MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Apr 12 2019, 10:31 am

the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                        Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Marielena Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Justin F. Roebel
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua G. Villanueva-Rose,                                April 12, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2413
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jane Woodward
Appellee-Plaintiff.                                       Miller, Judge
                                                          Trial Court Cause No.
                                                          71D01-1803-F3-21



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2413 | April 12, 2019                   Page 1 of 6
                                               Case Summary
[1]   Joshua Villanueva-Rose (“Villanueva-Rose”) pled guilty to one count each of

      Attempted Armed Robbery1 and Armed Robbery, as Level 3 felonies, and

      Carrying a Handgun Without a License, as a Level 5 felony.2 He challenges his

      twenty-three-year aggregate sentence as inappropriate. We affirm.



                                Facts and Procedural History
[2]   On March 26, 2018, Villanueva-Rose and another man approached Rachel

      Osenkarski (“Osenkarski”) while she was sitting in her vehicle in a Walmart

      parking lot. Villanueva-Rose asked for a cigarette; when Osenkarski attempted

      to roll up her window, the second man, who was armed with a handgun,

      jumped into the vehicle and demanded Osenkarski’s purse. She surrendered the

      purse and the men fled to a waiting vehicle.


[3]   Shortly thereafter, in a nearby parking lot, April Wieringa (“Wieringa”) was

      sitting in her vehicle with her mother and three-year-old child. Wieringa was

      attempting to activate her new cell phone when Villanueva-Rose approached

      her. He first asked to use the phone and then asked for a lighter. Wieringa

      replied that she was still setting up her phone and she did not smoke.

      Villanueva-Rose then shot Wieringa in the chest and demanded that she give




      1
          Ind. Code §§ 35-42-5-1, 35-41-5-1.
      2
          I.C. § 35-47-2-1. The offense was elevated due to Villanueva-Rose’s status as a felon.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2413 | April 12, 2019               Page 2 of 6
      him “all her shit.” (App. Vol. II, pg. 10.) Wieringa responded that Villanueva-

      Rose “wasn’t getting anything.” Id. She opened her car door and Villanueva-

      Rose ran away.


[4]   Villanueva-Rose was apprehended by police and admitted his involvement in

      the incidents. He was charged with Armed Robbery, Attempted Armed

      Robbery, Battery with a Deadly Weapon, and Carrying a Handgun without a

      License. On August 21, 2018, he entered pleas of guilty to each charged

      offense. On September 19, 2018, the trial court declined to enter a judgment of

      conviction on the battery count, due to double jeopardy concerns. The court

      entered judgments of conviction on the remaining counts and sentenced

      Villanueva-Rose to an aggregate sentence of twenty-three years (fourteen years

      for Attempted Armed Robbery, consecutive to nine years for Armed Robbery,

      and concurrent to a one-year sentence for the handgun offense). Villanueva-

      Rose now appeals.



                                 Discussion and Decision
[5]   Pursuant to Indiana Code Section 35-50-2-5, the sentencing range for a Level 3

      felony is three to sixteen years, with an advisory sentence of nine years.

      Pursuant to Indiana Code Section 35-50-2-6, the sentencing range for a Level 5

      felony is one year to six years, with an advisory sentence of three years.

      Villanueva-Rose argues that his aggregate twenty-three-year sentence is

      inappropriate in light of his guilty plea, substance abuse issues, and difficult

      childhood.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2413 | April 12, 2019   Page 3 of 6
[6]   We “may 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.” Ind.

      Appellate Rule 7(B). We assess the trial court’s recognition or non-recognition

      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). Here, the trial court recognized as aggravators the

      circumstances of the Attempted Robbery (serious injury to the victim and

      commission in the presence of a child) and that Villanueva-Rose was on

      probation when he committed the instant offenses. In mitigation, the trial court

      considered Villanueva-Rose’s decision to plead guilty and his difficult

      childhood.


[7]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day turns on “our sense of culpability of the defendant, the severity

      of the crime, the damage done to others, and myriad other factors that come to

      light in a given case.” Id. at 1224. Deference to the trial court “prevail[s] unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2413 | April 12, 2019   Page 4 of 6
       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[8]    As to the nature of the offenses, Villanueva-Rose armed himself with a handgun

       and approached women in parking lots with the intent of taking their property.

       On the day of the crimes, Villanueva-Rose had ingested cocaine, heroin,

       marijuana, and a half bottle of vodka. He shot one of the women in the chest

       and did so in front of her mother and her small child. At the sentencing

       hearing, Wieringa testified that she had been so severely injured that she could

       not hug her children for almost a month. She further described having

       persistent anxiety and flashbacks and observed that her child and mother had

       exhibited signs of mental trauma from witnessing the shooting. In short, the

       circumstances and effects of the crime were heinous.


[9]    As to Villanueva-Rose’s character, the decision to plead guilty indicates some

       acceptance of responsibility for his actions. However, he was on probation

       when he committed the instant offenses, having been convicted of Strangulation

       and Domestic Battery. In sum, Villanueva-Rose has failed to demonstrate that

       his sentence is inappropriate in light of the nature of his offenses and his

       character.



                                               Conclusion
[10]   Villanueva-Rose’s twenty-three-year sentence is not inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2413 | April 12, 2019   Page 5 of 6
[11]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2413 | April 12, 2019   Page 6 of 6
