Thomas M. Kunberger v. State of Indiana
2015 Ind. App. LEXIS 731
| Ind. Ct. App. | 2015Background
- On Dec. 2, 2014, Kunberger confronted his ex‑fiancée S.C., allegedly placed his hands around her neck, lifted her onto a table, impeded her breathing, and thereafter prevented her from leaving the apartment; children were present.
- Police later arrested Kunberger; a no‑contact order was entered but he violated it, threatened S.C. and her family, and mouthed a death threat in court; he was also found in contempt.
- The State charged Kunberger with criminal confinement (Level 6), strangulation (Level 6), and domestic battery (Class A misdemeanor).
- Kunberger pleaded guilty without a plea agreement to all three counts and the trial court accepted the plea, ordered a PSI, held a contempt finding, and then sentenced him to an aggregate of 2½ years with all but six months suspended (resulting in six months executed plus probation).
- Kunberger appealed, raising (1) a double jeopardy challenge under Indiana’s actual‑evidence test and (2) that his sentence is inappropriate under App. R. 7(B).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kunberger) | Held |
|---|---|---|---|
| Whether convictions for confinement, strangulation, and domestic battery violate Double Jeopardy under the actual‑evidence test | The convictions do not violate double jeopardy because the charges could be supported by distinct factual acts and the record does not show the same evidentiary facts were used for multiple convictions | The choking may have been the single act underlying all three convictions, creating a reasonable possibility that the same evidence was used twice | No double jeopardy violation — guilty plea admissions provided insufficient detail to show the same act was used for multiple convictions, and separate facts could support each offense |
| Whether the sentence is inappropriate under App. R. 7(B) | The aggregate sentence (2½ years, with six months executed) is supported by the seriousness of the conduct, the victim’s injuries, threats and violations of the no‑contact order | Requested full suspension; argued offenses and character did not warrant executed time because victim’s injuries were not the most severe possible | Sentence not inappropriate — the nature of the offenses and Kunberger’s conduct (including threats and contempt/no‑contact violations) support the sentence; dissent would have imposed fully executed time |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (announces the actual‑evidence double jeopardy test)
- Garrett v. State, 992 N.E.2d 710 (Ind. 2013) (explains "reasonable possibility" standard for actual‑evidence analysis)
- Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (clarifies that "reasonable possibility" requires substantially more than a logical possibility)
- Mapp v. State, 770 N.E.2d 332 (Ind. 2002) (discusses waiver of appellate claims by guilty plea)
- Graham v. State, 903 N.E.2d 538 (Ind. Ct. App. 2009) (permitting double‑jeopardy review where defendant pleaded guilty without a plea agreement)
- McElroy v. State, 864 N.E.2d 392 (Ind. Ct. App. 2007) (distinguishing sequential acts versus same act for double‑jeopardy purposes)
- Childress v. State, 848 N.E.2d 1073 (Ind. 2006) (allocates burden to defendant to show sentence is inappropriate)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (describes App. R. 7(B) factors and appellate review function)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (addresses trial court sentencing procedure and consideration of aggravators/mitigators)