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
