Toby Allan Foster, the 27-year-old Winslow man who pleaded guilty to slaying his brother, Shane Sundance Foster, in 2002, will spend more than 20 years in the Arizona Department of Corrections (DOC) for the crime under the sentence Judge Tom Wing handed down Dec. 10.
Acting as the family representative, Afton Foster said that the situation was “twisted and uneasy.”
“We want you to know what a convincing liar Toby is, and how conniving he can be,” he explained. “This wasn’t an accident. He murdered my brother.”
Afton Foster related that each time Toby had gone to jail for a crime, he was worse after his release.
“We know you can’t lock him up forever, but we believe he will start again once released,” he said.
“These tears (shed by Toby Foster) aren’t real, they are a show we have seen many times. I don’t know how he could have done this to Shane. Shane was a ball of fire.
“The entire family is recommending the maximum sentence. He showed no mercy to Shane, so don’t show him mercy,” Afton Foster concluded.
Allen Foster, father to both Toby and Shane, was called as a witness, as he wanted to make a statement, but defense attorney Carolyn Holliday asked that he be sworn in as a witness instead.
Deputy County Attorney Dan Healy asked Allen Foster to explain the emotional harm caused by the death of his son, Shane.
“If the court had given him the death penalty, it wouldn’t have bothered me at all,” Allen Foster said.
“There are absolutely no words to reconcile the hugest transgression of my life,” said Toby Foster. “I don’t feel sorry for myself; I’m sorry for what I have done.”
He added that he had wanted to tell his family about the incident, but had been scared to do so.
“Not a day goes by that I don’t think about my brother,” he said.
Judge Wing said that he would consider two things as mitigating factors, that Toby Foster had finally taken responsibility for his actions, and that he had begun to understand the horrendous damage he had done to others.
As aggravating factors, Judge Wing considered the defendant’s four prior felony convictions and juvenile record, the fact that he was on parole supervision when the murder occurred, the fact that he hid and damaged evidence, the fact that he ran away and the fact that he took property from Shane’s residence after the murder, and both the emotional and financial harm caused to the family.
Toby Foster was sentenced to 21 years in the DOC, with credit for 251 days served, followed by a three year term of community supervision.
Hikers found Shane Foster’s decomposed body north of Winslow April 27, 2003. Forensic evidence was gathered, but due to the condition of the body, investigators were unable to determine a cause of death.
Toby Foster was arrested April 3 in Fort Smith Ark., as a fugitive from justice, and was extradited to Navajo County.
According to court papers, Toby Foster confessed to choking his brother to death, then burying the body in the Little Painted Desert north of Winslow. He then changed his appearance and fled the state.
In October, Foster reached a plea agreement with the Navajo County Attorney’s office. Under the agreement, Foster pleaded guilty to manslaughter. He was originally charged with first degree murder.