APPEAL from the Circuit Court of Du Page County; the Hon.
HELEN C. KINNEY, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a sentence of four years to four years and one day imposed upon him after he was convicted of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2) based upon an accountability theory (Ill. Rev. Stat. 1977, ch. 38, par. 5-2). Pursuant to the old sentencing act (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-1 et seq.), under which defendant elected to be sentenced, upon a conviction of armed robbery, a sentence of four years to four years and a day imprisonment was the least sentence permitted (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-1(b)(2)). A defendant convicted of armed robbery could not receive probation. Ill. Rev. Stat. 1977, ch. 38, par. 1005-5-3(d)(1).
The sole issue on this appeal is whether this court should reduce the degree of defendant's offense, from armed robbery to robbery, using its discretionary authority under Supreme Court Rule 615(b)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 615(b)(3)).
There is basically no dispute as to the facts. On the night of October 1, 1977, defendant and three other males robbed a gas station on route 83. Earlier in the evening, the four young men were drinking together and had taken some acid. According to defendant, who testified in his own behalf, it was his co-felon, James Elam, who suggested robbing a gas station and stated that he had a gun. Defendant further testified that defendant laughed at Elam's suggestion.
The four young men entered defendant's car and defendant drove to Elam's home. Elam went inside and told defendant to remove his license plates. Defendant explained that, to call Elam's bluff, he removed one of the plates from his car. When Elam came back into the car, defendant drove himself and his companions around for approximately one hour, during which time there was no further discussion of a robbery.
Defendant stated that he pulled into a gas station because he needed gas. The three others exited the car and went to the bathroom. When they returned, Elam got into the front seat next to defendant; the two others sat in the back. According to defendant, when the gas station attendant asked for payment, Elam pointed a gun at the attendant and demanded money. Defendant submitted, at trial, that, prior to that time, he did not know Elam possessed a gun and that he had no intent to rob the gas station when he entered it. According to the attendant, it was the driver of the car who told him to hand over the money while the passenger in the front seat pointed a gun at him. The attendant also stated that all of the occupants of the car prodded him for money. The attendant could not identify any of the defendants at trial.
Defendant admitted that he took the money from the attendant and handed it to Elam and, upon Elam's command to "get going," he panicked and drove out of the station in a hurry. Defendant also admitted that, when a squad car pulled up behind him, he kept driving; that, when he came upon a police car stopped in the middle of the road, he drove 75-80 m.p.h. to get around it; that his car skidded and ran into a sign; and that he exited the car and fled, crying, into the woods. There, he ran into Elam. There was some discrepancy in the testimony at trial as to whether defendant accepted one-half of the proceeds of the robbery from Elam. Defendant turned himself in to the Du Page County police the following Sunday.
James Elam entered a negotiated plea to a charge of robbery and received a three-year sentence. Defendant chose to go to trial and was convicted of armed robbery, for which he received the least possible sentence of four years to four years and a day.
At defendant's sentencing hearing, the judge heard evidence regarding defendant's background. Defendant was 17 years old at the time of the offense and had no prior criminal record. The trial judge repeatedly commented about the less active role defendant played in the crime, as compared to James Elam's participation, and urged the State's Attorney to reduce defendant's charge to robbery; he refused to do so, however. Thus, the trial judge had no choice but to impose the sentence of four years to four years and one day upon defendant.
Defendant contends that he is being treated more harshly than Elam, the party who instigated the crime, brought the gun, used the gun, took the money and selected the victim, and therefore this is the classic situation for which the authority of this court exists to reduce his charge and sentence.
Defendant was found guilty based upon the accountability statute (Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c)). Under that statute, an individual is legally accountable for the conduct of another when:
"Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *" (Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c).)
While mere presence at the scene of an armed robbery or negative acquiescence in the actions of another is insufficient to hold one accountable as a principal to a crime, one may nevertheless be held to aid and abet even without actively participating in the overt act. If the evidence shows that the accused was present at the scene of the crime without disapproving or opposing it, the trier of fact may consider this conduct along with other circumstances in determining whether such person assented to the commission of the criminal activity, lent to it his countenance and approval and thereby aided and abetted the crime. People ...