Ace H. Holstein v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be regarded as Jan 21 2021, 8:36 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata, CLERK
Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert P. Magrath Theodore E. Rokita
Alcorn Sage Schwartz & Magrath Attorney General of Indiana
Madison, Indiana
Brandyn L. Arnold
Angela Sanchez
Myriam Serrano-Colon
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ace H. Holstein, January 21, 2021
Appellant-Defendant, Court of Appeals Cause No.
20A-CR-1610
v. Appeal from the Jennings Circuit
Court
State of Indiana, The Honorable Jon W. Webster,
Judge
Appellee-Plaintiff.
Trial Court Cause No. 40C01-1906-
F5-33
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Ace Holstein (Holstein), appeals his sentence following
his guilty plea to child solicitation, a Level 5 felony, Ind. Code § 35-42-4-6(c).
[2] We affirm.
ISSUE
[3] Holstein presents a single issue on appeal, which we restate as: Whether
Holstein’s sentence is inappropriate in light of the nature of the offense and his
character.
FACTS AND PROCEDURAL HISTORY
[4] Holstein was the best friend to Z.C.’s deceased brother. Z.C. had known
Holstein since she was six years old and Holstein acted like a “big brother”
toward Z.C. who continued to stay in contact with Z.C. even after her brother
died. (Transcript Vol. II, p. 10). In June 2019, Holstein was twenty-three years
old and Z.C. was fifteen years old. Holstein messaged Z.C. using Facebook
Messenger and made sexual advances to her. When Z.C. responded that she
was only fifteen years old, Holstein replied, “I know[.] [K]eep that shit between
us.” (Appellant’s App. Vol. II, p.13). Holstein then told Z.C. that he had felt
attracted to her ever since “that chest filled out and that ass got phat [sic].”
(Appellant’s App. Vol. II, p. 14). Holstein asked Z.C. to give him the chance to
show her “what getting real dick fills [sic] like.” (Appellant’s App. Vol. II, p.
14). Z.C. rebuffed Holstein’s sexual advances and told him she regarded him as
her brother. That did not deter Holstein; instead, Holstein replied “And I
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wouldent treat u any diff u could be my step sister and id try to get that ass
atleast once.” (Appellant’s App. Vol. II, p. 14) (sic throughout). Holstein also
expressed sexual interest in Z.C.’s best friend and he asked whether her best
friend was a virgin. Holstein also requested to see Z.C.’s chest or her best
friend’s chest. Z.C. refused and she told him he sounded crazy. Z.C. again
reminded Holstein that she was fifteen years old.
[5] Despite Z.C.’s repeated refusals, Holstein continued his efforts to sway her into
having sexual intercourse with him. Holstein claimed that Z.C. would not
regret it and that he would “make sure it was the best time of [her] life.”
(Appellant’s App. Vol. II, p. 15). Z.C. protested that Holstein had never acted
like this before, and he replied that she was older now and he hoped that she
would not tell her mother. Holstein added that Z.C. should not feel weird
because they have known each other since she was a child, and he in fact
suggested that Z.C. should feel comfortable with his advances. Holstein also
asked Z.C. if she was a virgin, and when she stated that she was not, he wrote
back and stated that he was pleased since he does not “do virgins.”
(Appellant’s App. Vol. II, p. 15). Eventually, Z.C. broke off the conversation
with Holstein by telling him that he was “disrespectful as fuck” and a “fucking
creep” especially because he had known her since she was a child and that he
was the best friend to her “dead brother.” (Appellant’s App. Vol. II, p. 15).
Thereafter, Z.C. reported the matter to her mother, and Z.C.’s mother
contacted the police.
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[6] On June 27, 2019, the State filed an Information, charging Holstein with Level
5 felony child solicitation. On July 21, 2020, pursuant to a plea agreement,
Holstein pleaded guilty. The same day, the trial court sentenced Holstein to
five years in the Department of Correction with one year suspended to
probation.
[7] Holstein now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Holstein claims that his five-year sentence is inappropriate in light of the nature
of the offense and his character. Indiana Appellate Rule 7(B) empowers us to
independently review and revise sentences authorized by statute if, after due
consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d
1114, 1116 (Ind. 2007). The “nature of the offense” compares the defendant’s
actions with the required showing to sustain a conviction under the charged
offense, while the “character of the offender” permits a broader consideration of
the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears
the burden of showing, after consideration of both prongs, that the sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether
we regard a sentence as appropriate at the end of the day turns on our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other considerations that come to light in a given case.
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Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate
sentence and how it is to be served.” Id.
[9] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Level 5 felony child solicitation, Holstein faced a
sentencing range of one to six years, with the advisory sentence being three
years. I.C. § 35-50-2-6(b). Holstein was sentenced to five years.
[10] We first examine the nature of Holstein’s offense. The record shows that
Holstein had known Z.C. since she was little and was the best friend to Z.C.’s
brother. After Z.C.’s brother passed away, Holstein used his longstanding
connection to try and lure Z.C. into having sexual intercourse with him.
Holstein admitted that he knew Z.C. was fifteen years old and he hoped that
Z.C. would be discreet and not report him to her mother. Despite Z.C.’s
multiple refusals and knowing that she was underage, Holstein continually tried
to persuade Z.C. into having sexual intercourse. Holstein claims that because
his crime was not perpetuated by violence and there was no evidence that his
actions had any “permanent effect” on Z.C., his sentence is inappropriate.
(Appellant’s Br. p. 10). Contrary to his claims, at the sentencing hearing, Z.C.’s
mother testified that Z.C. no longer feels like she knows who she can trust. (Tr.
Vol. II, p. 14).
[11] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
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Ohio App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. While a record of arrests may not be used as
evidence of criminal history, it can be “relevant to the trial court’s assessment of
the defendant’s character in terms of the risk that he will commit another
crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).
[12] Holstein’s juvenile criminal history involves two prior adjudications for
burglary and theft. As an adult, in 2014, Holstein was convicted of
inappropriate communication with a child using a computer network. In 2016,
he was convicted of resisting law enforcement and battery resulting in bodily
injury. In 2017, he was charged with battery. Finally, in 2019, between
February and April, Holstein was convicted of intimidation, harassment by
threat, possession of hashish oil, possession of paraphernalia, resisting law
enforcement, and invasion of privacy. Further, we note that when Holstein was
given the opportunity to serve his sentence on probation, he violated the
conditions of his probation three times in two different cases and he also
violated a protective order against an ex-girlfriend.
[13] Holstein’s substance abuse also reflects poorly on his character. In the
presentencing investigation report, Holstein stated that at the age of twelve, he
smoked marijuana daily and stopped when he was incarcerated for the instant
offense. Holstein also claimed that when he was fourteen years old, he began
using methamphetamine daily and he stopped when he was jailed for the
instant offense. Holstein posits that the trial court should have recognized his
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ten-year drug addiction as a mitigating factor, and he is requesting a reduction
of his sentence because he was aware of his drug problem and he was willing to
receive treatment. This court has recognized that a history of substance abuse
may be a mitigating circumstance; however, when a defendant is aware of the
problem but has not taken appropriate steps to treat it, the trial court can
properly reject substance abuse as a mitigating circumstance. Hape v. State, 903
N.E.2d 977, 1002 (Ind. Ct. App. 2009). Holstein failed to voluntarily seek
treatment for his drug addiction, which he claims has been an issue for about a
decade, despite having opportunities for rehabilitation while in jail or on
probation.
[14] In light of the foregoing, we decline to find that Holstein five-year sentence is
inappropriate in light of the nature of the offense and his character.
CONCLUSION
[15] In sum, we conclude that Holstein’s sentence is not inappropriate in light of the
nature of the offense and his character.
[16] Affirmed.
[17] Najam, J. and Crone, J. concur
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