The Indiana Court of Appeals heard oral arguments today in the appeal of a Cromwell teen convicted in 2010 for his role in a murder.
Paul H. Gingerich, now 14, was just 12 years old when he was convicted for the 2010 shooting death of Philip Danner. Also convicted was Colt Lundy, Danner’s stepson. Lundy was 15 at the time of the shooting.
Through a plea agreement, Gingerich pleaded guilty to conspiracy to commit murder, a Class A felony, with charges of murder and aiding or causing murder being dismissed.
The Papers Inc. Reporter Deb Patterson, who has been following this story, has this report from the hearing:
By DEB PATTERSON
Was Paul Henry Gingerich competent in April 2010? Was the court lied to by a
court official in the waiver hearing?
Those two questions are among those now being considered by State Appeals Court Justices John G. Baker, Elaine B. Brown and James S. Kirsch.
Oral arguments as to whether Gingerich’s conviction in Kosciusko County Circuit Court should or should not be upheld, and whether the case should be remanded back to juvenile court for the process to proceed again, was heard this morning in Indianapolis. The hearing was available via a live webcast.
Monica Foster, Indianapolis, argued on behalf of Gingerich while Angela Sanchez represented the state’s position that the appeal should be dismissed.
Throughout the 20 minutes each side was given to present its case, the justices threw out questions, sometimes appearing to be in favor of granting the appeal, other times asking “what if’s” or for information not already provided.
Justice Baker cautioned those watching and attending the argument not to presume
the judge’s position based on statements and questions asked. He stated his questions and comments are presented to “stimulate discussion” in the case.
In her presentation, Foster held up the 90-page transcript of the trial court’s hearing saying it took the clerk three months to type the material. “In contrast, Paul H.
Gingerich’s defense had five days to prepare for his waiver hearing.”
Foster also stated Gingerich was incompetent to stand trial and said, “I’m secure in my position” that Gingerich would “remain in the juvenile system.”
During a discussion to show proof of incompetency, Foster motioned with her to indicate Gingerich’s height, but Baker interjected that a person’s height did not “determine competency.”
“If it’s remanded, he will likely be a 16-year-old,” said Justice Kirsch noting there would be different factors to consider that were not relevant when he was 12. “We can’t put the ball where it should have been,” he stated adding the youth “may face murder charges again.”
Foster further presented to the justices information that chief officer of Kosciusko County’s probation department, Ron Babcock, “lied to the courts” and the information he provided was false.
Babcock allegedly stated juvenile facilities would release Gingerich after turning 18 without treatment or further rehabilitation, when in fact the department of corrections can hold a juvenile until the age of 21. Foster further said Babcock testified that juvenile laws offer no effective rehabilitation which was the court’s rationale to waive Gingerich to adult court.
Justice Brown did ask if the defense had an opportunity to cross examine the
witness. Foster stated that while they did, they had only five days to prepare and they were overwhelmed, “I would have been,” Justice Brown responded.
Foster pointed out there are 17 locked and secure facilities in the state that will accept a juvenile accused of homicide. When Gingerich was received by the Indiana Department of Corrections, they stated they could not send him to an adult facility, instead sent him to a juvenile facility, “where he is receiving rehabilitation and doing terrifically.”
Foster’s final comment was that the case was “mistake ridden from the beginning.”
In closing, Foster stated repeatedly the defense sought continuances prior to the waiver hearing and at the waiver hearing, but were denied. When the case went to adult court, a motion to dismiss was filed and denied. When new counsel stepped in, the issue of due process was raised stating the adult court had no jurisdiction. That matter was also dismissed.
An interlocutory appeal was denied. She stated this is why the parents accepted the plea agreement, however, she added the fact all parties involved signed the agreement was an indication there was a problem with the case.
Foster claimed the IDOC was watching the case and it was out of the graces of
their hearts not to put him in an adult facility, but place him at a juvenile facility — Pendleton.
When Sanchez had her turn to represent the state’s side, it almost appeared as if the justices reprimanded her in pursuing the fact Gingerich waived his right to an appeal through the plea agreement.
Sanchez stated there was no reason for the courts to believe Gingerich was ever incompetent and when questioned by Justice Brown if 90 days is standard before a
waiver hearing and if there was a rush judgment made, Sanchez stated it varies
from case to case and county to county. But, she cited the state statute that says
if a defendant over the age of 10 commits murder it is presumed juvenile court is inadequate and the individual should be waived to adult court.
Sanchez added there is no record of transcript from the hearing or probable cause represented at the waiver hearing. It was noted that the judge was looking at the
presumptive waiver before him and the safety and welfare of the community.
She argued the judge used caution when accepting the plea agreement, which was signed by his two attorneys and both parents, by making sure the boy did understand proceedings and the plea agreement.
Sanchez argued this matter should have gone through the post conviction process and is confident the ruling is iron clad based on the best evidence. She also noted Babcock provided information at the hearing “to the best of his knowledge” and said despite Foster’s insistence there are facilities that would take Gingerich, Foster has not shown where that facility is and added, “We have not learned if he would meet all the admission requirements.”
Justice Brown asked Sanchez if the judge failed to order competency findings which Sanchez replied, “If the judge had reason to believe he was incompetent it is his duty to order. There was no evidence before the court, there was a lot of evidence he was competent.”
While Sanchez was asked for any case law supporting the state’s position, and not providing any, she was asked if he was treated as an adult. She responded that extra steps were taken to treat him as a juvenile in an adult court and the trial judge went over every question in the matter in detail with those details provided in writing.
However it was noted that the questions asked required a “yes” or “no” response and not a request to have the defendant explain what he understood.