Edward A. Holt, Jr. v. State of Indiana

FILED Oct 19 2016, 8:38 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Benjamin Loheide Gregory F. Zoeller Law Office of Benjamin Loheide Attorney General of Indiana Columbus, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Edward A. Holt, Jr., October 19, 2016 Appellant-Defendant, Court of Appeals Case No. 40A04-1601-CR-192 v. Appeal from the Jennings Circuit Court State of Indiana, The Honorable Jon W. Webster, Appellee-Plaintiff. Judge Trial Court Cause No. 40C01-1104-FA-193

Pyle, Judge. Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016 Page 1 of 11

Statement of the Case [1] Edward A. Holt, Jr., (“Holt”) appeals his sentence imposed after his guilty plea

to two counts of Class C felony child molesting. 1 On appeal, he asks us to find

that his four year sentence was inappropriate and to reduce or suspend it

accordingly. In response, the State requests that we also find Holt’s sentence

inappropriate but that we increase it to six years for each conviction. Because

we do not find that Holt’s sentence was inappropriate, we affirm. [2] We affirm.

Issue Whether Holt’s sentence was inappropriate.

Facts [3] On October 27, 2015, Holt pled guilty to two counts of Class C felony child

molesting for molesting the two children of his former girlfriend—a five-year-

old boy, A.G., and his six-year-old sister, S.U. As the factual basis for his guilty

plea, Holt admitted that between January 2010 and February 2011 he had let

the children fondle him. Holt’s plea agreement did not place a cap on the

sentence to be imposed, but it provided that he would serve concurrent

1 IND. CODE § 35-42-4-3. We note that the legislature has since amended the child molesting statute, and Holt’s offenses would now be considered Level 4 felonies. However, we will apply the version of the statute in effect at the time of Holt’s offenses.

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sentences for each count. The State also agreed to not make a recommendation

as to his sentence. [4] Subsequently, on December 29, 2015, the trial court held a sentencing hearing.

After reviewing Holt’s pre-sentence investigation report (“PSI”) and

questioning him briefly, the trial court found the following aggravators: (1)

Holt, who was twenty-nine at the time of the hearing, had a prior juvenile

delinquency adjudication for a sex crime, child molest; (2) Holt had a prior

misdemeanor conviction for invasion of privacy and a probation revocation;

and (3) Holt did not have a high school diploma or GED. The trial court also

found the following mitigators: (1) Holt had been gainfully employed for most

of his adult life; (2) Holt had pled guilty; and (3) other than Holt’s juvenile

adjudication, his criminal history was not significant. The trial court then

sentenced Holt to concurrent four (4) year executed terms at the Department of

Correction. Holt now appeals.

Decision [5] On appeal, Holt argues that his sentence was inappropriate in light of the nature

of his offense and his character and requests that we revise or suspend it under

Indiana Appellate Rule 7(B). In response, the State argues that we should

instead increase Holt’s sentence for each of his convictions to six (6) years. [6] While sentencing decisions rest within the sound discretion of the trial court, a

reviewing court may revise a sentence pursuant to Appellate Rule 7(B) if, “after

due consideration of the trial court’s decision,” it finds that the sentence is

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inappropriate in light of the nature of the offense and the character of the

offender. Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007), clarified on reh’g,

875 N.E.2d 218 (Ind. 2007); Childress v. State, 848 N.E.2d 1073, 1079-80 (Ind.

2006) (citing Ind. App. R. 7(B)). Whether a sentence is inappropriate

ultimately turns on “the culpability of the defendant, the severity of the crime,

the damage done to others, and a myriad of other factors that come to light in a

given case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). [7] We first address the State’s request to increase Holt’s sentence. Our power to

review and revise a sentence includes the ability to reduce or increase the

sentence imposed by the trial court. McCullough v. State, 900 N.E.2d 745, 750

(Ind. 2009). The State may not request an increase to a defendant’s sentence on

cross-appeal, but it may request such an increase in its Appellee’s Brief if a

defendant requests “appellate review and revision of a criminal sentence” on

appeal. Id. [8] In assessing whether the State’s request in this case has merit, we consider our

supreme court’s decision in Akard v. State, 937 N.E.2d 811 (Ind. 2010). In that

case, our supreme court reversed this Court’s decision to raise a defendant’s

sentence of ninety-three (93) years to an aggregate sentence of 118 years under

Appellate Rule 7(B). Akard, 937 N.E.2d at 813. The supreme court’s decision

was based on the fact that the prosecutor in Akard had requested a sentence “no

greater” than 93 years at sentencing and that the State had asserted that the

sentence of 93 years was appropriate on appeal. Id. at 814. The supreme court

concluded that both of those factors were “strong indicators that the trial

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court[’s] sentence [was] not inappropriately lenient.” Id. Analogously to Akard,

the State here agreed not to make a sentencing recommendation at sentencing,

thereby implicitly indicating that it would agree with the trial court’s sentencing

determination. As a result, we will not increase the sentence imposed in this

case. [9] Next, we address Holt’s request for a reduced sentence. In assessing whether

his sentence is inappropriate, we acknowledge that the advisory sentence “is the

starting point the Legislature has selected as an appropriate sentence for the

crime committed.” Id. at 1081. At the time of Holt’s offense, the sentencing

range for a Class C felony was between two (2) and eight (8) years with an

advisory sentence of four (4) years. I.C. § 35-50-2-6 (2011). Holt therefore

received the advisory sentence on both of his convictions. [10] First, Holt argues that the advisory sentence was inappropriate with respect to

the nature of his offenses because there was nothing that placed his offenses

outside of the normal sentencing considerations for a Class C felony. We agree,

but we note that the trial court’s sentence already reflected the fact that nothing

about Holt’s offenses were unusual for Class C felonies. The trial court

sentenced Holt to the advisory sentence—the “starting point the Legislature . . .

selected as an appropriate sentence for the crime committed.” Childress, 848

N.E.2d at 1081. Holt has not persuaded us that the nature of his offense

warrants a reduction of that sentence.

Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016 Page 5 of 11 [11] As for his character, Holt asks us to consider the fact that, while he does have a

prior misdemeanor for invasion of privacy, “this charge was due to continuing

(or restarting) a romantic relationship with a willing partner while a protective

order regarding her children was still in place.” (Holt’s Br. 9). Also, he notes

that he was assessed as having an overall low risk to reoffend; that he has been

employed for the last four years; that he expressed his remorse at the sentencing

hearing; and that he indicated his desire to enter into sex offender counseling

and treatment. [12] Contrary to Holt’s contentions, his criminal history is serious. The PSI and

police report revealed that Holt had been adjudicated a juvenile delinquent

when he was fifteen years old for what would have been Class B felony child

molesting if he had been charged as an adult.2 That adjudication was based on

Holt’s confession that he had anally penetrated two six-year-old boys. In

addition, Holt’s prior misdemeanor conviction for invasion of privacy was

based on his violation of a protective order the trial court had entered

prohibiting him from having contact with the same children who were the

2 Pursuant to Indiana Administrative Rule 9(G)(2)(b) and INDIANA CODE § 35–38–1–13, the PSI Report must be excluded from public access. However, in this case, Holt has raised a sentencing issue, and the information contained in the PSI Report is “essential to the resolution” of Holt’s claim. Admin. Rule 9(G)(7)(a)(ii)(c) (providing that a court record normally excluded from public access may be accessible if it is “essential to the resolution of litigation”). Accordingly, we have included such information in this decision only to the extent necessary to resolve the appeal.

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victims in this case. The PSI revealed that Holt violated this protective order in

both 2010 and 2011 by living with his former girlfriend and the victims.3 [13] In addition to serving as the basis for his misdemeanor conviction, Holt’s

disregard of the protective order against him demonstrates his refusal to obey

court orders. The PSI also revealed other evidence of Holt’s disregard of the

court’s orders. Specifically, it noted that Holt was on probation for his invasion

of privacy conviction when he committed the current offenses and that he drove

himself to the Probation Department for an interview even though his license

was suspended. In light of these actions, it is clear that Holt has a complete

lack of respect for the court and the law. [14] Finally, with regard to Holt’s argument that his sentence was inappropriate

because he desires to enter into sex offender counseling and treatment, we note

that Holt received a year of sex offender counseling and treatment after his

juvenile child molesting offense. This counseling and treatment apparently did

not prevent his re-offense. We are not convinced that his desire to enter into

such treatment again should have any bearing on this sentence. [15] In light of the nature of Holt’s offenses and his character, we cannot agree with

him that his sentence was inappropriate and warrants a reduction in his

3 As the protective order was apparently in effect in 2010 and 2011 and Holt was also charged with the instant offenses based on his actions in 2010 and 2011, it is apparent that he committed the current child molestations while the protective order was in effect.

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sentence. As we have also determined that we will not increase his sentence,

we affirm the trial court. [16] Affirmed.

Altice, J., concurs.

Bradford, dissents with opinion.

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IN THE COURT OF APPEALS OF INDIANA

Edward A. Holt, Jr., October 19, 2016 Appellant-Defendant, Court of Appeals Case No. 40A04-1601-CR-192 v. Appeal from the Jennings Circuit Court State of Indiana, The Honorable Jon W. Webster, Appellee-Plaintiff. Judge Trial Court Cause No. 40C01-1104-FA-193

Bradford, Judge, dissenting. [17] Because I disagree with the majority’s conclusion that a four-year sentence was

not inappropriate in light of the nature of Holt’s offenses and his character, I

respectfully dissent. Holt was charged with four counts of child molesting, two

as Class A felonies, and two as Class C felonies. The advisory sentence for a

Class A felony is thirty years, the maximum sentence being fifty years and the

minimum sentence being twenty years. The advisory sentence for a Class C

felony is four years, the maximum sentence being eight years and the minimum

sentence being two years. Altogether, Holt was looking at a possible sentence

of one hundred and sixteen years for his most recent crimes against two young

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children. Furthermore, Holt willfully violated a protective order which barred

him from having the contact with the victims when he continued to date their

mother and live with them. [18] Moreover, Holt has a history of delinquent behavior that is not insignificant and

should not be overlooked. Holt has committed other sex crimes in the past

against children. When Holt was fifteen years old, he admitted to anally

penetrating two six-year-old boys. Had Holt been an adult, he could have been

charged with two Class A felonies and possibly sentenced to one hundred years.

Instead, Holt spent one year in the Indiana Boys School. [19] Under Indiana Appellate Rule 7(B), we can revise a sentence if, “after due

consideration of the trial court’s decision,” we find that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender. The sentence can either be increased or decreased depending on the

facts and circumstances of the case. McCullough v. State, 900 N.E.2d 745, 750

(Ind. 2009). While we are not in the habit of increasing sentences, we retain

that power and can use it in cases when we feel that a sentence is

inappropriately lenient. In Akard v. State, 937 N.E.2d 811 (Ind. 2010), the

Indiana Supreme Court reversed the Court of Appeals decision to increase a

sentence which had been recommended by the State. In the present case, the

State did not make a sentence recommendation to the trial court per a plea

agreement.

Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016 Page 10 of 11 [20] The only limitation in the plea agreement was that the sentences would run

concurrently. Beyond that limitation, the trial court was free to make its own

determination regarding the length of the sentence. On appeal, the State has

asked that the sentence be increased. I consider this request to be a suggestion,

not a limitation on our power to review the appropriateness of the sentence.

Consequently, due to the age of the victims and nature of his offenses, I see no

basis for leniency. I would therefore invoke this court’s authority to revise

Holt’s sentence upward to eight years for each conviction. Due to the

requirements of the plea agreement, these sentences would be run concurrently.

For this reason, I respectfully dissent.

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