KOSCIUSKO COUNTY — Documents providing arguments against and for Colt Lundy’s sentence modification have been filed by both parties. The state filed its eight-page brief Tuesday, Oct. 9, with the defense filing its nine-page document Sunday, Oct. 14.
Special Judge David Cates, Kosciusko Superior Court 1, who took the matter under advisement Oct. 4, will review the two documents and make a ruling in the near future. Lundy is due to be released from the Indiana Department of Corrections in May 2020. He was sentenced on a charge of conspiracy to commit murder in September 2010 to 25 years in IDOC with five additional years to be served on probation. Through successful completion of programs and good behavior, his sentence has been reduced to 9 1/2 years
On Oct. 4, Colt Lundy requested a sentence modification to allow the remainder of his prison term to be served on home detention. The state argued at that time he was not eligible according to state statute. The judge then gave the state 10 days to file arguments stating its position, with the defense 10 days to file arguments in its position.
J. Brad Voelz, chief deputy prosecutor, is requesting the court deny Lundy’s second motion to modify his sentence and to require him to complete his original sentence at the Indiana Department of Corrections and to order him committed to the Kosciusko County community corrections/home detention as a condition of probation after his release.
The state’s “memorandum of law” notes there are two issues. Can a trial court sentence an eligible defendant to a community corrections program as an alternative to the department of corrections only at the time of sentencing pursuant to Indiana Code 35-28-2.6-3 and is the defendant barred by statutory “time and frequency” limitations from seeking sentence modification absent prosecutor consent pursuant to IC 35-38-1-17.
Voelz argues the court has no jurisdiction over Lundy’s motion to modify sentence and during the hearing, Lundy stated repeatedly he was not seeking a modification of sentence but a modification of placement. Voelz argues the distinction is important as the state statute controls community corrections placement at the time of the original sentencing hearing. He further argues all appropriate sentencing alternatives were available to the court at the sentencing hearing. Additionally, Voelz notes the modification of placement Lundy has requested is contrary to law.
Regarding the second question raised, Voelz notes the state statute states only non-violent 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. 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.
The state’s argument is the “conspiracy to commit murder is a combination of the conspiracy statute and the murder statute … 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 limitation for ‘violent criminals.’”
Voelz also states a number of facts why the court should deny his request, noted during the hearing: killing his stepfather who raised him since he was 5, in the victim’s home with the victim’s gun, violated a position of trust, the killing was premeditated, enlisting the help and providing a gun to Paul Gingerich who was 12, his inability to apologize in person to his family and the victim impact statements.
David Kolbe, attorney for Lundy, states in each of its legal arguments the state contradicts both the governing statues and case law and the court does have the jurisdiction to both consider and to grant the modification 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 … .”
Kolbe notes there is nothing more Lundy can do at IDOC as he has participated in every program available to him and he has honored his plea agreement and chose not to appeal it, unlike his co-defendant Gingerich.
He notes his client’s motion to modify is lawful and the court has jurisdiction to modify his sentence for the remaining 13 months to local community corrections. Additionally he argues the charge of conspiracy to commit murder, by law for the purpose of the sentencing modification statue, is not defined as a violent felony. He sites several case laws addressed by the Indiana Supreme Court.
Additionally Kolbe argues the law does allow Lundy to apply for sentence modification without the state’s consent. He notes a subsection of the state code cited by the prosecution states a convicted person who is not a violent criminal may file a petition for sentence modification not more than once in any 365 day period and a maximum of two times during any consecutive period of incarceration. He notes the Indiana Supreme Court has succinctly addressed the proper method for statutory interpretation and cites the case law.
Kolbe’s final argument addresses the court’s authority to modify the sentence. He notes the statute authorizes the court to elect to alternative sentencing at the time of sentencing but a subsection of IC 35-38-1-17 states the court may reduce or suspend the sentence and impose a different sentence that the court was authorized to impose at the tie of sentencing.
Kolbe further provides arguments on “substantive merits” highlighting statements Lundy made during his March 24, 2016, and the Oct. 4 hearings such as “I can’t apologize enough,” “I can’t take it back” “I know how many people this has affected. I wish nobody had to go through all this,” and excerpts from a letter he wrote to his stepsister and read in court.