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Old 04-01-2009, 12:27 PM   #1
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Angry Nebraska man who struck and killed 2 people near Pine Ridge gets 51 months in prison

This is the link to the Rapid city journal and story...

Rapid City Journal | News Top | Neb. man who struck and killed two people near Pine Ridge gets 51 months in prison


A Nebraska man who drove drunk and struck two pedestrians so hard he literally knocked them out of their shoes and socks has been sentenced to four years in federal prison for the crime.

Timothy Hotz, 61, Rushville, pleaded guilty to one count of involuntary manslaughter for killing Robert Whirlwind Horse, 23, of Manderson and Calonnie Randall, 26, of Wanblee. The two were killed Aug. 27 as they walked alongside the highway between Pine Ridge and Whiteclay, Neb. Both were sober.

According to court documents, investigators believe Hotz's car was traveling between 41 and 52 mph at the time.

"The defendant hit them so hard he blew them right out of their shoes, their socks and their pants," Assistant U.S. Attorney Mara Kohn said during Monday's sentencing in U.S. District Court. "Then, he left."

Hotz drove home after the collision. He has said he did not remember the accident but "knew something terrible had happened" when he woke up the next morning to find long strands of human hair caught in the windshield wipers of his car. Hotz then called police.

In exchange for his guilty plea, one count of involuntary manslaughter was dropped, although court officials said both deaths were taken into account at sentencing.

But John Whirlwind Horse, Robert's father, asked U.S. District Judge Karen Schreier to reject the plea agreement and order a trial.

Whirlwind Horse characterized his son's death as "premeditated murder," saying Hotz should have known what could happen. Hotz has three drunken driving convictions and admits driving during at least one other alcoholic blackout.

"He's only sorry he got caught," Whirlwind Horse said. "It's a bad brokered deal, and we're caught on the wrong end of it."

According to Hotz's family, friends and defense attorney Gary Colbath, Hotz has been an upstanding citizen for most of his life. He served on the Rushville school board and was active in his church and community. From 1982 to 2000, he owned the Whiteclay Grocery, one of few business owners in the tiny border town who chose not to sell alcohol because of the problems it caused for nearby Pine Ridge Indian Reservation residents.

But Colbath said things changed when Hotz sold the store, divorced for the second time and began drinking heavily. Hotz received three misdemeanor convictions for driving under the influence of alcohol between 2003 and 2006 but did not undergo alcohol treatment until last fall.

Colbath asked Schreier to consider sentencing Hotz to probation.

"I think Tim Hotz is a man who will punish himself for the rest of his life," far more than the court could, Colbath said. "Punishing him is not going to bring anybody back."

But Whirlwind Horse's family said punishment was needed, partly to set a precedent for future cases.

"How many times did he get away?" with driving drunk, asked Monica Whirlwind Horse, Robert's mother. "We're not going to stop (the problem) until we start saying 'enough is enough.'"

Kohn agreed, asking Schreier to sentence Hotz to the maximum of eight years.

Kohn said Hotz's criminal history does not accurately reflect the danger he poses to the public. He was arrested for DUI in 2004 after driving on the wrong side of the road going about 65 mph, forcing oncoming cars to pull off the road to avoid collision.

Hotz spent a total of five days in jail for his three previous DUI convictions, despite the fact that the third offense should have been a felony punishable by two years in prison.

"He's the one that chose to drink and drive," she said. "And drink, and drink, and drive some more."

Hotz apologized for his actions, telling his family and friends and the victims' families "how sorry I am for the pain and the shame I've caused everyone for the past five years."

Hotz said he has turned his life over to God.

"No matter what happens to me, ... Robert and Calonnie cannot be brought back," he said. "I'm so sorry for that."

Hotz then turned to face an elderly woman seated in a wheelchair in the audience, saying, "Mom, you should never have to (go) through this. I'm sorry."

Both John Whirlwind Horse and Schreier noted that Hotz faced his mother to apologize but not Whirlwind Horse's parents.

"They're the ones that lost their son," Schreier told Hotz. "That's what you have to make right through the rest of your life."

Schreier ordered Hotz to serve 51 months in federal prison and three years of probation. He will also have to pay restitution to the victims' families.

Randall's family did not attend the sentencing. Survivors include her six children, ages 2 to 11.

State penalties harsher for traffic fatalities

Had Timothy Hotz not been on the Pine Ridge Indian Reservation when he struck and killed two pedestrians last August, he could have faced much stiffer penalties. Here's why:



Felonies that happen on a reservation and involve a Native American are charged in U.S. District Court. Hotz is white, but victims Robert Whirlwind Horse and Calonnie Randall were both Native. Because there is no vehicular homicide charge in federal court, drunken drivers involved in fatal accidents are typically charged with involuntary manslaughter. The maximum penalty for involuntary manslaughter was six years in prison until January 2008, when it increased to eight years in prison, according to a court official.
Had Randall and Whirlwind Horse been walking a few hundred yards farther south, across the Nebraska border, Hotz would have faced a mandatory minimum of one year in prison with a maximum of 20 years in prison upon conviction for each count of vehicular homicide, according to Nebraska state Web sites.
Under South Dakota state law, vehicular homicide is punishable by 15 years in prison upon conviction.


Contact Heidi Bell Gease at heidi.bell@rapidcityjournal.com or 394-8419.






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