                                                                           FILED
                                                                       Feb 07 2020, 9:12 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana
Jonathan O. Chenoweth                                     J.T. Whitehead
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James Miske, Jr.,                                         February 7, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-1174
        v.                                                Appeal from the Tippecanoe
                                                          Circuit Court
State of Indiana,                                         The Honorable Sean M. Persin,
Appellee-Respondent,                                      Judge
                                                          Trial Court Cause No.
                                                          79C01-1603-PC-4



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                           Page 1 of 31
                                 Case Summary and Issue
[1]   Following a jury trial, James Miske was found guilty of rape and two counts of

      criminal deviate conduct, all Class A felonies; criminal confinement, a Class C

      felony; strangulation, domestic battery committed in the presence of a child,

      and intimidation, all Class D felonies; and battery and resisting law

      enforcement, both Class A misdemeanors. He received a sentence of 145 years.

      On direct appeal, we affirmed Miske’s convictions and sentence. Miske v. State,

      2015 WL 2329120 (Ind. Ct. App. May 15, 2015), trans. denied. Thereafter,

      Miske filed a petition for post-conviction relief which was denied by the post-

      conviction court. Miske challenges the denial of his petition, raising two issues

      for our review which we consolidate and restate as whether he received

      ineffective assistance from his appellate counsel on direct appeal. Concluding

      Miske’s appellate counsel rendered ineffective assistance in omitting issues from

      his direct appeal, we reverse and remand with instructions.



                             Facts and Procedural History
[2]   Miske was engaged to V.P. and they shared a house in Lafayette with their

      child and V.P.’s three children from prior relationships. On January 3,

      2014, Miske and V.P. argued and were involved in a physical altercation. By

      the end of the argument, V.P. stated that she no longer wished to be engaged

      to Miske and Miske agreed that he would move out.




      Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 2 of 31
[3]   The following day, Miske left work early intending to start his search for

      another place to live. In the afternoon, Miske visited Gregory Linder, a high

      school friend of V.P.’s. Miske and Linder spent several hours talking and

      drinking. Miske mentioned to Linder his suspicion that V.P. had been

      unfaithful with another high school friend. Linder told Miske not to be

      concerned about V.P.’s fidelity, but Miske insisted that “he felt like putting his

      hands on” V.P. Id. at *1. Miske was angry and repeatedly raised his voice,

      mentioned his military training, and marched around. Linder became

      concerned for his own safety and suggested Miske leave. From Linder’s

      home, Miske drove to a bar in Lafayette where he spent several hours before he

      was eventually asked to leave. Miske then drove back to the home he had been

      sharing with V.P.


[4]   On direct appeal, the court described what occurred when Miske arrived home

      in the early morning hours of January 5:


              V.P. had put the couple’s infant daughter to sleep, and two older
              children were also asleep. V.P. was awake on the living room
              couch watching television when Miske arrived.


              Miske entered the home and came into the living room, and
              pulled up a beanbag chair next to V.P.’s couch. V.P. smelled
              alcohol and cigarettes on Miske, but did not respond to his
              entrance. Miske got up from the chair and began to walk to the
              bedroom he had shared with V.P. He asked V.P. to have sex
              with him, but she refused. Miske said he would find sex
              elsewhere, and went into the bedroom to use his computer.




      Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020        Page 3 of 31
        After twenty or thirty minutes, Miske came out of the bedroom,
        grabbed V.P. by her hair, and pulled her off the couch and onto
        the floor. Miske, a former Marine who stood six-feet, three-
        inches tall, then began choking the five-feet, three-inches-tall
        V.P. Miske sat on top of V.P. while pressing his hands around
        her neck, and demanded to know about “David,” the friend V.P.
        and Linder had in common. V.P. asked Miske to stop and tried
        to tell him that she could not breathe, but Miske’s choking
        restricted her airflow.


        Miske’s yelling eventually awoke V.P.’s son, who came out to
        see what was happening. V.P. asked Miske to stop because the
        child was watching, but Miske continued to yell and throw V.P.
        around. Miske twice pulled V.P. off the floor by her hair, threw
        her around so that her head hit a wall, and at one point brought
        his arm down across the bridge of her nose. Miske choked V.P.
        multiple times, holding her on the ground while doing so. V.P.
        thought she was going to die, and asked Miske to stop several
        times. V.P. told Miske that she was afraid he would kill her, and
        said she would do whatever he wanted.


        At some point, Miske stopped choking V.P. and dragged her to
        the bedroom, still pulling on her hair. Miske told V.P. to take off
        his boots, and then told V.P. to remove his pants and to perform
        oral sex on him. Miske was still holding V.P.’s hair, and forced
        her head down toward his penis.


        Miske next told V.P. to remove her pants and made her get on
        all-fours on the bed. Miske briefly engaged in vaginal intercourse
        with V.P. He then began to engage in anal intercourse with V.P.,
        even as she “begged him not to.” V.P. complied
        with Miske’s demands because she was afraid, even as she asked
        him to stop and told him that it caused her pain. While engaging
        in these acts, Miske told V.P. that “this if [sic] for Mr. Meyers,”
        referring to the mutual friend of V.P. and Linder.


Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 4 of 31
              Miske proceeded to force V.P. to perform oral sex, vaginal sex,
              and anal sex with him twice more. During this, Miske continued
              to hold V.P.’s hair, and said “a lot of messed up things.”
              Eventually, Miske ejaculated and stopped engaging in sexual
              conduct with V.P.


              After this, Miske and V.P. each sat on opposite ends of the bed
              from one another. V.P. was crying, while Miske said he knew
              she would contact police and that he would not kill
              her; Miske then said he was going to pray “because he was
              getting ready to kill [V.P.]” V.P. told Miske that she would not
              call police; Miske then said she could call and he would not do
              anything to her, but that he would not “go down without a
              fight.”


              V.P. begged Miske to go to sleep. Once V.P. was sure Miske was
              asleep, she went back into the living room, grabbed her phone,
              and called police.


      Id. at *2-3 (footnote and internal record citations omitted).


[5]   At around 4:30 a.m., officers of the Lafayette Police Department arrived at the

      house. They entered the bedroom where Miske was sleeping and, after a

      struggle, were able to subdue and arrest him. One officer transported V.P. to a

      local hospital. There, V.P. was examined by a sexual assault nurse-examiner

      (“SANE”). V.P. had suffered injuries to her neck consistent with strangulation,

      bruising to her cervix consistent with blunt-force trauma, and injury to her

      anus. When V.P. brushed her hair, a “numerous amount of hair” fell out of her




      Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020       Page 5 of 31
      head. [Direct Appeal] Transcript (“Appeal Tr.”), Volume 1 at 112.1 The

      SANE concluded that V.P.’s injuries were consistent with having been a victim

      of sexual assault.


[6]   The State charged Miske with rape, two counts of criminal deviate conduct

      (one count alleging Miske forced V.P. to engage in oral sex and one count

      alleging he forced her to engage in anal sex), criminal confinement,

      intimidation, strangulation, domestic battery committed in the presence of a

      child, battery, and resisting law enforcement. Rape and the two counts of

      criminal deviate conduct were charged as Class A felonies rather than Class B

      felonies on the allegation that they had been committed by using or threatening

      the use of deadly force. See Ind. Code §§ 35-42-4-1(b)(1) (rape) (1998), 35-42-4-

      2(b)(1) (criminal deviate conduct) (1998); see also [Direct Appeal] Appendix

      (“Appeal App.”) at 21-23. The deadly force allegedly used in committing those

      crimes was not specified in the informations. A jury found Miske guilty of all

      the charged offenses.


[7]   On August 12, 2014, the trial court conducted a sentencing hearing and entered

      judgment of conviction on all charges. Miske was sentenced to forty-five years

      for rape; forty-five years for each count of criminal deviate conduct; six years

      for criminal confinement; two years each for intimidation, strangulation, and

      domestic battery; and one year each for battery and resisting law enforcement.




      1
          Our citation to the direct appeal materials is based on the .pdf pagination.


      Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020               Page 6 of 31
      The trial court ordered the sentences to be served consecutively in the Indiana

      Department of Correction and stated the total sentence was 145 years. Several

      days later, the trial court entered an order clarifying its sentencing order. The

      court reiterated that the sentences were to run consecutively, but stated:


              [Miske] is sentenced to forty-five (45) years on each of the A
              felonies, to run consecutively, for a total of one hundred and
              thirty-five (135) years. On the remainder of the offenses,
              [Miske]’s sentence is capped at a total of ten (10) years. The one
              hundred thirty-five (135) years on the A felonies and the ten (10)
              years on the remaining offenses shall all be executed at the
              Indiana Department of Corrections [sic] for a total of one
              hundred forty-five (145) years.


      Id. at 20.


[8]   On direct appeal, Miske raised five issues: 1) whether there was sufficient

      evidence to support his convictions of rape and criminal deviate conduct

      through the use or threat of deadly force, 2) whether his convictions of criminal

      confinement, domestic battery, and battery are barred by principles of double

      jeopardy, 3) whether the trial court erred when it sentenced him to consecutive

      sentences for crimes that were part of a single transaction under the continuing

      crime doctrine, 4) whether the trial court abused its discretion in finding certain

      aggravating circumstances; and 5) whether his sentence was inappropriate.




      Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020         Page 7 of 31
      This court affirmed Miske’s convictions and sentence. Miske, 2015 WL

      2329120 at *11.2


[9]   In 2016, Miske filed a pro se petition for PCR that was later amended by

      counsel to include a claim of ineffective assistance of appellate counsel. In his

      amended petition, Miske raised the following issues:


               The State charged [Miske] with rape, two counts of criminal
               deviate conduct, intimidation, domestic battery, battery,
               strangulation, and resisting law enforcement. The rape charge
               and both [criminal deviate conduct] charges were enhanced,
               from class B to class A felonies, on the allegation that they had
               been committed via deadly force. Though that force was not
               specified in the charging information.


               At the ensuing jury trial, the trial court’s instructions did not
               identify the deadly force . . . by which [Miske] had committed the
               rape and [criminal deviate conduct]. But the prosecutor said
               during his closing argument that “the battery, intimidation,
               strangulation all of that was the deadly force used in threatening
               [V.P.] in forcing her to engage into sexual acts in the bedroom.”


               ***


               Under Indiana common law, “to the extent that a defendant’s
               conviction for one crime is enhanced for engaging in particular
               additional behavior or causing particular additional harm, that
               behavior or harm cannot also be used as an enhancement of a




      2
        One panel member dissented on the Rule 7(B) issue, believing that Miske’s sentence was inappropriate and
      should be revised to fifty-five years – concurrent forty-five-year terms for the Class A felonies, consecutive to
      ten years on the remaining charges. Id. at *11-12.

      Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                                 Page 8 of 31
        separate crime.” Richardson v. State, 717 N.E.2d 32, 56 (Ind.
        1999) (Sullivan, J., concurring). In other words, for each
        enhancement there must be a distinct behavior.


        In this case, there were three enhancements, one each for the
        rape and [criminal deviate conduct] convictions. And the
        prosecutor identified three behaviors: intimidation, strangulation,
        and battery. The intimidation occurred after the rape and
        [criminal deviate conduct], however, and therefore could not be
        the basis of an enhancement. . . . That leaves two behaviors
        (battery and strangulation) for three enhancements, which means
        that at least one behavior was used twice, in violation of the
        above-quoted rule.


        Moreover, the prosecutor never argued that each enhancement
        was based on a distinct behavior; he instead conflated the battery
        and the strangulation (and the intimidation), arguing that each
        enhancement was based on the aggregate force. There were
        actually three enhancements and only one behavior. . . . Had
        appellate counsel raised this claim, two of the enhancements
        would have been vacated.


        Another common-law rule prohibits “[c]onviction and
        punishment for an enhancement of a crime where the
        enhancement is imposed for the very same behavior or harm as
        another crime for which the defendant has been convicted and
        punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J.,
        concurring). The strangulation and battery were not only the
        bases of enhancements but also convictions in and of
        themselves. . . . Had appellate counsel raised the claim, the
        strangulation, domestic battery, and battery convictions would
        have been vacated.


[Post-Conviction Relief] Appendix to Brief of Appellant (“PCR App.”),

Volume Two at 31-33 (some internal citations omitted).
Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 9 of 31
[10]   At the PCR hearing, Miske’s appellate counsel was the sole witness. He

       testified that he considered raising the issue that the multiple Class A

       enhancements violated common law double jeopardy; however,


               [t]he reason that I didn’t raise it and the problem with the
               argument that you’re raising is . . . you [c]ite something that the
               prosecutor said in final argument as support for your position but
               . . . that’s not evidence. The evidence is contained in the
               testimony from predominantly the victim, that is really ugly. . . .
               I started working on an argument, claiming what you’re saying
               that I should have done and the problem is you end up in a re-
               hash of all of these ugly facts. . . . I thought to myself, I’m not
               raising this because virtually every decision regarding double
               jeopardy on these kinds of case[s], rape, criminal deviate conduct
               were against me. And so I thought that I could use the
               continuing crime doctrine, it was a lot cleaner, I didn’t have to go
               into the facts and if they wanted to give Miske a break, there
               were three or four ways raised in the brief . . . where they could
               have done it.


       [Post-Conviction Relief] Transcript (“PCR Tr.”), Volume 2 at 17-18. As for the

       issue of the battery and strangulation crimes also being barred by common law

       double jeopardy because they were the basis for the enhancement, Miske’s

       appellate counsel testified that he did not recall whether he considered raising

       that issue, but “that also got back into ugly facts.” Id. at 20. His objective “was

       to try and get this guy off a hundred and forty-five year sentence[,]” and he did

       not “see how that really would have helped.” Id. at 21. He further testified that

       he did not think the appellate court would have reversed on either of the two

       grounds raised on post-conviction and he “actually [thought] it would have

       been a worse brief with that in it.” Id. at 24.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020       Page 10 of 31
[11]   The post-conviction court issued findings of fact and conclusions of law

       denying Miske’s amended petition. The post-conviction court concluded:


               1. Appellate counsel considered arguing that the same facts were
               used to enhance the convictions for Rape and [Criminal Deviate
               Conduct], but made a tactical decision not to do so.


               ***


               3. [Miske] has not demonstrated a reasonable possibility that the
               jury used the same facts for multiple enhancements.


               4. [Miske] has also failed to convince this Court that there is a
               reasonable possibility that the evidentiary facts used to establish
               the essential elements for Strangulation, Battery and Domestic
               Battery were also used to enhance the crimes of Rape and
               [Criminal Deviate Conduct] to Class A felonies.


               5. [Miske] has failed to show that any resulting prejudice from
               the decision not to raise the two issues on appeal is so strong that,
               but for appellate counsel’s inaction, the result of the proceedings
               would have been different.


       Appealed Order at 9-10. Miske now appeals.



                                  Discussion and Decision
                 I. Post-Conviction Relief Standard of Review
[12]   Post-conviction proceedings are civil in nature and the petitioner must therefore

       establish his claims by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5). “Post-conviction proceedings do not afford the petitioner an
       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020          Page 11 of 31
       opportunity for a super appeal, but rather, provide the opportunity to raise

       issues that were unknown or unavailable at the time of the original trial or

       direct appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.

       denied. To prevail on appeal, the petitioner must show that the evidence as a

       whole leads unerringly and unmistakably to a conclusion opposite that reached

       by the post-conviction court. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006).

       This court will not reweigh the evidence or reassess the credibility of the

       witnesses and we consider only the evidence and reasonable inferences

       supporting the judgment. Id. at 468-69. We do not defer to the post-conviction

       court’s legal conclusions but do accept its factual findings unless they are clearly

       erroneous. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540

       U.S. 830 (2003).


                III. Ineffective Assistance of Appellate Counsel
[13]   Miske claims his appellate counsel was ineffective for failing to raise two

       common law double jeopardy claims: 1) that the Class A felony enhancements

       to his rape and two criminal deviate conduct convictions were all based on the

       same additional behavior and therefore only one Class A felony conviction

       could stand while the other two should be reduced to Class B felonies, and 2)

       that the strangulation, domestic battery, and battery convictions were based on

       the same behavior that supported the Class A felony enhancement and

       therefore could not stand as independent convictions.




       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020     Page 12 of 31
                                        A. Standard of Review
[14]   The standard for evaluating claims of ineffective assistance of appellate counsel

       is the same standard as for trial counsel. Garrett v. State, 992 N.E.2d 710, 719

       (Ind. 2013). Thus, to establish any claim of ineffective assistance of counsel, a

       petitioner must demonstrate that counsel performed deficiently, and the

       deficiency resulted in prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008)

       (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).


               First, a defendant must show that counsel’s performance was
               deficient. This requires a showing that counsel’s representation
               fell below an objective standard of reasonableness and that
               counsel made errors so serious that counsel was not functioning
               as “counsel” guaranteed to the defendant by the Sixth
               Amendment. Second, a defendant must show that the deficient
               performance prejudiced the defense. . . . To establish prejudice, a
               defendant must show that there is a reasonable probability that,
               but for counsel’s unprofessional errors, the result of the
               proceeding would have been different.


       Garrett, 992 N.E.2d at 718-19 (internal citations and quotations omitted). “A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome.” Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App. 2002), trans. denied.


[15]   Ineffective assistance of appellate counsel claims falls into three categories: 1)

       denying access to an appeal; 2) failing to raise issues; and 3) failing to present

       issues competently. Timberlake v. State, 753 N.E.2d 591, 604 (Ind. 2001), cert.

       denied, 537 U.S. 839 (2002). The second category is applicable to Miske’s

       claims. To satisfy the first prong of the Strickland test when the petitioner


       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 13 of 31
       claims appellate counsel failed to raise an issue, the petitioner must show that

       the unraised issue was significant and obvious from the face of the trial record

       and that the error cannot be explained by any reasonable strategy. Carter v.

       State, 929 N.E.2d 1276, 1278 (Ind. 2010). To establish the prejudice prong, the

       petitioner must show that the issues appellate counsel failed to raise were

       clearly more likely to result in reversal or an order for a new trial. Garrett, 992

       N.E.2d at 724.


                                          B. Double Jeopardy
[16]   The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense[,]” Ind. Const. art. 1, § 14, preventing the State from

       proceeding against a person twice for the same criminal offense, Hopkins v.

       State, 759 N.E.2d 633, 639 (Ind. 2001). The constitutional double jeopardy

       clause prohibits multiple convictions if there is “a reasonable possibility that the

       evidentiary facts used by the fact-finder to establish the essential elements of

       one offense may also have been used to establish the essential elements of a

       second challenged offense.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).

       However, Indiana has also long adhered to a “series of rules of statutory

       construction and common law that are often described as double jeopardy, but

       are not governed by the constitutional test set forth in Richardson.” Pierce v.

       State, 761 N.E.2d 826, 830 (Ind. 2002) (quotation omitted). It is these rules on

       which Miske bases his PCR claims.




       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 14 of 31
[17]   These rules fall into five categories, which were first enumerated by Justice

       Sullivan in his concurrence in Richardson. 717 N.E.2d at 55-56; see Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002) (the court acknowledging and

       employing Justice Sullivan’s analysis as an adjunct to the constitutional test set

       forth in Richardson). Included among these categories is one that Miske claims

       is applicable to his two challenges here: “Conviction and punishment for an

       enhancement of a crime where the enhancement is imposed for the very same

       behavior or harm as another crime for which the defendant has been convicted

       and punished.” Richardson, 717 N.E.2d at 56 (emphasis omitted).


[18]   In explaining this “enhancement” category, Justice Sullivan divided it further

       into two prongs. First, “[i]n situations where a defendant has been convicted of

       one crime for engaging in the specified additional behavior . . ., that behavior

       . . . cannot also be used as an enhancement of a separate crime; either the

       enhancement or the separate crime is vacated.” Id. A “closely related”

       situation is where “a defendant’s conviction for one crime is enhanced for

       engaging in particular additional behavior[;] that behavior . . . cannot also be

       used as an enhancement of a separate crime.” Id. He emphasized, however,

       that this rule provides no relief where the behavior that is the basis for the

       challenged enhancement is distinct and separate from behavior that is the basis

       for another conviction or enhancement. Id. Our analysis of this category

       operates much like the actual evidence test covered in Richardson, and thus, we

       apply the “reasonable possibility” standard. Duncan v. State, 23 N.E.3d 805,

       817 (Ind. Ct. App. 2014), trans. denied. In other words, we ask whether there is

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 15 of 31
       a reasonable possibility the factfinder used the same evidentiary facts to

       establish both a crime and an enhancement to a separate crime or to establish

       multiple enhancements. See Richardson, 717 N.E.2d at 53. In making this

       assessment, we consider the evidence, charging information, final jury

       instructions, and arguments of counsel. Zieman v. State, 990 N.E.2d 53, 62 (Ind.

       Ct. App. 2013).


                                               1. State’s Arguments

[19]   We begin by addressing the State’s contention that Miske is challenging only

       strategy – not “what” appellate counsel challenged, but “how[.]” Brief of

       Appellee at 15; see also McKnight v. State, 1 N.E.3d 193, 204 (Ind. Ct. App. 2013)

       (“We rarely find ineffective assistance in cases where a defendant asserts that

       appellate counsel failed to raise an issue on direct appeal. One reason for this is

       that the decision of what issues to raise is one of the most important strategic

       decisions to be made by appellate counsel.”) (quotation omitted). The State

       points out that appellate counsel did make double jeopardy challenges on direct

       appeal and that Miske offers only a “slightly different” strategic approach now.

       Br. of Appellee at 15. Appellate counsel did raise claims that certain of Miske’s

       convictions violated constitutional double jeopardy. See Miske, 2015 WL

       2329120 at *5-6.3 However, the common law double jeopardy rules he now



       3
         Specifically, counsel challenged whether Miske’s conviction of criminal confinement was prohibited
       because the same evidence used to convict him of criminal confinement was used to convict him of rape.
       Counsel also challenged whether Miske’s convictions of battery and domestic battery were prohibited as
       lesser-included offenses of rape. The court held there was no constitutional double jeopardy violation in
       either case.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                            Page 16 of 31
       relies on “are not governed by the constitutional test set forth in Richardson.”

       Guyton, 771 N.E.2d at 1143. Appellate counsel also raised a claim that multiple

       convictions were barred by the continuing crime doctrine, a category of double

       jeopardy that prohibits convicting a defendant “multiple times for the same

       continuous offense.”4 Walker v. State, 932 N.E.2d 733, 736-37 (Ind. Ct. App.

       2010); see Miske, 2015 WL 2329120 at *6-8. Neither of these claims touches

       upon the significant multiple enhancements with which Miske was charged and

       convicted, which is the very point of Miske’s post-conviction challenge.

       Therefore, he is now making an entirely different claim and not merely taking a

       “slightly different” approach.


[20]   The State also contends that “it is not even clear that the common law rule

       advanced by [Miske] . . . was indeed in place at the time of his appeal,” Br. of

       Appellee at 18, and therefore “the strategy of using the common law rule was

       not clearly stronger or more obvious” than the double jeopardy claims advanced

       on direct appeal because “case law allowed for the same conduct to be applied

       across multiple convictions[,]” id. at 20. In questioning the existence of the

       rule, the State relies on a statement by our supreme court in Sistrunk v. State, 36

       N.E.3d 1051, 1054 (Ind. 2015), that “our recognition in Richardson of the




       4
         “The continuing crime doctrine essentially provides that actions that are sufficient in themselves to
       constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and
       continuity of action as to constitute a single transaction.” Firestone v. State, 838 N.E.2d 468, 471 (Ind. Ct.
       App. 2005). Counsel argued that all of Miske’s convictions except resisting law enforcement were for actions
       that were part of a continuing crime that should have only one sentence. The court held there were no
       double jeopardy concerns after applying the actual evidence test under the continuing crime doctrine.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                            Page 17 of 31
       common law rule establishing that enhancements cannot be imposed for the

       very same behavior could not have included use of a single deadly weapon

       during the commission of separate offenses. And this is so because no such

       common law rule existed. Instead the opposite was true.” (Emphasis added.)


[21]   The defendant in Sistrunk was convicted of robbery and criminal confinement,

       both elevated from Class C to Class B felonies because the defendant was

       armed with a deadly weapon while committing the crimes. The defendant

       appealed, arguing among other things that double jeopardy precluded

       enhancing both convictions because the same force was used. Our supreme

       court affirmed the convictions, both acknowledging the common law rule from

       Richardson that precludes conviction and punishment for an enhancement of a

       crime where the enhancement is imposed for the very same behavior as another

       crime for which the defendant has been convicted and punished and stating that

       “our jurisprudence teaches that committing two or more separate offenses each while

       armed with a deadly weapon—even the same weapon—is not within the category

       of rules precluding the enhancement of each offense based on ‘the very same

       behavior.’” Id. (emphasis added); see also Miller v. State, 790 N.E.2d 437, 439

       (Ind. 2003) (holding no common law double jeopardy violation for multiple

       enhancements based on the presence of a single knife because repeated use of a

       weapon to commit multiple crimes is not “the very same behavior”); Marshall v.

       State, 832 N.E.2d 615, 622 (Ind. Ct. App. 2005) (same), trans. denied; see also

       Sallee v. State, 777 N.E.2d 1204, 1213 (Ind. Ct. App. 2002) (holding repeated,

       separate and distinct threats to kill victim while committing multiple crimes

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 18 of 31
       supported the enhancement of each crime), trans. denied. Thus, the common

       law double jeopardy rule Miske relies on does exist, and case law does not allow

       for the same conduct to be applied across multiple convictions unless there is

       separate and distinct conduct for each crime, which is exactly what Miske now

       claims.


                                          2. Multiple Enhancements

[22]   Miske was charged with one count of Class A felony rape and two counts of

       Class A felony criminal deviate conduct. The charging informations for each

       crime stated they were “committed by using or threatening the use of deadly

       force[.]” Appeal App. at 18-20. No specifics about the alleged deadly force

       used in the commission of each crime were included in the informations.


[23]   At trial, V.P. testified that Miske pulled her off the couch by her hair, put one

       hand around her neck and choked her, threw her against a wall, and hit her

       across the bridge of her nose. V.P. pleaded with Miske, “Please stop I’m scared

       you’re going to kill me. . . . I’ll do anything you want.” Appeal Tr., Vol. 2 at

       37. After this sequence of events, Miske picked V.P. up by her hair and took

       her into the bedroom. Holding her hair the “entire time,” Miske repeatedly

       forced V.P. to perform oral sex on him and submit to vaginal and anal

       intercourse. Id. at 39. V.P. could not remember anything Miske said to her

       while he was choking her or sexually assaulting her, but after the sexual assault

       ended, V.P. said Miske sat on the edge of the bed and “said that he was going

       to pray because he was getting ready to kill [her].” Id. at 44. V.P. testified that

       it hurt when Miske was holding her hair during the encounter and that when
       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 19 of 31
       she left the hospital approximately twelve hours later, she was still feeling pain

       in her head. See id. at 42, 52. The SANE testified that V.P. had “a numerous

       amount of hair falling out of her head” when she combed her hair for the rape

       kit. Appeal Tr., Vol. 1 at 112.


[24]   The State’s closing argument made the following salient points:


           • “[T]he battery, intimidation, strangulation all of that was the deadly force

               used in threatening her in forcing her to engage into sexual acts in the

               bedroom.” Appeal Tr., Vol. 2 at 155 (emphasis added).

           • “If the defendant grabs he[r] hair or gets on top of her and holds her

               down and she says no, no, no, stop. And he still has sexual intercourse

               with her, that is rape, that is B felony. When you start strangling her and

               starts choking her where she can’t breathe and she is saying please don’t

               kill me . . . and then he drags her into the room and rapes her. That is A

               felony rape. That is threatening the use of deadly force. And at one

               point before [she says she will do anything he wants] he was using deadly

               force on her. She couldn’t breathe. She is staring at her 4 year old

               thinking she is going to die. . . . That is deadly force.” Id. at 165-66

               (emphasis added).

           • “Count 2 [criminal deviate conduct], these are the same. Again it’s a

               separate crime . . . but if you go from [one] act to the other, to the other

               based on the same threats and the same acts and the same conduct those

               elements overlap. He’s still compelled her by force. The same force used

               by the rape and he still threatened the use of deadly force and I would
       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020        Page 20 of 31
               argue actually used deadly force in order to get her into the bedroom.

               Id. at 168-69 (emphasis added).


       The charging informations were read to the jury as part of the final instructions.

       The jury was also instructed on the statutory definitions of each crime and that

       “deadly force” is defined by statute as “force that creates a substantial risk of

       serious bodily injury.” Id. at 206. “Serious bodily injury,” however, was not

       defined for the jury. The jury found Miske guilty of all counts, and the trial

       court sentenced him, in part, to three consecutive forty-five-year terms for the

       Class A felonies.


[25]   Based on V.P.’s testimony about the sequence of events and especially the

       State’s statement in its closing argument that “the battery, intimidation,

       strangulation all of that was the deadly force used in threatening her in forcing

       her to engage into sexual acts in the bedroom[,]” id. at 155 (emphasis added),

       Miske argues that there is at least a reasonable possibility the three Class A

       felony enhancements are based on the same behavior, that this was a significant

       and obvious issue that should have been raised on direct appeal, that its

       omission was not supported by any reasonable strategy, and that he was

       prejudiced by the failure to raise the issue. Miske concedes at the outset that

       there is sufficient evidence of the use of deadly force to support one Class A

       felony enhancement. However, he argues there is a reasonable possibility the

       jury used that same evidence of deadly force to enhance the other two counts.

       We agree.



       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 21 of 31
[26]   As noted above, in assessing whether there is a reasonable possibility the jury

       used the same evidence for purposes of a double jeopardy challenge, we

       consider the charging information, evidence, final jury instructions, and

       arguments of counsel. See supra ¶ 18 (citing Zieman, 990 N.E.2d at 62).


[27]   Here, the charging informations stated the elements of the crimes of Class A

       felony rape and criminal deviate conduct but did not include details to indicate

       which facts supported the individual charges. Instead, each charge was

       generally alleged to have been committed “by using or threatening the use of

       deadly force[.]” Appeal App. at 21-23. The evidence at trial was that Miske

       strangled and battered V.P. in the living room. While Miske was strangling her,

       V.P. thought she was going to die. Miske then dragged V.P. by her hair into

       the bedroom where he committed the sexual crimes. Miske continued to hold

       onto V.P.’s hair while forcing her to engage in sexual acts and V.P. testified that

       his grip hurt. V.P. did not recall any specific thing that Miske said to her during

       the sexual acts, although after the sexual acts were completed, he said he was

       going to kill her. The State’s final argument focused on Miske’s conduct

       leading up to the sexual assaults as satisfying the deadly force element—that

       Miske pulled V.P.’s hair, battered her, and strangled her before dragging her

       into the bedroom—rather than any particular additional conduct constituting

       deadly force during the sexual assaults. See Appeal Tr., Vol. 2 at 155 (“[T]he

       battery, . . . strangulation all of that was the deadly force used in threatening her

       . . . to engage into sexual acts in the bedroom.”); id. at 165-66 (arguing that

       Miske grabbing V.P.’s hair and choking her to the point she could not breathe


       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020      Page 22 of 31
       was using deadly force to drag her into the bedroom where he raped her). In

       addition, the State argued that the deadly force Miske used to get V.P. into the

       bedroom was the same force used to commit rape and criminal deviate conduct.

       See id. at 168-69 (noting that the force used to commit criminal deviate conduct

       was “the same threats and the same acts and the same conduct” as the force

       used to get her into the bedroom and “the same force” used to commit rape). 5

       The final instructions included a reading of the charges and the statutory

       definition of each crime, plus the definition of deadly force as “force that creates

       a substantial risk of serious bodily injury[,]” id. at 206, but “serious bodily

       injury” was not defined for the jury.


[28]   There is no evidence that Miske had a weapon or repeatedly threatened to kill

       V.P. while he was committing the sexual assaults. That makes this case

       different than, for instance, Marshall v. State, 832 N.E.2d 615, 622 (Ind. Ct. App.

       2005), trans. denied, wherein we held three convictions for Class A felony child

       molesting committed with the same knife did not constitute double jeopardy

       because the defendant had the knife during each act, or Sallee, 777 N.E.2d at

       1213, wherein we held Class A felony enhancements for both rape and criminal

       deviate conduct did not constitute double jeopardy because when the defendant

       repeatedly told the victim while forcing her to perform or submit to various

       sexual acts that she would be killed if she did anything wrong, he made separate



       5
        Appellate counsel noted at the PCR hearing that the State’s closing argument was not evidence on which he
       could rely in making a common law double jeopardy argument. See PCR Tr., Vol. 2 at 17. However, closing
       arguments are a valid consideration in double jeopardy analysis. Zieman, 990 N.E.2d at 62.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                         Page 23 of 31
       and distinct threats supporting multiple enhancements. In fact, although V.P.

       testified that she feared she would be killed throughout the encounter, she also

       testified that Miske only articulated a threat to kill her after the sexual assaults

       were completed. There is no evidence that Miske hit or strangled V.P. while he

       was committing the sexual assaults, only that he continuously held onto her

       hair. Under different circumstances where “serious bodily injury” was defined

       for the jury and where the State focused on this conduct being repeated during

       each act, it is possible the jury could have latched onto the fact that Miske

       continued to pull V.P.’s hair causing her pain during each act as evidence of

       deadly force, but the jury was not instructed that serious bodily injury includes

       injury that creates a substantial risk of death or that causes extreme pain. Ind.

       Code § 35-31.5-2-292. Without that instruction, it is unlikely that a reasonable

       jury would think pulling hair creates a substantial risk of serious bodily injury

       so as to constitute deadly force.6


[29]   Considering the generic charging instruments and final instructions, the

       evidence adduced at trial, and the State’s final argument that focused solely on




       6
        The post-conviction court in its order quoted the definition of “serious bodily injury” and found there was
       “ample evidence that [Miske] continually used force that created a substantial risk of extreme pain.”
       Appealed Order at 8. But the jury did not have that context in which to evaluate the evidence presented.
       The post-conviction court also noted V.P.’s various injuries and stated that Miske’s “suggestion that the
       physical force used to cause vaginal bruising and anal bleeding is not deadly force is unavailing.” Id. Both
       rape and criminal deviate conduct can be a Class A felony if the offense “results in serious bodily injury to a
       person other than the defendant[.]” Ind. Code § 35-42-4-1(b)(3) (rape) (1998); Ind. Code § 35-42-4-2(b)(3)
       (criminal deviate conduct) (1998). Again, the jury was not instructed on the definition of “serious bodily
       injury” for the purposes of proving deadly force, and further, the State did not charge Miske with a Class A
       felony for causing injury to V.P. and thus separate harm does not support the multiple enhancements.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                               Page 24 of 31
Miske’s behavior as a whole in the living room and failed to pinpoint any

specific and distinct conduct in the bedroom that would constitute separate

deadly force accompanying each of the sexual assaults, we conclude Miske has

shown a reasonable possibility that the jury used the entirety of the acts

occurring in the living room as the deadly force used to effectuate all of the

sexual assaults that came after. See Curry v. State, 740 N.E.2d 162, 165-66 (Ind.

Ct. App. 2000) (holding there was a reasonable possibility jury used the same

facts to establish the essential elements of force that enhanced multiple crimes

where victim sustained multiple injuries from a single beating that occurred

before the defendant committed acts of rape and criminal deviate conduct: “the

beating that . . . supported the enhancement of the charges . . . consisted of a

single episode of brutality[. T]he State presented no evidence at trial that would

have indicated to the jury that the ‘force’ elements of the . . . charges were to be

satisfied by distinct acts of violence.”), trans. denied; cf. Holloway v. State, 773

N.E.2d 315, 319 (Ind. Ct. App. 2002) (holding the same bodily injury was

improperly used to enhance multiple convictions: “[T]he serious bodily injury

inflicted by [the defendant] stemmed from a single criminal episode, albeit

delivered in multiple blows, immediately preceding” the acts of criminal deviate

conduct and rape; thus, only one conviction could be enhanced by the fact of

the serious bodily injury), trans. denied. Under these facts and circumstances,

we can only conclude that Miske was convicted of three Class A felonies based

on one act of deadly force – battering and strangling V.P. in the living room to

remove her to the bedroom and then sexually assault her.



Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020          Page 25 of 31
[30]   The State made no effort to prosecute the case in a manner that ensured the

       same evidence was not used to support multiple verdicts. Rather than untangle

       the evidence to try to show separate and distinct behaviors accompanying each

       alleged act of sexual conduct, the State conflated the evidence and argued the

       very same behavior was used to enhance three separate crimes from Class B to

       Class A felonies. Therefore, Miske was subjected to double jeopardy when he

       was convicted of enhanced versions of all three crimes. Had this claim been

       raised on direct appeal, it likely would have prevailed. Miske’s appellate

       counsel testified at the PCR hearing that he considered raising this common law

       double jeopardy claim on direct appeal but “tried to steer clear of [the ugly

       facts] as much as [he] could.” PCR Tr., Vol. 2 at 23. It was thus significant

       and obvious on the face of the record. Moreover, appellate counsel testified

       that his strategy on appeal was to try to get Miske’s sentence reduced. Had this

       claim been successfully raised, Miske’s sentence would have been significantly

       reduced. Although appellate counsel claimed he did not raise the issue to avoid

       the “ugly facts” of this case, the facts were unavoidable in raising virtually any

       issue in this case. Omitting it therefore served neither appellate counsel’s stated

       strategy nor any other reasonable strategy.


[31]   As for prejudice, we have already alluded to the fact that had the common law

       double jeopardy claim regarding multiple enhancements for the “very same

       behavior” been raised, it was more likely to have prevailed than the

       constitutional double jeopardy claim appellate counsel did raise. See Garrett,

       992 N.E.2d at 724 (stating that to establish prejudice, the petitioner must show


       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020     Page 26 of 31
       that the omitted issues were clearly more likely to result in reversal). Further,

       success on this claim would have meant that two of the three Class A felony

       convictions would have been reduced to Class B felony convictions and Miske’s

       sentence reduced accordingly. Miske was sentenced to consecutive forty-five-

       year terms for each of three Class A felony convictions for a total of 135 years.

       See Ind. Code § 35-50-2-4(a) (providing that a Class A felony is punishable by a

       fixed sentence between twenty and fifty years, with an advisory sentence of

       thirty years). But if two of Miske’s Class A felony convictions were instead

       Class B felony convictions, served consecutively to the Class A felony

       conviction and to each other, his maximum sentence for these three convictions

       would have been at most ninety years – or at least forty-five years less than the

       sentence he received. See Ind. Code § 35-50-2-5(a) (providing a Class B felony

       is punishable by a fixed sentence between six and twenty years, with an

       advisory sentence of ten years).7


[32]   Miske has shown that he would have been entitled to relief on a common law

       double jeopardy claim challenging his multiple Class A felony enhancements,

       and that such relief would have resulted in a substantial reduction in his

       sentence, thereby showing by a preponderance of the evidence that his appellate

       counsel was ineffective for failing to raise the issue. Accordingly, he has also

       shown that the evidence leads to a conclusion opposite that reached by the post-



       7
         Miske could have been sentenced to up to fifty years for a Class A felony conviction and up to twenty years
       for each Class B felony conviction for a possible maximum sentence on these three convictions of ninety
       years if ordered to be served consecutively.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                            Page 27 of 31
       conviction court on this issue and that the post-conviction court clearly erred in

       denying him relief.


                                             3. Multiple Convictions

[33]   Miske also claims his behavior that serves as the basis for his convictions of

       strangulation, domestic battery, and battery was also the basis for the Class A

       felony enhancement and therefore those convictions cannot stand

       independently. This claim is also based on the “enhancement” category of

       common law double jeopardy under the prong which states that if a defendant

       is convicted of a crime for engaging in a certain behavior, that behavior cannot

       also be used to enhance a separate crime and either the enhancement or the

       separate crime must be vacated. See Richardson, 717 N.E.2d at 56; see supra ¶ 18.


[34]   Miske again claims that omitting this issue was not a reasonably strategic

       decision because appellate counsel testified that his strategy was to reduce

       Miske’s sentence and that he tried to offer the appellate court multiple avenues

       to do so. If a claim that these three convictions violated common law double

       jeopardy rules were successful, Miske’s sentence would have been reduced.8




       8
         Miske claims his sentence would have been reduced by three to five years. However, the trial court
       sentenced Miske to consecutive terms of six years for criminal confinement, two years for intimidation, two
       years for strangulation, two years for domestic battery, one year for battery, and one year for resisting law
       enforcement for a total sentence of fourteen years. The court then stated that his sentence for those crimes
       was capped at ten years. If Miske’s convictions and sentences for strangulation (two years), domestic battery
       (two years), and battery (one year) were vacated, he would be subject to a nine-year-sentence on the
       remaining convictions and, with the cap, would be saved one year on his current sentence.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                            Page 28 of 31
[35]   Here, Miske has shown a reasonable possibility that the Class A felony

       enhancement was imposed for the very same behavior as the batteries and

       strangulation for which Miske was separately convicted. That is, based on the

       fact the State presented this case to the jury as if all the crimes that were

       committed in the living room constituted one act of deadly force leading to the

       sexual crimes, the Class A felony enhancement and his convictions for battery,

       domestic battery, and strangulation were all based on the same acts. This also

       violates our common law prohibitions against double jeopardy, and if a

       challenge had been made to these convictions on this basis, it likely would have

       succeeded. Accordingly, Miske has shown by a preponderance of the evidence

       that his appellate counsel should have raised this issue on direct appeal and the

       post-conviction court clearly erred in denying him relief.


                                                    4. Remedy

[36]   We acknowledge that all of Miske’s crimes, individually and as a whole, were

       heinous. Had this case been more carefully charged, presented, and argued by

       the State, any double jeopardy concerns could have been avoided. However,

       on this record, we are compelled to conclude that there are double jeopardy

       violations that Miske’s appellate counsel should have raised, and, barring that,

       the post-conviction court should have remedied. When convictions are found

       to contravene double jeopardy principles, “a reviewing court may remedy the

       violation by reducing either conviction to a less serious form of the offense if

       doing so will eliminate the violation. If it will not, one of the convictions must

       be vacated.” Girten v. State, 136 N.E.3d 1160, 1162 (Ind. Ct. App. 2019)

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020       Page 29 of 31
       (opinion on reh’g) (quoting Richardson, 717 N.E.2d at 54). Miske was entitled

       to post-conviction relief on his claim that multiple Class A felony enhancements

       violated the common law double jeopardy “enhancement” formulation.

       Accordingly, we reverse the denial of post-conviction relief on this issue and

       remand to the trial court to vacate two of the Class A felony convictions, enter

       judgment of conviction as Class B felonies, and sentence Miske for the two

       Class B felonies accordingly.9


[37]   We also conclude that Miske’s convictions for battery, domestic battery, and

       strangulation are impermissible under Indiana’s common law double jeopardy

       rules, as they are based on the very same behavior as the Class A felony

       enhancement. Because there is no less serious form of these convictions that

       would eliminate the violation we reverse and remand with instructions that

       these convictions and corresponding sentences be vacated. See Richardson, 717

       N.E.2d at 55 (stating the proper remedy for a double jeopardy violation is to

       vacate the conviction with the less several penal consequences).



                                                Conclusion




       9
         We do not express an opinion as to which conviction should remain a Class A felony and in practice, it
       makes no difference. We do note, however, that based on the sequence of events described by V.P., Count II
       alleging criminal deviate conduct for an act involving the penis of one party and the mouth of another
       appears to be the first-in-time and therefore the most immediately caused by the use of the proven deadly
       force.

       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020                         Page 30 of 31
[38]   Miske has shown by a preponderance of the evidence that he is entitled to relief

       on his claims that his appellate counsel was ineffective for omitting two issues

       on direct appeal. Accordingly, the judgment of the post-conviction court is

       reversed, and this case is remanded with instructions.


[39]   Reversed and remanded.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-PC-1174 | February 7, 2020    Page 31 of 31
