dissenting:
I respectfully dissent from the decision reached by the majority in this case that the defendant is eligible for an extended-term sentence based on his commission of the offense in this case.
I have no quarrel with either the majority’s statement of the facts of this case or the statement of the law applicable to the imposition of extended-term sentences. However, I disagree with the majority’s application of the law to the facts in the cause before this court.
The majority sets forth a number of factors courts have considered in determining whether an offense was accompanied by exceptionally brutal or heinous behavior, namely, evidence of premeditation; defendant’s behavior at the time of the offense; defendant’s expression of remorse for his conduct; and defendant’s prior criminal history. People v. Andrews, 132 Ill. 2d 451, 466 (1989); People v. Mangum, 260 Ill. App. 3d 631, 640-41 (1994).
The majority finds that the defendant’s conduct here was exceptionally brutal or heinous based upon the following: (1) defendant’s lack of remorse; and (2) the defendant lulled the victim into a false sense of security while planning to inflict a mortal wound with a utility knife, which defendant concealed. The majority ignores one factor and assumes another.
In this case, the trial court noted that, while extensive, defendant’s prior record, on its face, did not reveal any crimes of violence. See Andrews, 132 Ill. 2d at 466. The offense in this case came as a result of a quarrel between the victim and the defendant. Contrary to the majority’s view, there was no evidence of premeditation. That the defendant did not express remorse is explained by his denial of committing the offense, although he persisted in his plea of guilty due to the evidence against him.
In considering defendant’s conduct at the time of offense, unlike the majority, I find the case of People v. Reiner, 251 Ill. App. 3d 1065 (1993), to be instructive. In that case, Reiner argued with a woman at a bar, got into a fight with another patron of the bar, and was asked to leave. The woman, accompanied by the victim, left the bar to take her son to the baby-sitter’s home and was followed by Reiner. When they arrived at their destination, the victim and Reiner had a conversation. The victim turned to return to the bar. While the victim’s back was turned, Reiner struck him on the right side of his face, apparently with his bare fist. The victim suffered trauma to the right side of his face; his nose was badly broken; and he was rendered completely blind in his right eye. Reiner was found guilty of aggravated battery and received an extended-term sentence of eight years’ imprisonment based upon the trial court’s finding that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Reiner, 251 Ill. App. 3d at 1066.
The reviewing court reversed Reiner’s extended-term sentence. The court found that, while the defendant’s act was callous, cowardly, and unprovoked, these characterizations of the defendant’s conduct were not a sufficient basis upon which to impose an extended-term sentence. Nor was the fact that the victim suffered grievous injuries since "the infliction of 'great bodily harm or permanent disability or disfigurement’ was a requisite element of the aggravated battery offense [citation]. Courts have repeatedly held that it is improper for a trial court to rely on factors constituting elements of the offense to show brutal or heinous behavior. [Citations.]” Reiner, 251 Ill. App. 3d at 1067. Finally, the court determined that, while Reiner’s conduct could be characterized as brutal, it was not "exceptionally” brutal as required by the statute. 251 Ill. App. 3d at 1067.
I disagree with the majority’s statement that the trial court in this cause did not base its finding upon the fact that defendant caused great bodily harm, particularly in light of the trial court’s remark that it was "amazed, looking at the photograph [of the victim’s slashed throat], that it didn’t end up with a deceased victim.” Moreover, in evaluating the brutality or heinousness of a defendant’s conduct, the court must evaluate all of the facts surrounding the incident in question. People v. Nester, 123 Ill. App. 3d 501, 504-05 (1984).
Here, there is no evidence that the victim suffered any permanent injury, unlike the victim in Reiner. While the defendant’s attack on the victim just moments after a gesture of reconciliation could well be described as callous, cowardly, and even unprovoked, such similar conduct in Reiner, coupled with injuries far more severe than those in evidence in the record in this cause, was found not to merit an extended-term sentence.
I note that the trial court in this case did not make a finding that defendant’s act was accompanied by "exceptionally brutal or heinous behavior” as required by the statute. (Emphasis added.) See 730 ILCS 5/5 — 5 — 3.2(b)(2) (West 1992). Rather, the trial court found that defendant’s act was an example of a "brutal and heinous crime.” The majority concludes that the failure of the trial court to make the finding of "exceptionally” brutal or heinous behavior does not require reversal in this case since it is evident that the trial court intended to impose an extended-term sentence, and the facts support that determination. I disagree.
As in Reiner, the defendant’s act in this cause was brutal; however, under the circumstances of this cause, defendant’s conduct was not "exceptionally” brutal or heinous indicative of wanton cruelty. The majority’s efforts to find an "exceptionally brutal or heinous” act, where the trial court did not make such a finding and could not based upon the record before it, fly in the face of the supreme court’s admonition that extended-term sentencing was not intended to enhance the punishment for every offense. Reiner, 251 Ill. App. 3d at 1067-68; Andrews, 132 Ill. 2d at 466.
I would affirm defendant’s conviction of aggravated battery but reverse his sentence. I would remand this cause for a determination of whether defendant is eligible for an extended-term sentence under the provisions of section 5 — 5 — 3.2(b)(1) of the Unified Code of Corrections. 730 ILCS 5/5 — 5 — 3.2(b)(1) (West 1992).