                          NOTICE: NOT FOR PUBLICATION.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.

                       FOREST CLAYTON, Petitioner.

                         No. 1 CA-CR 13-0354 PRPC
                               FILED 12-16-2014


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2011-048276-001
                             CR2011-123862-001
                             CR2011-125379-001
                 The Honorable Roger E. Brodman, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Forest Clayton, San Luis
Petitioner
                            STATE v. CLAYTON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.


W I N T H R O P, Judge:

¶1            Petitioner, Forest Clayton (“Clayton”), petitions this court for
review from the dismissal of his petition for post-conviction relief. We
review for an abuse of discretion a trial court’s denial of a petition for post-
conviction relief based on the lack of a colorable claim. State v. Bennett, 213
Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006). We have considered the petition
for review and, for the reasons stated, grant review, but deny relief.

¶2            Clayton pled guilty to attempted armed robbery and two
counts each of robbery and armed robbery in three cases. The trial court
sentenced him to an aggregate term of thirteen years’ imprisonment
followed by three years’ probation. Clayton filed a consolidated, pro se
petition for post-conviction relief of right in the three cases after his counsel
found no colorable claims for relief. The trial court dismissed the petition,
and Clayton now seeks review. We have jurisdiction pursuant to Arizona
Rule of Criminal Procedure 32.9(c).

¶3            Clayton asserts his trial counsel was ineffective when she
advised Clayton that concealing his hand in a canvas bag and displaying
the bag to the victims of his robberies was sufficient to simulate a deadly
weapon and support a conviction for armed robbery and attempted armed
robbery. Clayton argues his counsel was incorrect and that he did not
simulate a deadly weapon when he did nothing more than place his hand
in a bag and display the bag to the victims.

¶4             We deny relief because Clayton has failed to state a colorable
claim for relief. A person commits armed robbery if the person commits a
robbery while armed with a deadly weapon or a simulated deadly weapon,
or if the person uses or threatens to use a deadly weapon, dangerous
instrument, or simulated deadly weapon. Ariz. Rev. Stat. § 13-1904(A)(1)-
(2) (West 2014). Clayton’s counsel was correct that a person who conceals
his or her hand and positions it in a manner that makes it appear that person
has a deadly weapon is armed with, is using, and/or is threatening to use
a simulated deadly weapon. See State v. Bousley, 171 Ariz. 166, 168, 829 P.2d


                                       2
                             STATE v. CLAYTON
                             Decision of the Court

1212, 1214 (1992) (addressing a hand hidden under clothing). Further, at
the change of plea hearing, Clayton informed the trial court that, when he
committed the armed and attempted armed robberies, he placed his hand
in a bag to simulate a weapon, and he did so to coerce the victims to
surrender property through force or the threatened use of force. The court
sought to clarify that Clayton had been “simulating a gun or weapon of
some sort,” and Clayton responded affirmatively. The extended record
further shows Clayton actually told some of his victims he had a gun in the
bag and/or would shoot them if they did not cooperate.1 This was
sufficient to support his pleas to armed robbery and attempted armed
robbery.

¶5            We grant review, but deny relief.




                                     :gsh




1       We may consider the extended record in determining whether a
sufficient factual basis exists to support a plea. State v. Sodders, 130 Ariz. 23,
25, 633 P.2d 432, 434 (App. 1981). This includes presentence reports,
transcripts from preliminary hearings, proceedings before the grand jury,
and other sources. Id. Strong evidence of guilt is all that is required, not
evidence of guilt beyond a reasonable doubt. State v. Salinas, 181 Ariz. 104,
106, 887 P.2d 985, 987 (1994).



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