                                                         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.

      Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016                      Page 2 of 11
      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

      Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016   Page 3 of 11
      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

      Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016   Page 4 of 11
       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.



       Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016                         Page 6 of 11
       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.

       Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016                         Page 7 of 11
       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.




       Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016   Page 8 of 11
                                                   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


       Court of Appeals of Indiana | Opinion 40A04-1601-CR-192 | October 19, 2016             Page 9 of 11
       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.




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