State v. Van Leeuwen ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
WILLIAM ADRIAN VAN LEEUWEN, JR., Petitioner.
No. 1 CA-CR 13-0251 PRPC
FILED 09-30-2014
Petition for Review from the Superior Court in Maricopa County
No. CR1999-015758
The Honorable Pamela S. Gates, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch
Counsel for Respondent
William Van Leeuwen, Jr., San Luis
Petitioner
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
STATE v. VAN LEEUWEN
Decision of the Court
P O R T L E Y, Judge:
¶1 Petitioner William Adrian Van Leeuwen, Jr., 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 A jury found Van Leeuwen guilty of disorderly conduct and
two counts of threatening or intimidating in June 2000. The trial court
sentenced him in November 2010 to 3.25 years’ imprisonment for
disorderly conduct and placed him on concurrent terms of two years’
probation for the counts of threatening or intimidating. We affirmed Van
Leeuwen’s convictions and sentences as modified on direct appeal. State v.
Van Leeuwen, 1 CA-CR 10-1001, 2011 WL 5590930, at *1 (Ariz. App. Nov. 17,
2011) (mem. decision). Van Leeuwen filed a pro per petition for post-
conviction relief after his counsel found no colorable claims for relief. The
trial court summarily dismissed the petition and Van Leeuwen now seeks
review. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).
¶3 Van Leeuwen argues the jury instructions regarding
disorderly conduct were deficient. We deny relief for two reasons. First,
he did not raise the issue on direct appeal and had the opportunity to do
so. Second, our review of the record reveals no deficiencies of any sort in
the instructions on disorderly conduct. The instructions correctly identified
all of the elements of the offense as charged. See Ariz. Rev. Stat. §
13-2904(A)(6) (1999) (disorderly conduct based on the reckless handling,
display or discharge of a deadly weapon). The instructions also included
any necessary definitions. Nothing more was required. As a result, we also
deny relief on Van Leeuwen’s claims that his trial counsel was ineffective
because his lawyer failed to challenge the instructions regarding disorderly
conduct.
¶4 Van Leeuwen also argues his lawyer was ineffective when he
stipulated that (1) none of the shell casings found at the scene of the incident
matched a gun police found in Van Leeuwen’s residence, and (2) all of the
casings were fired by the same gun. We deny relief because this was a
matter of trial strategy. Counsel stipulated to the admission of exculpatory
evidence that excluded Van Leeuwen’s weapon as the weapon that fired
the only shell casings police found at the scene of the incident. “Defense
counsel's determinations of trial strategy, even if later proven unsuccessful,
are not ineffective assistance of counsel.” State v. Valdez, 160 Ariz. 9, 14, 770
P.2d 313, 318 (1989) (citations omitted).
2
STATE v. VAN LEEUWEN
Decision of the Court
¶5 Finally, Van Leeuwen argues the trial court erred when it
failed to instruct the jury regarding dangerousness. We deny relief because
Van Leeuwen could have raised this issue on direct appeal. Any claim a
defendant raised or could have raised on direct appeal is precluded. Ariz.
R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply.
Further, Van Leeuwen was not charged with, convicted of, or sentenced for
any dangerous offenses. Therefore, there was no reason to instruct the jury
regarding dangerousness.
¶6 We grant review and deny relief.
:gsh
3