Allen Lee Calligan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 16, 2019
• Docket: 19A-PC-119
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 16 2019, 6:15 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Joshua C. Friend Attorney General Haller & Colvin, P.C. Fort Wayne, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Allen Lee Calligan, May 16, 2019 Appellant-Calligan, Court of Appeals Case No. 19A-PC-119 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Respondent Judge Trial Court Cause No. 02D05-1312-PC-198

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 1 of 10 Case Summary [1] A jury convicted Allen Lee Calligan of unlawful possession of a firearm by a

serious violent felon (“SVF”) and found him to be a habitual offender. He

unsuccessfully challenged his fifty-year aggregate sentence on direct appeal. He

subsequently filed a petition for post-conviction relief (“PCR”), claiming

ineffective assistance of counsel, and now appeals the post-conviction court’s

denial of his petition. Finding that Calligan has failed to meet his burden of

establishing ineffective assistance of counsel, we affirm.

Facts and Procedural History [2] The underlying facts as summarized in an unpublished memorandum decision

on Calligan’s direct appeal are as follows:

Immediately after Officer Eric Thompson initiated a traffic stop and the vehicle he stopped pulled over to the side of the road, Calligan exited the passenger side of the vehicle, Officer Thompson ordered him back into the vehicle, and Calligan took off on foot. While chasing Calligan, Officer Thompson heard a thud and a metallic clink, and as he rounded a corner he observed Calligan getting up off the ground and holding a gun. Officer Thompson lost track of Calligan and called for backup. Approximately fifteen to twenty feet from where Officer Thompson last saw Calligan, police discovered a semiautomatic handgun lying on the ground. Calligan was eventually found nearby in a trash dumpster.

Calligan v. State, No. 02A05-1203-CR-143, 2012 WL 5193227 at *1 (Ind. Ct.

App. Oct. 22, 2012).

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 2 of 10 [3] The State charged Calligan with class B felony unlawful possession of a firearm

by an SVF and with being a habitual offender. A jury found Calligan guilty on

the SVF count but was unable to reach a verdict on the habitual offender count.

While Calligan was housed at the county jail, his trial counsel (“Counsel”) sent

him a letter at the jail stating, “The prosecutor has suggested he would agree to

cap your exposure at 10 years on the habitual enhancement if you would agree

to admit to that status rather than have a trial on that narrow issue. Let me

know if that interests you.” Petitioner’s Ex. 1. The envelope, which was

addressed to Calligan at the jail, was subsequently marked with a postal stamp

that read, “RETURN TO SENDER/ATTEMPTED – NOT

KNOWN/UNABLE TO FORWARD.” Appellant’s App. Vol. 2 at 28.

Shortly thereafter, Counsel withdrew his appearance, and Calligan’s case was

turned over to the public defender. Calligan was subsequently retried and

found to be a habitual offender. The trial court sentenced him to twenty years

for the SVF conviction, plus a thirty-year term on the habitual offender count.

Another panel of this Court affirmed his sentence on direct appeal, and our

supreme court denied his petition for transfer.

[4] Later, when he was researching his file from the public defender’s office to

determine whether he might file a PCR petition, Calligan found Counsel’s

returned letter in the file. He filed a pro se PCR petition, which was later

amended when he obtained counsel. In his petition, he raised several

allegations of ineffective assistance of trial and appellate counsel. With respect

to Counsel, the allegations included a claim of ineffective assistance in failing to

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 3 of 10 communicate a plea offer from the State. At the PCR hearing, Counsel testified

that it is his practice to communicate all plea offers to criminal defendants. He

testified that he did not recall having ever received a formal plea offer from the

prosecutor in this case and that he had no recollection of having received from

the jail the letter that was returned as undeliverable. The post-conviction court

issued an order with findings of fact and conclusions of law denying Calligan’s

PCR petition. In its findings and conclusions, the court applied contract

principles and concluded that there was no evidence of a formal plea offer and

that Counsel’s letter merely indicated the State’s willingness to negotiate. The

court also found that Counsel made a reasonable effort to communicate this

information to Calligan.

[5] Calligan now appeals. Additional facts will be provided as necessary.

Discussion and Decision [6] Calligan contends that the post-conviction court erred in denying his PCR

petition. Post-conviction relief does not offer the petitioner a super appeal;

rather, subsequent collateral challenges must be based on grounds enumerated

in the post-conviction rules. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App.

2013), trans. denied (2014). These rules limit the scope of relief to issues

unknown or unavailable to the petitioner on direct appeal. Id. The petitioner in

a PCR proceeding “bears the burden of establishing grounds for relief by a

preponderance of the evidence.” Ind. Post-Conviction Rule 1(5); Passwater v.

State, 989 N.E.2d 766, 770 (Ind. 2013). When issuing its decision to grant or

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 4 of 10 deny relief, the post-conviction court must make findings of fact and

conclusions of law on all issues presented, whether or not a hearing is held.

Ind. Post-Conviction Rule 1(6).

[7] A petitioner who appeals the denial of his post-conviction petition faces a

rigorous standard of review, that of demonstrating that the post-conviction

court’s decision was clearly erroneous. Massey v. State, 955 N.E.2d 247, 253

(Ind. 2011). Clear error occurs when we are left with a definite and firm

conviction that a mistake has been made. Passwater, 989 N.E.2d at 770. In

other words, if a post-conviction petitioner was denied relief in the proceedings

below, he must show that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite the one reached by the postconviction

court. Massey, 955 N.E.2d at 253. In conducting our review, we neither

reweigh evidence nor judge witness credibility; rather, we consider only the

evidence and reasonable inferences most favorable to the judgment. McKnight,

1 N.E.3d at 199.

[8] Calligan maintains that he was denied his constitutional right to effective

assistance of trial counsel. To prevail on an ineffective assistance claim, he

must satisfy two components: he must demonstrate both deficient performance

and prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687

(1984). Deficient performance is “representation [that] fell below an objective

standard of reasonableness, [where] counsel made errors so serious that counsel

was not functioning as ‘counsel’ guaranteed by the Sixth Amendment.”

Passwater, 989 N.E.2d at 770. We assess counsel’s performance based on facts

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 5 of 10 that are known at the time and not through hindsight. Shanabarger v. State, 846

N.E.2d 702, 709 (Ind. Ct. App. 2006), trans. denied. Evidence of isolated poor

strategy, inexperience, or bad tactics will not support an ineffective assistance

claim; instead, we evaluate counsel’s performance as a whole. Flanders v. State,

955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “[C]ounsel’s

performance is presumed effective, and a defendant must offer strong and

convincing evidence to overcome this presumption.” Ritchie v. State, 875

N.E.2d 706, 714 (Ind. 2007). “Strickland does not guarantee perfect

representation, only a reasonably competent attorney.” Hinesley v. State, 999

N.E.2d 975, 983 (Ind. Ct. App. 2013), trans. denied (2014).

[9] Prejudice occurs when a reasonable probability exists that, but for counsel’s

errors, the result of the proceeding would have been different. Passwater, 989

N.E.2d at 770. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Mitchell v. State, 946 N.E.2d 640, 643

(Ind. Ct. App. 2011), trans. denied. “Although the performance prong and the

prejudice prong are separate inquiries, failure to satisfy either prong will cause

the claim to fail.” Baer v. State, 942 N.E.2d 80, 91 (Ind. 2011).

[10] In this appeal, Calligan limits his ineffective assistance argument to a single

allegation: that Counsel failed to communicate an alleged plea offer from the

State capping his habitual offender sentence at ten years. He relies on the

United States Supreme Court’s holding in Missouri v. Frye, that “as a general

rule, defense counsel has the duty to communicate formal offers from the

prosecution to accept a plea on terms and conditions that may be favorable to Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 6 of 10 the accused.” 566 U.S. 134, 145 (2012). In Frye, “defense counsel allowed the

offer to expire without advising the defendant or allowing him to consider it

[and thus] did not render the effective assistance the Constitution requires.” Id.

Calligan also relies on Woods v. State, where another panel of this Court

reversed a PCR petitioner’s conviction on grounds of ineffective assistance of

counsel due to noncommunication of a plea offer. 48 N.E.3d 374, 380-81 (Ind.

Ct. App. 2015). In Woods, defense counsel received a letter from the prosecutor

that included a plea offer with clear terms that were favorable to the Woods, but

counsel did not communicate the offer to Woods by the stated expiration date.

Id. For reasons discussed below, we find these cases distinguishable.

[11] Here, the post-conviction court applied contract principles and concluded that

Calligan had failed to demonstrate the existence of a formal plea offer. Calligan

asserts that contract principles do not apply. We disagree. “Our courts have

long held that plea agreements are in the nature of contracts.” Valenzuela v.

State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), trans. denied (2009).

A plea agreement is contractual in nature, binding the defendant, the state, and the trial court. The prosecutor and the defendant are the contracting parties, and the trial court’s role with respect to their agreement is described by statute: If the court accepts the plea agreement, it shall be bound by its terms.

Id. (quoting Lee v. State, 816 N.E.2d 35, 38 (Ind. 2004)).

[12] The requirements of a contract are offer, acceptance, consideration, and a

meeting of the minds of the contracting parties. Conwell v. Gray Loon Outdoor

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 7 of 10 Mktg. Grp., Inc., 906 N.E.2d 805, 812-13 (Ind. 2009). To be valid and

enforceable, a contract must be reasonably definite and certain. Id. at 813.

It is often difficult to draw an exact line between offers and negotiations preliminary thereto. An offer is defined as “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” But “[a] manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.”

Zimmerman v. McColley, 826 N.E.2d 71, 77 (Ind. Ct. App. 2005) (citations

omitted).

[13] When it comes to plea agreements, our legislature has codified the requirement

that they be in writing in felony cases. See Ind. Code § 35-35-3-3(a) (“No plea

agreement may be made by the prosecuting attorney to a court on a felony

charge except: (1) in writing; and (2) before the defendant enters a plea of

guilty.”). 1 Here, the only written reference to a potential plea offer is Counsel’s

letter to Calligan indicating that the State suggested an openness to negotiating

his sentence on the habitual offender count. See Petitioner’s Ex. 1 (Counsel’s

letter to Calligan stating, “The prosecutor has suggested he would agree to cap

your exposure at 10 years on the habitual enhancement if you would agree to

1 Although the statute specifically imposes a writing rule for plea agreements on felony charges and specifically excepts from the writing requirement plea agreements on misdemeanor charges, it is silent as to plea agreements on habitual offender counts.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 8 of 10 admit to that status rather than have a trial on that narrow issue. Let me know

if that interests you.”). The letter did not indicate that the State had made a

formal offer to which Calligan could bind it by assenting within a certain time.

Rather, the letter is, at most, a notice from Counsel that the prosecutor was

willing to negotiate a deal that would avoid a retrial on the habitual offender

count. Counsel testified that he did not recall having ever received a formal

plea offer for Calligan, and Calligan has failed to demonstrate that such an offer

ever existed. Thus, Counsel cannot be deemed ineffective on the grounds

present in Frye or Woods, where defense counsel failed to communicate a

written offer from the State with clear terms favorable to the defendant.

[14] Even so, we conclude, as did the post-conviction court, that Counsel “did make

a reasonable effort to communicate the prosecutor’s unwritten suggestion to

[Calligan] by mailing the letter reporting that suggestion to him at the Allen

County Confinement Facility (where he was known to reside) … and no

evidence suggests that [Counsel] knew or should have known his effort had not

succeeded.” Appealed Order at 7. Counsel described the mail-sorting

procedures at his law office and testified that he never received the returned

letter and had no reason to believe that it had not been received by Calligan.

He withdrew from the case shortly after sending the letter, and the public

defender’s office entered its appearance. No evidence was presented as to how

the letter ultimately ended up in the public defender’s file. In short, Calligan

failed to establish that Counsel performed deficiently concerning the

communication of a potential plea deal. As he has failed to meet his burden

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 9 of 10 regarding the performance prong, we need not discuss the prejudice prong.

Baer, 942 N.E.2d at 91.

[15] In sum, Calligan has failed to overcome the presumption that Counsel provided

effective assistance. As such, he has failed to meet his burden of demonstrating

clear error in the post-conviction court’s denial of his PCR petition.

Consequently, we affirm.

[16] Affirmed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-119 | May 16, 2019 Page 10 of 10