      MEMORANDUM DECISION
                                                                          Feb 11 2015, 9:54 am
      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
      Cara Schaefer Wieneke                                     Gregory F. Zoeller
      Wieneke Law Office, LLC                                   Attorney General of Indiana
      Plainfield, Indiana
                                                                Jodi Kathryn Stein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jason C. Burkett,                                         February 11, 2015

      Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                                09A02-1404-PC-233
              v.                                                Appeal from the Cass Superior
                                                                Court.
                                                                The Honorable Wayne E. Steele,
      State of Indiana,                                         Special Judge.
      Appellee-Respondent.                                      Cause No. 09D02-0305-FB-25




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Jason C. Burkett appeals the trial court’s denial of his petition for post-

      conviction relief. We affirm.


      Court of Appeals of Indiana | Memorandum Decision 09A02-1404-PC-233 | February 11, 2015    Page 1 of 8
                                                     Issue
[2]   Burkett raises one issue, which we restate as: whether the trial court erred in

      concluding that Burkett did not receive ineffective assistance of appellate

      counsel.


                               Facts and Procedural History
[3]   We take the relevant facts from Burkett’s original appeal, as follows:

              Burkett and W.L. were in an on-and-off relationship for about four
              years and had one son together. W.L. ended the relationship with
              Burkett in April 2003. However, Burkett and W.L. remained friends
              for the benefit of their son.
              On May 24, 2003, W.L. agreed to spend the day with Burkett. The
              day ended with Burkett and W.L. watching a movie at a drive-in
              theater. W.L. told Burkett she wanted to go home, but Burkett drove
              to his house instead. When they arrived at Burkett’s house, at
              approximately 1:00 a.m., Burkett and W.L. argued. W.L. wanted to
              go to sleep and told Burkett that she wanted to go back to Pam
              Putnam’s house, where W.L. had been staying.
              When W.L. tried to sleep on the couch in the living room, Burkett
              pulled the blanket that covered W.L. and stood before her naked.
              Burkett then pulled W.L.’s clothes off and pulled her onto the floor.
              W.L. fought Burkett and told him to stop. Burkett picked W.L. up,
              carried her to the bedroom, and threw her on the bed. Unbeknownst
              to W.L., Burkett was recording the events in the bedroom with a video
              camera. W.L. resisted verbally and physically as Burkett tried to force
              open her legs with his hands and place his mouth on her vagina. W.L.
              repeatedly told Burkett to stop and continued to resist. At one point
              during the struggle, Burkett inserted his fingers into W.L.’s vagina and
              pinched her cervix, resulting in a half-moon-shaped wound to W.L.’s
              cervix. Burkett inserted his penis into W.L. and ejaculated. Burkett
              also inserted a “very large penis shaped toy” into W.L.’s vagina.
              Transcript at 54-55.



      Court of Appeals of Indiana | Memorandum Decision 09A02-1404-PC-233 | February 11, 2015   Page 2 of 8
        When Burkett stood up afterward, W.L. curled up on the bed. Burkett
        checked W.L. for bruises and told her that she had to take a shower,
        which she did. While in the shower, W.L. heard noises that she
        recognized as herself pounding on Burkett during the attack. Burkett
        informed her that if she did not wash herself “good,” then he would.
        Transcript at 58. When W.L. returned to the bedroom, Burkett told
        her to lean over the bed. Burkett inserted his penis into W.L.’s vagina
        and ejaculated. Burkett made W.L. take another shower. After
        W.L.’s second shower, she fell asleep on the bed.
        When W.L. awoke the next morning, Burkett took W.L.’s hand and
        placed it on his penis. Burkett told W.L. if she did not masturbate him
        he would force himself on her again. W.L. complied. Afterwards,
        Burkett was playing with the video tape, set it down, and left the room.
        W.L. tried to hide the video tape in a pillowcase, but Burkett found it.
        Burkett and his brother, Robert Burkett, then drove W.L. to Putnam’s
        house. W.L. contacted the police and went to the hospital. On May
        25, 2003, the trial court issued a search warrant for Burkett’s house
        and Robert’s car. The video tape of the attack ended up in the hands
        of Burkett’s friend, John Thompson. Thompson gave the tape to
        W.L., who turned it over to the police.
        The State charged Burkett with two counts of rape as class B felonies,
        criminal sexual deviate conduct as a class B felony, two counts of
        attempted rape as class B felonies, sexual battery as a class D felony,
        criminal confinement as a class D felony, and possession of marijuana
        as a class A misdemeanor. Burkett filed a notice of intent to present
        evidence of past sexual conduct and a motion for severance of
        offenses. The trial court granted Burkett’s motion to sever the charge
        of possession of marijuana, but denied Burkett’s motion to sever the
        remaining sex offense charges. On May 12, 2004, the trial court
        granted Burkett’s motion to present evidence of the victim’s past
        sexual conduct with Burkett, but denied the admission of evidence that
        W.L. and Burkett had on one previous occasion videotaped a sexual
        encounter.
        The jury found Burkett guilty of two counts of rape as class B felonies,
        criminal deviate conduct as a class B felony, sexual battery as a class D
        felony, and criminal confinement as a class D felony.




Court of Appeals of Indiana | Memorandum Decision 09A02-1404-PC-233 | February 11, 2015   Page 3 of 8
      Burkett v. State, Cause No. 09A02-0410-CR-883, at *2-5 (Ind. Ct. App. Mar. 28,

      2005).


[4]   On appeal, Burkett argued that the trial court should have granted his motion to

      sever each of his charges and that he received ineffective assistance of trial

      counsel. He also challenged his sentence. This Court affirmed his convictions

      and sentence.


[5]   Next, Burkett filed a petition for post-conviction relief. The court denied his

      petition, and he appealed. Burkett asked the Court for leave to terminate his

      appeal and return to the trial court to present new evidence. The Court granted

      Burkett’s request and dismissed the appeal without prejudice to Burkett’s right

      to appeal if the trial court’s subsequent post-conviction ruling was adverse to

      him. Burkett v. State, 09A04-1105-PC-231 (Ind. Ct. App. Aug. 26, 2011).


[6]   The trial court granted Burkett’s petition in part, finding that he was entitled to

      relief on two of his claims. The State appealed. A panel of this Court reversed

      the grant of post-conviction relief and remanded for consideration of Burkett’s

      remaining claims. Burkett v. State, Cause No. 09A02-1205-PC-356 (Ind. Ct.

      App. Jan. 15, 2013), trans. denied.


[7]   On remand, the court considered Burkett’s remaining claims and denied his

      petition. This appeal followed.




      Court of Appeals of Indiana | Memorandum Decision 09A02-1404-PC-233 | February 11, 2015   Page 4 of 8
                                    Discussion and Decision
[8]    Burkett argues that his attorney in his original appeal should have challenged

       the sufficiency of the evidence supporting his conviction for criminal deviate

       conduct. A post-conviction proceeding is not a substitute for a direct appeal

       and does not provide a petitioner with a “super-appeal.” Reed v. State, 856

       N.E.2d 1189, 1194 (Ind. 2006). The post-conviction rules contemplate a

       narrow remedy for subsequent collateral challenges to convictions. Id.


[9]    Post-conviction proceedings are, by nature, civil proceedings in which the

       petitioner must establish grounds for relief by a preponderance of the evidence.

       Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). When appealing the denial

       of post-conviction relief, the petitioner stands in the position of one appealing

       from a negative judgment. Id. On appeal, the petitioner must show that the

       evidence as a whole leads unerringly and unmistakably to a conclusion opposite

       to that reached by the post-conviction court. Kubsch v. State, 934 N.E.2d 1138,

       1144 (Ind. 2010).


[10]   We consider claims of ineffective assistance of appellate counsel under the same

       standard as claims of ineffective assistance of trial counsel. Hollowell v. State, 19

       N.E.3d 263, 269 (Ind. 2014). We apply the two-part test set forth in Strickland v.

       Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). For the

       first part, the petitioner must show deficient performance, which is

       representation that falls below an objective standard of reasonableness.

       Hollowell, 19 N.E.3d at 269. Second, the petitioner must also show prejudice, a


       Court of Appeals of Indiana | Memorandum Decision 09A02-1404-PC-233 | February 11, 2015   Page 5 of 8
       reasonable probability that, but for counsel’s errors, the result of the proceeding

       would have been different. Id.


[11]   Counsel’s performance is presumed effective, and a defendant must offer strong

       and convincing evidence to overcome this presumption. Kubsch, 934 N.E.2d at

       1147. An inability to establish either deficient performance or prejudice is fatal

       to a claim of ineffective assistance. Rowe v. State, 912 N.E.2d 441, 443 (Ind. Ct.

       App. 2009), aff’d on reh’g, 915 N.E.2d 561 (2009), trans. denied.


[12]   When reviewing a challenge to the sufficiency of the evidence underlying a

       conviction, we neither reweigh evidence nor assess the credibility of witnesses.

       Smith v. State, 8 N.E.3d 668, 679 (Ind. 2014). So long as an inference may be

       reasonably drawn from the evidence to support the verdict, we will affirm

       unless no reasonable trier of fact could have found the elements of the crime

       proven beyond a reasonable doubt. Id.


[13]   To obtain a conviction for criminal deviate conduct as a Class B felony, the

       State was obligated to prove beyond a reasonable doubt that Burkett (1)

       knowingly or intentionally (2) compelled by force or imminent threat of force

       (3) another person (3) to perform or submit to deviate sexual conduct. Ind.

       Code § 35-42-4-2 (1998) (repealed 2014). At the time Burkett committed his

       crimes, deviate sexual conduct was defined as an act involving either “a sex

       organ of one (1) person and the mouth or anus of another person; or (2) the

       penetration of the sex organ or anus of a person by an object.” Ind. Code § 35-




       Court of Appeals of Indiana | Memorandum Decision 09A02-1404-PC-233 | February 11, 2015   Page 6 of 8
       41-1-9 (1984) (subsequently renamed “Other sexual conduct” and codified at

       Ind. Code § 35-31.5-2-221.5 (2014)).


[14]   The State alleged that Burkett committed deviate sexual conduct by “forcefully

       and without consent insert[ing] a sexual device into [W.L.’s] vagina.” Direct

       Appeal App. p. 73. Burkett argues that there is insufficient evidence of

       penetration, and that if his attorney had challenged the evidence on direct

       appeal, he would have prevailed. He compares statutory language for rape and

       deviate sexual conduct and contends that, whereas proof of any penetration,

       even the slightest penetration, is sufficient to prove penetration for rape,

       something more than slight penetration is required to prove penetration for

       deviate sexual conduct.


[15]   We need not address Burkett’s claim that a higher level of proof of penetration

       is needed here because the evidence establishes more than slight penetration.

       At trial, W.L. testified that during Burkett’s attack she saw him holding a penis-

       shaped toy. The following exchange occurred:

               Q:       And what did he do with the toy?
               A:       He tried to insert it.
               Q:       Where did he touch you with it?
               A:       My vagina.
               Q:       And how can you tell he tried to insert it?
               A:       I could feel it.
       Trial Tr. p. 55.




       Court of Appeals of Indiana | Memorandum Decision 09A02-1404-PC-233 | February 11, 2015   Page 7 of 8
[16]   In addition, the video tape of Burkett’s assault was admitted into evidence at

       trial, and it shows him inserting the toy into W.L.’s vagina.


[17]   This evidence is more than sufficient to establish penetration and thus support

       the conviction for criminal deviate conduct. If appellate counsel had raised a

       sufficiency claim, it would not have changed the outcome. Burkett’s claim of

       ineffective assistance of counsel fails because he has not established prejudice.

       See Hollowell, 19 N.E.3d at 271. He has not carried his burden of demonstrating

       that the evidence as a whole leads unerringly and unmistakably to a conclusion

       opposite to that reached by the trial court.


                                                Conclusion
[18]   For the reasons stated above, we affirm the judgment of the trial court.


[19]   Affirmed.


       Najam, J., and Brown, J., concur.




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