Generally speaking, in cases where sentences based on exceptionally brutal or heinous behavior have been reversed, the offenders' conduct during the commission of the offense constituted little more than what was implicit in the statutory definition of the offense. (See, e.g., People v. Gonzalez (1992), 231 Ill. App.3d 1071, 1078-79 (where defendant was convicted of attempted first degree murder after firing single shot at victim, trial court which found brutal and heinous conduct to be "the close proximity in which the defendant shot the victim, leaving him paralyzed for the rest of his life," did not articulate appropriate reasons to support imposition of an extended-term sentence); People v. Fields (1990), 198 Ill. App.3d 438 (while burglarizing victim's house, defendant shot victim once and fled after the victim, who was herself armed with a handgun, returned unexpectedly and confronted defendant); People v. Anderson (1990), 201 Ill. App.3d 75, 81 (when victim pushed defendant away after he tried to touch her, gun fell out of defendant's coat pocket, and in ensuing struggle for gun, victim was shot twice in the neck; court observed that "[i]f the extended-term sentence statute were applied to this killing, it would be difficult to conceive of a murder to which the extended-term sentence would not apply"); People v. Holiday (1985), 130 Ill. App.3d 753 (there were no acts of exceptional brutality or heinousness where, during armed robbery of dice game, defendant entered room brandishing a gun and shot victim twice in the chest). The following cases, on the other hand, are illustrative of the type of conduct which supports a finding of exceptionally brutal or heinous behavior indicative of wanton cruelty: People v. Jones (1992), 236 Ill. App.3d 244 (victim died of multiple stab wounds inflicted during robbery; trial judge concluded that victim was restrained by one defendant and tortured with knife by other defendant and that def
In Andrews the court found an abuse of discretion where, although the victim and the defendant were strangers to each other and the murder occurred during an armed robbery, even though the victim was cooperative and acceding to defendant's demands, at sentencing defendant expressed sincere remorse and sorrow. In his petition for rehearing defendant cites the cases of People v. Anderson (1990), 201 Ill.App.3d 75, 147 Ill.Dec. 267, 559 N.E.2d 267, and People v. Hernandez (1990), 204 Ill.App.3d 732, 149 Ill.Dec. 755, 562 N.E.2d 219, for their analyses of the statutory language of section 5-8-1(a)(1)(b) "exceptionally brutal or heinous behavior indicative of wanton cruelty" which would justify imposition of an extended term sentence. In Anderson the defendant and the victim were strangers to each other.
It is clear the trial court here exercised its sentencing discretion when it carefully weighed all the evidence received in aggravation and mitigation and no abuse of that discretion is shown on this record. Finally, in his reply brief, the defendant argues this extended-term sentence should be disapproved in light of three recent cases, People v. Lucas (1989), 132 Ill.2d 399, People v. Andrews (1989), 132 Ill.2d 451, and People v. Anderson (1990), 201 Ill. App.3d 75. In general, those cases support restrictive application of extended sentencing statutes inasmuch as every offense is not intended thereby to be converted "`into an extraordinary offense subject to an extended-term sentence.'"
People v. Andrews, 132 Ill.2d 451, 466 (1989). Thus, enhanced sentences "[are] meant for murders that go beyond the mere infliction of death." People v. Anderson, 201 Ill.App.3d 75, 81 (1990).
Id. Thus, enhanced sentences "[are] meant for murders that go beyond the mere infliction of death." People v. Anderson, 201 Ill. App. 3d 75, 81 (1990). ΒΆ 11 Defendant's argument, in essence, is that there was nothing exceptional about this crime.
Similarly, in People v. McGhee, 238 Ill. App. 3d 864, 882 (1992), and People v. Benkowski, 215 Ill. App. 3d 615, 620-21 (1991), this court held that premeditation and cold-bloodedness are sufficient to justify an extended sentence. Defendant cites several cases in support of his argument that his actions did not constitute brutal or heinous conduct: People v. Andrews, 132 Ill. 2d 451, 466-67 (1989), People v. Phillips, 244 Ill. App. 3d 237, 240 (1993), People v. Gonzalez, 231 Ill. App. 3d 1071, 1078-79 (1992), People v. Fields, 198 Ill. App. 3d 438, 444-45 (1990), People v. Anderson, 201 Ill. App. 3d 75, 80-81 (1990), and People v. Holiday, 130 Ill. App. 3d 753, 757-58 (1985). In the instant case, we simply cannot say that the evidence was so overwhelming that the crime was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty that we "have no doubt" that a jury would have made this finding.
Neither can it be maintained that defendant's failure to object to the errant jury instructions constitutes a waiver of his claim concerning the legally inconsistent verdicts. Although a defendant who fails to object to a jury instruction waives any error concerning the propriety of the instruction ( People v. Anderson, 201 Ill. App.3d 75, 559 N.E.2d 267 (1990)), defendant in the case at bar does not claim the court's instruction of the jury was error. Rather, defendant argues that the jury's verdicts were legally inconsistent.
Focusing narrowly on the conduct during the commission of the offense, it might be said that such conduct "did not `go beyond the mere infliction of death.'" People v. Ratzke, 253 Ill. App.3d 1054, 1070, 625 N.E.2d 1004, 1016 (1993), quoting People v. Anderson, 201 Ill. App.3d 75, 81, 559 N.E.2d 267, 271 (1990). Defendant had no history of violent crime and expressed remorse for his actions.