximum. 

The State referred to the victim as daughter, niece, and granddaughter 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 
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behavior in conformity with the psychiatrist's diagnoses, the 

record does not indicate that the trial court abused its discretion 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.