Miske v. State

• Decision Date: 07 February 2020
• Docket Number: Court of Appeals Case No. 19A-PC-1174
• Parties: James MISKE, Jr., Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
• Court: Indiana Appellate Court

142 N.E.3d 439

James MISKE, Jr., Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent,

Court of Appeals Case No. 19A-PC-1174

Court of Appeals of Indiana.

Filed February 7, 2020

Attorneys for Appellant: Stephen T. Owens, Public Defender of Indiana, Jonathan O. Chenoweth, Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana

Robb, Judge.

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.

[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.

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.

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 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. 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. 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,

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