                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                DANIEL ADEM VAN DAALEN, Petitioner.

                         No. 1 CA-CR 16-0515 PRPC
                              FILED 8-24-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 2002-019041
                 The Honorable Teresa A. Sanders, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent

Daniel Adem Van Daalen, Florence
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
                          STATE v. VAN DAALEN
                            Decision of the Court

J O H N S E N, Judge:

¶1            Daniel Adem Van Daalen petitions this court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and, for the reasons stated, grant review and deny
relief.

¶2            In March 2003, Van Daalen pled no contest to three counts of
manslaughter, Class 2 felonies, stipulating to an aggregate term of 31.5
years in prison. Before accepting his plea and sentencing him, the superior
court found Van Daalen competent based upon a Rule 11 pre-screen
evaluation.

¶3             In his of-right post-conviction relief petition, filed with the aid
of advisory counsel, Van Daalen claimed his trial lawyer "failed to pursue
Rule 11 proceedings." He attached a neuropsychological report prepared
after an examination in February 2003, which was before the court at the
time of sentencing. After receiving a response from the State, the superior
court found Van Daalen's petition and the report did "not provide
information sufficient to overcome the [sentencing] Court's finding that
[Van Daalen] was able to understand the proceedings against him or to
assist in his own defense." The court noted that Van Daalen's trial counsel
"did have [Van Daalen] evaluated for Rule 11 purposes and [Van Daalen]
has not provided evidence that had counsel done something different, there
would have been a different result."

¶4            In a successive, untimely petition for post-conviction relief,
filed in June 2016, Van Daalen raised the same argument, claiming his
counsel was ineffective by failing to request an additional Rule 11
examination before Van Daalen pled no contest. His petition attached
affidavits from fellow inmates detailing their observations relating to his
more recent mental and physical condition, along with a copy of the
February 2003 neuropsychological evaluation.          The superior court
summarily dismissed his petition.

¶5               We review the court's dismissal of Van Daalen's petition for
an abuse of discretion. State v. Jensen, 193 Ariz. 105, 106, ¶ 9 (App. 1998).
Van Daalen seeks relief under Arizona Rule of Criminal Procedure 32.1(a),
but the ground he raises (ineffective assistance of trial counsel) is not a claim
that may be raised in an untimely or successive notice. See Ariz. R. Crim.
P. 32.4(a) (untimely notice "may only raise claims pursuant to Rule 32.1(d),
(e), (f), (g) or (h)"). Moreover, the inmates' affidavits, which relate to Van
Daalen's current mental condition, do not constitute "[n]ewly discovered


                                        2
                         STATE v. VAN DAALEN
                           Decision of the Court

material facts" that would have changed his sentence. See Ariz. R. Crim. P.
32.1(e). In addition, his claim is precluded because he raised it in a prior
proceeding, which the court dismissed. See Ariz. R. Crim. P. 32.2(a)(2).
Although Van Daalen argues that a mental disability prevented him from
raising a timely claim of ineffective assistance of counsel, he did raise the
claim before, it was ruled on, and he was denied relief. In any event,
although Van Daalen cites Rule 32.1(f) as a ground for exception to
preclusion, that rule is of no assistance to him because his current
proceeding is a successive petition, not an of-right proceeding. See Ariz. R.
Crim. P. 32.1(f).

¶6           For the foregoing reasons, we grant review and deny relief.




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




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