State Files Brief In Lundy’s Motion To Modify Sentence
October 12, 2018 at 4:42 p.m.
State Files Brief In Lundy’s Motion To Modify Sentence
By David [email protected]
During the Oct. 4 hearing, Kosciusko County Chief Deputy Prosecutor Brad Voelz told Superior Court I Judge David Cates that the court may not have jurisdiction to modify Lundy’s sentence.
Voelz said he would research legislative intent behind the specific words used in state statutes regarding sentence modifications and consider filing a brief.
According to the prosecutor’s office, no brief opposing the modification was filed prior to the hearing because the motion Lundy filed was titled “Motion to Modify Sentence.” He and his defense attorney, David Kolbe, revealed at Thursday’s hearing – for the first time – that they are not asking the court to modify the sentence but only to modify Lundy’s placement: home detention instead of prison.
Kolbe said today he believes Voelz is wrong on the facts and the law and plans to file his brief prior to the 11:59 p.m. Sunday deadline.
This was the second motion to modify Lundy’s sentence; the first one was denied by Cates in 2016.
Lundy and Paul Gingerich, then 15 and 12 respectively, shot and killed Lundy’s stepfather, Phillip Danner, in Danner’s home on April 20, 2010. Lundy pleaded guilty to conspiracy to commit murder, a Class A felony, with charges of murder and aiding murder dismissed as part of the plea agreement. The court sentenced Lundy to the advisory 30 years at the Indiana Department of Corrections, with five years suspended to probation.
The state’s brief filed Tuesday says two issues were presented in the Oct. 4 hearing. The first question asked if a trial court can sentence an eligible defendant to a community corrections program as an alternative to IDOC only at the time of sentencing. The second asked if Lundy was barred by statutory “time and frequency” limitations from seeking sentence modification absent prosecutor consent.
On issue one, the state says the motion to modify Lundy’s sentence sets forth reasons modifications would be beneficial to Lundy and his preliminary acceptance into Kosciusko County Community Corrections. No authority providing the court jurisdiction is cited.
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During the hearing, the defendant stated repetitively that he was not seeking a modification of sentence but a modification of placement from IDOC to home detention. The state says the distinction is important because Indiana code controls community corrections placement. It states, “The court may, at the time of the sentencing, suspend the sentence (for eligible defendants) and order a person to be placed in a community corrections program as an alternative to commitment” to the DOC.
The state emphasized “at the time of sentencing.” It says the language of the statue authorizes a court to sentence a defendant to a community corrections program only at the time of the original sentencing hearing.
In Lundy’s case, the state says that neither the plea agreement nor the sentencing order anticipates or allows for sentence modification. But it also doesn’t prevent it.
The state says “Because jurisdictional authority was neither agreed to by the parties nor retained by the court, jurisdiction may only be resumed by the court to the extent allowed by statute or rule. The only statute or rule that would permit defendant’s requested remedy ... is Indiana Code 35-38-2.6-3, and that statute limits the court’s authority to elect this alternative to ‘the time of (original) sentencing.’”
Therefore, the state says, the modification of placement Lundy is requesting is contrary to law. The state objects to the defendant filing his motion as time and frequency barred.
On the second issue, the state says a court may always, if not prevented by specific plea agreement, modify a sentence from incarceration to probation for certain nonviolent criminals. If it does so, it may order specific conditions of probation, which might include community corrections and home detention.
Pursuant to Indiana code, nonviolent criminals may seek modification of sentence directly to the court one time within the first year after sentencing and one more time after that, absent prosecutor consent. Violent criminals may only seek modification one time within the first year and never again without prosecutor consent.
Those convicted of murder, attempted murder, voluntary manslaughter, involuntary manslaughter, reckless homicide, aggravated battery, certain sex crimes, robbery, burglary and unlawful possession of a firearm by a serious violent felon are included in the list of violent crimes. Conspiracy to commit murder is not specifically listed, but the state “nevertheless asserts that crime is a violent offense subject to the time and frequency limitation of the modification statute.”
The state’s brief indicates conspiracy is not a stand-alone crime in Indiana. It exists only when coupled with a stand-alone felony. Lundy was convicted of conspiracy to commit murder, and he has confessed more than once to killing Danner by his own hand. The state argues conspiracy to commit murder is a combination of the conspiracy statute and the murder statute and that the two are “indispensably interlocked.”
The state says, “The conspiracy statute’s compulsory reference to the murder statute – coupled with murder’s inclusion in the modification statute’s list of violent offenses – makes a conspiracy to commit murder subject to the statute’s procedural limitations for ‘violent criminals.’” To argue otherwise, the state says, would be absurd.
The state says there is no doubt that Lundy is a violent criminal. Because he is, and because his second motion to modify sentence was filed more than a year from his sentencing date, he may not file this motion without prosecutor consent. “For this defendant, at this time, in these circumstances, the State does not believe justice demands his early release and does not consent to the filing of the motion,” the state says.
The state encourages the court to deny Lundy’s motion, but gave appropriate credit to Lundy for his accomplishments during his incarceration. The state also asks the court to be mindful of the desires of the Danner family. The state advocates that Lundy should complete his original sentence as ordered.
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During the Oct. 4 hearing, Kosciusko County Chief Deputy Prosecutor Brad Voelz told Superior Court I Judge David Cates that the court may not have jurisdiction to modify Lundy’s sentence.
Voelz said he would research legislative intent behind the specific words used in state statutes regarding sentence modifications and consider filing a brief.
According to the prosecutor’s office, no brief opposing the modification was filed prior to the hearing because the motion Lundy filed was titled “Motion to Modify Sentence.” He and his defense attorney, David Kolbe, revealed at Thursday’s hearing – for the first time – that they are not asking the court to modify the sentence but only to modify Lundy’s placement: home detention instead of prison.
Kolbe said today he believes Voelz is wrong on the facts and the law and plans to file his brief prior to the 11:59 p.m. Sunday deadline.
This was the second motion to modify Lundy’s sentence; the first one was denied by Cates in 2016.
Lundy and Paul Gingerich, then 15 and 12 respectively, shot and killed Lundy’s stepfather, Phillip Danner, in Danner’s home on April 20, 2010. Lundy pleaded guilty to conspiracy to commit murder, a Class A felony, with charges of murder and aiding murder dismissed as part of the plea agreement. The court sentenced Lundy to the advisory 30 years at the Indiana Department of Corrections, with five years suspended to probation.
The state’s brief filed Tuesday says two issues were presented in the Oct. 4 hearing. The first question asked if a trial court can sentence an eligible defendant to a community corrections program as an alternative to IDOC only at the time of sentencing. The second asked if Lundy was barred by statutory “time and frequency” limitations from seeking sentence modification absent prosecutor consent.
On issue one, the state says the motion to modify Lundy’s sentence sets forth reasons modifications would be beneficial to Lundy and his preliminary acceptance into Kosciusko County Community Corrections. No authority providing the court jurisdiction is cited.
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During the hearing, the defendant stated repetitively that he was not seeking a modification of sentence but a modification of placement from IDOC to home detention. The state says the distinction is important because Indiana code controls community corrections placement. It states, “The court may, at the time of the sentencing, suspend the sentence (for eligible defendants) and order a person to be placed in a community corrections program as an alternative to commitment” to the DOC.
The state emphasized “at the time of sentencing.” It says the language of the statue authorizes a court to sentence a defendant to a community corrections program only at the time of the original sentencing hearing.
In Lundy’s case, the state says that neither the plea agreement nor the sentencing order anticipates or allows for sentence modification. But it also doesn’t prevent it.
The state says “Because jurisdictional authority was neither agreed to by the parties nor retained by the court, jurisdiction may only be resumed by the court to the extent allowed by statute or rule. The only statute or rule that would permit defendant’s requested remedy ... is Indiana Code 35-38-2.6-3, and that statute limits the court’s authority to elect this alternative to ‘the time of (original) sentencing.’”
Therefore, the state says, the modification of placement Lundy is requesting is contrary to law. The state objects to the defendant filing his motion as time and frequency barred.
On the second issue, the state says a court may always, if not prevented by specific plea agreement, modify a sentence from incarceration to probation for certain nonviolent criminals. If it does so, it may order specific conditions of probation, which might include community corrections and home detention.
Pursuant to Indiana code, nonviolent criminals may seek modification of sentence directly to the court one time within the first year after sentencing and one more time after that, absent prosecutor consent. Violent criminals may only seek modification one time within the first year and never again without prosecutor consent.
Those convicted of murder, attempted murder, voluntary manslaughter, involuntary manslaughter, reckless homicide, aggravated battery, certain sex crimes, robbery, burglary and unlawful possession of a firearm by a serious violent felon are included in the list of violent crimes. Conspiracy to commit murder is not specifically listed, but the state “nevertheless asserts that crime is a violent offense subject to the time and frequency limitation of the modification statute.”
The state’s brief indicates conspiracy is not a stand-alone crime in Indiana. It exists only when coupled with a stand-alone felony. Lundy was convicted of conspiracy to commit murder, and he has confessed more than once to killing Danner by his own hand. The state argues conspiracy to commit murder is a combination of the conspiracy statute and the murder statute and that the two are “indispensably interlocked.”
The state says, “The conspiracy statute’s compulsory reference to the murder statute – coupled with murder’s inclusion in the modification statute’s list of violent offenses – makes a conspiracy to commit murder subject to the statute’s procedural limitations for ‘violent criminals.’” To argue otherwise, the state says, would be absurd.
The state says there is no doubt that Lundy is a violent criminal. Because he is, and because his second motion to modify sentence was filed more than a year from his sentencing date, he may not file this motion without prosecutor consent. “For this defendant, at this time, in these circumstances, the State does not believe justice demands his early release and does not consent to the filing of the motion,” the state says.
The state encourages the court to deny Lundy’s motion, but gave appropriate credit to Lundy for his accomplishments during his incarceration. The state also asks the court to be mindful of the desires of the Danner family. The state advocates that Lundy should complete his original sentence as ordered.
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