Kunberger v. State

46 N.E.3d 966

Thomas M. KUNBERGER, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A03–1505–CR–304.

Court of Appeals of Indiana.

Dec. 2, 2015.

Thomas C. Allen, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

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 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.

[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.

* * *

[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 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 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 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 factfinder 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).

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...