Reversal: Relief granted for ineffective assistance of counsel in rape case

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A man sentenced to 145 years after he was convicted of sexually assaulting his fiancé has been granted post-conviction relief on appeal. The Indiana Court of Appeals concluded the man was entitled to relief based on his appellate counsel’s ineffectiveness.

In James E Miske Jr v. State of Indiana,19A-PC-01174, James Miske became angry and suspicious that his fiancé was cheating on him and began choking her and throwing her around. Afraid that he would kill her, the woman said she would “do whatever he wanted.” Miske then raped her.

Following a jury trial, Miske was found guilty of Class A felonies rape and two counts of criminal deviant conduct; Class C felony criminal confinement, Class D felonies counts of strangulation, domestic battery committed in the presence of a child, and intimidation; and Class A misdemeanors battery and resisting law enforcement. He was sentenced to 145-years, which was affirmed on direct appeal.

Miske, who unsuccessfully filed a petition for post-conviction relief, challenged the denial of his petition by contesting that he received ineffective assistance from his appellate counsel on direct appeal. Specifically, Miske argued that his rape and deviate conduct convictions were enhanced from Class B to Class A felonies on the allegation that they had been committed via deadly force, but that force was not specified in the state’s charging information nor identified in the trial court’s instruction during the jury trial. He asserted that the prosecutor’s three identified behaviors of intimidation, strangulation, and battery could not be the basis for the enhancements.

During the PCR hearing, Miske’s appellate counsel testified that he had considered raising the issue that the multiple Class A enhancements violated common law double jeopardy. However, he didn’t raise the issue because he thought that “virtually every decision regarding double jeopardy on these kinds of case[s], rape, criminal deviate conduct” were against him.

“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.’ 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.’ 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,’” Judge Margret Robb wrote for the appellate court.

The appellate court, however, agreed with Miske that a reasonable possibility exists that the jury used the same evidence of deadly force to enhance two of his Class A felony counts.

“There is no evidence that Miske had a weapon or repeatedly threatened to kill V.P. while he was committing the sexual assaults … 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,” Robb wrote.

The appellate court noted that the jury was not instructed on the fact that “seriously bodily injury” includes injury that creates a substantial risk of death or that causes extreme pain. Thus, it could have latched onto the fact that Miske continued to pull his fiancé’s hair and causing her pain during each act as evidence of deadly force.

“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,” it wrote.

It additionally concluded 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.

“The State made no effort to prosecute the case in a manner that ensured the same evidence was not used to support multiple verdicts,” the appellate court wrote, concluding that the post-conviction court clearly erred in denying him relief.

It therefore reversed the denial of post-conviction relief on the issue of Miske’s Class A felony enhancements and remanded to the trial court to vacate two of those convictions, enter judgment of conviction as Class B felonies, and sentence Miske for the two Class B felonies accordingly.

“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,” the appellate court wrote.

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