                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                      STATE OF ARIZONA, Respondent,

                                         v.

                  RICHARD NEWMAN SALEM, Petitioner.

                          No. 1 CA-CR 15-0851 PRPC
                              FILED 7-18-2017


      Petition for Review from the Superior Court in Yavapai County
                         No. V-1300-CR-820060183
                   The Honorable Michael R. Bluff, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Yavapai County Attorney’s Office, Prescott
By Dana E. Owens
Counsel for Respondent

C. Kenneth Ray, II PC, Prescott
By C. Kenneth Ray, II
Counsel for Petitioner
                             STATE v. SALEM
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge James P. Beene joined.


T H U M M A, Judge:

¶1             Petitioner Richard Newman Salem seeks review of the
superior court’s dismissal of his notice of petition for post-conviction relief
and successive petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure 32.1 (2017).1 Absent an abuse of discretion or
error of law, this court will not disturb a superior court’s ruling on a petition
for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012).
Finding no such error, this court grants review but denies relief.

¶2              A jury found Salem guilty of nine counts, consisting of
aggravated assault against a law enforcement officer, resisting arrest and
criminal trespass. The jury found three of the aggravated assault offenses
were dangerous and the superior court imposed concurrent sentences, the
longest of which was 10.5 years in prison. On direct appeal, Salem argued
(1) the State failed to preserve a videotape depicting events that occurred in
the police department’s booking area; (2) the superior court erred by
precluding the testimony of several witnesses who were disclosed in an
untimely manner; (3) there was insufficient evidence to support the guilty
verdicts; (4) the jury was improperly instructed and (5) the sentence was
excessive. This court found none of Salem’s arguments to be persuasive and
affirmed the convictions and sentences on direct appeal. State v. Salem, 1
CA-CR 07-0386 (Ariz. App. Aug 26, 2008) (mem. dec.). The mandate in that
direct appeal issued in February 2009.




1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



                                       2
                             STATE v. SALEM
                            Decision of the Court

¶3             Salem filed his first petition for post-conviction relief in April
2009, alleging he was denied the right to a fair and impartial jury trial
because one juror had been untruthful during voir dire. Salem also claimed
ineffective assistance of trial counsel for (1) failing to disclose witnesses he
claimed were instrumental in educating the jury about Salem’s panic and
anxiety disorders, (2) failing to effectively examine and rehabilitate a
witness who was prevented from offering an opinion about how Salem’s
illness affected his conduct and (3) failing to file a timely motion regarding
a juror’s misconduct. In September 2009, the superior court dismissed
Salem’s petition, finding he failed to present a colorable claim for relief. This
court denied Salem’s petition for review in April 2011.

¶4              In December 2014, Salem filed the underlying notice of
petition for post-conviction relief and successive petition for post-
conviction relief. Salem raised three issues (1) ineffective assistance of
counsel for failing to make Salem aware of a favorable plea offer he asserts
he surely would have entered into; (2) actual innocence based on the
argument that if the jury had been aware of all of the facts and information
Salem presumes he would be able to present if he were given a new trial,
no jury would find him guilty; and (3) newly discovered evidence based on
four theories: (a) Salem’s diagnosis of post-traumatic stress disorder after
trial; (b) Salem suffered from an adverse and unknown reaction to the anti-
anxiety medication he was prescribed (Paxil) and his prescribing witness
was unaware of his previous adverse reaction; (c) a precluded witness was
familiar with Salem and could have testified to his overreaction and to the
extreme adverse reactions he was experiencing; and (d) scientific studies
and data on Paxil. The superior court, after considering the various filings,
dismissed, finding no material issue of fact or law which would entitle
Salem to relief.

¶5            On review, Salem argues (1) the facts presented are newly
discovered; (2) the facts presented are sufficient to support his claim of
actual innocence and (3) trial counsel was ineffective by failing to advise
Salem of the existence of the plea agreement.




                                       3
                              STATE v. SALEM
                             Decision of the Court

¶6             Any claim a defendant raised or could have raised on direct
appeal or in an earlier post-conviction relief proceeding is precluded. Ariz.
R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply. It is
Salem’s burden to assert grounds that bring him within the provisions of
the Rule in order to obtain relief. State v. Carriger, 143 Ariz. 142, 146 (1984).
Newly-discovered material facts are a permissible exception under Rule
32.2(b). But, “[n]ewly-discovered material facts alleged as grounds for post-
conviction relief are facts which come to light after the trial and which could
not have been discovered and produced at trial through reasonable diligence.” State
v. Dogan, 150 Ariz. 595, 600 (App. 1986) (emphasis added); accord State v.
Bilke, 162 Ariz. 52, 52-53 (1989).

¶7            Salem’s claims that the scientific studies showing that Paxil
may cause aggression in some individuals is not newly discovered
evidence. Not only were two of the studies published before Salem’s trial,
but Salem has failed to show the studies could not have been discovered
with due diligence. Further, Salem fails to show how the information is not
cumulative to his witness’ testimony at trial and, further, Salem fails to
show how this claim is not precluded.

¶8             Given the record presented, Salem’s claim of actual innocence
and his argument that no jury would find him guilty knowing the scientific
studies and hearing his witnesses’ testimony is unfounded. Salem
previously used his mental health and prescription to defend his actions.
Salem has provided no facts or law to demonstrate that a jury would find
differently if provided the studies and witness testimony he cites.

¶9            Finally, Salem has the burden to show ineffective assistance
of counsel, and “the showing must be that of a provable reality, not mere
speculation.” State v. Rosario, 195 Ariz. 264, 268 ¶ 23 (App. 1999). The record
shows that Salem was made aware of the plea agreement tendered by the
State at the Early Disposition Court (“EDC”) stage and that trial counsel
was negotiating a counteroffer. Salem was then made aware of what was
likely a new plea offer, which his new trial counsel felt unprepared to
advise Salem on in view of the early stage of the case and counsel’s
anticipated witness interviews. Trial counsel then sent the State a letter
describing the same concerns. Trial counsel followed up with a second
letter, proposing a counter-offer and offering letters from Salem’s family
and friends and a compact disc of Salem’s recordings in support of the offer.
This belies Salem’s assertion that trial counsel did not communicate a
favorable plea offer that he surely would have accepted. The EDC plea
agreement is neither a newly discovered material fact, nor has Salem
established that counsel’s performance fell below an objectively reasonable


                                        4
                            STATE v. SALEM
                           Decision of the Court

professional standard and that the deficient performance caused prejudice
to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Nash, 143 Ariz. 392, 397 (1985).

¶10          The superior court did not abuse its discretion in dismissing
Salem’s notice of petition for post-conviction relief and successive petition
for post-conviction relief. Accordingly, this court grants review but denies
relief.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




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