Defense Files Response To State’s Brief In Lundy Case
October 15, 2018 at 3:51 p.m.
Defense Files Response To State’s Brief In Lundy Case
By David [email protected]
A hearing was held Oct. 4 before Kosciusko County Superior Court I Judge David Cates on Lundy’s petition seeking to modify the rest of his jail sentence – a little over a year – from prison to home detention.
This was Lundy’s second motion to modify his sentence; the first was denied by Cates in 2016.
The state filed its brief Tuesday explaining why it doesn’t believe the court has jurisdiction to modify Lundy’s sentence. Kolbe had until 11:59 p.m. Sunday to respond to the state’s brief.
[[In-content Ad]]
Lundy and Paul Gingerich, then 15 and 12 respectively, shot and killed Lundy’s stepfather, Phillip Danner, in Danner’s Cromwell 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.
In his response to the state’s brief filed Tuesday, Kolbe said the hearing Oct. 4 was the first time the state alleged that the court was without jurisdiction to modify the sentence, for three reasons.
First, the state contended Colt’s conviction of conspiracy to commit murder is for a violent felony and a sentence modification may only be filed with prosecutor consent. Second, the state asserted that if Colt’s conviction is for a non-violent felony, Lundy still may only file with prosecutor consent. And third, Kolbe said the state alleges that the court may not modify the sentence to community corrections.
“On all points the state errs in its interpretation and application of the cited statutes,” Kolbe write. ?“Colt’s motion to modify is lawful and the court has jurisdiction to modify his sentence for the remaining 13 months to local community corrections.”
Regarding Lundy’s guilty plea of conspiracy to commit murder being a crime of violence, Kolbe contends “the argument rests upon the false premise that the conspiracy conviction is defined as a violent crime.” He says the charges of murder and aiding and inducing murder against Lundy and Gingerich were forever dismissed pursuant to the plea agreement. “By law, conspiracy to commit murder, for purposes of the sentencing modification statute, is not defined as a violent felony.”
Violent felonies are listed as murder, attempted murder, voluntary manslaughter, involuntary manslaughter, reckless homicide, aggravated battery, kidnapping, rape, criminal deviate conduct, child molesting, sexual misconduct with a minor, robbery and unlawful possession of a firearm by a serious violent felon.
Kolbe says “conspiracy to commit” any of those listed crimes is not “definitionally” included and the law doesn’t support the state’s interpretation that conspiracy to commit any of the listed crimes should be considered equivalent to the crime itself.
“Clearly, the conspiracy conviction is a separate and distinct crime and not defined as a violent crime. Thus the state’s consent is unnecessary before the court may modify the sentence,” Kolbe says.
He also argues the law allows Lundy to apply for sentence modification without the state’s consent because a “non-violent felon is entitled, at any time during his or her sentence, to file a petition to modify the sentence as long as the petition is at least 365 days apart from a previous petition. Additionally, there can be only two petitions filed within the period of the sentence without prosecutor consent.” He states that the state’s interpretation of “time and frequency” of requesting sentence modification is erroneous and contradicts Indiana code.
Kolbe’s response states the statutory language is clear that Lundy was entitled to file a maximum of two petitions to modify sentence within the term of the sentence, regardless of when, as long as the two were filed at least 365 days apart. His first was filed Dec. 28, 2015, and the second was filed July 2, 2018.
On the state’s argument that the court lacks the jurisdiction to modify the sentence to home detention, Kolbe said it errs in its assessment of the substance of the statute. He says Indiana code authorizes the court to elect to alternative sentencing at the time of sentencing. While the state contends this means the court can never modify sentence to an alternative placement after sentencing, Kolbe said that’s flawed because Indiana code states “the court may reduce or suspend the sentence and impose a different sentence that the court was authorized to impose at the time of sentencing.”
Kolbe also says the state erroneously contends that Lundy did not apologize in person to the Danner family as Lundy did so on three occasions.
The first time was at his sentencing hearing as a 15-year-old boy on Sept. 27, 2010; the second time was at his first modification hearing on March 24, 2016; and the third time was at his hearing Oct. 4, 2018, when Lundy read a letter in open court written Sept. 9, 2018, to Danner’s daughter Natasha. The contents of those apologies are included in Kolbe’s response.
Kolbe says the state alleges Lundy exhibited an “inability, despite prompting, to apologize in person to his family.” Kolbe says that assertion is “plainly and simply untrue. Colt apologized at every court proceeding in this case. ... Colt’s remorse and acceptance of complete responsibility for his actions are beyond dispute.” The letter to Natasha also “represents the very thing expected of one imprisoned for wrongdoing: reformation.”
In the conclusion of his brief, Kolbe states that each of the state’s legal arguments contradicts the governing statutes and case law. He says the court has the jurisdiction to consider and to grant a modification of Colt’s sentence.
“Colt Lundy has shown complete remorse and reformation during his time in the Indiana Department of Correction. He has unreservedly accepted responsibility for his actions and has never sought to excuse them or blame anyone else. He has, furthermore, unreservedly apologized to the Danner family for his actions,” Kolbe states.
He says Lundy has done everything in the IDOC that he can do and has honored his plea agreement and not appealed it, unlike Gingerich. Gingerich’s conviction was reversed and he was granted home detention in July 2017, Kolbe points out.
Finally, Kolbe argues, “This court has the authority to modify Colt’s sentence, and in keeping with the Indiana Constitution and statutory authority, Colt requests that the remaining 13 months of his sentence be modified to home detention with Kosciusko County Community Corrections for which he has been approved by Director Anna Bailey.”
Latest News
E-Editions
A hearing was held Oct. 4 before Kosciusko County Superior Court I Judge David Cates on Lundy’s petition seeking to modify the rest of his jail sentence – a little over a year – from prison to home detention.
This was Lundy’s second motion to modify his sentence; the first was denied by Cates in 2016.
The state filed its brief Tuesday explaining why it doesn’t believe the court has jurisdiction to modify Lundy’s sentence. Kolbe had until 11:59 p.m. Sunday to respond to the state’s brief.
[[In-content Ad]]
Lundy and Paul Gingerich, then 15 and 12 respectively, shot and killed Lundy’s stepfather, Phillip Danner, in Danner’s Cromwell 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.
In his response to the state’s brief filed Tuesday, Kolbe said the hearing Oct. 4 was the first time the state alleged that the court was without jurisdiction to modify the sentence, for three reasons.
First, the state contended Colt’s conviction of conspiracy to commit murder is for a violent felony and a sentence modification may only be filed with prosecutor consent. Second, the state asserted that if Colt’s conviction is for a non-violent felony, Lundy still may only file with prosecutor consent. And third, Kolbe said the state alleges that the court may not modify the sentence to community corrections.
“On all points the state errs in its interpretation and application of the cited statutes,” Kolbe write. ?“Colt’s motion to modify is lawful and the court has jurisdiction to modify his sentence for the remaining 13 months to local community corrections.”
Regarding Lundy’s guilty plea of conspiracy to commit murder being a crime of violence, Kolbe contends “the argument rests upon the false premise that the conspiracy conviction is defined as a violent crime.” He says the charges of murder and aiding and inducing murder against Lundy and Gingerich were forever dismissed pursuant to the plea agreement. “By law, conspiracy to commit murder, for purposes of the sentencing modification statute, is not defined as a violent felony.”
Violent felonies are listed as murder, attempted murder, voluntary manslaughter, involuntary manslaughter, reckless homicide, aggravated battery, kidnapping, rape, criminal deviate conduct, child molesting, sexual misconduct with a minor, robbery and unlawful possession of a firearm by a serious violent felon.
Kolbe says “conspiracy to commit” any of those listed crimes is not “definitionally” included and the law doesn’t support the state’s interpretation that conspiracy to commit any of the listed crimes should be considered equivalent to the crime itself.
“Clearly, the conspiracy conviction is a separate and distinct crime and not defined as a violent crime. Thus the state’s consent is unnecessary before the court may modify the sentence,” Kolbe says.
He also argues the law allows Lundy to apply for sentence modification without the state’s consent because a “non-violent felon is entitled, at any time during his or her sentence, to file a petition to modify the sentence as long as the petition is at least 365 days apart from a previous petition. Additionally, there can be only two petitions filed within the period of the sentence without prosecutor consent.” He states that the state’s interpretation of “time and frequency” of requesting sentence modification is erroneous and contradicts Indiana code.
Kolbe’s response states the statutory language is clear that Lundy was entitled to file a maximum of two petitions to modify sentence within the term of the sentence, regardless of when, as long as the two were filed at least 365 days apart. His first was filed Dec. 28, 2015, and the second was filed July 2, 2018.
On the state’s argument that the court lacks the jurisdiction to modify the sentence to home detention, Kolbe said it errs in its assessment of the substance of the statute. He says Indiana code authorizes the court to elect to alternative sentencing at the time of sentencing. While the state contends this means the court can never modify sentence to an alternative placement after sentencing, Kolbe said that’s flawed because Indiana code states “the court may reduce or suspend the sentence and impose a different sentence that the court was authorized to impose at the time of sentencing.”
Kolbe also says the state erroneously contends that Lundy did not apologize in person to the Danner family as Lundy did so on three occasions.
The first time was at his sentencing hearing as a 15-year-old boy on Sept. 27, 2010; the second time was at his first modification hearing on March 24, 2016; and the third time was at his hearing Oct. 4, 2018, when Lundy read a letter in open court written Sept. 9, 2018, to Danner’s daughter Natasha. The contents of those apologies are included in Kolbe’s response.
Kolbe says the state alleges Lundy exhibited an “inability, despite prompting, to apologize in person to his family.” Kolbe says that assertion is “plainly and simply untrue. Colt apologized at every court proceeding in this case. ... Colt’s remorse and acceptance of complete responsibility for his actions are beyond dispute.” The letter to Natasha also “represents the very thing expected of one imprisoned for wrongdoing: reformation.”
In the conclusion of his brief, Kolbe states that each of the state’s legal arguments contradicts the governing statutes and case law. He says the court has the jurisdiction to consider and to grant a modification of Colt’s sentence.
“Colt Lundy has shown complete remorse and reformation during his time in the Indiana Department of Correction. He has unreservedly accepted responsibility for his actions and has never sought to excuse them or blame anyone else. He has, furthermore, unreservedly apologized to the Danner family for his actions,” Kolbe states.
He says Lundy has done everything in the IDOC that he can do and has honored his plea agreement and not appealed it, unlike Gingerich. Gingerich’s conviction was reversed and he was granted home detention in July 2017, Kolbe points out.
Finally, Kolbe argues, “This court has the authority to modify Colt’s sentence, and in keeping with the Indiana Constitution and statutory authority, Colt requests that the remaining 13 months of his sentence be modified to home detention with Kosciusko County Community Corrections for which he has been approved by Director Anna Bailey.”
Have a news tip? Email [email protected] or Call/Text 360-922-3092