Opinion
No. 1-846 / 01-0277.
Filed January 9, 2002.
Appeal from the Iowa District Court for Scott County, DAVID E. SCHOENTHALER, Judge.
Robert Farinacci appeals the sentence imposed by the district court following his plea of guilty to theft in the first degree. AFFIRMED.
Kent A Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
The defendant, Robert Farinacci, appeals the sentence imposed by the district court following his plea of guilty to the offense of theft in the first-degree, in violation of Iowa Code sections 714.2(1), 714.1(1) and 714.1(2) (1999). He claims the district court abused its discretion in sentencing him to a term of imprisonment rather than to probation. We affirm.
The defendant was charged with first degree theft after he misappropriated a $45,000 check intended for his employer as a down-payment on a piece of equipment. Farinacci cashed the check and spent the money.
On December 18, 2000, the defendant pleaded guilty to theft in the first degree. The district court accepted the plea and ordered the preparation of a presentence investigation report (PSI). On February 15, 2001, the district court sentenced Farinacci to an indeterminate term of imprisonment not to exceed ten years, despite the PSI's recommendation for probation. On appeal, Farinacci claims the sentencing judge abused his discretion by failing to consider his psychological condition and the fact that he had made significant gains toward rehabilitation after receiving mental health treatment.
I. Scope of Review .
Our scope of review is for correction of errors at law. Iowa R. App. P. 4. A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure. State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998). An abuse of discretion is found when the sentencing court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Halterman, 630 N.W.2d 611, 613 (Iowa Ct.App. 2001). The trial court's sentencing decisions are cloaked with a strong presumption in their favor. State v. Sailer, 587 N.W.2d 756, 759 (Iowa 1998).
II. Discretion in Sentencing .
We reject Farinacci's claim the district court abused its discretion in sentencing him to incarceration. In applying its discretion in sentencing a defendant, the court "should weigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform." State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979).
In this case the sentencing court stated it sentenced Farinacci to a term of incarceration based on his prior criminal record, the serious nature of the offense as reflected by the large amount of money stolen, and the defendant's violation of trust in using his employer as a means of stealing money. Although the PSI recommended the defendant be sentenced to probation, our highest court has held that it is not an abuse of discretion to refuse to grant probation even in the face of such a recommendation. State v. Taylor, 490 N.W.2d 536, 539 (Iowa 1992). In the present case the district court stated it did not agree with the recommendation contained in the PSI.
At sentencing, the defendant presented evidence of his mental illness (bipolar disorder) and his progress in treatment since his arrest. The PSI also contained information regarding his mental health status. Farinacci claims the district court abused its discretion by failing to give proper consideration to this evidence offered in mitigation of punishment. The district court did not make specific reference to the defendant's mental illness in imposing sentence. However, a judge is not required to specifically acknowledge each claim of mitigation urged by a defendant and a failure to acknowledge a particular sentencing circumstance does not mean it was not considered. State v. Boltz, 542 N.W.2d 9,11 (Iowa Ct.App. 1995).
The defendant also finds fault with the trial court for failing to use the word "rehabilitation" at any time during the sentencing hearing. The failure of the court to specifically recite its consideration of the issue of rehabilitation is not an affirmative showing of abuse of its discretion. State v. Stanley, 344 N.W.2d 564, 569 (Iowa Ct.App. 1983).
Before sentencing Farinacci, the court noted it had "read and reread and reread" his file. The court gave several specific reasons for the sentence it selected. Farinacci's prior record includes misdemeanor convictions for theft in the third degree, domestic abuse, and domestic abuse assault. The record reveals he also stole $177,300 from another company and was sentenced to probation for that offense in late December 2000. We conclude the district court did not abuse its discretion in imposing a term of incarceration. Accordingly, we affirm Farinacci's sentence.
AFFIRMED.