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Date: 04-13-2019
Case Style:
Joshua G. Villanueva-Rose v. State of Indiana
Case Number: 18A-CR-2413
Judge: L. Mark Bailey
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Justin F. Roebel
Supervising Deputy Attorney General
Defendant's Attorney: Marielena Duerring
Description:
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 3 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 4 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 5 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.
Outcome: Villanueva-Rose’s twenty-three-year sentence is not inappropriate.
Plaintiff's Experts:
Defendant's Experts:
Comments: