*1
more than sufficient to
within the
depravity
meaning
establish
Adoption
Clearly
finding
Act.
of unfitness
reason of
by
depravity
not
manifest
contrary
weight
the evidence.
Martha also contends that the
that she failed to make rea
toward the return of the
progress
sonable
minors was
established
by
convincing
clear and
evidence.
held that the
of un
Having
evidence,
supported by
fitness
reason
depravity
adequate
Buttram,
we need not discuss this issue. In re
Affirmed. J., P.J., STOUDER,
McCUSKEY, concur. ILLINOIS, Plaintiff-Appellee, v. THE THE STATE OF PEOPLE OF LINDSAY,Defendant-Appellant. ANDREW No. 2 — 91 — 0691 Second District 4, 1993. August Opinion 28, 1993. Rehearing May filed denied *2 J., DOYLE, dissenting. Appellate Joseph Rogers, Weller Paul Alexander both of State
G. Office, Elgin, appellant. Defender’s Waller, Waukegan (William L.
Michael J. Browers Attorney, State’s Moltz, Attorneys Appellate Martin P. of State’s Prosecutor’s Of- both fice, counsel), People. for the of the court: opinion
JUSTICE WOODWARDdelivered A of the second-de Lindsay convicted defendant Andrew jury 2(a)(2)) of gree (Ill. par. Judy Stat. ch. Rev. 9 — victim). evi (the jury by preponderance North found strangulation, killed the victim dence time defendant that his was neces belief conduct acted under the unreasonable pars. 9—2(a)(2), Ill. Rev. (see as self-defense Stat. sary 7—1 term of trial sentenced defendant an extended ). The *3 murder, for second-degree 30 the maximum imprisonment, years’ accompanied by excep that the was based its offense upon of or heinous behavior indicative wanton tionally brutal ( 3). 1005—5—3.2(b)(2), pars. Stat. Rev. —2 1 005—8 trial sentence, (1) court appeals arguing Defendant sentence, as the extended-term imposing abused its discretion or heinous accompanied by exceptionally was not (2) gave and the trial wanton cruelty; behavior indicative of potential. to defendant’s rehabilitative inadequate consideration the sentence raised in this case concern only Since the issues sentencing is- received, those facts relevant only detail. any great discussed sues will be December it is on undisputed way background, By solicited an which following prostitution act by pressing strangled the defendant from the Defendant her neck. against from his stereo electrical cord her mouth, body placed and the victim’s nose tape across wrapped in manhole. body garbage deposited landlord’s cart and testimony. trial discuss the relevant We will now Choi, Dr. pathologist, a certified forensic testified about Eupil findings and his therefrom. The victim feet autopsy was pounds. Upon viewing inches tall weighed approximately and victim, he noted that her nose and mouth were covered with purplish whole dis- surgical tape; brown her face swollen coloration; and there were bands discoloration on sides both the front of her The of her not discolored. neck. back neck was There small her on just right eyebrow bruising was a cut below side of her right “hemorrhagic forehead. victim had changes” in both There on both arms eyes. were several bruises on sides of scrapings both her knees.
Dr. Choi summarized the of the internal results examination performed hemorrhage on victim. There two areas of were area, area, as neck temple hemorrhage well soft tissue in the including front area. The esophagus, tongue neck neck bone known as the soft thyroid cartilage fractured. opined
Dr. Choi to a degree certainty reasonable of medical death victim’s was caused by strangulation. opinion This based primarily purplish discoloration her neck and face swelling and the of her right face. The to the victim’s injury eye- brow was the only open wound Dr. Choi discovered. The bruis- ing on the victim’s forehead indicated that she was in some way bumped at about the time she died.
Dr. Choi further testified when he removed the from tape mouth, (such victim’s he found nothing gag) else as a in her mouth. was continuing Fluid from the drain victim’s mouth and nose. Dr. Choi could not put be certain whether the tape was be- fore or after the victim strangulation died. In of the general, type here death However, causes well within a person five minutes. case, could be after strangulation alive for some time. In such draining and, blood from ruptured vessels could flow to the mouth if present amount, in a sufficient could suffocate the person. Under these circumstances, the tape over the victim’s mouth could have examination, to her According contributed death. to Dr. Choi’s continuation the fluid from was peri- the victim’s mouth nose mortem, it i.e., occurred time that the death occurred. around the gave three surround- differing versions events *4 the ing trial, victim’s Prior told police death. to his defendant first having victim, officers that after sex the she him to go asked Road, out and for girlfriend look her he did on Sheridan which without returning success. As he was to he a apartment, his noticed black man in in body a a the back his putting alley apart- hole watched, the man ran west. building.
ment As the defendant the light ciga- the in the and his alley, by Defendant went to hole hole; cord tape rette he saw the victim’s the a and lighter, body were neck. Near the hole was the defendant’s wrapped around her cart, containing a blanket. Defendant garbage landlord’s blue He a checked the for a and found none. heard noise body pulse and, to where he fearing apartment, some sort ran his discovery, the on. Defendant asked lights noticed that the and television were to eventually, got through his landlord to call the defendant police; afraid that police. apartment; Defendant then went to scene, at the he removed his tennis police might see his footprints shoes them into the and threw trash. gave the fol- police,
After further defendant questioning sex, she asked account. After defendant and victim had lowing him her he told her he did not have for for services. When $150 couch; on the vic- up she hit him. Defendant stood any money, testicles, floor, to tim in the him where knocking kicked him again. she kicked him and a hammer.
The went to the bedroom returned with victim undress, leave, swung to As in a tried she still state missed, the sec- at him with hammer twice. Both times she but hit fell. Defendant swung, eye ond time she she herself and him got struck got up, her to calm her down. victim top him in hitting hammer and him. She hit kept the arm with the time; lay he onto floor and still. for the third fell testicles floor, to pull defendant on the victim tried some lay As knife, her aside. She rings fingers, pushed grabbed off but to him Defendant her the floor. Notic- but missed. threw swung floor, it around ing wrapped cord lying electrical her fell to her him, neck. hit but soon arms victim’s She tried to to for help; then for the call telephone sides. Defendant reached so, put to him The defendant again. he did the victim started hit on the cord was still around victim’s pressure wrapped off, coming get neck. to the cord defendant saw blood As she tried nose, from her arms went limp. her victim, kill the afraid; he not meant to
Defendant became noises; un- making make unconscious. The victim was only her sound, her mouth. around wrapped tape able to stand the Scared, dressed He found none. pulse checked her with a covered blanket. find victim. put then went outside to place He back He the manhole removed cover. went saw *5 victim, to apartment dragged the was too heavy carry, who cart, put down back the defendant the steps. Spotting garbage the victim the of in to the body in cart wood the back piece keep with area, falling from out. in the he When defendant saw vehicle down, ducked returned to the and came back with a apartment blue blanket bags. bags and two clear Defendant the around plastic put head, the get blanket, victim’s so as not to on the the blood covered to body with the blanket and the cart down the the pulled alley open manhole. He the the put put piece victim in manhole the of noise, wood over Thinking the hole. he heard a defendant ran blanket, back to his apartment plastic bags with the and the cart. He shoes, bandage retrieved his tennis the of spool tape and a from his apartment. He threw the tennis in a trash can and the shoes Later, other items into a field. he the where he had police showed put the items.
At trial testified to arrest the defendant his on in- prior charge stant he had resided in North for about three Chicago months training after his in Before en- completing Diego. basic San the he listing Beaver, Utah, had with wife Navy, lived child. One week prior murder, to the his wife moved out because she was seeking a divorce. 5 feet Defendant stated that inches weighed tall and put about 130 and that he had on pounds about pounds since his arrest. Defendant then testified to the version the following surrounding the events victim’s death. According defendant, when the victim first propositioned him, he told her no her money only and could offer food and a place stay. They to returned to apartment, defendant’s where fixed defendant the victim a Prior sandwich. to the first act sex- ual intercourse, defendant reminded victim that he had no money, However, and the victim him did told that it not matter. af- ter intercourse, the second act demanded a sum in ex- victim cess of When defendant reminded her that no was to money $100. involved, be the victim became off” hit- “really pissed and started ting defendant’s naked, face with her hand. As who was arms, tried grab to her him After victim kneed in the testicles. he fell the floor in pain, to intense the victim him in the ribs kicked and groin. floor,
While defendant victim left the room and lay returned with a hammer. Defendant to the back door and went it. missed, stood The him swung victim the hammer at but knocking hole in the corner portion bottom window door. grabbed The victim swung again; hammer the defendant it, hands, and, although he believed
her he did see right eye, began hit her to hammer somehow victim which slightly. struggle striking The continued bleed with right again kicking shoulder the hammer and groin. up him in the on his side with his knees un- lay to move for 15 legs able to 20 seconds. next thing trying
The remembered was victim gold rings remove one of three he wore. Defendant vic- pushed a steak knife with a picked up tim into kitchen. going 8 to 12 inches in and told defendant she was length blade floor, struggled, dropping kill him. As the victim fell to they knife, hitting got top she the defendant. Defendant kept but *6 her, legs struggling her to hold straddling down unsuccessfully It then the to his her hands. was that he noticed that cord stereo the victim’s head or unplugged lying had become under it in tightened neck. He it around the an placed victim’s neck him, not kill her. stop hitting effort to her from to telephone, for thing reaching The next he remembered was the He his although grip he not know whom he would call. loosened did victim, cord; enough on the he did not think it was to choke the al- recalled, he the for the victim though, gasping victim was air. As As to hit he on the cord. be- began again, tightened grip him his fore, the cord would harm the tightening he did not believe that cord, face As the to the her struggled victim. victim remove he his on the her, grip red. She him off loosened cord. pushed move; not recall trial whether The victim did not defendant could her were eyes open. minutes; he looked at the for several
Defendant victim to tell if the did not what do. He could not frightened and know a “like making gasp victim was conscious. The victim was noises air”; however, that he “did not know what it for he also stated from the nose running sounded like.” Defendant saw blood victim’s flow, around the and, wanting wrapped tape the athletic stop to it, he At time did defendant head, covering victim’s her nose. chance victim tape any did not think that would eliminate pulse applying checked for a before surviving. had of He not after he mouth until did not victim’s tape. tape apartment. took her from the for checked the victim got then dressed. He
The defendant not know for he He did found none. and became scared when pulse not He did know the victim was dead. sure at whether point it his did apartment, he telephone to do. had a Although what not to occur him to call the or for He walked police ambulance. to the and removed the cover from the manhole al- alley downstairs not though, yet looking place to he was according manhole, to he body. standing While dispose victim’s to thought looking place apartment put first for a outside of this the victim. He still did not know if she was He still dead alive. did not km / if he police. should call the
Back in apartment, placed plastic bag his defendant over victim’s face and a blanket over her. He placed garbage cart and started the cart. At some he tried to pulling point face, take he he tape explain why off the victim’s but could not manhole, did in the still so. he defendant placed When did not know she was alive or dead. to his could
Upon returning apartment, bring defendant himself call the he police to because feared would not believe they fight account with the victim. He his tennis shoes threw because he away prints was afraid would see the shoe police around his he apartment; tape did not know he threw the why away.
Defendant could not tele- explain why used landlord’s phone instead of his own call thought to He bur- police. up glary story which police. told his landlord and repeated Because he police victim, urged wanted find the them inspect the manhole.
When victim, cross-examined about the fight admitted he did not Although begin- suffer bruises. at the *7 ning of fight onto, the victim too strong was for him to hold he was get able to down her on the floor after came she at him with He knife. admitted that he never shouted for and never help called the police or ambulance after victim until was manhole. Moss,
Ron a school, counselor at high defendant’s testified that defendant a Geater, had as a reputation peaceable person. Brenda a longtime acquaintance victim’s, of the testified to an incident which she was physically attacked the victim. by stipulated
The parties testimony to that at the time her death, 0.193%, the victim’s blood-alcohol level was well above 0.1 level at which presumed intoxication is under the Illinois Vehicle Code (Ill. 1989, 951/2, Rev. Stat. a ch. and that blood par. 501) 11 — from sample she ingested revealed that had cocaine shortly before her death. rebuttal,
In there that the electrical cord recov- testimony was tied at both ends. apartment ered from defendant’s murder. The second-degree The convicted defendant jury sentencing hearing. urged to a The State the court proceeded cause the mur impose ground to an extended-term sentence that exceptionally der was brutal and heinous conduct (see pars. indicative Ill. Rev. ch. cruelty of wanton Stat. prosecution The noted that 1005—5—3.2(b)(2), ( )). 1 005—8 —2 3 into sewer admission, own victim a hole by put at that he did not know seeking help, though, point, without even failed body, she still Before her he to removing alive. longer help seek after she was air and was no a gasping even threat to The State maintained that this demonstrated defendant. compassion. lack of or mercy defendant’s that, In defense counsel maintained because response, jury defendant killed the by found a evidence that preponderance although out a unreasonable the need for genuine belief self-defense, from the of- trial court was barred accompanied fense was heinous behavior. he argued reaction to had Defense counsel that defendant’s what or a but the compassion, predicta- done showed no lack of brutality man, a violent who killed vic- panic past, ble without young argued after defendant tim out of fear. Defense counsel also hole led the to the where police called police, felt that defendant this demonstrated body; buried victim’s conduct. least some remorse over his to imprisonment, sentenced defendant 30 years’ trial court In provision. explaining
the maximum under the extended-term decision, dis dishonorably noted defendant had been judge personality of his antisocial charged from because Navy Also, subject discipline had been to impulse control. poor Moving trial and jail pending judgment. several times while Rev. aggravation (see factors in Stat. specific discussion of the stated, in 3.2) part: par. judge 1005 — 5 — *** I term find extended question “As of wanton cru- and heinous indicative offense was brutal *** mitigating there to factor has found be elty. jury [T]he sec- reducing degree this from first self-defense ond murder. degree and clear:
However, facts stand out loud following all, not once but twice. strangled Judy North First of she first strangled As after she went unconscious *8 consciousness, when regained time and she revived and her he strangled again until noticed her [defendant] Then, he had dropped limp. arms she became after done *** this, air, he heard from her mouth a and notwith- gasp air, that he a her. He standing gasp gagged heard nose, taped her mouth and which would have made com- chance she would survived. pletely impossible any have *** alive, if knowing Then were dead or Judy pro- *** ceeded to take her in her to a storm sewer gagged state her if knowing stuffed in the storm sewer not she was dead or alive. He then what he done up covered mak- ing report Chicago to the North Police Department. false
I do find the of strangling whole scenario involved here side, Judy North twice until her arms to her dropped limp then, as she air, according for to the defendant’s gasped nose, own her testimony, taping mouth and and then not dead, if she knowing were alive or her to a storm taking sewer, stuffing leaving her into that her sewer unat- sewer, tended and in that I all of unaided storm do find of brutal and heinous indicative conduct indicative wanton cruelty.” without the trial for appealed moving at level recon
sideration of the file By failing post-sentencing sentence. mo tion, defendant has sentencing arguments on appeal. waived (People v. (1992), Pasch 152 Ill. 2d Fort People (1992), Ill. App. 339-40; 3d (1992), v. Macke Ill. 816.) However, may, discretion, we in our plain consider er ror or defects affecting rights. 615(a). substantial 134 Ill. 2d R.
We have held that imposition sentence an extended-term is reviewable plain (People Lighthall (1988), error. 700, 705.) Here, eligible that defendant was
an extended term affected substantial as it the court rights, enabled to impose a sentence twice normal maximum. (See Rev. 38, pars. Stat. 1005-8-l(a)(4), 1005-8-2(a)(4).) Defend ant’s challenges his sentence In the of jus have merit. interests tice, we disregard rule. waiver
We first consider trial court abused its discretion in an imposing extended term on the that the offense was ac ground companied by exceptionally and heinous indicative behavior of wanton cruelty. on this Defendant’s attack two- pronged. He argues (1) People v. Evans 87 Ill. 2d forecloses that murder any finding committed under unreason- belief in the for self-defense was excep-
able need conduct; and if tionally brutal and heinous even Evans estab- (2) *9 rule, no per lishes such se evidence was insufficient show brutal and accompanied exceptionally defendant’s crime was heinous conduct. of do not Evans forecloses a agree excep
We or behavior in case where the defendant tionally brutal heinous- has of murder on an unreasona second-degree been convicted based However, agree for self-defense. we with belief in need ble that, case, the facts of this the trial court abused under concluding its actions were ac discretion defendant’s exceptionally brutal and heinous conduct indicative of companied by Therefore, we of the imposition wanton reverse the ex tended-term sentence. of do believe that a sec-
We first
we
conviction
explain why
ond-degree
manslaughter)
an
(formerly voluntary
based
is
inconsistent with a
necessarily
belief in self-defense
unreasonable
heinous
begin
of
brutal and
behavior. We
exceptionally
language.
statutory
relevant
second-degree
A
commits
murder when
commits
circumstance
first-degree
mitigating
present, e.g.,
murder with
circumstances to
killing,
be
time
believes
“[a\t
of
killing
or
existed,
such
if
would
exonerate the
they
justify
[as
of
belief is unreasona
the use of force
defense
but his
person],
38,
1989,
2(a)(2);
added.) (Ill.
par.
Rev. Stat.
ch.
(Emphasis
ble.”
9 —
38,
1989,
may impose
Ill.
A trial court
par.
see
Rev. Stat.
ch.
7 —
if it
sentence
finds
“the
properly
extended-term
offense
or
indicative
accompanied
brutal
heinous behavior
by exceptionally
1989,
38,
ch.
added.) Ill. Rev. Stat.
cruelty.”
of wanton
(Emphasis
1989,
38,
1005—
par.
see Ill. Rev. Stat.
par.
3.2(b)(2);
1005 — 5 —
8-2.
murder focuses on
defend-
The
of second-degree
definition
However, the statu-
killing.
ant’s
of mind at the time
state
to con-
sentencing
tory provision
aggravation instructs
brutal
exceptionally
was accompanied by
sider whether the offense
the defend-
The
relates to
provision
and heinous behavior.
former
killing,
of the
but
at the time
subjective
ant’s motivation
belief
on which
than the act
the latter
the court
consider more
enables
is
sentencing
The
to consider
liability
judge
criminal
is based.
times,
after the
including
at all relevant
defendant’s state mind
one opinion
As
making
complete.
the offense
commission
act
of an of-
heinousness
evaluating
brutality
states
“in
aptly,
fense,
surrounding
the entire
incident
spectrum
given
facts
must
analyzed
People
(1981),
be
and evaluated.”
v. Devine
98 Ill.
cert,
914, 925,
App.
3d
denied
L. Ed.
(1982),
U.S.
2d
3490;
People
(1984),
102 S. Ct.
see also
v. Smallwood
190, 197;
251;
2d
v. Jones
236 Ill.
3d
Peo
People
(1992),
App.
ple Grady
107 Ill.
(1982),
Schlemm
650-51.
may
cases illustrate that an offense
be accompanied by
Several
,
fo
exceptionally
though
brutal and heinous behavior even
narrow
cus on
itself
not necessarily
the commission
the offense
would
(or
disclose such behavior
which such behav
cruelty
wanton
ior
indicative).
Smallwood,
In
the defendant
convicted
two
counts
robbery
of armed
count of aggravated battery,
one
re
ceiving an extended
first
robbery
sentence on the
armed
conviction.
The trial court
that the
found
armed robbery
behavior,
i.e.,
heinous
of a
shooting
vic
tim
whom
defendant had
already
gunpoint.
robbed
su
*10
preme court held
the
in
that
trial court did not err
that the
finding
gratuitous shooting
armed
accompanied
robbery.
the
The court ob
served
that
cases “the
and heinous
many
exceptionally brutal
be
havior
of
necessary
imposition
to authorize the
an extended-term
sentence
itself
offense,
will
constitute another
separate
as
(Smallwood,
case.”
102 Ill. 2d at
the
upheld
The court
trial
judge’s finding of fact that
shooting accompanied
the armed
robbery,
though
even
robbery
complete
armed
before the
shootings. Smallwood,
In People v. La (1981), Pointe 88 Ill. 2d supreme upheld a finding that of an shooting unarmed taxicab driver was accompanied by exceptionally brutal and heinous behavior. The court emphasized only that premeditated offense was but also the defendant’s callous of attitude and lack remorse after the crime. also See v. People (1991), Nelson 206 Ill. 3d 965-66 (in that finding the murder of which defendant was convicted was or behavior, brutal heinous trial court exceptionally that, properly considered after shot his 16-year-old the defendant stepson, victim, the defendant kicked out the apart walked of ment lay where the victim later that he dying, police told had done society Hickman killing victim); People favor v. (1986), 143 Ill. App. (noting pre 3d that both defendant’s meditation and his subsequent spirit supported lack penitent the trial finding court’s and heinous exceptionally brutal behav ior); (concealment Schlemm or People (1980), App. of murder victims’ constitute corpses may excep-
dismemberment behavior). brutal and heinous tionally however, argues, Evans se rule per second-degree established a that a conviction of (then manslaughter)
murder based an unreasonable be voluntary need lief in the for self-defense is inconsistent with a legally finding the offense and hei accompanied by exceptionally nous behavior. do not read Evans so Evans does not broadly. We negate the distinction between defendant’s mental above-noted killing at the totality state time of the the circumstances Thus, surrounding automatically the offense. Evans does not shelter for one who murders under an unreasonable belief in the need self- from a that the he committed accompa defense nied heinous behavior indicative wan by exceptionally brutal Rather, Evans, cruelty. only ton as we read decision shelters those of that were in fact committed defendant’s relevant actions for under a in the need self-defense. belief Evans, of voluntary In was convicted manslaugh- defendant on an need for self-defense. ter based unreasonable belief rather, (Wilson); intend to shoot the victim The defendant did not intended a third stray person he killed bullet Wilson with was a threat own (Davenport) whom the believed convicting voluntary manslaugh- In bodily safety. ter, un- jury genuine objectively found that this belief was but sentence, an extended based on imposed reasonable. trial court heinous indicative of its brutal and behavior cruelty. wanton sentence, the court held supreme
In the extended disapproving not indicative actions the victim were defendant’s toward subjective belief Noting the defendant’s of wanton himself, “[ijnasmuch defend the court stated Wil need to were di none of Evans’ actions son was an unintended *11 *** Wilson, offense was manslaughter rected toward voluntary indic or heinous behavior accompanied exceptionally not brutal by Furthermore, Ill. 2d at cruelty.” (Evans, 87.) of wanton 87 tive [sic] for to an extended term could not be sentenced explained: The court against Davenport. aggravated battery subjective under a be- “In our actions committed opinion, unreasonable, in self-defense lief, the actions were albeit court As the cruelty. appellate do not wanton constitute was noted, of Code of Corrections 5—8—2 the Unified section extraordinary an offense into every not to convert intended
531 Be subject offense to an extended-term sentence. [Citation.] cause the evidence indicated that all Evans’ actions toward belief, under unrea Davenport although were committed sonable, self-defense, acting say that he we cannot cru accompanied by offense was wanton aggravated battery Evans, original.) 2d at 88-89. elty.” (Emphasis rule mo- does not a that offenses language impose This blanket accompa- may need for self-defense never be by perceived tivated cruelty. conduct of wanton The Evans outcome nied indicative by fact as seen the court’s fact-specific, by emphasis can be under in the that all of the defendant’s actions were done the belief self-defense. all of a defendant’s relevant actions need for Where characterized, it must so the trial logically be follows may rely support on of the defendant’s relevant actions to and, thus, brutal and heinous behavior exceptionally that an extended-term is not on permissible ground. sentence this However, in a it given case, necessarily is not true that all actions, before, defendant’s relevant af- during, anytime act, ter the murderous were in the need committed under belief for self-defense. conclude
We that Evans does not se rule that a per establish murder committed under the belief in unreasonable the need self-defense cannot be hei accompanied by brutal and exceptionally nous behavior (See People indicative wanton v. Chavez (1992), 54.) Ill. App. 3d We discuss now whether the trial court in
erred murder in this case accompanied such behavior. Based recent giving aggravating case law this factor a very construction, narrow we conclude that extended sentence was an abuse discretion.
Whether to impose an extended-term sentence based on a find ing of exceptionally brutal heinous behavior committed sentencing discretion court. (People (1989), Andrews Ill. 2d 68 Ill. 2d Perruquet (1977), 153-54.) However, section 3.2(b)(2)of the Code of Unified Corrections 5 — 5 — was not intended to of extraordinary convert offense into every Evans, fense deserving an extended Ill. 2d at (See sentence. 88-89; People v. Price su As our preme court stated, heinous, has are well all murders as unnecessary, degree; 3.2(b)(2) some section requires 5 — 5 — the offense at issue hei be brutal and nous (Andrews, 465-66.) behavior. 132 Ill. 2d at stringency extraordinary standard accounts for the readiness which
532 recent found that trial courts abused years have in
courts review sentences on this extended-term imposing their discretion 451, 464; 132 See, (1989), v. Andrews Ill. 2d ground. e.g., People 628; v. Fields App. People 207 Ill. 3d People (1990), v. Curtis 438, 442-45; v. 173 , People Bedony (1988), 3d (1990) App. 198 Ill. 3d 613, 620-22; (1987), App. v. Price 158 Ill. People Ill. 3d App. 436, 3d 439. 921, 929-30; (1987), App. Gil 155 Ill. People v. demonstrated, drawing commentator has As one scholarly heinous” “exceptionally (em that is brutal or line between conduct and heinous is one added) “merely” and that which is phasis (See in criminal law. John of the most and unclear tasks difficult ston, under Section Imposing Problems in Extended-Term Sentences Corrections, Marshall L. 3.2(b)(2) 25 J. Code 5 — 5 — Rev. Unified Court Johnston).) Supreme The Illinois (hereinafter 491 (1992) “ or ruthless,’ mercy ‘devoid of ‘grossly has defined “brutal” as “ ” cold-blooded,’ as ‘hate and cruel and compassion: “[h]einous” flagrantly and enormously evil: bad: shockingly grossly fully ” Third 501, at Webster’s quoting 88 Ill. 2d (La Pointe, criminal.’ 286, (unabridged); see (1986) 1050 Dictionary New International that a Andrews, 454-55.) requirement Ill. at There is no also 132 2d unnecessary pain qual or the infliction of torture involve at 88 Ill. 2d (La Pointe, brutal or heinous.” ify “exceptionally section However, construing 501; Price, Ill. 3d at App. 158 1983, 38, Stat. (Ill. Code of 1961 Rev. 1(b)(7)of the Criminal 9 — where the capital punishment allows for 1(b)(7)), which par. 9 — exception “resulted from age 12 years death of a victim under the su cruelty,” of wanton heinous conduct indicative brutal or ally not apply factor does aggravating has held that preme or tor pain prolonged either unless the murder is 1, 32; People 141 Ill. 2d Tye (1990), v. People ture or premeditation. Ill. 2d 445-46. (1989), v. Lucas 132 among of premeditation or absence
Similarly,
presence
brought
applica
have
courts
the most crucial considerations
of Corrections.
Code
3.2(b)(2) of
Unified
tion of section 5—5—
or the lack
deliberation, premeditation
(1)
These factors include
501;
Mays
La Pointe,
People
Ill. 2d at
88
e.g.,
thereof (compare,
3d
Hickman,
App.
143 Ill.
748, 760-61; and
3d
(1992),
App.
230 Ill.
Fields, 198 Ill.
466; and
Andrews,
After careful we conclude case reviewing far more akin to those which courts have reversed findings of brutal heinous conduct than and those such In findings concluding which have been that defend upheld. ant’s actions were within section trial court fo 3.2(b)(2), 5—5— having cused on primarily (1) strangled defendant’s twice cord; (2) electrical and taping victim’s mouth nose; indifference, (3) defendant’s even he had after rendered to helpless, victim whether the victim or died. lived As brutal revolting were, as defendant’s actions we that the trial believe holding court erred in offense defendant’s exceptionally brutal and heinous behavior.
Given the verdict and trial we as jury’s testimony, must sume that strangulation defendant undertook acts of both under Thus, unreasonable belief need self-defense. however these grisly, acts cannot a support finding exceptionally brutal conduct; and heinous one who under a unrea genuine although kills belief in said, sonable the need for be this self-defense cannot alone, (Evans, basis to have acted with Ill. 2d at wanton cruelty. 88.) court sentencing accept did not have to ac defendant’s of why put nose; count later he mouth over the victim’s tape however, the State’s medical this action its testimony consequences probably occurred at or near to the time very Thus, victim’s death. this a finding action does not basis for provide prolonged gratuitous torture or See extraordinary pain. People (1989), Lucas 132 Ill. 2d 446.
The final and most difficult after the consideration even victim was helpless, subdued and defendant a conscious displayed account, indifference to her fate. By applied his own to the tape victim’s face after was no threat longer apparent she to safety. He then victim into the manhole without dumped the knowing for sure she alive or dead. At no time after help. victim was call for The trial unconscious did defendant found that that, even though jury to conclude
court was entitled need for self-defense a in the acting defendant was under belief wounds, strangulation when he inflicted murderous took further actions this belief when he longer acting was no under second-degree after the crime against helpless was complete. “ ‘left for dead’ factor” Nonetheless, cannot say we of ex 509) supports L. Rev. at (Johnston, 25 J. Marshall hostility to heinous conduct. Indifference brutal and ceptionally in the crime of murder. the victim is inherent the survival of 465-66; Ill. 2d at Gil (Andrews, 132 Andrews, provocation without In death, even sort, unarmed and defenseless victim shot an that the robbery not necessary death was though victim’s Nonetheless, supreme commit. helping defendant was first-degree accompanied murder was reversed indicative of wanton or heinous behavior by exceptionally that such holding to reconcile a see no rational basis simply We case of victim a for the life of a defenseless disregard conscious for an extended a sufficient basis murder should be first-degree court, held) on this Andrews, binding is of course term which (as *14 n with the life of disregard for that conscious holding As has been term here. for an extended should be a sufficient basis “ because, in most in- noted, perplexing for dead’ factor is ‘left manslaughter, it murder, murder or stances, attempted such to render attempt to for the very unlikely would seem 509. Johnston, L. Rev. at to the 25 J. Marshall aid victim.” section 5— considered under commonly factors remaining Al- sentence. the extended-term against also militate 3.2(b)(2) 5— of bur- prior convictions noted defendant’s though the trial court consider these theft, did not the court to a vehicle and glary the court Even had extended sentence. imposing convictions of these offenses character so, limited and nonviolent done part on the cruelty wanton would bolster scarcely Although the crime. the time of old at years who was incident, he soon lied to the about initially police hidden evidence other to the revealed police body, thereafter led the regret measure of at least a police, verbally expressed and at Holderbaum Sergeant killing at the interview about second-degree noted, As verdict jury’s his allocution. premeditation. the factor of reliance on negates any three-page have examined the cases cited the State its by We and we conclude that these cases are either irrelevant or argument, clearly distinguishable. hold imposing
We trial abused its discretion extended sentence on a based
heinous behavior. Pursuant to Court Rule Supreme 615(b)(4) (134 Fields, Ill. 615(b)(4); 444-45), 2d R. see 3d at we re App. verse the imposition extended sentence and reduce defend incarceration, ant’s sentence to 15 years’ maximum for second- degree murder.
Defendant’s second argument appeal sentencing that the court failed give adequate mitigating to consideration to such fac- tors as defendant’s his youth, background, difficult his rela- family tively record, limited criminal to educate himself attempts to support family, and his for rehabilitation and reinte- prospects gration society. into
Inasmuch as defendant’s extended-term sentence has been reversed, we conclude that the trial court did not otherwise abuse its discretion in weighing the factors in aggravation mitigation. A trial court is not required place greater weight defend ant’s potential for rehabilitation than on the seriousness the of fense. (People v. Fort 3d People v. Mack (1985), 133 Ill. App. Even where a defendant’s actions do not merit a finding of exceptionally brutal and heinous behavior, the circumstances that the trial court relied erroneously upon impose an extended may sentence suffice to the im uphold position of the maximum sentence. v. Bedony (1988), 173 Ill. 621-22.
The offense sub judice brutal, was indeed serious and even ac- cepting the defendant’s entire version of the incident. We note that version, although credited at least partially by the was in jury, many respects impeached or implausible. For inherently example, defendant’s account of the strangulation was inconsistent with the testimony the police when they searched defendant’s apart- ment, they found that the cord to strangle used the victim had been knotted ends; at both defendant’s account of the attacks the victim made upon him is undercut officers’ that defend- testimony ant appeared arrived; “normal” when the police *15 and defendant’s as- sertion that injured somehow herself with the hammer she was swinging is unworthy of For one credence. in a supposedly terror, state of defendant also showed planning considerable in dis- posing of the However, body. even were the court or sentencing toto, in the serious- defendant’s testimony required accept
court sen- of the maximum imposition would merit the ness of the offense tence. for reha prospects and his emphasizes youth
Defendant also years However, recognized as the court over appellate bilitation. court, court, quiver should any when this ago, day past is “[t]he and rehabilita blancmange youth at the mention like a pole-axed Peo see also 54 Ill. (People tion.” v. West event, In Generally (1988), ple v. po view of defendant’s reason to take a dim ample trial court had admits, he had convic prior As defendant tential for rehabilitation. Utah; offenses, penalized in he had been tions, nonviolent albeit of dis dishonorably had been jail; for violent conduct while Defend personality. of his antisocial from the because charged Navy witness, Moss, called him a “natural liar.” Ron ant’s own character The into account. took these facts legitimately court sentencing it not imposed years; sentence an extended imposed the maximum sentence, imposed the court would have the extended that such a sen say cannot sentence. We nonextended years’ tence is excessive. of second-de- conviction appeal does not the defendant
As Defendant’s sentence affirmed. murder, that conviction is gree 15 years’ imprisonment. imprisonment reduced from 30 years’ Affirmed as modified.
GEIGER, J., concurs. DOYLE, dissenting:
JUSTICE committed a murder conclusion that majority I with the agree may for self-defense in the need unreasonable belief under or heinous be- brutal accompanied exceptionally nonetheless be however, disagree, I respectfully of wanton havior indicative his discretion the trial abused holding judge such behavior. accompanied by that the murder this case confused, the determination in part, have may The majority brutal exceptionally characterized may be the behavior the sentence of whether separate question with the or heinous fac- mitigating aggravating totality light excessive the crime has been finding tors. A trial court’s cru- of wanton indicative or heinous behavior ex- imposing consider it to require but does elty permits *16 3d App. 126 Ill. (See People Frey (1984), v. tended-term sentence. 1005—5—3.2(b); l. Rev. 1989, ch. par. Ill. Rev. Stat. Il specif 2(2).) 3.2(b)(2) Section par. Stat. 1005 — 8 — 5—5— convicted. “the the defendant was refers to offense” which ically determination follow, therefore, any It seems to or heinous be brutal accompanied by exceptionally offense has been actions of a defendant’s limited to an examination havior must be vari opposed the commission of the offense surrounding Yet, in an effort to aggravation mitigation. ous other factors of excessive, conclusion that the sentence explain apparent criminal and nonviolent age refers to the defendant’s majority are to the issue of how record as if those factors relevant of this hybrid analy the crime. The committing product acted while of what concept a distorted unfortunately sis of issues is separate or heinous behavior. exceptionally constitutes brutal conduct for these defendant’s regarding, purposes, Even he be- twice an electrical cord because strangling under lieved, that such conduct was unreasonably, justifiable albeit inflic- self-defense, defendant’s continued methodical principles view, is, tion of lethal force a fair against helpless my victim illustration of is meant brutal or heinous be- by “exceptionally what found that af- havior indicative of wanton The trial court cruelty.” strangulation ter the victim from the second limp became tape heard her for air and athletic gasp responded by applying nose, her mouth and chance making “completely impossible” Then, according placed for survival. to defendant’s testimony, cart plastic bag garbage over the victim’s face and hauled her on a sewer, knowing to a manhole placed where the victim a or It that these acts were whether she was alive dead. is evident performed with at least some of deliberation. degree
I refers to as majority consider such conduct to exceed what the evaluating mere of the “In “indifference survival victim.” offense, of an the entire brutality spectrum heinousness facts and evalu surrounding given analyzed incident must be 970, 977.) ated.” Heinous (People Grady (1982), can after the vic brutal behavior toward occur even tim is dead. 925. Devine I further the facts disagree with the assessment that majority’s reviewing case are more akin to those cases in which present and heinous findings courts have exceptionally reversed I am findings upheld. conduct than those in which such have been trial lost at sea in may judges concerned that decision leave today’s task of identifying the sometimes difficult performing It is my opin- indicative of wanton brutal or heinous behavior in the trial court’s sentenc- ion there no abuse of discretion determination. ing COMPANY, v. VIN Plaintiff-Appellee,
ALLIED AMERICAN INSURANCE Cruz, and on Be AYALA, (Maria Dela Indiv. CENTE ACOSTA *17 Cruz, Defendant-Appellant; Dela Daughter, Brenda half of Her Minor al., Defendants). Milton Acosta et 2 — 92 — 1232 Second District No. 20, 1993. August 9, 1993. Rehearing denied July filed
Opinion