Colt Lundy’s motion to modify his sentence for conspiring to kill his stepfather in 2010 was denied Friday, but he will enter home detention almost nine months early.
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, who will be 24 in April, 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.
A hearing was held Oct. 4 before Kosciusko County Superior Court I Judge David Cates on Lundy’s petition to modify the rest of his jail sentence – a little over a year – from prison to home detention. It was Lundy’s second motion to modify his sentence; Cates denied the first in 2016.
During the Oct. 4 hearing, Kosciusko County Chief Deputy Prosecutor Brad Voelz suggested to Cates that the court may not have jurisdiction to modify Lundy’s sentence. Cates gave the state 10 days to file a brief and for the defense to respond, which they did by 11:59 p.m. Oct. 14.
Cates’ order said Lundy’s motion to modify his sentence was denied, except that he will be permitted to serve the remaining executed portion of his sentence from and after March 15, together with any period of probation, through Kosciusko County Community Corrections (KCCC). If for any reason Lundy would no longer qualify for Community Corrections, he would be returned immediately to the custody of the sheriff to be transfered back to the Indiana Department of Corrections (IDOC) for the remainder of his sentence.
Home detention through KCCC will be a term of Lundy’s probation, which will begin Dec. 1, 2019, and continue for five years.
During the Oct. 4 hearing, the KCCC director said she would accept Lundy into the program.
The sentence was modified by Cates on the condition that Lundy have no further disciplinary issues or conduct reports as reported by IDOC.
Lundy’s attorney, David Kolbe of Warsaw, said Friday, “We consider this a successful outcome. The court granted our motion to modify the sentence effective March 1, 2019.”
In Cates’ order, he noted that upon review of Lundy’s progress report from IDOC, the court has no reason to doubt Lundy has successfully completed every program available to him through IDOC. Lundy also had no disciplinary issues at IDOC since Oct. 31, 2012; has been a model prisoner; and has no other pending charges.
At the Oct. 4 hearing the state alleged the court was without jurisdiction to modify the sentence, contending 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 nonviolent felony, Lundy still may only file with prosecutor consent. And the state alleged that the court may not modify the sentence to community corrections. Kolbe said that on all points the state erred in its interpretation and application of the cited statutes.
Regarding Lundy’s guilty plea of conspiracy to commit murder being a crime of violence, Kolbe contended “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 said “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.
In his order, Cates agreed with Kolbe that the offense of conspiracy to commit murder is not listed as a violent crime by the Indiana legislature.
He also said the Sept. 1, 2010, guilty plea provided the court with a range of sentencing options that does not preclude Friday’s modification.
Cates said Indiana code does authorize the court to sentence a defendant to alternative sentencing at the time of sentencing and allows it to modify a sentence order and suspend or impose a different sentence “that the court was authorized to impose at the time of sentencing.”
He wrote that while the court questioned Lundy’s contrition, members of Danner’s family have accepted Lundy’s apologies and expressions of remorse.
