Thomas M. Kunberger v. State of Indiana ( 2015 )

Dec 02 2015, 7:34 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Allen Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas M. Kunberger, December 2, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1505-CR-304
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D06-1412-F6-495
Robb, Judge.
Case Summary and Issues
[1] Thomas Kunberger pleaded guilty to criminal confinement, a Level 6 felony;
strangulation, a Level 6 felony; and domestic battery, a Class A misdemeanor.
The trial court accepted Kunberger’s plea and sentenced him to two years and
183 days in the Indiana Department of Correction, with twenty-three days of
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credit for time served and two years suspended to probation. Kunberger now
appeals, raising two issues for our review: (1) whether his convictions for
criminal confinement, strangulation, and domestic battery violate double
jeopardy; and (2) whether his sentence is inappropriate in light of the nature of
the offenses and his character. Concluding Kunberger’s convictions do not
violate double jeopardy and his sentence is not inappropriate, we affirm
Kunberger’s convictions and sentence.
Facts and Procedural History
[2] On December 2, 2014, Officers Will Winston and Jonathan Horne of the Fort
Wayne Police Department were dispatched to Kunberger’s apartment to
investigate a report of domestic violence. When the officers arrived, Kunberger
was not present. S.C., Kunberger’s ex-fiancée, stated Kunberger had “placed
both of his hands around her neck and choked her” and “then lifted her up by
her throat and put her on a table holding her there.” Appendix of Appellant at
13 (Affidavit for Probable Cause). Afterward, Kunberger followed S.C. around
the apartment, “refusing to let her leave.” Id. Their children, ages two years
and eight months, were “sleeping in very close proximity.” Id.
[3] The State charged Kunberger with criminal confinement, strangulation, and
domestic battery, but the police were unable to find Kunberger until several
days after the incident. When Kunberger was finally located, he was arrested
and ordered to have no contact with the victim. He posted bond on December
16, 2014.
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[4] On March 17, 2015, the State filed a motion to revoke Kunberger’s bond after
he violated the no-contact order by attempting to make contact with S.C. at her
grandfather’s house. S.C.’s grandfather told police Kunberger had been outside
yelling, threatening to “start a war.” Id. at 42. When S.C.’s grandfather told
Kunberger to leave, Kunberger threatened to “bust him in the nose.” Id. Then,
Kunberger said he would kill S.C., her grandfather, and everyone else if the
police were called.
[5] The trial court granted the State’s motion to revoke Kunberger’s bond at a
hearing on March 23, 2015. When the trial court granted the motion,
Kunberger turned to S.C. and mouthed, “I’m going to f***ing get you.” Id. at
44. Thereafter, on March 27, 2015, the State filed an information alleging
Kunberger’s courtroom threat, in violation of the no-contact order, amounted
to contempt of court. On March 30, 2015, Kunberger pleaded guilty to
confinement, strangulation, and domestic battery. He pleaded open, without
the benefit of a plea agreement, and provided the following factual basis after
the trial court read the charging information:
[Court:] Do you understand the charges to which you are
pleading?
[Kunberger:] Yes Your Honor. . . .
[Court:] Do you understand by pleading guilty you are admitting
that you committed the crimes that you’re charged with?
[Kunberger:] Yes.
[Court:] Do you understand that by pleading guilty, you will be
found guilty and sentenced without a trial?
[Kunberger:] Yes.
***
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[Court:] Mr. Kunberger, how do you plead to Count I, Criminal
Confinement, a Level 6 Felony?
[Kunberger:] Guilty.
[Court:] And how do you plead to Count II, Strangulation, a
Level 6 Felony?
[Kunberger:] Guilty.
[Court:] How do you plead to Count III, Domestic Battery, a
Class A Misdemeanor?
[Kunberger:] Guilty.
[Court:] And what did you do that makes you guilty?
[Defense counsel:] If I could assist?
[Court:] Yes.
[Defense counsel:] Mr. Kunberger on December 2nd, 2014 were
you in Allen County, Indiana?
[Kunberger:] Yes.
[Defense counsel:] And on that date, that location did you
knowingly and intentionally confine another person, that being
[S.C.], without her consent?
[Kunberger:] Yes.
[Defense counsel:] The same date, the same location did you
knowingly and intentionally in a rude, angry manner apply
pressure to her neck which impeded her breathing?
[Kunberger:] Yes.
[Defense counsel:] Same date, same location did you also touch
[S.C.] in a rude, insolent or angry manner and you guys have a
child together?
[Kunberger:] Yes.
[Defense counsel:] And that resulted in bodily injury to her?
[Kunberger:] Yes.
Transcript of Guilty Plea Hearing at 7-8, 11-12. The trial court accepted
Kunberger’s plea, ordered a presentence investigation report, and scheduled a
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sentencing hearing. Prior to the sentencing hearing, the trial court held a
contempt hearing and found Kunberger in contempt.1
[6] At the sentencing hearing, the State introduced twenty-seven photographs
documenting S.C.’s injuries. The photographs are, in defense counsel’s own
words, “pretty graphic.” Transcript of Sentencing at 4. Defense counsel stated
Kunberger’s romantic relationship with the victim had ended, that “she was
seeing another guy,” and Kunberger “didn’t handle it well, obviously.” Id. at 5.
Kunberger’s mother testified her son was so “distraught” after the incident, she
had to take him to the hospital, where he was admitted to the psychiatric ward
for several days and diagnosed with bipolar disorder. Id. Kunberger admitted
he “messed up” and described the incident as “the biggest mistake of [his] life.”
Id. at 10.
[7] Defense counsel requested a fully suspended sentence, but the trial court
imposed an aggregate sentence of two years and 183 days in the Department of
Correction, with twenty-three days of credit for time served and only two years
suspended to probation. The trial court explained,
I do take as mitigating circumstances his remorse this morning
and the fact that he’s taken responsibility. However, that
remorse . . . is clouded by the fact that you’re sitting in custody
after I’ve already revoked your bond for threatening to kill . . .
the victim . . . . [T]here was a no-contact order in place[,] . . . put
1
The trial court sentenced Kunberger to 180 days for contempt, to be served consecutive to the sentence
imposed for confining, strangling, and battering the victim in this case. Kunberger does not challenge the
contempt finding. Brief of Appellant at 3.
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into place to protect the victim in this case[,] and you decide to
thumb your nose up at the Court, go over there and threaten to
kill. I take that seriously. Additionally, when we were here for a
hearing after I revoked your bond because I was afraid there was
some threat to the victim in this case, you decided to walk out
and pop off and I’m not going to repeat what you said because
it’s so highly offensive. . . . [A]ppreciating the fact that . . . there
probably is some mental illness going on, my first and foremost
priority in this courtroom this morning is to protect my
community or protect those that maybe can’t protect themselves.
I take these cases very seriously and I get that you’re sitting over
there crying and all remorseful, but when I look through these
photographs I—I cannot believe—I mean, I’m thankful . . . that
she doesn’t have some sort of long term . . . effects from this
battery and strangulation.
***
I don’t think I can trust you to get out of the DOC and not make
a beeline for the victim’s house based on what I’ve seen. So I’m
going to place you on probation . . . .
Id. at 11-12, 15. The trial court also noted Kunberger has an active warrant in
Florida for a probation violation and two prior misdemeanor convictions for
unlawful possession of alcohol and possession of marijuana. This appeal
followed.
Discussion and Decision
I. Double Jeopardy
A. Standard of Review
[8] Kunberger contends his convictions for confinement, strangulation, and
domestic battery violate the Double Jeopardy Clause of the Indiana
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Constitution, which provides, “No person shall be put in jeopardy twice for the
same offense.” Ind. Const. art. 1, § 14. Specifically, Kunberger argues his
convictions violate the actual evidence test announced in Richardson v. State, 717
N.E.2d 32 (Ind. 1999):
[T]wo or more offenses are the “same offense” in violation of
Article 1, Section 14 of the Indiana Constitution, if, with respect
to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense.
Id. at 49 (emphasis in original).
[9] We review whether multiple convictions violate double jeopardy de novo. Jones
v. State, 976 N.E.2d 1271, 1275 (Ind. Ct. App. 2012), trans. denied. To find a
double jeopardy violation under the actual evidence test, we must conclude
there is “a reasonable possibility that the evidentiary facts used by the fact-
finder to establish the essential elements of one offense may also have been used
to establish the essential elements of a second challenged offense.” Garrett v.
State, 992 N.E.2d 710, 719 (Ind. 2013) (quoting Richardson, 717 N.E.2d at 53).
Our supreme court has stated a “reasonable possibility” requires “substantially
more than a logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind.
2008).
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B. Confinement, Strangulation, and Domestic Battery
[10] Kunberger pleaded guilty to confinement, strangulation, and domestic battery
without the benefit of a plea agreement. The trial court accepted Kunberger’s
plea and entered judgment of conviction on all counts. Although Kunberger
“acknowledged the statutory definitions” of the offenses at the guilty plea
hearing, Kunberger maintains he did not “fully describe the situation,” meaning
the court had “little ability” to determine whether the same act was the basis for
all three offenses. Br. of Appellant at 9. Because Kunberger’s act of choking
S.C. could have been the basis for each of his convictions, Kunberger believes
this court must vacate his convictions for strangulation and domestic battery.
[11] Generally, when a defendant pleads guilty, he waives the right to challenge his
convictions on double jeopardy grounds. Mapp v. State, 770 N.E.2d 332, 334
(Ind. 2002). A defendant who enters a plea agreement to achieve an
advantageous position must keep the bargain, our supreme court has explained.
Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001). When a defendant pleads
guilty without the benefit of a plea agreement, however, this court has held
there is no waiver. Wharton v. State, No. 49A02-1502-CR-85, slip op. at 3 (Ind.
Ct. App. Aug. 26, 2015); Graham v. State, 903 N.E.2d 538, 540-41 (Ind. Ct.
App. 2009); McElroy v. State, 864 N.E.2d 392, 396 (Ind. Ct. App. 2007), trans.
denied.
[12] In Wharton, Graham, and McElroy, we could review the double jeopardy claims
based on the nature of the charges themselves. In Wharton, No. 49A02-1502-
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CR-85, slip op., the defendant was charged with (1) operating a vehicle while
intoxicated, a Class A misdemeanor; (2) operating a vehicle with an alcohol
concentration equivalent (“ACE”) of 0.08 to 0.15 grams, a Class A
misdemeanor; (3) operating a vehicle while intoxicated with a prior conviction,
a Level 6 felony; and (4) operating a vehicle with an ACE of 0.08 to 0.15 grams
with a prior conviction, a Level 6 felony. The defendant pleaded guilty without
the benefit of a plea agreement, and the trial court entered convictions on the
felony counts. We held the defendant could raise a double jeopardy claim and
that his convictions violated the actual evidence test because both offenses
plainly “arose from the same actions”—namely, consuming alcohol in excess
and then operating a vehicle. Id. at 4; cf. Ind. Code § 9-13-2-131 (providing
prima facie evidence of intoxication includes evidence the person had an ACE
of at least 0.08 grams).
[13] In Graham, 903 N.E.2d 538, the defendant faced seven counts, including one
count of unlawful possession of a firearm by a serious violent felon, a Class B
felony. The defendant pleaded guilty without the benefit of a plea agreement,
and the trial court entered convictions for unlawful possession of a firearm by a
serious violent felon, battery, resisting law enforcement, and failure to return to
lawful detention. The trial court also found the defendant to be an habitual
offender, based in part on a prior robbery conviction that was also used to
support his conviction for unlawful possession of a firearm by a serious violent
felon. See Ind. Code § 35-47-4-5 (2006) (defining unlawful possession of a
firearm by a serious violent felon). The trial court attached the habitual
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offender enhancement to the defendant’s sentence for unlawful possession of a
firearm by a serious violent felon. See Ind. Code § 35-50-2-8 (2005) (habitual
offender enhancement). We held the defendant had not waived his “double
enhancement” claim by pleading guilty and the trial court erred by using the
same underlying felony to support (1) the conviction for unlawful possession of
a firearm by a serious violent felon; and (2) the habitual offender finding used to
enhance the sentence on that count.
[14] Finally, in McElroy, 864 N.E.2d 392, the defendant was charged with operating
a vehicle with an ACE of at least 0.10 grams causing death, a Class C felony;
failure to stop after an accident resulting in death, a Class C felony; and
operating a vehicle while intoxicated as a Class A misdemeanor. The
defendant pleaded guilty without the benefit of a plea agreement, and the trial
court entered convictions for operating a vehicle with an ACE of at least 0.10
grams causing death and failure to stop after an accident resulting in death.
The defendant argued his convictions violated the prohibition against double
jeopardy because both were enhanced to Class C felonies by the fact of the
victim’s death. We held the defendant could raise a double jeopardy claim but
concluded he had not been subjected to double jeopardy because “he has been
punished for one act—causing [the victim]’s death—and a second, sequential
act—failing to stop after the accident.” Id. at 398. The charges, we explained,
reflected “a policy decision by our legislature that failing to stop after an
accident resulting in death is itself a very serious crime completely separate
from whether the defendant caused the victim’s death.” Id.
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[15] Here, as the State observes, it is practically impossible to review the double
jeopardy claim Kunberger raises. The factual basis for the guilty plea consisted
of Kunberger merely admitting the elements of each offense. Kunberger’s
admissions provided a sufficient factual basis for the guilty plea, 2 but we are left
with no basis on which to conclude there was a double jeopardy violation under
the actual evidence test. Even if we resorted to the facts recounted in the
probable cause affidavit, we could not say with any certainty whether the same
act was the basis for all three offenses. Unlike Wharton, Graham, and McElroy,
however, the offenses could have been established by “separate and distinct
facts.” Richardson, 717 N.E.2d at 53. Given the time span and the conduct
implicated, it is not unreasonable to believe they were.
[16] To find a double jeopardy violation, we must conclude there is a “reasonable
possibility” the facts used to establish the essential elements of one offense may
also have been used to establish the essential elements of a second offense.
Garrett, 992 N.E.2d at 719. Since a “reasonable possibility” requires
“substantially more than a logical possibility,” Lee, 892 N.E.2d at 1236, we
cannot conclude Kunberger’s convictions violate double jeopardy.
2
A factual basis for a guilty plea is sufficiently established “where a defendant admits the truth of the
allegations contained in an information read in open court or where a defendant indicates that he
understands the nature of the crime charged and that his guilty plea constitutes an admission of the charge.”
Jackson v. State, 676 N.E.2d 745, 750-51 (Ind. Ct. App. 1997) (quotation omitted), trans. denied.
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II. Inappropriate Sentence
[17] Kunberger further contends his sentence is inappropriate in light of the nature
of the offenses and his character. Indiana Appellate Rule 7(B) provides, “The
Court may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” The
defendant bears the burden of persuading this court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether
we regard a sentence as inappropriate turns on “the culpability of the defendant,
the severity of the crime, the damage done to others, and myriad other factors
that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008). Finally, we note the principal role of appellate review is to “leaven
the outliers,” not achieve the perceived “correct” result in each case. Id. at
1225. We therefore “focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id.
[18] As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.
Childress, 848 N.E.2d at 1081. Kunberger pleaded guilty to confinement and
strangulation, both Level 6 felonies (Counts I and II), and domestic battery, a
Class A misdemeanor (Count III). A Level 6 felony carries a possible sentence
of six months to two and one-half years, with an advisory sentence of one year.
Ind. Code § 35-50-2-7(b). A person who commits a Class A misdemeanor shall
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be sentenced to not more than one year. Ind. Code § 35-50-3-2. There is no
advisory sentence for a Class A misdemeanor. See id.
[19] Here, the trial court sentenced Kunberger to two years and 183 days in the
Department of Correction, with twenty-three days of credit for time served and
two years suspended to probation on Count I, to be served concurrently with
the same sentence on Count II and one year in the Department of Correction
on Count III. In other words, Kunberger received an aggregate sentence of two
and one-half years, but the trial court suspended all but six months to
probation.
[20] Kunberger asks this court to fully suspend his sentence, arguing the offenses
and his character did not warrant any executed time. Kunberger believes his
offenses were “not extraordinary” because S.C. did not suffer “injuries
warranting a more severe charge.” Br. of Appellant at 12. Had the victim
received more serious injuries, Kunberger argues, he would have been charged
with aggravated battery as a Level 3 felony. See Ind. Code § 35-42-2-1.5
(defining aggravated battery as knowingly inflicting injury on a person that
creates risk of death or causes serious permanent disfigurement). We disagree
and seriously question Kunberger’s logic on this point. If, in evaluating the
nature of an offense, we determined an offense was “not extraordinary”
because the defendant was not charged with a more serious offense, the “nature
of the offense” analysis would lose all meaning. Short of murder, a defendant
could always have been charged with a more serious offense, had the facts of
the case supported such a charge. Our consideration of the nature of the
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offense recognizes the range of conduct that can support a given charge and the
fact that the particulars of a given case may render one defendant more culpable
than another charged with the same offense. See, e.g., Hamilton v. State, 955
N.E.2d 723, 727 (Ind. 2011) (stating in the context of child molesting, the
victim’s age “suggests a sliding scale in sentencing” because “[t]he younger the
victim, the more culpable the defendant’s conduct”).
[21] At the sentencing hearing, defense counsel stated Kunberger’s romantic
relationship with S.C. had ended and Kunberger “didn’t handle it well,
obviously.” Tr. of Sentencing at 5. According to the probable cause affidavit,
Kunberger choked S.C. during an argument, after announcing if he could not
“have” her, nobody would. App. of Appellant at 14. She “lost all ability” to
breathe and may have also lost consciousness. Id. at 13 (stating S.C. told police
“it was like curtains coming down over my eyes”). Kunberger blamed S.C. for
what he had done, asking, “Why’d you make me do this[?]” Id. at 14. Then,
Kunbuger followed S.C. around the apartment, “refusing to let her leave.” Id.
at 13. Kunberger “was so adamant about keeping her in the apartment[,] he
even refused to allow her to go the bathroom alone . . . .” Id. at 14. When the
police arrived, S.C. had scratches on her face and neck. She experienced
dizziness, blurry vision, headache, and a sore throat for several days and
“petechiae to literally her entire facial area above the area of restriction.” Id. at
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13-14.3 The photographs of her injuries admitted at the sentencing hearing also
show hemorrhaging in both eyes. See, e.g., State’s Exhibit 19. With these facts
in mind we cannot say Kunberger’s sentence is inappropriate in light of the
nature of his offenses.
[22] As to Kunberger’s character, we agree with the trial court that his remorse,
acceptance of responsibility, and alleged mental health issues are clearly
overshadowed by his flagrant violations of the no-contact order issued to
protect the victim from further violence. Kunberger mouthed, “I’m going to
f***ing get you,” in open court, at a hearing to address an earlier instance of
harassment in violation of the no-contact order. App. of Appellant at 44. In
doing so, Kunberger demonstrated an intolerable lack of respect for the court,
the law, and the mother of his children. Given the nature of S.C.’s injuries and
Kunberger’s behavior prior to sentencing, Kunberger has failed to persuade this
court that his sentence is inappropriate. Both the nature of the offense and
Kunberger’s character support the aggregate sentence of two and one-half years,
with all but six months suspended to probation.4
3
A petechia is “a minute reddish or purplish spot containing blood that appears in skin or mucous membrane
as a result of localized hemorrhage.” Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/petechia (last visited Nov. 17, 2015).
4
To the extent Kunberger argues the trial court abused its discretion by failing to properly weigh aggravating
and mitigating factors, our supreme court’s decision in Anglemyer makes clear “the trial court no longer has
any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence and
thus a trial court can not now be said to have abused its discretion in failing to properly weigh such factors.”
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007), clarified on reh’g, 875 N.E.2d 218) (internal quotation marks omitted).
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Conclusion
[23] Kunberger’s convictions for criminal confinement, strangulation, and domestic
battery do not violate double jeopardy, and his sentence is not inappropriate in
light of the nature of the offenses and his character. We therefore affirm
Kunberger’s convictions and sentence.
[24] Affirmed.
Vaidik, C.J., concurs.
Pyle, J., concurs in part, dissents in part.
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IN THE
COURT OF APPEALS OF INDIANA
Thomas M. Kunberger, Court of Appeals Case No.
02A03-1505-CR-304
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Pyle, Judge, dissenting.
[25] I agree with my colleagues’ opinion concerning whether double jeopardy
principles were violated in this case. However, I respectfully dissent from the
finding that the trial court’s sentence was appropriate. Our Supreme Court has
determined that when we exercise our authority to review and revise criminal
sentences, we may impose a more severe sentence than that ordered by the trial
court. McCullough v. State, 900 N.E.2d 745 (Ind. 2009). In this case, the trial
court effectively sentenced Kunberger to two-and-one-half years, with only six
months executed. I believe that Kunberger’s behavior toward the victim,
combined with his outrageous lack of respect for the court’s authority and his
failure to abide by its no-contact order, warrant a fully executed sentence to the
Department of Correction. In all other respects, I concur with my colleagues.
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