Robb, J.
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 postconviction 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.
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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.
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.
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).
1. State’s Arguments
We begin by addressing the State’s contention that Miske is challenging only strategy – not “what” appellate counsel challenged, but “how[…]” 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….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.
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).
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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 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 Enhancement
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.
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 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.
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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.
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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.
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…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-fiveyear 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).
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-conviction court on this issue and that the post-conviction court clearly erred in denying him relief.
3. Multiple Convictions
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.
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.
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
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.
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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.
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
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.
Reversed and remanded.
Mathias, J. and Pyle, J., concur