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.
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[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
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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
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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
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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.
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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).
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[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
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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.
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[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
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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.
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