dissenting:
I agree with the majority conclusion that a murder committed under the unreasonable belief in the need for self-defense may nonetheless be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. I respectfully disagree, however, with the holding that the trial judge abused his discretion in finding that the murder in this case was accompanied by such behavior.
The majority may have confused, in part, the determination of whether the behavior may be characterized as exceptionally brutal or heinous with the separate question of whether the sentence was excessive in light of the totality of aggravating and mitigating factors. A trial court’s finding that the crime has been accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty permits but does not require it to consider imposing an extended-term sentence. (See People v. Frey (1984), 126 Ill. App. 3d 484, 487; Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b); Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(2).) Section 5 — 5 — 3.2(b)(2) specifically refers to “the offense” of which the defendant was convicted. It seems to follow, therefore, that any determination of whether the offense has been accompanied by exceptionally brutal or heinous behavior must be limited to an examination of a defendant’s actions surrounding the commission of the offense as opposed to the various other factors of aggravation and mitigation. Yet, in an effort to explain the apparent conclusion that the sentence was excessive, the majority refers to the defendant’s age and nonviolent criminal record as if those factors are relevant to the issue of how defendant acted while committing the crime. The product of this hybrid analysis of separate issues is unfortunately a distorted concept of what constitutes exceptionally brutal or heinous behavior.
Even regarding, for these purposes, defendant’s conduct in twice strangling the victim with an electrical cord because he believed, albeit unreasonably, that such conduct was justifiable under principles of self-defense, defendant’s continued methodical infliction of lethal force against this helpless victim is, in my view, a fair illustration of what is meant by “exceptionally brutal or heinous behavior indicative of wanton cruelty.” The trial court found that after the victim became limp from the second strangulation defendant heard her gasp for air and responded by applying athletic tape to her mouth and nose, making “completely impossible” any chance for survival. Then, according to defendant’s testimony, he placed a plastic bag over the victim’s face and hauled her on a garbage cart to a manhole where he placed the victim in a sewer, not knowing whether she was alive or dead. It is evident that these acts were performed with at least some degree of deliberation.
I consider such conduct to exceed what the majority refers to as mere “indifference to the survival of the victim.” “In evaluating the brutality and heinousness of an offense, the entire spectrum of facts surrounding the given incident must be analyzed and evaluated.” (People v. Grady (1982), 107 Ill. App. 3d 970, 977.) Heinous or brutal behavior toward the victim can occur even after the victim is dead. People v. Devine (1981), 98 Ill. App. 3d 914, 925.
I further disagree with the majority’s assessment that the facts of the present case are more akin to those cases in which reviewing courts have reversed findings of exceptionally brutal and heinous conduct than those in which such findings have been upheld. I am concerned that today’s decision may leave trial judges lost at sea in performing the sometimes difficult task of identifying exceptionally brutal or heinous behavior indicative of wanton cruelty. It is my opinion that there was no abuse of discretion in the trial court’s sentencing determination.