by Caitlin Huston
A 40-year-sentence prison sentence has been reinstated for the 32-year-old Logansport man who had previously overturned his conviction for two counts of rape.
Jason Burkett was convicted in 2004 of raping his former girlfriend, but won post-conviction relief and was cleared of the charges. The Indiana Court of Appeals overturned his post-conviction relief Tuesday, meaning that his rape conviction and sentence are reinstated, pending action by Special Judge Robert Steele.
Burkett was found guilty June 1, 2004, of two counts of rape, class B felonies, criminal deviate conduct, a class B felony, sexual battery, a class D felony, and criminal confinement, a class D felony. He applied for post-conviction relief twice, citing problems with his defense attorney. Special Judge Robert McCallen granted the second post-conviction relief and Burkett was released from jail in April. He was later arrested Aug. 17 on warrants for voyeurism charges.
McCallen granted the relief because he found that trial counsel rendered “ineffective assistance” in failing to call a witness who was reportedly at Burkett’s residence on the night the rape was reported to have occurred, according to court documents. McCallen stated the outcome of the trial may have been different because the woman would have reported she did not hear anything unusual.
Documents state that McCallen also granted the relief because he found that Burkett’s attorney did not include testimony from Burkett’s mother and brother, who would have stated that the victim had previously been upset at Burkett for videotaping a previous sexual encounter. This could have led the jury to believe “that the victim’s rape accusation was motivated by anger at Burkett.”
Cass County Prosecutor Kevin Enyeart appealed Special Judge McCallen’s decision to grant post-conviction.
“Mr. Burkett committed these rapes,” Enyeart said. “I believed it from day one.”
In a decision handed down Tuesday, the Court of Appeals ruled that the woman’s testimony would not have changed the outcome because she was not at home at the time when the victim reported that the rape occurred.
“We believe the post-conviction court overestimated the import” of the woman’s “proposed testimony,” the document states.
The Court of Appeals also overturned the second reason for post conviction relief, stating that video tape of the reported rape shows that the sexual encounter was not consensual.
With the Court of Appeals decision, Enyeart said Burkett is again charged with rape.
“Right now the rape conviction has been reinstated,” Enyeart said.
The Indiana Court of Appeals has asked Special Judge Robert Steele to review the remaining claims in Burkett’s post-conviction relief. Enyeart said he has many options, including granting post-conviction relief on the remaining claims.
Enyeart said Burkett could also apply for post-conviction relief again, but that the Court of Appeals denied the biggest points in his argument.
“Those were his best chances of getting post-conviction relief,” Enyeart said.
Enyeart said Burkett has about 20 years of his sentence remaining, meaning that he would serve about ten years due to good-time credit.
Burkett also awaits a Feb. 14 sentencing after pleading guilty Jan. 10 to voyeurism, a class D felony.
Enyeart said the overturned post-conviction relief will not affect the plea agreement.
“The judge can either accept or reject the plea agreement,” Enyeart said.
The plea agreement in the voyeurism case calls for three years in prison. Enyeart said those three years would be added to the remainder of his 40-year-sentence.
After years of work on this case, Enyeart said he feels the right decision has been made.
“I feel that justice has been done,” Enyeart said.
Burkett remains in the Cass County Jail without bond.
Caitlin Huston is a staff reporter of the Pharos-Tribune. She can be reached at 574-732-5148 or firstname.lastname@example.org.