The Indiana Court of Appeals affirmed there were no double jeopardy violations following a man’s open plea agreement to strangling, confining and battering his ex-fiancee, but one judge believed the man deserved more time in the Department of Correction based on the seriousness of the incident.
Thomas Kunberger, upset his romantic relationship with S.C. had ended, choked her so hard during the attack that she hemorrhaged in her eyes and had lingering injuries. He followed her around the apartment and refused to let her leave. The incident happened while their two children were sleeping nearby. He was arrested several days later and released on bond, but that was revoked after he violated a no-contact order involving S.C. At the bond-revocation hearing, Kunberger mouthed to S.C. that he was “going to f---ing get you.” He was later found in contempt for that action.
After pleading guilty to Level 6 felonies strangulation and criminal confinement, and Class A misdemeanor domestic battery, the judge sentenced Kunberger to two years and 183 days in the Department of Correction, with 23 days of credit for time served and two years suspended to probation.
In Thomas M. Kunberger v. State of Indiana, 02A03-1505-CR-304, Kunberger challenged his convictions and sentence, claiming that double jeopardy should result in overturning his strangulation and domestic battery convictions. He also argued that all of his sentence should have been suspended to probation because of his remorse and mental health history.
Even though the judges could review Kunberger’s convictions because he pleaded guilty without benefit of a plea agreement, the record does not allow for them to determine whether the same act – strangulation – was the basis for all three offenses, Judge Margret Robb wrote.
The majority affirmed his sentence based on S.C.’s injuries and Kunberger’s actions after the incident – violating the no-contact order and threatening in court to kill S.C. Judge Rudolph Pyle III dissented with his colleagues on this point, believing that Kunberger’s actions toward the victim and lack of respect for the court warrant a fully executed sentence to the Department of Correction.