MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Apr 04 2017, 8:32 am

court except for the purpose of establishing                         CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Special Asst. to the State Public                        Attorney General of Indiana
Defender
Wieneke Law Office, LLC                                  George P. Sherman
Brooklyn, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph P. Holstead,                                      April 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1608-CR-1820
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         71D03-9912-CF-699



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017     Page 1 of 10
[1]   Joseph P. Holstead appeals the sixty-five-year sentence he received for murder 1

      and the eight-year sentence he received for Class C felony attempted robbery. 2

      He argues his seventy-three-year sentence is inappropriate. We affirm.



                                Facts and Procedural History
[2]   Holstead experienced a childhood involving physical, verbal, and sexual abuse,

      as well as his parents’ drug and alcohol abuse. Holstead began using drugs and

      alcohol at a young age, and he had been living on his own since the age of

      sixteen. In November 1999, twenty-four-year-old Holstead began living as a

      tenant in sixty-nine-year-old Peggy Seger’s home


[3]   On Friday, December 3, 1999, Holstead left work and began partying with

      friends. Later that evening when his friends had turned in for the night,

      Holstead went to the liquor store where he met with a prostitute. To pay for the

      prostitute’s services, Holstead bought her crack cocaine. Holstead used the

      crack cocaine with the prostitute and another stranger who was with them

      named Weathers. Realizing he was “out of money,” (2011 3 App. at 29),

      Holstead told the other two he lived with Seger, who had gold and was




      1
          Ind. Code §§ 35-42-1-1 (1997), 35-41-2-4 (1977).
      2
          Ind. Code §§ 35-41-5-1 (1977), 35-42-5-1 (1984), 35-41-2-4 (1977).
      3
       We acknowledge that this case has been in process for more than sixteen years, but the disorganized nature
      of the record presented on Appeal has greatly hindered our review. We recommend, in the future, that
      parties prepare appendices in accordance with Indiana Appellate Rules 50 and 51. Herein, we refer to
      Appellant’s Appendix from his 2011 appeal as “2011 App.” and any references to a transcript refer to the
      transcript of the sentencing hearing held on February 6, 2001.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017            Page 2 of 10
      probably sleeping, so “they’d probably be able to get in and get it and then get

      back to the house and get more rock.” (Id. at 30.)


[4]   Holstead and the others proceeded to Seger’s house, and Holstead entered with

      his key. Holstead and Weathers went upstairs and “fiddled around” in

      Holstead’s room in hesitation. (Id. at 37.) Finally, Weathers told Holstead to

      “get this going.” (Id.) Holstead asked Weathers what to do if Seger woke up,

      and Weathers told Holstead to “grab a pillow and throw it over her face or

      something.” (Id.) The two proceeded to Seger’s bedroom. Seger was in bed

      asleep, but she awoke suddenly as they came in. Holstead “jumped on top of

      her and strangled her” with his hands. (Id. at 38.) Seger struggled against

      Holstead, but eventually she stopped.


[5]   Meanwhile, Weathers went through Seger’s dresser drawers. After Seger

      stopped struggling, Weathers handed Holstead a telephone, and Holstead

      wrapped the cord around Seger’s neck, although he knew she was already dead.

      Seger then fell off the bed. Holstead then reached for a pocketknife, but later

      testified he could not remember why. (Id. at 42.) An autopsy revealed Seger

      suffered stab wounds prior to her death by strangulation. Afterward, Holstead,

      Weathers, and the prostitute used silver coins and jewelry from Seger’s room to

      buy crack cocaine, which they consumed together.


[6]   Seger’s live-in boyfriend, Dennis Jenks, returned to Seger’s home the next

      morning around 7:00 a.m. after a night shift of work. When he returned, the

      front door to the house was ajar, and he found Seger’s bedroom had been


      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017   Page 3 of 10
      ransacked and the contents of the drawers had been dumped on the floor and

      bed. Jenks called the police. Police arrived shortly thereafter and found Seger’s

      body on the floor underneath a pile of clothing by the bed.


[7]   Holstead returned to Seger’s house around 11:00 a.m. and asked what was

      happening. Holstead initially told police he had not been back to the house

      since leaving for work on Friday, December 3. Holstead indicated he began

      partying after work and returned to his father’s house to sleep. Police contacted

      Holstead’s father who informed police he had been up until 4:30 a.m. that night

      and had not seen Holstead.


[8]   Holstead consented to a search that would allow police to test his clothing

      stains, his fingernail scrapings, and his hair samples. The stains on Holstead’s

      clothing tested positive for human blood. When police notified Holstead of the

      test results, Holstead changed his story of the prior night’s events. Holstead

      told the police he led Weathers and the prostitute to Seger’s house to steal

      money and gold jewelry, but Weathers strangled Seger, while Holstead stood by

      and watched.


[9]   On December 6, 1999, the State charged Holstead with murder and Class A

      felony attempted robbery. On September 29, 2000, Holstead pled guilty to

      murder and attempted robbery. The court entered judgment and conviction on

      the murder count and took the attempted robbery plea under advisement to

      decide whether that conviction could be entered as a Class A felony.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017   Page 4 of 10
[10]   On February 6, 2001, the trial court held a sentencing hearing. The court heard

       statements from Holstead, Holstead’s father, Seger’s children, and counsel.

       Holstead expressed the following to Seger’s family at the sentencing hearing:

               I want to tell you from the bottom of my heart that I’m sorry. I
               can’t feel what you’re feeling or what you’ve felt from this, but I
               will tell you that I’m hurting. I’m haunted in my dreams at
               night, and I probably will be for the rest of my life. I’m sorry. I
               wish I could take this all away and give you back your mother,
               because I did like her, and she was my friend. I never thought
               that I’d be capable of doing what I’ve done. But what is done is
               done, and I have confessed, and will be held accountable.


       (Tr. at 55.) The court entered a conviction of Class C felony attempted robbery

       in addition to the previously-entered conviction of murder. The court found as

       a mitigator Holstead’s difficult childhood involving physical, verbal, and sexual

       abuse from a very young age, but noted Holstead “became an adult” and had

       the responsibility to take control of his actions. (Id. at 63.) The court rejected

       Holstead’s argument that his being under the influence of crack cocaine when

       he committed the crime was a mitigator, reasoning although “crack cocaine

       [and] alcohol [were] are greatly contributing factors” to the crime “[Holstead]

       did the drugs, and he let the drugs get hold of him” which led to the crime. (Id.

       at 64.) Lastly, the court found as a mitigator Holstead’s remorse and

       willingness to accept responsibility for his actions by pleading guilty.


[11]   The court found as a “profound” aggravator the fact Holstead murdered Seger

       in her bedroom, “the most private” room of her home. (Id. at 65-66.) The

       court found as an even “greater” aggravator the fact that Holstead was not a

       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017   Page 5 of 10
       stranger, but someone to whom Seger graciously “extended her hospitality.”

       (Id.) The court noted Seger “allow[ed] him the intimacy of her home, and

       [Holstead] transgressed that most profoundly.” (Id.) The court found Seger’s

       being over the age of sixty-five and “an unprotected single woman in that

       house” as additional aggravators. (Id. at 67.) Lastly, the court found the

       manner in which the murder was committed was an aggravator, noting the

       murder was “simply atrocious,” “terrible,” and undoubtedly created “terror and

       excruciating pain for the victim.” (Id. at 68.) The court concluded “the

       aggravators far outweigh[ed] the mitigators.” (Id.) The court sentenced

       Holstead to maximum terms of sixty-five years for murder and eight years for

       attempted robbery, to be served consecutively for an aggregate sentence of

       seventy-three years. 4



                                     Discussion and Decision
[12]   Holstead asserts his seventy-three-year sentence is inappropriate. Holstead

       admits “the crimes he committed were deplorable” and makes no argument

       regarding the nature of the offenses as they relate to his sentence. (Appellant’s

       Br. at 9.) Holstead instead argues his character alone warrants a lower

       sentence.




       4
           On July 25, 2016, the court granted Holstead permission to file a belated notice of appeal.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017              Page 6 of 10
[13]   Under Indiana Appellate Rule 7(B), we may revise a sentence if, after due

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

       in light of the nature of the offense and the character of the offender. Williams v.

       State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Revision of a sentence under

       Rule 7(B) requires the appellant to demonstrate his sentence is “inappropriate in

       light of both the nature of the offenses and his character.” Williams v. State, 891

       N.E.2d 621, 633 (Ind. Ct. App. 2008) (emphasis original to Williams). Because

       Holstead failed to present any argument regarding the nature of his offenses, he

       has waived our review of the inappropriateness of his sentence. See Sanders v.

       State, No. 02A04-1608-CR-1903, 2017 WL 727194 at *2 (Ind. Ct. App. Feb. 24,

       2017) (holding issue waived where appellant failed to present any authority or

       analysis on the nature of his offense).


[14]   Waiver notwithstanding, Holstead has failed to persuade us his seventy-three-

       year sentence is inappropriate. The advisory sentence is the starting point for

       determining the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d

       482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (2007). The statutory

       range for a murder sentence was forty-five to sixty-five years, with the

       presumptive 5 sentence being fifty-five years. Ind. Code § 35-50-2-3 (1995). The

       statutory range for Class C felony robbery was two to eight years, with the

       presumptive sentence being four years. Ind. Code § 35-50-2-6 (1996).




       5
         Prior to 2005, Indiana used “presumptive” sentences, which were standard sentences prescribed by the
       legislature for a given crime. Harris v. State, 897 N.E.2d 927, 928 (Ind. 2008).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017           Page 7 of 10
[15]   We assess the trial court’s recognition or nonrecognition 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). We

       consider not only the aggravators and mitigators found by the trial court, but

       also any other facts appearing in the record. Roney v. State, 872 N.E.2d 192, 206

       (Ind. Ct. App. 2007), trans. denied. Our review is deferential to the trial court’s

       decision, and our goal is to determine whether Holstead’s sentence is

       inappropriate, not whether some other sentence would be more appropriate.

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant

       bears the burden of demonstrating his sentence is inappropriate. Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[16]   In support of his argument, Holstead points to his “sincere remorse” for the

       crimes he committed, his acceptance of responsibility for his actions by

       pleading guilty, and his extremely troubled childhood. (Appellant’s Br. at 9-

       10.) Both the State and the trial court acknowledged the sincerity of Holstead’s

       remorse at the sentencing hearing. However, as the State correctly points out,

       while Holstead expressed remorse for his crimes and pleaded guilty, he only did

       so after realizing the State had built a strong evidentiary case against him. The

       record reflects Holstead initially lied to police. He first denied being at Seger’s

       home at all on the evening of December 3 and early morning of December 4,

       and he told police he had been at his father’s house. When his story was not

       corroborated by his father and the police found physical evidence of the murder

       on Holstead’s clothes, Holstead changed his story and implicated Weathers as


       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017   Page 8 of 10
       being the individual who strangled Seger. It was not until months after

       Holstead’s initial statements that he pleaded guilty to murdering Seger himself.


[17]   Despite Holstead’s initial denial of the crimes he committed, we note the trial

       court found Holstead’s remorse and guilty plea to be mitigating factors it took

       into consideration in sentencing him. However, the court found “profound

       aggravation” in that Holstead (1) murdered a woman who offered hospitality to

       him, and (2) murdered Seger by strangling her in her bedroom. (Tr. at 66-68.)

       We agree with the trial court that this was a terrorizing and atrocious crime. As

       the trial court noted, “the fear of every citizen is having their home invaded,”

       especially their bedroom invaded. (Id. at 66.) We cannot say the trial court

       inappropriately accorded these aggravating factors more weight than it

       accorded to the mitigator of Holstead’s remorse.


[18]   With regard to Holstead’s difficult childhood, we note the trial court also

       considered this as a mitigating factor. The trial court noted the sympathy it had

       for “a small child who was being abused in his family.” (Id. at 63.) However,

       while the court was sympathetic towards Holstead for the pain he suffered as a

       child, the court accorded this factor limited weight, noting Holstead “grew up”

       and had a responsibility as part of our society to not use his troubled past as an

       excuse to harm others. (Id. at 63-64.) We agree. While we acknowledge the

       negative impact Holstead’s tragic childhood undoubtedly had on him, Holstead

       committed an extremely egregious crime in murdering Seger. As the trial court

       found, this far outweighs any redeeming aspects of Holstead’s character.

       Holstead thus has not persuaded us that his sentence is inappropriate. See

       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017   Page 9 of 10
       Spitler v. State, 908 N.E.2d 694, 697 (Ind. Ct. App. 2009) (finding the nature of

       the defendant’s offense was so unique and egregious that it substantially

       outweighed any positive aspects of his character).



                                               Conclusion
[19]   In sum, having failed to present any argument regarding the nature of his

       offenses, Holstead has waived Appellate Rule 7(B) review. Waiver

       notwithstanding, in light of Holstead’s character and the undisputed nature of

       his offenses, we conclude his sentence is not inappropriate. Accordingly, we

       affirm.


[20]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1820 | April 4, 2017   Page 10 of 10
