Callantine v. State

• Docket Number: 23A-PC-859
• Decision Date: 17 January 2024
• Parties: Zachary W. Callantine, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent
• Court: Indiana Appellate Court

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Zachary W. Callantine, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent

No. 23A-PC-859

Court of Appeals of Indiana

January 17, 2024

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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...