Opinion
23A-PC-859
01-17-2024
Zachary W. Callantine, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent
APPELLANT PRO SE Zachary W. Callantine Wabash Valley Correctional Facility Carlisle, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court Trial Court Cause No. 02D06-2201-PC-6 The Honorable Frances C. Gull, Judge
APPELLANT PRO SE Zachary W. Callantine Wabash Valley Correctional Facility Carlisle, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge
Case Summary
[¶1] Zachary W. Callantine, pro se, appeals the denial of his motion for summary disposition and petition for post-conviction relief. We affirm.
Facts and Procedural History
[¶2] In Callantine's direct appeal, the relevant facts were summarized as follows:
E.S. and her boyfriend, Tyler Wedde, were close friends with Callantine. All three had hung out together on numerous occasions but E.S. and Callantine had hung out alone only once. Around 5:15 p.m. on August 21, 2017, Wedde dropped E.S. off at Callantine's apartment. Wedde and E.S. had been fighting and when they arrived, E.S. slammed the car door and walked upstairs to Callantine's apartment. As she entered the apartment, Wedde called E.S. and the two continued to argue via telephone. Overhearing the fight, Callantine offered E.S. relationship advice and tried to instruct E.S. on what to say to Wedde. E.S. told Callantine, "[T]his is my boyfriend, I can fight with him how I want, . . . I don't want to hear what you have to say, like I can fight myself. I don't need you to fight my battles for me[.]"At some point, E.S. and Wedde's call ended.
E.S. walked into Callantine's bedroom and sat on the edge of the pull-out bed. E.S. believed Callantine was drunk when she arrived and recalled seeing a bottle of brandy in his room. Callantine offered E.S. a shot but she declined. Callantine stood in the doorway of the bedroom and continued to give unwelcome advice. "[A]ll of a sudden[,]" Callantine's demeanor changed and he ordered E.S. to lay on her back. E.S. testified that Callantine's "face turned red and his eyes were like black" and he screamed at her. Sensing that "something [was] not right," E.S. ran toward the door and tried to duck under Callantine's arm to get out of the bedroom. Callantine head-butted E.S., which caused her eyes to go "black for a second" and left her "totally
disoriented[.]"
Callantine then grabbed a serrated knife, held it to E.S.'s throat, and forced her onto the bed. He held the knife so close to E.S.'[s] neck that she believed she had been cut and was bleeding even though she was not. E.S. screamed. Callantine threatened to spray oven cleaner in her mouth if she did not stop screaming and stated that she would never breathe the same way. He also told her that if she moved or screamed, he would slit her throat. Callantine removed the knife from E.S.'[s] throat and began to choke her. E.S. believed she was going to die and was "frightened to [her] core[.]" E.S. began to lose consciousness and "once [her] eyes started to go black[,]" Callantine realized this and stopped choking her.
Using a ratchet strap, Callantine tied E.S.'[s] hands to the bed. Callantine was angry about a check she had written him a week prior that had bounced and had taken $200 out of his account. As a result, Callantine was unable to pay his landlord and asked E.S. how she was going to come up with the money. E.S. assured him that they could come to an agreement to remedy the debt. Callantine revealed to E.S. that he had been planning the attack all day and he intended to kill her. He detailed several ways he had considered murdering her - by skinning her alive or lighting her recently dyed hair on fire. Callantine quoted a movie in which the main character has multiple personalities. E.S. testified that "he was talking about when he got all angry and everything" and then said, "Zach is not here anymore[.]"
As he described his plans, Callantine's penis became erect. He took E.S.'[s] clothes off, told her he has "wanted to do this for a really long time," and asked E.S. if she wanted to have sex. Terrified and tied up, E.S. "just complied with what he said." Callantine inserted his fingers into her vagina. He then put a condom on his penis and raped her. After Callantine ejaculated, he immediately stated, "Zach's back," and he began to cry. Callantine instructed E.S. not to tell anyone and out of fear, she
agreed. He then untied her and began searching the house for his glasses. E.S. got dressed, grabbed the knife, threw it into the kitchen sink, and fled the apartment. As she ran down the stairs, she heard the door open behind her. Afraid Callantine might come after her, E.S. ran into the street, got into a stranger's car, and called her mother, who was with E.S.'[s] stepfather. At some point, E.S. got out of the stranger's car and hid in a nearby bush. E.S.'[s] stepfather called the police. Minutes later, police arrived and spoke with E.S. They documented E.S.'[s] injuries, which included an abrasion and redness on her neck, redness on her wrists where she had been tied up, and redness and minor swelling to her forehead. Wedde arrived and drove E.S. to a sexual assault treatment center where she underwent an assessment. Ultimately, she decided to press charges.
Callantine also called the police but alleged that E.S. raped him. Officer Kevin Peeper of the Fort Wayne Police Department responded to the call and went to Callantine's apartment. Callantine told Officer Peeper that he had asked E.S. to come over to talk about the bad check she had written him and when she arrived, she picked up a large metal curtain rod and hit him in the head, knocking him unconscious. Callantine stated that when he regained consciousness about an hour later, he was tied to the bed, had an erection and fluid on his penis, and witnessed E.S. run out of the apartment, which is "why he felt [E.S.] had raped him[.]" Callantine claimed that he had sustained injuries, including a lump on his head. Officer Peeper observed a "small superficial scratch" on the lower left part of Callantine's back but no other visible injuries or redness. Callantine also underwent an assessment at a sexual assault treatment center.
On November 14, 2017, the State charged Callantine with forcible rape, a Level 1 felony, criminal confinement while armed with a deadly weapon, a Level 3 felony, and strangulation, a Level 6 felony. While incarcerated in the Allen County Jail, Callantine repeatedly told his cellmate, Glen Dillion, that he planned to get E.S. on video recanting her story and planned to
e-mail it to the prosecutor. If E.S. failed to comply, Callantine stated that he would kill her, dispose of her body by burning it or dissolving it in chemicals, and then flee the country. Callantine wrote these plans down and titled it "plan delta."Callantine v. State, No. 19A-CR-973, 2019 WL 6904699, at *1-3 (Ind.Ct.App. Dec. 19, 2019) (citations omitted).
[¶3] After a February 2019 jury trial, Callantine was found guilty as charged and sentenced to forty-four years. On direct appeal, Callantine challenged the exclusion of certain evidence and the appropriateness of his sentence. His convictions and sentence were affirmed.
[¶4] In January 2022, Callantine filed a pro se petition for post-conviction relief, which he later amended. Callantine asserted that his trial counsel was ineffective in failing to file a motion to dismiss the charges against him on selective prosecution grounds. The post-conviction court ordered the case to be submitted by affidavit pursuant to Indiana Post-Conviction Rule 1(9)(b). Callantine submitted an affidavit in support of his claim and moved for summary disposition pursuant to Indiana Post-Conviction Rule 1(4)(g). The post-conviction court denied Callantine's motion and petition. This appeal ensued.
Discussion and Decision
[¶5] "Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Bautista v. State, 163 N.E.3d 892, 896 (Ind.Ct.App. 2021) (quoting Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied (2020)). "A defendant who files a petition for post-conviction relief 'bears the burden of establishing grounds for relief by a preponderance of the evidence.'" Id. (quoting Ind. Post-Conviction Rule 1(5)). "Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment[.]" Id. "Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the postconviction court's decision." Id. (quoting Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)). "In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did." Id. Callantine has brought this appeal pro se, "but this does not mean that we will treat his brief any differently than we would if he were represented by counsel." Receveur v. Buss, 919 N.E.2d 1235, 1238 n.4 (Ind.Ct.App. 2010), trans. denied.
[¶6] "The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution." Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). "A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, [466 U.S. 668 (1984)]." Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). "First, the defendant must show that counsel's performance was deficient." Id. "This requires a showing that counsel's representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment." Id. (citations omitted). "There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls on the defendant to overcome that presumption." Peaver v. State, 937 N.E.2d 896, 900 (Ind.Ct.App. 2010), trans. denied (2011).
[¶7] "Second, the defendant must show that the deficient performance prejudiced the defense." Perez, 748 N.E.2d at 854. "To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "Although the two parts of the Strickland test are separate [inquiries], a claim may be disposed of on either prong." Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). "Strickland declared that the 'object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.'" Id. (quoting Strickland, 466 U.S. at 697).
[¶8] Regarding the denial of Callantine's motion for summary disposition, we review that ruling "as we would a ruling on summary judgment under Indiana Trial Rule 56." Adcock v. State, 22 N.E.3d 720, 723 (Ind.Ct.App. 2014). "Summary disposition should not be granted unless there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Id. "Any doubts about the facts and inferences to be drawn from them must be resolved in favor of the non-movant." Id.
[¶9] Callantine's ineffectiveness claim is predicated on his trial counsel's failure to file a motion to dismiss the charges against him on selective prosecution grounds. "[A]n ineffective assistance of counsel claim based on failure to make a motion to dismiss requires the petitioner to 'show a reasonable probability that the motion to dismiss would have been granted.'" Baumholser v. State, 186 N.E.3d 684, 689 (Ind.Ct.App. 2022) (quoting Garrett v. State, 992 N.E.2d 710, 723 (Ind. 2013)), trans. denied. "A selective prosecution claim is judged according to traditional equal protection standards." Dix v. State, 639 N.E.2d 363, 366 (Ind.Ct.App. 1994), trans. denied (1995). These standards require Callantine to show that the State's decision to prosecute him for sexually assaulting E.S. "had a discriminatory effect and was motivated by a discriminatory purpose." Id. (quoting Wayne v. United States, 470 U.S. 598, 608 (1985)). "The essential elements of a claim of selective prosecution are: '(1) that other violators similarly situated are generally not prosecuted; (2) that the selection of the claimant was "intentional or purposeful"; and (3) that the selection was pursuant to an "arbitrary classification."'" Pruitt v. State, 557 N.E.2d 684, 689 (Ind.Ct.App. 1990) (quoting 2 Wayne R. LaFave &Jerold H. Israel, Criminal Procedure § 13.4(a) (1984)), trans. denied (1991).
[¶10] We need address only the second element of Callantine's selective prosecution claim, which is best summarized in the following paragraphs of his amended petition for post-conviction relief:
15. When proceeding with charges, [the female deputy prosecutor] only prosecuted Callantine, who was the only victim
involved in this case who made any effort to call the policeand to show strong evidence of sexual abuse, which is reasonably predicted to result in the discouragement of the male population from reporting crimes of rape, and the encouragement of female rapists to commit rapes against males due to the total lack of consequences for E.S. when facing substantiated allegations of rape.
16. Discouraging the male population from reporting crimes while encouraging the commission of crimes by the female population against males is principally discriminatory, strongly opposes deterrence, and is highly detrimental to society.PCR App. Vol. 2 at 45.
[¶11] Regarding Callantine's assertion that he "was the only victim involved in this case who made any effort to call the police[,]" E.S. explained at trial,
I was truly terrified because I didn't want [Callantine] to not get arrested and then find me and finish the job because I was - I was so scared that he was going to kill me, and I didn't want to die, and I was like if I report him like I'm - he's not going to go to jail and I'm just a sitting target.Trial Tr. Vol. 1 at 132. The aforementioned testimony of Callantine's cellmate Dillon establishes that E.S.'s fears were not unwarranted. E.S. also testified that she talked with the police officers who responded to her stepfather's 911 call and "made the decision to press charges" against Callantine mere moments after the assault. Id. at 133.
[¶12] Callantine's assertion that he was "the only victim involved in this case . . . to show strong evidence of sexual abuse" alludes to a handwritten note on a form completed by the forensic examiner at the sexual assault treatment center, which states, "[B]rown spots to tip of penis. Cannot rule out injury. Will do follow up eval." PCR App. Vol. 3 at 23. Callantine submitted no evidence that a "follow up eval" was ever performed to confirm whether the brown spots were in fact an injury caused by a sexual assault, nor did he submit any evidence in support of his unspoken premise that only the victim-and not the perpetrator-of a sexual assault may suffer such an injury.
[¶13] In light of the foregoing, we must conclude that Callantine's allegation of intentional or purposeful discriminatory treatment is baseless, and thus he has failed to show that there is a reasonable probability that a motion to dismiss on selective prosecution grounds would have been granted. Accordingly, we find no error in the denial of his motion for summary disposition and petition for post-conviction relief.
[¶14] Affirmed.
Riley, J., and Mathias, J., concur.