MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Oct 14 2016, 9:38 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Gary L. Griner                                          Gregory F. Zoeller
Mishawaka, Indiana                                      Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Madejek,                                           October 14, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1602-CR-405
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Elizabeth C.
Appellee-Plaintiff.                                     Hurley, Judge
                                                        Trial Court Cause No.
                                                        71D08-1510-F6-764



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016    Page 1 of 10
                                       Statement of the Case
[1]   Mark Madejek appeals his sentence after he pleaded guilty, without a plea

      agreement, to leaving the scene of an accident, as a Level 5 felony, and

      operating a motor vehicle with a suspended license, as a Class A misdemeanor.

      Madejek raises the following two issues for our review:

              1.      Whether the trial court abused its discretion when it
                      sentenced him.


              2.      Whether his sentence is inappropriate in light of the nature
                      of the offenses and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 17, 2015, Madejek operated a green Jeep Cherokee and struck a

      pedestrian, Stephen Stetz. Upon striking Stetz, Madejek exited the vehicle and

      saw that “he hit a man.” Appellant’s App. Vol. II at 11. Madejek, who knew

      his license had been suspended, then “panicked and drove off.” Id. A

      passenger in Madejek’s vehicle, Drew Rosander, later called police and

      explained what had happened. When police located Madejek, they observed

      front-end damage to his vehicle consistent with striking a pedestrian. Madejek

      then voluntarily informed the officers about the accident and admitted that he

      had fled the scene. Madejek also stated that “Stetz had walked in front of his

      car” and that “it was his fault.” Id. Stetz later died from his injuries.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016   Page 2 of 10
[4]   Thereafter, the State charged Madejek with multiple offenses. At an ensuing

      hearing, Madejek pleaded guilty to the State’s charges without the benefit of a

      plea agreement. The court then held a sentencing hearing, following which the

      court identified the following aggravating and mitigating circumstances:


              Clearly in aggravation, Mr. Madejek, we look at your criminal
              history. You have the ten prior convictions, three of which were
              felonies. You have repeated driving while suspended offenses,
              numerous infractions. You were on felony probation at the time
              of this offense. You have been given probation in the past and
              had that revoked. So your criminal history is an aggravator.


              I . . . include in that your driving history when I think about that.
              While all your driving infractions may not be reflected
              individually in your criminal history, the fact that you continue
              to drive knowing that your license is suspended, having been in
              accidents prior to this, all of that is a factor in aggravation.


              I do consider in mitigation the fact you entered into this plea
              without the benefit of an agreement. And I consider the fact that
              you have expressed remorse. What I also look at though in
              aggravation are the facts and circumstances of the events of that
              night that led to these charges.


              When I’m looking at the leaving the scene of an accident charge
              which I’m entering judgment as the level 5 felony, I look at the
              fact, Mr. Madejek, that you hit this person, got out of your car,
              looked at him as he was lying there in the street, asked someone
              else to take the blame for your actions, and when that person
              wouldn’t [take the blame you] got in your car and drove away.
              Who knows could have been different had you not done that.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016   Page 3 of 10
        [Your attorney] does talks about the maximum sentences being
        reserved for the worst of the worst offenders. And your criminal
        history isn’t the only thing I can look at in making that decision.
        I can also look at your character, and I think the events of that
        night speak volumes about your character. Had you just done
        what you were supposed to do and stayed off the road this would
        not have happened. We wouldn’t even be here. Had you
        complied with the law at all we wouldn’t be here. But you
        continue to disregard the law and believe apparently as I can tell
        from your history and your driving record the law simply does
        not apply to you.


        And that reveals your character because those actions that you
        took that night are the actions of a very selfish individual, a
        person who believes he is above the law. A person that would
        stop his car and leave a man lying, broken in the street[,] and
        take off to save your own skin. To me the facts and
        circumstances of that night tell me what I need to know about
        your character in making my decision.


        As we’ve all agreed, I think, and all acknowledge there is nothing
        I can do here that is going to alleviate any of the pain you have
        caused, the numerous people that have been affected by Mr.
        Stetz’s death. You’ve taken a member of our community. Our
        entire community has lost his contribution. You have taken a
        son and a brother and a coworker, a nephew and a friend and
        you have left countless people devastated by your actions truly
        because of your selfishness. And your inability . . . to follow the
        law, your choice not to follow the law that you have made
        repeatedly.


        And I find that in this case the maximum sentence . . . is
        appropriate, and it reflects what I believe to be the worst of the
        worst character that I see in you. And I find that the aggravating
        factors that we discussed outweigh any factors in mitigation that
        I have considered.
Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016   Page 4 of 10
      Sent. Tr. at 30-33. Accordingly, the court entered judgment of conviction

      against Madejek for leaving the scene of an accident, as a Level 5 felony, and

      operating a motor vehicle with a suspended license, as a Class A misdemeanor,

      and the court ordered Madejek to serve an aggregate term of seven years in the

      Department of Correction. This appeal ensued.


                                    Discussion and Decision
                                    Issue One: Abuse of Discretion

[5]   Madejek contends that the trial court abused its discretion when it sentenced

      him. Generally, sentencing decisions are left to the sound discretion of the trial

      court, and we review its decision only for an abuse of that discretion. Singh v.

      State, 40 N.E.3d 981, 987 (Ind. Ct. App. 2015), trans. denied. “An abuse of

      discretion occurs if the decision is clearly against the logic and effect of the facts

      and circumstances before the trial court.” Id. A trial court may abuse its

      discretion by entering a sentencing statement that explains reasons for imposing

      the sentence that are not supported by the record or that omits reasons that are

      clearly supported by the record. Id.


[6]   Madejek first asserts that the trial court considered as an aggravator facts not in

      the record. In particular, Madejek takes issue with the trial court’s statement

      that Madejek “asked someone else to take the blame for [his] actions, and when

      that person wouldn’t” Madejek drove off instead. Sent. Tr. at 31. This




      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016   Page 5 of 10
      statement plainly refers to Rosander,1 and, as such, the State concedes that this

      “fact is not in the record.” Appellee’s Br. at 12. Accordingly, we must

      conclude that the trial court abused its discretion when relied on facts not in the

      record. See Singh, 40 N.E.3d at 987.


[7]   Madejek also maintains that the trial court abused its discretion “by considering

      the elements of the offense as aggravating factors,” namely, that “he hit a

      person, got out of his car[,] and then drove away,” and then “speculat[ing]” as

      to what might have happened had Madejek not driven. Appellant’s Br. at 7-8.

      But we agree with the State that the trial court’s statements here do not

      demonstrate a reliance on the elements of the offense or improper speculation

      but, rather, on the particularized facts of the crime and recognition that

      Madejek has a history of disregarding the law. E.g., Gomilla v. State, 13 N.E.3d

      846, 853 (Ind. 2014).


[8]   Madejek next asserts that the trial court abused its discretion “by sentencing

      [him] based on sympathy,” especially with respect to the court’s statements that

      “Madejek took the life of a person from the community and that the trial court

      cannot alleviate the pain of the family.” Appellant’s Br. at 8-9. We conclude

      that this argument is not supported by cogent reasoning or citation to relevant




      1
        As the statement cannot reasonably be attributed to Madejek’s comments about Stetz stepping in front of
      Madejek’s vehicle, we do not consider the State’s assertion that we make that attribution. We also do not
      consider the State’s argument that Madejek waived this issue for our review when he did not object. The trial
      court’s statement was made in the pronouncement of Madejek’s sentence, not during the parties’ arguments
      before the court.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016          Page 6 of 10
       authority.2 As such, we do not consider it. See Ind. Appellate Rule 46(A)(8)(a).

       In any event, a trial court may consider the impact of a crime on the

       community as part of the nature and circumstances of the crime.


[9]    Finally, Madejek asserts that the trial court failed to properly consider his guilty

       plea and remorse as significant mitigating factors. We cannot say that Madejek

       has demonstrated an abuse of discretion with respect to those factors, however.

       Contrary to Madejek’s argument on appeal, the trial court did expressly find his

       guilty plea and remorse to be entitled to mitigating weight. The court simply

       found them outweighed by the aggravating factors. As such, Madejek’s

       argument with respect to these factors is, in effect, an argument for the trial

       court did not assign them proper weight, which we will not consider. See

       Anglemyer v. State, 868 N.E.2d 482, 491, clarified on reh’g, 875 N.E.2d 218 (Ind.

       2007).


[10]   In sum, we agree with Madejek that the trial court erred in a single respect

       when it relied, in part, on facts not within the record during sentencing.

       However, we reject Madejek’s other arguments regarding whether the trial

       court abused its discretion during sentencing. Where, as here, “the trial court is

       found to have abused its discretion” in sentencing a defendant, “the error is




       2
         Our supreme court has “disapprove[d] of consideration of a community’s outrage in the determination or
       review of a criminal sentence.” Escobedo v. State, 989 N.E.2d 1248, 1248 (Ind. 2013) (emphasis added).
       However, we do not read the trial court’s statements here to be tantamount to reliance on community
       outrage. And we note that Indiana Code Section 35-40-5-5 expressly gives victims “the right to be heard at
       any proceeding involving sentencing.”

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016          Page 7 of 10
       harmless if the sentence imposed was not inappropriate.” Mendoza v. State, 869

       N.E.2d 546, 556 (Ind. Ct. App. 2007) (citing Windhorst v. State, 868 N.E.2d 504,

       507 (Ind. 2007)), trans. denied. Accordingly, we turn to Madejek’s argument

       under Indiana Appellate Rule 7(B).


                              Issue Two: Inappropriateness of Sentence

[11]   Madejek asserts that his sentence is inappropriate in light of the nature of the

       offense and his character. Indiana Appellate Rule 7(B) permits an Indiana

       appellate court to “revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” We assess the trial court’s recognition or nonrecognition of

       aggravators and mitigators as an initial guide to determining whether the

       sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.

       Ct. App. 2006). The principal role of appellate review is to “leaven the

       outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant

       must persuade the appellate court that his or her sentence has met the

       inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.

       Ct. App. 2007).


[12]   Madejek maintains that his sentence is inappropriate because he received the

       maximum sentence possible, seven years executed, but he is not the among “the

       worst offenders.” Appellant’s Br. at 10. Our supreme court has explained that,

       while “the maximum possible sentences are generally most appropriate for the

       worst offenders,” this is not “a guideline to determine whether a worse offender
       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016   Page 8 of 10
       could be imagined” as “it will always be possible to identify or hypothesize a

       significantly more despicable scenario.” Buchanan v. State, 767 N.E.2d 967, 973

       (Ind. 2002) (citations and quotation marks omitted). Thus, in reviewing a

       maximum sentence, “[w]e concentrate less on comparing the facts of this case

       to others . . . and more on focusing on the nature, extent, and depravity of the

       offense . . . and what it reveals about the defendant’s character.” Wells v. State,

       904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied.


[13]   Regarding the nature of the offenses here, Madejek, while driving with a

       suspended license, hit a pedestrian. He knew he had immediately struck

       something, and he stopped his vehicle and exited to see what it was. Upon

       exiting, he observed that he had struck Stetz. Yet, despite having stopped his

       vehicle, exited, and observed his victim, Madejek did not contact emergency

       personnel. Rather, he got back inside his car, fled the scene, and left Stetz

       without assistance. Madejek’s acknowledgement, observation, and disregard of

       his victim reflects the particularly egregious nature of his offenses.


[14]   And, regarding Madejek’s character, while he promptly admitted to law

       enforcement the facts underlying his convictions and he pleaded guilty without

       the benefit of a plea agreement, nonetheless he also has an extensive criminal

       history. Madejek, now thirty-eight years old, has been involved with the

       criminal justice system since age seventeen. He has three prior felony

       convictions, seven prior misdemeanor convictions, and three prior probation

       violations. Four of his seven misdemeanor convictions are driving-related

       offenses. And he was on probation at the time of the instant offenses.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016   Page 9 of 10
       Madejek’s continued disregard for the law, especially as it relates to the

       operation of motor vehicles, reflects his poor character.


[15]   We cannot say that Madejek’s sentence is inappropriate in light of the nature of

       the offenses or his character. Accordingly, we likewise conclude that the trial

       court’s limited error during sentencing was harmless, and more than sufficient

       other evidence supports the sentence imposed by the court. Thus, we affirm

       Madejek’s sentence.


[16]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-CR-405 | October 14, 2016   Page 10 of 10
