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04/10/96 PEOPLE STATE ILLINOIS v. NAMON TAYLOR

April 10, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NAMON TAYLOR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Stephenson County. No. 93-CF-192. Honorable Lawrence A. Smith, Jr., Judge, Presiding.

Released for Publication May 10, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Bowman, J., concurs. Justice Rathje, dissenting:

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

Defendant, Namon Taylor, appeals from an order of the circuit court of Stephenson County denying his motion for reconsideration of the sentence imposed upon him for the offense of aggravated battery. The sole issue raised on appeal is whether the trial court erred in imposing an extended-term sentence on defendant on the basis that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.

Defendant was originally charged with two counts of aggravated battery and one count of unlawful use of weapons. Following plea negotiations, defendant pleaded guilty to one count of aggravated battery based upon great bodily harm to the victim, and the other charges were dismissed. There was no agreement as to the sentence to be imposed. However, the State recommended a sentence of four years. The trial court advised the defendant that the State's recommendation was not binding on the court. The parties stipulated to the following factual basis for the guilty plea. Defendant and the victim, David Aeling, had an argument in a bar. Defendant displayed a utility knife, exposed the blade, and pointed it at the victim. A bystander knocked the knife out of the defendant's hand, and the knife was thrown outside the bar. Defendant and the victim went outside where their disagreement continued. However, they then apparently made up their differences and gave each other a hug. A witness observed that, as the men hugged, defendant held something in his right hand which he appeared to be concealing behind his right leg. As they broke apart, defendant took a backhanded swing at the victim with a different knife, cutting the victim's neck and throat. A police officer recovered two orange utility knives at the scene. The victim required 30 stitches to close the wound. A photograph of the victim, prior to his receiving treatment, was shown to the court without objection by the defendant.

At the sentencing hearing, the trial court advised the defendant that he could be eligible for an extended-term sentence. Defendant addressed the court. Although he denied causing the injury to the victim, he persisted in his plea of guilty.

In imposing the extended-term sentence, the trial court noted how the wound was inflicted and that the victim's wound required 30 stitches to close. It further considered defendant's prior criminal record but noted that, while the record was extensive, it did not on its face indicate that the defendant had committed crimes involving violence. The trial court also noted that defendant exhibited a lack of concern for the victim in using a "box" knife to commit the offense, remarking that it was "amazed, looking at the photograph, that it didn't end up with a deceased victim."

Finding that defendant's acts were "an example of a brutal and heinous crime," the trial court sentenced defendant to an extended term of eight years' imprisonment. Defendant's motion for reconsideration was denied. This appeal followed.

The court uses an abuse of discretion standard to determine whether the trial court properly found defendant eligible for an extended-term sentence. People v. Andrews, 132 Ill. 2d 451, 464, 139 Ill. Dec. 469, 548 N.E.2d 1025 (1989). While a trial court's decision regarding sentencing should not be reversed absent an abuse of discretion, our supreme court has held that extended-term sentencing was not intended to enhance the punishment for every offense. People v. Reiner, 251 Ill. App. 3d 1065, 1067, 191 Ill. Dec. 326, 623 N.E.2d 916 (1993).

Section 5--5--3.2(b)(2) of the Unified Code of Corrections provides that a trial court may impose an extended-term sentence when a defendant is convicted of any felony, and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. 730 ILCS 5/5--5--3.2(b)(2) (West 1992). Our supreme court has defined "heinous" as " ' "hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal," ' " and defined "brutal" as " ' "grossly ruthless," ' ' "devoid of mercy or compassion: cruel and cold-blooded." ' " Andrews, 132 Ill. 2d at 465, quoting People v. La Pointe, 88 Ill. 2d 482, 501, 59 Ill. Dec. 59, 431 N.E.2d 344 (1981).

In determining whether an offense was accompanied by "exceptionally brutal or heinous behavior," courts have considered the following factors: 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. Andrews, 132 Ill. 2d at 466; People v. Mangum, 260 Ill. App. 3d 631, 640-41, 198 Ill. Dec. 486, 632 N.E.2d 1097 (1994).

In determining whether the trial court, in the present case, abused its discretion in finding the offense to have been accompanied by exceptionally brutal or heinous behavior, we find particularly significant defendant's behavior at the time of the offense. In reaching its conclusion, after noting the menacing nature of the weapon used and the severity and location of the wound, the trial court commented as follows: "I would come to the conclusion that that is not merely a battery upon a person. It's not merely a stabbing, even. These things can take different forms. One use of a knife is not the same as another. As far as I am concerned, that is an example of a brutal and heinous crime, and I think that the extended term is in order." (Emphasis added.)

We agree. The sentencing judge correctly acknowledged that every serious wounding with a knife, even though perhaps brutal and heinous, may not be exceptionally so. See People v. Lindsay, 247 Ill. App. 3d 518, 531, 187 Ill. Dec. 181, 617 N.E.2d 389 (1993). Here, however, the facts support a conclusion that defendant's actions were uniquely vicious. There was evidence that defendant lulled the victim into a false sense of security by a conciliatory embrace, all the while planning to inflict a potentially mortal wound with a utility knife which defendant concealed during the embrace. In our view, this places the wounding in the category of ...


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