Court: Appellate Court of Illinois; May 9, 1979; Illinois; State Appellate Court
Defendant Benjamin Gutierrez pleaded guilty to armed robbery and was placed on five years probation with the first six months in a work release program. An arrest warrant was issued on February 12, 1971, for failing to report to his probation officer and for being absent from the work release program. On November 3, 1977, a petition for violation of probation was filed, which included allegations of additional crimes committed on May 29, 1975, including aggravated battery, burglary, and armed robbery. Following a hearing, Gutierrez was found to have violated his probation and was sentenced to a term of 6% to 19% years.
On appeal, Gutierrez argued that the State did not prove his probation violation by a preponderance of evidence and claimed that the trial court improperly considered certain factors in sentencing him, as well as denying him credit for time served on probation. The evidence presented included testimony from 89-year-old Lora Carrie, who described an assault by two young men in her home, resulting in serious injuries. Chicago Police Officer Gerald Corless corroborated her account and noted the injuries sustained. Gutierrez had previously made a statement admitting to accompanying an accomplice to the victim’s home, stating he was compelled to do so under threat of death, and remained outside while the assault occurred.
The court concluded that the State established that Gutierrez was accountable for the crimes based on the accountability statute, which holds individuals responsible for the actions of others if they assist or do not oppose the commission of an offense. The ruling emphasized that mere presence at a crime scene, coupled with non-opposition, can indicate assent to the criminal act, thereby qualifying as aiding and abetting. The court found that Gutierrez’s actions met this threshold, affirming the probation violation and subsequent sentencing.
Defendant failed to intervene during an assault, did not assist the victim, and did not report the crime, leading to a finding of probation violation by a preponderance of the evidence. Despite the defendant’s claim that he is entitled to a resentencing hearing due to trial court errors, the court upheld the original sentence based on the defendant's rehabilitative potential and the nature of the original crime. The trial court's reliance on the presentence report, which included the defendant's history, was deemed appropriate, and extraneous comments made by the judge did not influence the sentencing decision. The court found the sentence proportionate to the original offense. However, the refusal to credit the defendant for time spent on probation was acknowledged as erroneous, as the relevant statute mandated such credit. Consequently, while the judgment of probation violation and sentencing was affirmed, the case was remanded for an order to grant credit for the time spent on probation.
