Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

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MEMORANDUM DECISION - NOT FOR PUBLICATION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 
2

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). 
3

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.