Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1447| September 28, 2016 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Frederick Vaiana 

Voyles Zahn & Paul 

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Taiwan Lundy,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff. 

September 28, 2016

Court of Appeals Case No. 

49A04-1509-CR-1447

Appeal from the Marion Superior 

Court 

The Honorable Mark D. Stoner, 

Judge 

Trial Court Cause No. 

49G06-1311-FA-72474

Brown, Judge.
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[1] Taiwan Lundy appeals his sentence for twenty-nine convictions in connection 

with an extended home invasion. Lundy raises one issue which we revise and 

restate as whether the trial court abused its discretion in sentencing him. We 

affirm. 

Facts and Procedural History

[2] At approximately 5:00 a.m. on October 24, 2013, Adrian Anthony, Trae Spells, 

Michael Pugh, and Lundy broke into a home in Indianapolis belonging to R.N. 

and B.N. One of the men entered the bedroom and held R.N. and B.N. at 

gunpoint, and the other men grabbed their cell phones and ransacked the house, 

taking anything of value including jewelry, purses, a vase containing coins, 

cologne, watches, electronics, DVD players, an iPod, and televisions. 

[3] The men demanded money, and R.N. indicated their money was in the bank. 

One of the men fired a gun within a foot of R.N.’s head, shooting the wall. 

R.N. identified his debit card and wrote down his pin code so the men could 

use the ATM, and one of the men drove B.N.’s Jeep to an ATM. The men at 

the house stated that, if the man who went to the ATM was unable to obtain 

money, they were going to kill R.N. and B.N. The man who went to the ATM 

returned and stated “[t]hey lied. It didn’t work. The pin code didn’t work” and 

“[l]et’s shoot them.” Transcript at 69, 219. 

[4] The men took R.N. and B.N. from the bedroom to a living room, ordered them 

to their knees, and placed a pillow over their heads. R.N. and B.N. believed 

they were going to be shot at that point. The men kicked R.N. in the head, and 
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R.N. pleaded with the men until they agreed to take him to the ATM. R.N. 

drove Anthony, who held R.N. at gunpoint, to the ATM. R.N. attempted to 

withdraw money, but was unsuccessful because access to his account had been 

locked due to the number of unsuccessful prior attempted transactions, and 

Anthony stated “[y]ou lied to me again. You guys are dead. You are dead 

absolutely.” Id. at 79. R.N. told Anthony that B.N. had a separate account 

with a separate debit card, Anthony agreed to retrieve B.N.’s debit card, and 

R.N. drove back to the house. While Anthony and R.N. were traveling to and 

from the ATM, the other men removed televisions from the walls. One of the 

men forced B.N. to lay on the floor with a blanket over her head, rubbed her 

back, butt, and breasts, and stated that “if he had a condom he would rape [her] 

but he didn’t want his DNA inside” her. Id. at 229. 

[5] After R.N. and Anthony returned to the house, Anthony forced B.N. at 

gunpoint to drive him to the ATM. There, B.N. attempted to withdraw $800 

but it did not work, and then she successfully withdrew $500. B.N. then 

unsuccessfully attempted to make additional withdrawals. Anthony told B.N. 

to tell the other men that she was able to withdraw only $400. Meanwhile, as 

Anthony and B.N. were traveling to and from the ATM, Spells asked R.N. for a 

passcode to a computer, which R.N. did not provide. R.N. was tied up with an 

orange extension cord, and Spells and Lundy struck R.N. with an iron urn, 

shattered a glass vase on his head, hit him in the head with a pizza stone, and 

punched him in the face. 
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[6] Anthony and B.N. arrived back at the house, the men bound B.N. with a rope 

or cord and duct tape, and one of the men wrapped a cord around B.N.’s neck 

and “touched [her] vagina really forcefully.” Id. at 247. The men struck R.N. 

and B.N. on their heads severely and repeatedly with a DVD player, and the 

blows were so forceful that B.N. at first thought she had been shot. The men 

loaded items into R.N. and B.N.’s Jeep and Subaru. Spells initially attempted 

to drive the Subaru but did not know how to drive a manual transmission, and 

he left the vehicle against a light post in the front yard of the house. After the 

men left, R.N. and B.N. removed their restraints, ran to a neighbor’s house, and 

called 911. The police discovered the Jeep and recovered some of the stolen 

items. 

[7] The State, in an amended charging information, alleged Lundy, Anthony, 

Spells, and Pugh committed burglary as a class A felony, conspiracy to commit 

burglary as a class A felony, three counts of robbery as class B felonies, eleven 

counts of criminal confinement as class B felonies, two counts of intimidation 

as class C felonies, attempted robbery as a class B felony, thirteen counts of 

forgery as class C felonies, conspiracy to commit forgery as a class C felony, 

sexual battery as a class C felony, criminal deviate conduct as a class A felony, 

three counts of battery as class C felonies, and two counts of carjacking as class 

B felonies. Anthony, Pugh, and Lundy were tried together, and Spells testified 

that he entered a plea agreement, that his understanding was that he could be 

sentenced to fifty to eighty years, and that he agreed to testify in this case. The 

jury was given an instruction on accomplice liability. The jury found Lundy 
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guilty on thirty counts and not guilty on one count of battery as a class C 

felony, the State dismissed nine counts, and the court merged the conviction for 

conspiracy to commit burglary with the conviction for burglary. Ultimately, 

judgments of conviction were entered on the following: burglary as a class A 

felony under Count 1; robbery as class B felonies under Counts 3, 4, and 28; 

criminal confinement as class B felonies under Counts 10, 22, 23, 26, 27, and 

37; attempted robbery as a class B felony under Count 11; forgery as class C 

felonies under Counts 12 through 21 and 29 through 31; conspiracy to commit 

forgery under Count 32; battery as class C felonies under Counts 33 and 38; and 

carjacking as class B felonies under Counts 39 and 40. 

[8] At sentencing, Lundy’s counsel elicited testimony from Lundy’s mother that 

she attempted to convince Lundy to testify but that “he was scared of the 

repercussions and the fact that he’s going to have to do all these years in jail 

with these same people and he doesn’t want it to come back on him and he 

doesn’t want anything to come back on his sisters in the street.” Transcript at 

978. Lundy’s counsel argued in part: 

I would ask the Court to take into consideration, uh, Mr. Spells’ 

sentence; and he did cooperate, he received a 70-year sentence 

from my understanding, based upon his cooperation. But I think 

Mr. Lundy is even differently, differently situated from Mr. 

Spells, and the Court saw what Mr. Spells was all about first 

hand when he came into court and testified in this case. Um. By 

all accounts, Mr. Spells maybe not an overt admission, but by all 

accounts Mr. Spells was the, was the individual who was 

responsible for tying Ms. Nowak up, um, who was responsible 

for the unspeakable things that were done to her, that, that, you 
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know, will never be forgotten and she’ll have to deal with for the 

rest of her life. And that individual received a 70-year sentence. . 

. . 

But we’re asking for a fifty-year sentence, and in mitigation, we’d 

ask the Court to consider Mr. Lundy’s relevant youth at the time 

of the occurrence of this case; his mental health issues. I believe 

that he has addiction issues. I think he’s had addiction issues 

since birth. Um. His youth and his upbringing which in the 

beginning he was an adopted child, and I think that’s clear from 

the presentence investigation report.

The aggravators are also clear. He does have some, some 

criminal history, as his mom testified to. However, that criminal 

history pales in comparison to what he’s looking at here today 

and what he’s been convicted of. And he, and he knows that. 

One last thing, Your Honor, Mr. Lundy is not making a 

statement of allocution, but in some respects, he made a 

statement, or made his statement of allocution to the community 

when he went, when he went on with Fox 59 and gave his 

statement of apology and sorrow for his actions. 

Id. at 999-1002. The court asked whether Spells received seventy years in this 

case or in all cases, and the prosecutor responded that the sentence “was a 

combination” and “[h]e got forty years on this case and thirty on the Court 

Four case.” Id. at 1004. 

[9] The trial court later stated: 

Now, as to Mr. Lundy, Court notes as mitigating circumstances, 

as I indicated earlier, that substance abuse evaluation and 

treatment, mental health evaluation and treatment, as the 

presentence report makes clear that the defendant was adopted, 

was born with Fetal Alcohol Syndrome. Unlike the other 

defendants, he was not involved in the College Avenue matter. 
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The defense did cite that he is relatively young. The Court, 

however, given his, the length of his criminal history which I’ll 

go into in just a minute, and noted that all of the other 

defendants are also relatively young age, Court doesn’t find that 

to be a significant mitigating circumstance.

In terms of aggravating circumstances for Mr. Lundy’s criminal 

history, Court notes that his first referral was when he was 

thirteen for minor misdemeanor offenses. Most significant 

juvenile matter then occurs in 2007 with a theft true finding that 

would have been a D felony if committed by an adult given an 

opportunity to be placed on probation. . . . Indicated that he has 

had a number of opportunities to receive treatment in the juvenile 

system and for whatever reason was unsuccessful with that. He 

had a second true finding in 2010 at the age of seventeen for a 

theft which would have been a felony if committed by an adult.

Also had a criminal mischief in terms of destruction of property 

in 2010 which would have been a misdemeanor. . . . But the 

defendant was over the age of eighteen when he committed theft 

under the cause number in Court 15 under the cause number 

ending in 738. Disposition for that was in June of 2011. He had 

a felony conviction for that. Given an opportunity to be placed 

on probation. His probation was revoked. He was sent to the 

Department of Correction and was released from the Department 

of Correction and had only been out from the Department of 

Correction for five or six months when these offenses occurred.

So, those are the individual aggravating and mitigating 

circumstances as it relates to each defendant. Court notes as an 

overall aggravating circumstance as the State of Indiana 

indicated, that this was [a] significant crime in the sense that it 

involved the sanctity of the home, and done at a time in which 

individuals would have been expected . . . in the home, and the 

Court believes on the facts and circumstances that it was clear the 

defendants knew that, counted on that, and yet invaded the home 
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anyway. But having gone into the home, that they were engaged 

in a significant act of terror as to the victims in this case. . . . 

[Y]ou guys did more than steal. You brutalized, you terrorized, 

you victimized them in ways that were just absolutely 

unnecessary for obtaining property, which is what you were after. 

. . . The violence that you did, the sexual activity you did wasn’t 

necessary. It just simply wasn’t necessary and it creates a greater 

aggravating circumstance than most burglaries and that is true for 

each and every one of you. 

Mr. Lundy’s attorney has asked for consideration and the Court 

will be giving consideration in the sense that one, he wasn’t 

involved in the College Avenue case. Two, that he has a less 

significant criminal history. But the bottom line is, is that, the 

Court can’t give you a significant mitigating circumstance 

because you didn’t cooperate, because you didn’t do what Mr. 

Spells did. Even when Mr. Spells lied, and he clearly did, about 

some of the things that happened in the case, he still came 

forward and decided to do something in terms of the right thing 

to do. And if you had only listened, Mr. Lundy, to your mother 

and your attorney, your sentence would have been significantly 

different than what it is. Because everyone really deserved to 

know exactly what happened. And between Mr. Spells, and you 

Mr. Lundy, we might have been able to sift out who was 

cheating in terms of their own involvement, and be able to figure 

out who exactly did what. 

But because you didn’t come forward, because you chose to 

honor the code of lawbreakers instead of honoring the code of 

doing the right thing in terms of telling the truth, you sit here and 

you’re going to get a significant sentence that you otherwise 

wouldn’t have gotten. And that’s a tragedy for you, but that’s the 

choice you made. You choose to run with these guys, you 

choose to stay with these guys, and not do the right thing. And 

so, the Court wanted to address you specifically because that 

doesn’t – your co-defendants aren’t in that category.
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Id. at 1016-1018, 1020-1022. 

[10] The court sentenced Lundy to forty years on Count 1; ten years on Counts 3, 4, 

10, 11, 22, 23, 26, 27, 28, 37, 39, and 40; and four years on Counts 12 through 

21, 29 through 33, and 38. The court ordered that Counts 1, 3, 12, 33, 38, and 

39 be served consecutively and that all other counts be served concurrently, for 

an aggregate sentence of seventy-two years.1 

Discussion

[11] The issue is whether the trial court abused its discretion in sentencing Lundy. 

We review the trial court’s sentence for an abuse of discretion. Anglemyer v. 

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 

2007). An abuse of discretion occurs if the decision is clearly against the logic 

and effect of the facts and circumstances. Id. 

[12] Lundy asserts the trial court abused its discretion when it impermissibly 

punished him for exercising his constitutional rights to a trial by jury and 

freedom from self-incrimination. Lundy argues that the court’s comments at 

his sentencing hearing, “if allowed to stand, hauntingly chill the exercise of 

these core constitutional principles” because, “as affirmatively stated by the trial 

court to Lundy, should an accused choose to exercise one or both of these 

rights,” the “consequences of doing so will result in a significantly greater 

 

1 The court sentenced Pugh and Anthony to aggregate terms of eighty-eight years and ordered that the 

sentences be served consecutive to the sentences they received for their participation in the College Avenue 

case. 
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sentence than if he had not elected to proceed to jury trial and/or had elected to 

forfeit his right against self-incrimination.” Appellant’s Brief at 15-16. Lundy 

argues that the trial court’s statements “plainly and affirmatively outline that he 

received a harsher sentence than he otherwise would have had he not elected to 

exercise his basic constitutional rights to a trial by jury and to be free from selfincrimination.” Id. at 18. 

[13] Lundy states that he “is mindful of the benefits of plea bargaining” and “agrees 

that it is constitutionally sound for a defendant to receive leniency at sentencing 

in consideration for a decision to bargain with the state and correspondingly 

utilize less resources of the parties and the courts,” but that “[t]he problem 

presented at [his] sentencing is the fact that the trial court affirmatively outlined 

its reasons for imposing a harsher sentence upon him,” “[t]hose reasons 

principally being he exercised his right to a trial by jury along with Pugh and 

Anthony and elected not to testify against them.” Id. at 19-20. Lundy argues 

this court could exercise its authority under Ind. Appellate Rule 7(B) and 

impose a sentence it feels is appropriate, could remand the case for 

resentencing, or could remand the case for resentencing with directions, and he 

asks this court to consider a sentence of fifty years as a realistic starting point in 

fashioning a remedy to the issues presented regarding his sentencing. 

[14] The State maintains that the court did not abuse its discretion in sentencing 

Lundy to an aggregate sentence of seventy-two years, that the law requires 

courts to consider cooperation with the State and guilty pleas as mitigating 

circumstances at sentencing, and that here the court did not punish Lundy for 
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failing to assist the police or for demanding a jury trial but instead explained 

that a significantly mitigated sentence, such as the sentence Spells received for 

cooperating and testifying, was not merited because Lundy did not cooperate. 

The State argues that the trial court’s statements were made in direct response 

to Lundy’s arguments that he should be given a shorter sentence than Spells 

because of his lesser involvement, that as such the court was commenting on 

Spells’s entitlement to mitigation for cooperating and pleading guilty and was 

not suggesting Lundy was being punished for exercising his constitutional 

rights, and that these issues only became relevant because Lundy asked the 

court to consider Spells’s sentence in fashioning Lundy’s sentence. The State 

also asserts that Lundy does not present any significant indicia that the court 

enhanced his sentence to punish him for exercising his right to a jury trial or 

right against self-incrimination, that nothing in the court’s statement indicates it 

was holding Lundy’s decision to go to trial against him, and that Lundy 

concedes that it is constitutionally sound for a defendant to receive leniency at 

sentencing in consideration for a guilty plea. 

[15] The Indiana Supreme Court has observed that it is improper to rely on a 

defendant’s maintaining his innocence as an aggravator and that a defendant’s 

constitutional privilege against self-incrimination protects him from having to 

confess to the police. Angleton v. State, 686 N.E.2d 803, 816 (Ind. 1997), reh’g 

denied. Further, it is constitutionally impermissible for a trial court to impose a 

more severe sentence because the defendant has chosen to stand trial rather 
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than plead guilty. Hill v. State, 499 N.E.2d 1103, 1107 (Ind. 1986) (citing Walker 

v. State, 454 N.E.2d 425, 429 (Ind. Ct. App. 1983), trans. denied). 

[16] The Court has further observed that “[t]he propriety of using leniency to 

encourage guilty pleas, however, has also been upheld.” Id. (citing Gajdos v. 

State, 462 N.E.2d 1017, 1025 (Ind. 1984) (stating a defendant who enters a 

guilty plea “has extended a substantial benefit to the state and deserves to have 

a substantial benefit extended to him in return” and that “when the defendant 

proceeds to trial and his accomplice pleads guilty, the sentences need not be 

identical”) (citations omitted)). Further, a defendant who pleads guilty deserves 

to have mitigating weight extended to the guilty plea in return, and the 

significance of this mitigating factor will vary from case to case, based in part 

on the benefit extended to the State or the victim. Francis v. State, 817 N.E.2d 

235, 238 (Ind. 2004). 

[17] In Hill, the Court stated that, while leniency in sentencing is constitutionally 

permissible as an incentive for an otherwise proper plea of guilty, a more severe 

sentence may not be imposed upon a defendant because he foregoes the 

opportunity to plead guilty and exercises his right to trial by jury. 499 N.E.2d 

at 1107. The Court stated that “[w]hether the severity of a particular sentence 

was improperly influenced by a defendant’s jury trial election requires an 

individualized consideration” and held that “[i]n the present case, we are not 

directed to, nor do we find, anything in the record indicating that the 

defendant’s decision to proceed with jury trial affected the severity of the 

sentence ultimately imposed.” Id. The Court noted that it did not “find any 
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indication that the trial judge was involved in the defendant’s plea negotiations, 

nor did the judge encourage the defendant to plead guilty, or threaten him with 

a more severe sentence if convicted following jury trial.” Id. The Court also 

noted that the trial court reviewed the facts of the case against the defendant’s 

substantial history of criminal activity and concluded that, “[a]bsent a 

significant indicia that the defendant’s exercise of his jury trial right may have 

contributed to the severity of his resulting sentence, we will not remand for 

resentencing upon this issue.” Id. 

[18] In Pauley v. State, Albert Pauley and Steve Phillips were at the home of Robert 

Patchett and, when Phillip Paul arrived, he was beaten and stabbed. 668 

N.E.2d 1212, 1213 (Ind. 1996). Pauley was found guilty of murder. Id. He

and Phillips received sixty years for their roles in the crime, and Patchett pled 

guilty and received thirty years. Id. On appeal, Pauley argued he was 

penalized for invoking his right to trial by jury. Id. The Court discussed Hill

and concluded that Pauley did not demonstrate that the trial court enhanced his 

sentence because he elected to go to trial. Id. 

[19] We observe that Lundy did not object to his sentence below on the basis that it 

represented punishment for maintaining his innocence or insisting on a trial by 

jury and does not argue or point to the record on appeal that the trial court was

involved in his plea negotiations, encouraged him to plead guilty, or threatened 

him with a more severe sentence if convicted following jury trial. We further 

observe that Lundy’s counsel asked the court to take Spells’s sentence into 

consideration and argued that Spells was the person responsible for the actions 
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against B.N. Lundy’s counsel requested that the court sentence Lundy to fifty 

years and asked it to consider Lundy’s relative youth, mental health, addiction 

issues, and expression to the community of his sorrow for his actions. In 

response, the court stated that “the bottom line” was that the court could not 

give Lundy “a significant mitigating circumstance” because he “didn’t do what 

Mr. Spells did.” Transcript at 1021. The court’s comments related to the 

reasons Spells could receive the sentence he received for his participation, 

namely, his guilty plea and cooperation extended a substantial benefit to the 

State. See Gajdos, 462 N.E.2d at 1025 (stating, “when the defendant proceeds to 

trial and his accomplice pleads guilty, the sentences need not be identical”). 

We further note that, as set forth in the record and in part above, the court 

identified aggravating and mitigating circumstances, which Lundy does not 

challenge, and explained its reasons for rejecting Lundy’s argument regarding 

his relative participation and for attributing little weight to certain mitigating 

circumstances advanced by his counsel. The court noted that Lundy was not 

involved in another matter which the other defendants had been involved, 

noted his age and why it did not find his relative age to be a significant

mitigating circumstance, reviewed his criminal history, and discussed the brutal 

nature of the offenses committed during the course of the home invasion. 

Conclusion

[20] Based upon the record, we conclude that Lundy has not demonstrated that the 

trial court enhanced his sentence for impermissible reasons and that it did not 
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abuse its discretion in imposing an aggregate sentence of seventy-two years for 

Lundy’s crimes. 

[21] For the foregoing reasons, we affirm Lundy’s sentence. 

[22] Affirmed. 

Baker, J., and May, J., concur.