No Decision In Lundy Sentence Modification Request
No Decision In Lundy Sentence Modification Request
Posted
David Slone-dslone@timesuniononline.com
No Decision In Lundy Sentence Modification RequestColt Lundy’s request to modify his prison sentence to home detention in connection with the murder of his stepfather in 2010 may depend on whether or not the court has the authority to do so.
Near the end of the hearing Thursday on Lundy’s petition to modify his sentence, Kosciusko County Chief Deputy Prosecutor Brad Voelz told Superior Court I Judge David Cates that he would research legislative intent behind the specific words used in state statutes and consider filing a brief.
According to the prosecutor’s office after the hearing, no brief in opposition to the modification was filed prior to the hearing because the motion Lundy filed was titled “Motion to Modify Sentence.” He and 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.
The Indiana codes cited were 35-38-2.6-3 and 35-38.2.6-1.
When Cates raised the state’s jurisdictional issue with Lundy’s defense attorney, David Kolbe, Kolbe suggested the court has that authority, but if Voelz wanted to file the motion and “go down that road, we can.”
Cates gave the state 10 days to file a motion. The defense would have an opportunity to file its response. Until then, Cates said, he would take everything under advisement and did not render a decision Thursday on Lundy’s petition.
Under a plea agreement in September 2010, Lundy was sentenced for conspiracy to commit murder to 30 years with the final five years suspended for probation. Two other felony counts of murder and aiding, assisting or inducing a murder were dismissed. His release date would have been April 2035.
With good time, educational and other credits, Lundy has reduced his prison time to 9-1/2 years with an expected release date of Dec. 1, 2019. He wants to serve the last year of his prison sentence on home detention with his mother, who still lives in the Cromwell home where Lundy and Paul Gingerich shot and killed Lundy’s stepfather, Phillip Danner, on April 20, 2010. Lundy, 23, was 15 at the time and Gingerich was 12. A third boy, Chase Williams, 12, sat outside of the home during the murder. Lundy and Gingerich were waived to adult court.
Gingerich, now 20, was released last year after spending seven years in prison. He will be under 24-hour electronic monitoring until 2019 and court supervision until 2020.
Thursday’s hearing began with Lundy taking the stand and answering Kolbe’s questions.
Lundy said he began his prison sentence at 15 years old at Wabash Valley Correctional Facility. He then was moved to Pendleton for over two years before “leveling down” and transferring to Westville Level 1. Leveling down is when a person serving time has not had any misconduct and earns additional privileges.
During his sentence, he earned his GED, completed anger management and several other programs. He started working toward a college degree at Wabash and eventually earned an associate’s degree. He got into a physical wellness program and has become physically fit. Lundy said he’s completed every program in the Department of Corrections that he could.
To Danner’s family, who were sitting in the gallery behind the prosecutor’s table, Lundy said, “I know that the loss I caused is irreplaceable. There’s nothing I can do to ever make up for it or fix it. The only thing I can do is better myself so when I do get released, I can use my circumstances to help young juveniles or whoever to avoid similar circumstances.”
He talked about how growing up in prison has turned him into someone who wants to do good. He’s seen how rough prison can be, but he has managed to avoid gangs, drugs and other trouble. He also doesn’t have any tattoos.
“I’m sorry for dragging you through this whole mess,” Lundy told Danner’s family.
He said he wasn’t asking for a reduction in his sentencing, but to transition to home detention. In response to Kolbe’s questions, he agreed he would live with his mother and gain lawful employment.
As for goals, Lundy said he’d like to become a personal trainer first and then get his bachelor’s degree in an area like kinesiology to get into the field of physical fitness.
The world has changed since Lundy first went to prison. By transitioning to home detention, he said it would provide him with structure so he can get out in the world and be an adult.
“I don’t know how to deposit a check, apply for a job or use a smartphone. I need and want the structure home detention would give me so I can ease back into society,” he said.
Lundy also said he’s never thought of repeating the mistake that got him into prison in the first place. “I can’t tell you what was going on at the time. It was a horrible, terrible decision that I can’t retract,” he said.
Voelz reminded Lundy that he shot Danner twice with Danner’s own gun in Danner’s living room. One shot went through Danner’s eye and out the back of his head, and Voelz asked Lundy if that was his shot. Lundy said he couldn’t say.
Voelz also asked Lundy why he killed the man he called his dad. Lundy said it was just a spur-of-the-moment action of a kid who didn’t understand the repercussions of his actions at the time.
The two also got into a disagreement over whether Lundy recruited Gingerich and Williams to help him kill Danner. Lundy said he didn’t recruit anyone, but Voelz said if it hadn’t been for Lundy the two 12-year-olds wouldn’t have taken part.
There also was some discussion on a “major sexual misconduct” Lundy received Oct. 31, 2012, for telling another inmate that he thought the female guard was hitting on him.
Anna Bailey, director of Kosciusko County Community Corrections, testified next for the defense and said Lundy was “above standard than most in the prison system.” She said KCCC would accept Lundy to its program, believed he would be successful and didn’t have any concerns at this time. Responding to a question from Voelz, she said one little concern might be that Lundy would be living in the same house where Danner was killed.
After Voelz handed out copies of an impact statement from Danner’s sister to Cates and Kolbe, Danner’s daughter Natasha Hoffman took the stand and gave a statement. It was her first time testifying in the case.
She said she’s written several letters over the years concerning the death of her father. She said Lundy never really sincerely apologized to her. She thanked him for doing so Thursday.
“I can’t say he’s ever done that before. It seemed like he never had any remorse,” she said.
Hoffman said she was 24 and a mother of a 1-1/2-year-old boy when her father was killed. She had already lost her mother to cancer. As a young parent with no adults to turn to for advice, she said it was difficult.
As a kid, she said Lundy knew if he hit someone there would be consequences, so “you can’t tell me that a 15-year-old didn’t understand there’d be repercussions if you killed someone.”
She said her now-10-year-old son knows what happens and has asked her why Lundy killed her dad. “I don’t have an answer for him. What do you say?”
Hoffman said her son is afraid for her if Lundy is let out. While he might not do it again if he gets out, she said she also wouldn’t say it would never happen again.
While in prison, she said Lundy did what he’s supposed to do – get an education, participate in programs. But she said he shouldn’t be rewarded for doing things he was supposed to do in the first place.
“He killed my dad and that fact will never change,” she said.
Kolbe called Lundy back to the stand to read a letter to Hoffman that Lundy had written Sept. 9. In it, he said he was “truly sorry” for what he did and that Hoffman had been a role model he looked up to. He said he didn’t write the letter for her consent of his sentence modification, but to apologize.
“I do not know what you think of me, but I assure you I am not a cold-hearted monster,” he said.
He acknowledged he could never replace what he took, but he will try to do better.
“I truly am sorry, Natash,” it concluded.
Since the letter was written Sept. 9, Voelz questioned the sincerity of it right before the hearing.
In his rebuttal, Kolbe said that since former Judge Rex Reed assigned him the case in 2010, Lundy has continued to stay on the path he’s on and improve himself. He said Lundy has done everything he can to reform and it takes immense work for anyone, especially a young person like Lundy, to accomplish what Lundy has.
Cates told Kolbe he never saw or heard Lundy turn to the family and say “I’m sorry.”
After bringing up the issue of the court’s authority, Voelz talked about how Lundy at his original sentencing spoke of taking every class offered and doing what he could to get as much time of his sentence shaved off as possible. Voelz said he didn’t want to diminish what Lundy accomplished, but Lundy has accomplished what he set out to do and his 25-year jail term has been reduced to 9-1/2 years and “now he wants more time off. He’s asking for extra credit he has not earned and doesn’t deserve,” he said.
Kolbe said Lundy did apologize to Hoffman and he has expressed his remorse and regret to the community, families and the public. He said Lundy understands what he’s done.
“He’s not asking for a reduction in his sentence, just another location to finish it out,” Kolbe concluded.
