                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                            Jan 20 2012, 8:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JOHN PINNOW                                        GREGORY F. ZOELLER
Special Assistant to the State Public Defender     Attorney General of Indiana
Greenwood, Indiana
                                                   J.T. WHITEHEAD
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DUSTIN TUMBLESON,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 90A02-1107-CR-613
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE WELLS CIRCUIT COURT
                        The Honorable James A. Heimann, Senior Judge
                               Cause No. 90C01-1006-FB-11



                                        January 20, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Dustin Tumbleson appeals following his guilty plea to and

conviction for Class A misdemeanor domestic battery.1 Tumbleson contends that the trial

court illegally sentenced him to a combined term of incarceration and probation in excess of

the maximum statutorily allowed one-year term. Concluding that the combined sentence

imposed by the trial court exceeds the maximum term allowed for a Class A misdemeanor

conviction, we reverse and remand to the trial court with instructions.

                           FACTS AND PROCEDURAL HISTORY

       The stipulated factual basis entered during the June 23, 2011 guilty plea hearing

provides that on June 26, 2010, Tumbleson grabbed Ashley Collis and threatened her with a

tire iron, knocked a book shelf over on her, and smacked her repeatedly “about the head.”

Tr. p. 9. Investigating officers observed that Collis was injured by Tumbleson’s actions.

Investigating officers further determined that Tumbleson and Collis had been living as if they

were husband and wife.

       On June 28, 2010, the State charged Tumbleson with Class B felony confinement,

Class A misdemeanor domestic battery, and Class C misdemeanor illegal possession of an

alcoholic beverage. On May 5, 2011, Tumbleson pled guilty to Class A misdemeanor

domestic battery. In exchange for Tumbleson’s plea, the State agreed to dismiss the

remaining charges. Pursuant to the terms of his plea agreement, sentencing was “left to the

discretion of the court and both sides [were] free to argue at sentencing.” Appellant’s App.

p. 134. The trial court accepted Tumbleson’s guilty plea, and on or about June 23, 2011,


       1
           Ind. Code § 35-42-2-1.3(a) (2009).
                                                2
sentenced Tumbleson to a term of one year, with six months suspended and one year of

probation. This appeal follows.

                             DISCUSSION AND DECISION

       On appeal, Tumbleson contends that the trial court erred in sentencing him to an

executed term of six months and one year on probation because Indiana Code section 35-50-

3-2 provides that “the combined term of imprisonment and probation for a misdemeanor may

not exceed one (1) year.” The State concedes that the trial court erred in sentencing

Tumbleson to a combined term of imprisonment and probation that exceeded one year. In

making their respective contention and concession, both Tumbleson and the State cite to

Smith v. State, 621 N.E.2d 325, 326 (Ind. 1993), in which the Indiana Supreme Court held

that “a combined term of probation and imprisonment exceeding one year is inconsistent with

the maximum term for conviction for a misdemeanor.” In light of the plain language of

Indiana Code section 35-50-3-2 and the Supreme Court’s holding in Smith, we reverse the

sentence imposed by the trial court and remand this matter to the trial court with instructions

to impose a combined sentence of probation and imprisonment not to exceed one year.

       The judgment of the trial court is reversed, and the matter is remanded to the trial

court with instructions.

KIRSCH, J., and BARNES, J., concur.




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