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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ADRIAN HERNANDEZ, Petitioner.

                         No. 1 CA-CR 13-0665 PRPC
                             FILED 3-24-2015


           Appeal from the Superior Court in Maricopa County
                      No. CR2009-005152-002 DT
             The Honorable Christopher T. Whitten, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Adrian Hernandez, Safford
Petitioner
                         STATE v. HERNANDEZ
                          Decision of the Court



                      MEMORANDUM DECISION


Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.



 T H O M P S O N:

¶1           Petitioner Adrian Hernandez 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 convicted Hernandez of first degree burglary, two
counts of armed robbery and six counts of kidnapping, three of which were
dangerous crimes against children. The trial court sentenced Hernandez to
an aggregate term of thirty-seven years' imprisonment. We affirmed
Hernandez's convictions on direct appeal. State v. Hernandez, 1 CA-CR 10-
0586 (Ariz. App. Feb. 14, 2012) (mem. decision). Hernandez now seeks
review of the summary dismissal of his first petition for post-conviction
relief. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

¶3             Hernandez argues his trial counsel was ineffective when she
failed to explain to Hernandez that voluntary intoxication was not a defense
to the charged offenses. See Ariz. R. Stat. ("A.R.S.") § 13-503 (2009)
(voluntary intoxication is not a defense for any criminal act). Hernandez
claims that he told his counsel he was innocent because he was not aware
of the presence of children in the residence due to his intoxication and that
his accomplice took advantage of Hernandez's intoxication to coerce
Hernandez into participating in the offenses. Hernandez contends he
would have accepted one of the State's plea offers rather than proceed to
trial if counsel had explained voluntary intoxication was not a defense.

¶4            To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel's performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687-91 (1984). To show
prejudice, a defendant must show that there is a "reasonable probability



                                      2
                         STATE v. HERNANDEZ
                          Decision of the Court

that but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694.          We may determine the
reasonableness of counsel's actions by the information supplied to counsel
by the defendant. Id. at 691.

¶5            We deny relief because Hernandez has failed to present a
colorable claim of ineffective assistance. The record shows Hernandez
never sought to assert an intoxication defense. Hernandez's sole defense
was duress - that the armed accomplice forced him to participate in the
offenses at gunpoint. At the first settlement conference, Hernandez's
counsel informed the court that Hernandez's defense would be duress.
Hernandez personally told the court he was innocent because his
accomplice put a gun to Hernandez's head and told him he would shoot
him if he did not help him. Hernandez also told the court he acted only
because he was afraid. At a second settlement conference, Hernandez again
told the court he was innocent because he did not act voluntarily. At trial,
Hernandez testified repeatedly that he had no choice but to assist the
accomplice because he feared for his life after the accomplice pointed a gun
at Hernandez and threatened to kill him if he did not do so. He also testified
he never would have assisted the accomplice if the accomplice had not
threatened him with a gun. Regarding Hernandez's specific claim that he
was not aware of the presence of children in the premises because of his
intoxication, Hernandez testified at trial he simply never saw any children
because he did not think he went in the room where the children were
located.

¶6            Hernandez did testify that he was "really drunk" during the
incident, but he never offered his intoxication as an excuse for why he
committed or otherwise participated in the offenses. Hernandez testified
he was not the person who drove the vehicle involved in the incident
because he was too intoxicated to drive. Hernandez offered his intoxication
as one excuse for why he fled from the getaway vehicle after it crashed
during a police pursuit rather than seek the help of the pursuing police. He
also offered his intoxication as an excuse for why he never fled the scene
any of the instances he was outside the premises loading stolen property
into the vehicle while he was out of the view of the armed accomplice inside
the premises. While Hernandez testified the accomplice "took advantage"
of his intoxication when he forced Hernandez to assist him, Hernandez
always insisted he participated in the offenses only because the accomplice
forced him to at gunpoint and caused Hernandez to fear for his life. Even
so, Hernandez never claimed he assisted the armed accomplice or
otherwise committed the offenses because he was so intoxicated he did not
know what he was doing or did not understand his acts were unlawful.


                                      3
                          STATE v. HERNANDEZ
                           Decision of the Court

Hernandez never offered his intoxication as an excuse to negate any
element of any charged offense or any requisite state of mind. He has,
therefore, failed to present a colorable claim that he suffered any prejudice
by counsel's alleged failure to inform him that voluntary intoxication is not
a defense.

¶7              The petition for review presents an additional claim of
ineffective assistance based on counsel's alleged failure to adequately
explain the concept of "duress" to Hernandez. Hernandez, however, did
not raise this issue in the petition for post-conviction relief he filed below.1
A petition for review may not present issues not first presented to the trial
court. State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980);
State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App. 1988); State v.
Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); Ariz. R. Crim. P.
32.9(c)(1)(ii).

¶8            We grant review and deny relief.




                                     :ama




1Hernandez did not raise the issue until he filed his reply below. The trial
court did not address the issue.


                                       4
