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

• Court: Indiana Court of Appeals
• Decided: January 21, 2021
• Docket: 20A-CR-1610
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1610 | January 21, 2021 Page 1 of 7 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 Court of Appeals of Indiana | Memorandum Decision 20A-CR-1610 | January 21, 2021 Page 2 of 7 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1610 | January 21, 2021 Page 3 of 7 [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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1610 | January 21, 2021 Page 4 of 7 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.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1610 | January 21, 2021 Page 5 of 7 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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1610 | January 21, 2021 Page 6 of 7 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

[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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