{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICK J. MOSKOWITZ, Defendant-Appellant",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICK J. MOSKOWITZ, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nThe defendant, Rick J. Moskowitz, entered a negotiated plea of guilty to one count of felony theft (Ill. Rev. Stat. 1985, ch. 38, par. 16\u2014 1(a)(2)) in exchange for dismissal of a second theft count and the State\u2019s promise not to seek a term of imprisonment greater than three years. Following a presentence investigation and sentencing hearing, the defendant was sentenced to three years in the Department of Corrections. The defendant\u2019s motion to reduce sentence was denied, and he now appeals, contending that the trial court abused its discretion in imposing a sentence of three years. We affirm.\nThe record indicates that the defendant, an attorney, converted in excess of $50,000 belonging to a client to his own use. At the sentencing hearing, the State presented no evidence in aggravation; a number of witnesses testified for the defendant in mitigation. That testimony indicated that the defendant has been married for 20 years and has three children. His wife earns approximately $450 per month as a teacher\u2019s aide and cannot support the family by herself. Several witnesses testified that the defendant is a devoted family man and trusted friend and that his dishonesty was completely out of character. The defendant was experiencing severe financial pressure due to bankruptcy and unpaid taxes. The probation officer who prepared the presentence report testified that the defendant was remorseful, was likely to successfully complete a period of probation, and would not benefit from incarceration. Further evidence indicated that the defendant made partial restitution, had been offered employment, had no prior offenses, and was active in community service. The defendant\u2019s doctor, a dermatologist, stated in a report that the defendant suffers from various physical and emotional ailments including allergies, migraine headaches, hiatal hernia, vascular disease, possible peptic ulcer and diabetes, and severe depression. The doctor concluded that the defendant is unlikely to survive incarceration.\nIn sentencing the defendant, the trial judge cited sections 5 \u2014 5\u2014 3.2(a)(6) and (a)(7) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 \u2014 5\u20143.2(a)(6), (a)(7)) as factors in aggravation. Section 5 \u2014 5\u20143.2(a)(6) states that the defendant \u201cutilized his professional reputation or position in the community to commit the offense, or to afford him an easier means of committing it.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 5\u20143.2(a)(6).) Section 5 \u2014 5\u20143.2(a)(7) refers to the need to deter others from committing the same crime. The judge also expressed his belief that society is entitled to hold professional people such as lawyers, doctors, and accountants to a higher moral and ethical standard than others because \u201cwe entrust them with our funds and entrust them with our lives.\u201d\nThe defendant contends that his sentence is excessive and is not in keeping with the objective of restoring him to useful citizenship. Specifically, the defendant argues that the trial court failed to give sufficient weight to the numerous factors in mitigation; that it arbitrarily denied probation because the defendant fell within the court\u2019s \u201cdisfavored class\u201d of defendants; and that the judge\u2019s statement that this was one of the few days in I8V2 years that he did not look forward to sitting on the bench demonstrates that the judge summarily dismissed the defendant\u2019s argument for probation. We do not agree.\nThe sentencing judge is charged with the difficult task of fashioning a sentence which strikes the appropriate balance between protection of society and rehabilitation of the offender (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547), and that determination will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). The sentencing judge is not obligated to recite and assign value to each fact presented at a sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9; People v. Goodman (1983), 116 Ill. App. 3d 125, 128, 451 N.E.2d 607, 610.) When mitigating evidence is presented to the court, it is presumed that the court considered the evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662, affd (1986), 115 Ill. 2d 184, 503 N.E.2d 331.) Here the court heard a considerable amount of testimony in mitigation, and it is clear from the judge\u2019s comments that this evidence was considered. It is not the function of a reviewing court to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we might have balanced the appropriate factors differently if the task had been ours. Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.\nThe defendant also contends that the judge\u2019s statement that professional people are held to a higher moral and ethical standard than others demonstrates that the judge arbitrarily denied probation because the defendant fell within the judge\u2019s category of disfavored offenders (see People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168). We believe, however, that the judge was simply commenting on the applicability of section 5 \u2014 5\u20143.2(a)(6) as an aggravating factor. That section expressly allows the sentencing judge to consider the defendant\u2019s use of his professional reputation in committing the offense. We find no error.\nFinally, we find nothing improper in the trial judge\u2019s expression of regret at having to preside at the sentencing of a fellow member of the bar and a man whom he had regarded as a friend for many years. Such feelings are not unexpected from one having to perform such a distasteful duty, and we do not glean from such a comment any intent by the judge to summarily dismiss the defendant\u2019s argument for probation.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nGORMAN and McCUSKEY, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE SLATER"
      }
    ],
    "attorneys": [
      "Ruud, Scovil & Neppl, of Rock Island (Douglas C. Scovil, of counsel), for appellant.",
      "Marshall E. Douglas, State\u2019s Attorney, of Rock Island (Rita Kennedy Mertel and John X. Breslin, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICK J. MOSKOWITZ, Defendant-Appellant.\nThird District\nNo. 3-90-0280\nOpinion filed February 26, 1991.\nRuud, Scovil & Neppl, of Rock Island (Douglas C. Scovil, of counsel), for appellant.\nMarshall E. Douglas, State\u2019s Attorney, of Rock Island (Rita Kennedy Mertel and John X. Breslin, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0812-01",
  "first_page_order": 834,
  "last_page_order": 837
}