specially concurring:
Although I agree with the majority in affirming the judgment of the circuit court, I am unable to agree with the opinion on three points. First, the majority deemed that an argument in defendant’s reply brief concerning the restrictive application of the brutal and heinous behavior factor for an extended-term sentence has been waived for failing to raise it specifically in defendant’s initial brief. The State has not raised this waiver argument. In its initial brief, defendant argued that the trial court abused its discretion in imposing an extended term pursuant to section 5 — 5—3.2(bX2) of the Unified Code of Corrections (DI. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(bX2)). Although defendant primarily contended that because he acted in self-defense his actions failed to rise to the level of exceptionally brutal or heinous conduct indicative of wanton cruelty, defendant also generally contended that the imposition of an extended term was improper. On this basis alone, the issue was preserved, and citation of new cases following the filing of the initial brief was proper. In any event, while the majority claims that People v. Lucas (1989), 132 Ill. 2d 399, and People v. Andrews (1989), 132 Ill. 2d 451, fail to announce “new law,” those cases show a narrower application by the Illinois Supreme Court of extended-term sentences for exceptionally brutal or heinous behavior. (Compare People v. La Pointe (1981), 88 Ill. 2d 482, 501, with Lucas, 132 Ill. 2d at 445.) I would not find this argument waived.
Secondly, the majority finds that the killing could not have been premeditated because defendant was convicted of voluntary manslaughter as a result of a sudden and intense passion. However, there is evidence that the killing was planned by defendant to avenge the prior killing of his former wife. Thus, it was premeditated. Even assuming defendant killed the victim as a result of a sudden and intense passion, or as a result of self-defense as defendant appears to argue on appeal, such results are not necessarily inconsistent with premeditation. Premeditation could have occurred prior to either. Because premeditation can show exceptionally brutal behavior indicative of wanton cruelty (Lucas, 132 Ill. 2d at 445), I agree with the majority that an extended term is appropriate.
I note, as did the trial judge, that the obvious dichotomy between premeditation and the lesser mental state for voluntary manslaughter under the evidence adduced at the sentencing hearing resulted because the parties apparently agreed to let each side.present its theory to the court following remand after the reversal of the original conviction. While I view the procedure as unwise, it was the method pursuant to which the parties chose to proceed. Thus, defendant cannot now object to a procedure in which he acquiesced. Cf People v. Schmitt (1989), 131 Ill. 2d 128, 137.
Lastly, the majority considered, inter alia, defendant’s prior adult criminal history in finding brutal and heinous behavior to justify imposing the extended-term sentence. Although our supreme court in one case apparently considered prior criminal history (Andrews, 132 Ill. 2d at 466), section 5 — 5—3.2(b)(2) specifically refers to “the offense” of which the defendant was convicted and does not refer to prior criminal history. I do not consider prior criminal history to be an appropriate consideration to find brutal and heinous behavior under section 5 — 3—3.2(b)(2). On the other hand, once brutal and heinous behavior is found, then prior criminal conduct may be considered in determining the length of the extended sentence.