MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Oct 03 2019, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel Hageman                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General
Indianapolis, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Wilmer Francisco Figueroa-                               October 3, 2019
Estrada,                                                 Court of Appeals Case No.
Appellant-Defendant,                                     19A-CR-336
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Lisa F. Borges,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G04-1608-F2-31462




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019                 Page 1 of 11
                                             Case Summary
[1]   Wilmer Francisco Figueroa-Estrada pled guilty to two counts of level 2 felony

      kidnapping, three counts of level 2 felony criminal confinement, level 6 felony

      resisting law enforcement, class A misdemeanor resisting law enforcement, and

      class A misdemeanor carrying a handgun without a license. He now appeals

      his convictions on the basis of the continuous crime doctrine. He also contends

      that his seventy-five-year executed sentence is inappropriate in light of the

      nature of his offenses and his character. We affirm.


                                 Facts and Procedural History
[2]   On August 6, 2016, Estrada approached Anahi Dominguez in a grocery store

      parking lot and ordered her into his vehicle at gunpoint. After driving her

      around for a while, he took her to a wooded area next to the English Village

      Apartments and tied her to a tree with a white rope. He took her cell phone

      and texted her family, demanding a $5000 ransom and ordering them not to

      notify authorities. The family paid the ransom and then notified police.

      Officers later found Dominguez in her vehicle, and she took them to the tree

      that Estrada had tied her to, which she could identify by markings she had

      made on the ground. She told the officers that her assailant had worn black

      gloves with yellow stripes and a bandana on his face. He gagged her with a

      bandana as well. She recalled that he had smoked a cigarette and thrown the

      butt on the ground. Police located the cigarette butt and submitted it for testing.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 2 of 11
[3]   Four days later, Estrada approached Helen Mercado in the parking lot of her

      apartment complex. He pointed a firearm at her and ordered her into his

      vehicle. As he drove her around, he used her cell phone to contact her mother.

      He demanded $8000 in exchange for Mercado’s safe return and threatened to

      kill Mercado if her family notified authorities. Mercado’s family notified

      authorities and contacted Mercado’s friend Jenny, with whom Mercado had

      shared her cell phone location, to ascertain whether Jenny could locate

      Mercado’s phone. Jenny reported that the last pinged location was the English

      Village Apartments.


[4]   Officer Eric Baker surveilled the English Village parking lot. He saw an SUV

      that failed to signal a turn, and he activated his lights and siren to conduct a

      traffic stop. The driver, Estrada, did not stop. A cross-county, high-speed

      chase ensued, and backup officers were dispatched. Eventually, the SUV

      crashed into a utility pole, and Estrada exited the vehicle and fled on foot, with

      officers in pursuit.


[5]   The officers chased Estrada behind a house, where they found him holding

      bystander Mark Steinhardt in a headlock with a putty knife at his throat. They

      tased and apprehended Estrada. In the crashed SUV, they found Mercado,

      who was injured and bleeding. They also discovered a loaded handgun and

      magazine on the driver’s side floor. A subsequent search of the vehicle

      produced a white rope, two bandanas, a pair of black and yellow gloves, and

      various documents and photos related to Estrada. Police arrested Estrada and



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 3 of 11
      collected a buccal swab, which contained DNA that matched the DNA on the

      previously recovered cigarette butt.


[6]   The State charged Estrada with two counts of level 2 felony kidnapping, three

      counts of level 2 felony criminal confinement, level 6 felony resisting law

      enforcement (by vehicle), class A misdemeanor resisting law enforcement (on

      foot), and class A misdemeanor carrying a handgun without a license. Estrada

      pled guilty to all counts. At the guilty plea hearing, the trial court advised him

      that by pleading guilty, he was waiving his right to appeal his convictions, and

      he affirmed that he understood. The trial court sentenced him to an aggregate

      seventy-five-year executed term. This included twenty-five-year terms for each

      of his five level 2 felony convictions, three to run consecutive (kidnapping of

      Mercado and Dominguez and criminal confinement of Steinhardt) and two to

      run concurrent (criminal confinement of Mercado and Dominguez). For his

      level 6 felony and two class A misdemeanor convictions, the court imposed

      concurrent one-year terms. Estrada now appeals his convictions and sentence.

      Additional facts will be provided as necessary.


                                     Discussion and Decision

         Section 1 – By pleading guilty, Estrada waived his right to
                         challenge his convictions.
[7]   Estrada challenges his convictions for criminal confinement of Dominguez and

      Mercado as well as his class A misdemeanor resisting law enforcement

      conviction on grounds of the continuous crime doctrine, which is a species of


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 4 of 11
      common law double jeopardy. Hines v. State, 30 N.E.3d 1216, 1218 (Ind. 2015)

      The State contends that Estrada waived his right to challenge his convictions on

      direct appeal by electing to plead guilty. When a person elects to plead guilty

      rather than to stand trial on the charges against him, he gives up certain

      statutory and constitutional rights. Tumulty v. State, 394, 395 (Ind. 1996).

      When a defendant pleads guilty, the trial court is obliged to inform him of the

      rights that he is waiving and to determine that the waiver of these rights is

      “knowingly and intelligently given.” Id. (quoting Davis v. State, 446 N.E.2d

      1317, 1321 (Ind. 1983)). One such right is the right to challenge his convictions

      on direct appeal. See id. (“a conviction based on a guilty plea may not be

      challenged by … direct appeal.”) (quoting Weyls v. State, 266 Ind. 301, 302, 362

      N.E.2d 481, 482 (1977)). This includes the appeal of convictions on double

      jeopardy grounds. Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002).


[8]   Estrada does not claim that his plea was involuntary or that the trial court

      inadequately advised him concerning the legal consequences of his plea.

      Rather, he now attempts to challenge two of his criminal confinement

      convictions and one of his resisting law enforcement convictions based on the

      continuous crime doctrine. See Hines, 30 N.E.3d at 1219 (continuous crime

      doctrine applies only where defendant’s conduct amounts only to a single

      chargeable crime). The analysis applied to these types of claims is extremely

      fact-sensitive and requires a fully developed factual record. We simply do not

      have a developed factual record before us, and even if we did, the Tumulty court

      rejected the notion that the appealability of claims after a guilty plea should turn

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 5 of 11
       on the adequacy of the factual record from the guilty plea proceedings. See

       Tumulty, 666 N.E.2d at 396 (supreme court’s express rejection of this Court’s

       holding that defendant should be permitted to appeal from guilty plea whenever

       record of guilty plea is adequate to resolve issue being appealed).


[9]    In short, Estrada waived his right to challenge his convictions by pleading guilty

       and is now limited to challenging his convictions by filing a petition for post-

       conviction relief pursuant to Indiana Post-Conviction Rule 1. Tumulty, 666

       N.E.2d at 396; Lumbley v. State, 74 N.E.3d 234, 241 (Ind. Ct. App. 2017), trans.

       denied.


                 Section 2 – Estrada has failed to meet his burden of
                  demonstrating that his sentence is inappropriate.
[10]   Estrada is not foreclosed from challenging his sentence, and he asks that we

       reduce his sentence pursuant to Indiana Appellate Rule 7(B), which states that

       we “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, [this] Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.”

       “Sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our

       principal role is to leaven the outliers, focusing on the length of the aggregate

       sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 6 of 11
       2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for

       consideration of all aspects of the penal consequences imposed by the trial court

       in sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). Even so, our “review should focus on the forest – the

       aggregate sentence – rather than the trees – consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Cardwell, 895

       N.E.2d at 1225. We do “not look to see whether the defendant’s sentence is

       appropriate or if another sentence might be more appropriate; rather, the test is

       whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at 581 (quoting

       Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied (2014)).

       The defendant bears the burden of persuading this Court that his sentence

       meets the inappropriateness standard. Bowman v. State, 51 N.E.3d 1174, 1181

       (Ind. 2016).


[11]   In considering the nature of Estrada’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Green v.

       State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant that “makes it different from the

       typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 7 of 11
[12]   The trial court sentenced Estrada to an aggregate seventy-five-year executed

       term. Each of his five level 2 felonies is subject to a sentencing range of ten to

       thirty years, with a seventeen and one-half-year advisory term. Ind. Code § 35-

       50-2-4.5. His level 6 felony is subject to a sentencing range of six months to two

       and one-half years, with a one-year advisory term. Ind. Code § 35-50-2-7(b).

       For each of his two class A misdemeanors, his sentence may not exceed one

       year. Ind. Code § 35-50-3-2. Because the length of Estrada’s sentence is largely

       attributable to the court’s imposition of consecutive sentences on three of his

       five level 2 felony convictions, we must analyze it with reference to Indiana

       Code Section 35-50-1-2. Two of his consecutive twenty-five-year sentences

       were imposed for kidnapping, which the statute lists as a crime of violence, not

       subject to any maximum consecutive term. Ind. Code § 35-50-1-2(a)(8), -(d).

       The third twenty-five-year consecutive term was for level 2 felony criminal

       confinement with the use of a weapon. All other terms were concurrent. His

       total sentence exposure was more than 150 years.


[13]   Estrada’s offenses were serious and dangerous. His five level 2 felony

       convictions include two for kidnapping, which involves the knowing or

       intentional removal of another person by force or threat of force from one place

       to another with intent to obtain ransom. Ind. Code § 35-42-3-2(a), -(b)(4)(A).

       His three level 2 felony criminal confinement convictions involve the knowing

       or intentional confinement of another without consent with intent to obtain

       ransom (Dominguez and Mercado) or intent to use the person as a shield or

       hostage (Steinhardt). Specifically, Estrada’s offenses involved a high level of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 8 of 11
       danger and trauma, not merely for the victims but also for their families.

       Dominguez was grocery shopping when Estrada forced her into his vehicle at

       gunpoint and drove away. When he finally stopped and took her to a wooded

       area, he tied her to a tree and used her phone to demand a $5000 ransom from

       her family. Throughout the ordeal, he was armed with a handgun (for which

       he had no license) and made threats on her life.


[14]   Despite having extracted money from Dominguez’s family, Estrada still was

       not satisfied. Four days later, he again kidnapped a young woman at gunpoint.

       This time the victim, Mercado, was outside her apartment when Estrada forced

       her into his vehicle at gunpoint. Again, he traumatized his victim by driving

       her around and demanding ransom on threat of death. When police located his

       vehicle, he led the officers on a high-speed chase ending in a one-car crash, with

       Mercado being thrashed around, bloodied, and injured. With no regard for her

       condition, Estrada fled the crash scene on foot. He eluded the pursuing officers

       and eventually took a hostage, Steinhardt, whom he held in a headlock with a

       putty knife at his throat.


[15]   All three of Estrada’s victims were random strangers who were minding their

       own business at the time he accosted/abducted them. In each instance, he used

       a weapon, and he traumatized and endangered them. In the case of Mercado,

       he caused her to sustain injuries that could have proved fatal when he struck a

       utility pole after leading police on an eighty-miles-per-hour chase. Estrada’s

       conduct exceeded the requirements for conviction and does not militate toward

       a reduced sentence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 9 of 11
[16]   Nor does Estrada’s character. We conduct our review of his character by

       engaging in a broad consideration of his qualities. Aslinger v. State, 2 N.E.3d 84,

       95 (Ind. Ct. App. 2014), clarified on other grounds on reh’g, 11 N.E.3d 571.

       “When considering the character of the offender, one relevant fact is the

       defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.

       App. 2015), trans. denied (2016). Estrada does not appear to have a juvenile

       criminal record; however, the trial court noted that there really was no way of

       knowing his juvenile criminal history, since Estrada immigrated from Honduras

       in his late teens. Tr. Vol. 2 at 30. Estrada committed the current offenses at age

       nineteen, and at the time of his plea and sentencing, he had pending charges of

       level 3 felony rape (two counts), level 6 felony intimidation, and misdemeanor

       battery and domestic battery. Estrada admitted to using alcohol regularly,

       sometimes to the point of suffering blackouts, and reported that he had

       consumed “alot [sic] of whiskey” on the day of his most current offenses and

       arrest. Appellant’s App. Vol. 2 at 132. He also reported using illegal drugs,

       including cocaine and marijuana. His overall risk assessment score put him in

       the “HIGH risk category to reoffend.” Id. He indicated to Mercado that he

       had her photograph and had been stalking her for two days before he kidnapped

       her. Id. at 27. When asked about his reason for kidnapping women for

       ransom, his gave conflicting stories, including working for a “Boss” and

       obtaining ransom to support his mother. Id.


[17]   Estrada points to his remorse, his guilty plea, and his difficult childhood as

       positive reflections of his character. At sentencing, he expressed his remorse by


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 10 of 11
       saying, “I also want to extend a special apology to the victims that I offended.”

       Tr. Vol. 2 at 23. The trial court did not place emphasis on the apology but

       simply found that he took responsibility by pleading guilty. We are not in a

       position to discern Estrada’s sincerity and therefore defer to the trial court, as it

       was uniquely situated to observe and best determine whether his remorse was

       genuine. Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans.

       denied. As for his difficult childhood, he has failed to demonstrate how it

       reflects positively on his character.


[18]   While we are mindful of Estrada’s troubled upbringing and distance from his

       family support system, we find that he has failed to meet his burden of

       demonstrating that his sentence is inappropriate. As such, we affirm his

       sentence.


[19]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-336 | October 3, 2019   Page 11 of 11
