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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                  NASBAH LILLIAN TODDY, Appellant.

                             No. 1 CA-CR 16-0636
                               FILED 9-12-2017


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-117766-001
        The Honorable Lisa Ann VandenBerg, Judge Pro Tempore

                      REVERSED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                             STATE v. TODDY
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1             The superior court found Nasbah Lillian Toddy (“Toddy”)
guilty of four crimes based on a submitted record. Toddy appeals her
convictions and sentences, arguing that the superior court erred in failing
to advise her that by agreeing to submit the case to the court on the record,
she was waiving her right to confront witnesses against her. The State
concedes error, and we reverse and remand for an evidentiary hearing to
determine (1) whether Toddy knew of her right to confront the State’s
witnesses, and, if not, (2) whether she would have submitted the issue of
her guilt or innocence on the record if the court had advised her of that right
during its colloquy.

                 FACTS AND PROCEDURAL HISTORY

¶2             Toddy was indicted on two counts of aggravated driving
while under the influence (“DUI”), one count of unlawful flight from a law
enforcement vehicle, and one count of criminal damage. Toddy agreed to
waive her right to a jury trial and submit the issue of her guilt or innocence
to the court based on the submitted evidence. The court questioned Toddy
about her decision and informed her of several rights she would be
forfeiting by waiving her right to a jury trial. After reviewing the parties’
stipulations and the documents admitted into evidence, the court found
Toddy guilty on all counts. The court suspended the imposition of sentence
on each count and placed Toddy on concurrent terms of three years’
probation, the conditions of which included a four-month term of
incarceration for the DUI convictions.

¶3            Toddy timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1), 13–4031, and
–4033(A)(1) (2017).1



1      Absent material revision after the date of an alleged offense, we cite
a statute’s current version.


                                      2
                             STATE v. TODDY
                            Decision of the Court

                               DISCUSSION

       I.      The Superior Court Failed to Inform Toddy of Her
               Confrontation   Clause      Right,   Constituting
               Fundamental Error

¶4            Toddy argues that the superior court failed to advise her of
her constitutional right to confront the witnesses against her before waiving
her right to a jury trial and determining guilt solely on the basis of a
submitted record.

¶5           A defendant’s waiver of a jury is valid only if it is knowing,
voluntary, and intelligent. State v. Innes, 227 Ariz. 545, 546, ¶ 5 (App. 2011).
Additionally, the superior court must inform a defendant of the rights she
waives when submitting on the record. State v. Avila, 127 Ariz. 21, 24 (1980).
The following six warnings “must be afforded” a submitting defendant:

       1. The right to a trial by jury where he may have
       representation of counsel;

       2. The right to have the issue of guilt or innocence decided by
       the judge based solely upon the record submitted;

       3. The right to testify in his own behalf;

       4. The right to be confronted with the witnesses against him;

       5. The right to compulsory process for obtaining witnesses in
       his favor;

       6. The right to know the range of sentence and special
       conditions of sentencing.

Id., 127 Ariz. at 24-25.

¶6             The following colloquy took place regarding Toddy’s waiver
of her right to a jury trial and the submission of the case to the court:

       THE COURT: And you understand that you do have the
       constitutional right to have a trial. You could call your own
       witnesses, the Court would subpoena people for you, because
       you are presumed innocent. You’d have to have the State
       prove your guilt beyond a reasonable doubt. You’d get to
       present your own evidence and witnesses. You could testify



                                       3
                             STATE v. TODDY
                            Decision of the Court

       if you wanted to, but you do not have to, and your silence
       couldn’t be used against you.

       You would have the right to have your attorney during the
       whole trial and all other proceedings, and you would have
       the right to have a jury determine any fact that might
       aggravate your sentence. Also – well, and actually forget that
       last part.

       So if you had a trial, you would have all of those rights. Do
       you understand that?

       TODDY: Yes.

       THE COURT: Do you understand by submitting to the Court,
       that you’re giving up your rights to the jury trial?

       TODDY: Yes.

The record supports Toddy’s assertion that the court failed to properly
advise her of the right to confront the State’s witnesses.

¶7             Toddy, however, failed to raise this issue before the superior
court and therefore has forfeited appellate review absent fundamental
error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). A court’s failure
to conduct a colloquy to inform a defendant who submits on the record of
the six Avila warnings constitutes fundamental error. State v. Bunting, 226
Ariz. 572, 576–77, ¶¶ 10-11 (App. 2011). Here, the superior court committed
fundamental error because it did not inform Toddy that, by waiving her
right to a jury trial, she had waived her constitutional right to confront the
State’s witnesses.

       II.    Remand for Evidentiary Hearing

¶8             When a court fails to inform a defendant by colloquy of each
constitutional right he or she will be forfeiting, the proper remedy is to
remand to the court to determine whether the defendant “would have
agreed to submit her case to the judge if a proper colloquy had been
conducted.” Bunting, 226 Ariz. at 577, ¶ 11; see State v. Crowder, 155 Ariz.
477, 479 (1987) (“When the defendant claims his plea was unknowing and
therefore involuntary, the question is not simply what the defendant was
told in court but what he knew from any source.”).




                                       4
                            STATE v. TODDY
                           Decision of the Court

¶9            On remand, if the superior court finds that Toddy did not
know of her right to confront witnesses from any source and would not
have agreed to submit her case to the court if she knew of this right, the
court must vacate the conviction and grant her a new trial. See Bunting, 226
Ariz. at 577, ¶ 12 (App. 2011). If, however, the court finds that she still
would have agreed to submit her case, then her convictions and sentence
will be affirmed. Id.

                              CONCLUSION

¶10           Because the record does not reflect that Toddy was properly
advised of the rights she would be forfeiting by submitting her case to the
superior court, we reverse and remand for further proceedings consistent
with this decision.




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




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