Korey M. Sawicki v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 29 2017, 10:28 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Korey M. Sawicki, September 29, 2017
Appellant-Defendant, Court of Appeals Case No.
70A01-1704-CR-757
v. Appeal from the Rush Circuit
Court
State of Indiana, The Honorable David E. Northam,
Appellee-Plaintiff Judge
Trial Court Cause No.
70C01-1512-F4-772
May, Judge.
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[1] Korey M. Sawicki appeals his four-year sentence for Level 4 felony burglary. 1
As his sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] On October 8, 2015, in Rush County, Sawicki broke into the house of Sandra
and Donald Rech. He stole “(2) MAC Laptops, (1) 43” Samsung Flat Screen
TV, [and] (1) Computer Case.” (App. Vol. 2 at 8.) Blood found on a broken
window in the house matched Sawicki’s blood. On December 23, 2015, the
State charged Sawicki in Rush County with one count of Level 4 felony
burglary and one count of Level 6 felony theft 2 for his actions at the Rech
residence.
[3] One day before burglarizing the Rech house, Sawicki had committed two
burglaries in Hancock County. Three weeks after the Rech burglary, he
returned to Hancock County and committed two more burglaries. For those
crimes in Hancock County, in June 2016, Sawicki pleaded guilty to two counts
of Level 4 felony burglary and received consecutive sentences of five years for
an aggregate ten-year sentence. 3
1
Ind. Code § 35-43-2-1 (2014).
2
Ind. Code § 35-43-4-2 (2014).
3
The State dismissed two burglary charges and two theft charges in return for his guilty plea.
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[4] Then, on January 23, 2017, back in Rush County, Sawicki pleaded guilty to the
burglary charge, and the State dismissed the theft charge. Pursuant to the plea
agreement, the State agreed to a four-year sentence; however, it was left to the
discretion of the trial court whether this sentence would be consecutive to or
concurrent with the sentences from Hancock County. After noting Sawicki’s
“extensive criminal history,” (Tr. at 11), the trial court ordered Sawicki to serve
the four-year sentence consecutive to the sentences from Hancock County.
Discussion and Decision
[5] Sawicki asserts his sentence is inappropriate. Under Appellate Rule 7(B), we
may revise a sentence if, after due consideration of the trial court’s decision, we
find the sentence inappropriate in light of the nature of the offense and the
character of the offender. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),
clarified on reh’g 875 N.E.2d 218 (2007). We consider not only the aggravators
and mitigators found by the trial court, but also any other factors appearing in
the record. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We
defer to the trial court’s decision, and our goal is to determine whether the
defendant’s sentence is inappropriate, not whether some other sentence would
be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g
denied. Sawicki, as the defendant, bears the burden of demonstrating his
sentence is inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
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[6] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The sentencing range for a level 4 felony is “a fixed term of between
two (2) and twelve (12) years, with the advisory sentence being six (6) years.”
Ind. Code § 35-50-2-5.5 (2014). The trial court sentenced Sawicki to four years
pursuant to the terms of his plea agreement, which is less than the advisory for
a Level 4 felony.
[7] While committing this offense, Sawicki broke windows to enter the Rech house
and stole more than $750 worth of items. During the pre-sentence
investigation, Sawicki said he was “frustrated because he feels if his co-
respondent had not talked the State could not have proven their cases.”
(Confidential App. Vol. 2 at 68.) The officer taking the report noted “[Sawicki]
believes his criminal actions were justified by the fact he was taking care of his
girlfriend [and] he stole to make ends meet.” (Id.) The officer reported Sawicki
“demonstrated no remorse for the victims; rather, he doesn’t want them to feel
the offenses were personal as he chose houses at random.” (Id. at 69.) These
statements reflect Sawicki has no respect for the law and will not discontinue
his criminal activity.
[8] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the offense. Id. The trial court specifically noted that
“without referring even to a juvenile record[, Sawicki’s criminal record] appears
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to have . . . gone all the way back through most of his adult life, . . . so basically
the Court believes that the, uh, extensive criminal history, . . . warrant[s] that . .
. this sentence be imposed consecutively.” (Tr. at 11.) Sawicki’s criminal
history, without including the current charge or the Hancock County charges,
includes two felony theft charges and multiple misdemeanor drug possession
charges, along with a felony drug possession charge. (See Confidential App.
Vol. 2 at 62-64.)
[9] Taking into account the below-advisory sentence of four years, Sawicki’s
criminal history, and his lack of remorse, we see nothing inappropriate about
his four-year sentence. See, e.g., Johnson, 986 N.E.2d at 857 (affirming sentence
as not inappropriate based on criminal history); see also Davis v. State, 892
N.E.2d 156, 165 (Ind. Ct. App. 2008) (lack of remorse reflects poorly on the
offender). 4
Conclusion
4
Sawicki characterizes his sentence as inappropriate because the trial court ordered him to serve the four-
year sentence consecutive to his sentences from Hancock County. Sawicki’s aggregate sentence for three
counts of Level 4 felony burglary is fourteen years: five years each for two counts and four years for the third.
As noted above, the advisory sentence for Level 4 felonies is six years, with a range of two to twelve years.
Ind. Code § 35-50-2-5.5 (2014). Not only are all three individual sentences below the advisory sentence of six
years, Sawicki has an extensive criminal history and has shown no respect for the law or an indication he will
change his behavior. Thus, although the sentences from Hancock County are not at issue in this appeal, we
hold consecutive sentencing with the Hancock County charges is not inappropriate. See Perry v. State, 921
N.E.2d 525, 528 (Ind. Ct. App. 2010) (sentence deemed not inappropriate when ordered served consecutive
to sentence from Michigan when defendant’s character and the nature of the offense showed “complete
disregard for the safety and property of others”).
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[10] Neither the four-year sentence nor the fact the trial court ordered Sawicki to
serve it consecutive to the other sentences is inappropriate. Accordingly, we
affirm.
[11] Affirmed.
Barnes, J., and Bradford, J., concur.
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