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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   MARIE OFELIA SANCHEZ, Appellant.

                             No. 1 CA-CR 18-0903
                               FILED 12-24-2019


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201700724
                The Honorable Brandon S. Kinsey, Judge

   AFFIRMED IN PART, VACATED IN PART, AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Eugene Marquez
Counsel for Appellant
                            STATE v. SANCHEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined.


M O R S E, Judge:

¶1             Marie Ofelia Sanchez ("Sanchez") appeals her convictions and
sentences, arguing the superior court erred by accepting her waiver of a
trial by jury and imposing a fine not supported by the evidence. For the
following reasons, we affirm in part, vacate in part, and remand.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Sanchez's convictions arise from a lawful search of her
residence, during which law enforcement found marijuana, narcotics,
prescription pills, and a cache of loaded and unloaded weapons. The State
charged Sanchez with two counts of possession of dangerous drugs for sale
(Counts 1-2), five counts of possession of narcotics for sale (Counts 3-7), one
count of possession of marijuana for sale (Count 8), thirteen counts of
misconduct involving weapons (Counts 9-20, 22), and one count of
possession of drug paraphernalia (Count 21).

¶3             At the final pre-trial conference, Sanchez's counsel informed
the court that "after meeting with [Sanchez] extensively" and talking about
the issues in the case, Sanchez "decided she is going to waive jury . . . we
want to try this to the court." The court then personally addressed Sanchez
and engaged in the following colloquy:

       The Court: Ms. Sanchez, you do understand you have the right to
       have the trial determined by a jury and not just by me, and by
       waiving that right, I will be the one making the determination in this
       case, not a jury of your peers, do you understand that?

       Sanchez: Yes.

       The Court: You are still willing to waive that right?

       Sanchez: Yes, sir.




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       The Court: All right. So trial is confirmed. It is now a bench trial,
       not a jury trial.

¶4            The resulting minute entry reflected that exchange:

       Defense Counsel reports that the Defendant is requesting for
       the Jury Trial presently set in this matter be changed to a
       Bench Trial and discussion is held regarding the same.

       Upon examination of the Defendant, the Court finds that the
       Defendant has waived her right to a Jury Trial and is
       requesting for a Bench Trial to be set.

¶5             After a three-day bench trial, the court found Sanchez guilty
of five counts of possession of narcotic drugs for sale, one count of
possession of marijuana for sale, eleven counts of misconduct involving
weapons, and one count of possession of drug paraphernalia, and acquitted
her on both counts of possession of dangerous drugs for sale and two of the
counts of misconduct involving weapons. The court subsequently
sentenced Sanchez to concurrent presumptive prison terms of 5 years for
the possession of narcotics and marijuana for sale convictions, 2.5 years for
the misconduct involving weapons convictions, and one year for possession
of drug paraphernalia. Additionally, pursuant to A.R.S. §§ 13-3405(D) and
-3408(F), the court imposed a fine for the drug sale counts. Relying on the
recommendation from the probation department, the court imposed a total
fine of $340,800 for the convictions.

¶6            Sanchez timely appealed; we have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A).

                                DISCUSSION

              I. Waiver of Jury Trial

¶7            Sanchez argues her rights under the Sixth Amendment to the
United States Constitution, Article 2, §§ 23 and 24 of the Arizona
Constitution and Arizona Rule of Criminal Procedure 18.1 were violated
when the superior court found she had waived her right to a jury trial. A
defendant has a constitutional right to a jury trial. U.S. Const. amend. VI;
Ariz. Const. art. 2, §§ 23, 24; State v. Butrick, 113 Ariz. 563, 565 (1976). In a
criminal action, the proper procedure for a defendant to waive this right is
outlined in Rule 18.1(b), which provides that "[b]efore accepting a
defendant's waiver of a jury trial, the court must address the defendant


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personally, inform the defendant of the defendant's right to a jury trial, and
determine that the defendant's waiver is knowing, voluntary, and
intelligent." Ariz. R. Crim. P. 18.1(b)(2). Beyond that, a valid waiver
requires the consent of both parties be expressed in open court and entered
on its minutes. Ariz. R. Crim. P. 18.1(b)(1), (3); see also A.R.S. § 13-3983.

¶8             The failure to obtain a valid waiver of a defendant's right to a
jury constitutes structural error. State v. Becerra, 231 Ariz. 200, 204, ¶ 12
(App. 2013). However, on appeal it is the defendant's burden to show that
"such [a] waiver was not freely and intelligently made." Adams v. United
States, 317 U.S. 269, 281 (1942).

¶9              Sanchez argues "the comprehensive warnings required by
Boykin v. Alabama, 395 U.S. 238 (1969)," which outline the requirements for
the waiver of a constitutional right, "serve as a template for the warnings a
court should also give when a defendant waives the right to trial by jury."
But the Arizona Supreme Court has held that "compliance with the entire
Boykin litany is [not] required when a defendant is waiving only his right to
have his guilt or innocence determined by a jury rather than a judge." State
v. Conroy, 168 Ariz. 373, 375 (1991). Instead, a waiver is valid if the record
reflects that the defendant is aware of the right and manifests an intentional
relinquishment of that right. Id. at 376. The "pivotal consideration" in
determining the validity of a jury trial waiver "is the requirement that the
defendant understand that the facts of the case will be determined by a
judge and not a jury." Id.

¶10            Sanchez contends that even under Conroy, the colloquy here
was deficient because its substance was no more than "vestigial." We
disagree. The record shows the court personally addressed Sanchez,
informed her of her right to a jury trial, explained that her waiver of that
right meant that the judge, and not a jury, would determine her case,
confirmed she understood the implication of waiving this right, and
verified that she still wanted to do so. Supra ¶ 3. And the substance of this
colloquy was recorded in the minute entry for the hearing. Supra ¶ 4.
Because the court met all legal requirements, we affirm Sanchez's waiver as
valid.

¶11           Sanchez further contends the court erred because it failed to
make a "contemporaneous finding, expressed in open court or in a minute
entry," that her jury trial waiver was knowing, voluntary, and intelligent.
However, Sanchez misinterprets the requirements of Rule 18.1. The rule
only requires the record to show that the waiver is knowing, voluntary, and
intelligent. There is no requirement that the trial court must use that exact


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                            Decision of the Court

language at any point. See State v. Prince, 142 Ariz. 256, 258 (1984) ("[B]efore
there can be a waiver, the record must show a knowing waiver by the
defendant.") (emphasis added); State v. Baker, 217 Ariz. 118, 120, ¶ 9 (App.
2007) ("[W]e must examine the record to determine whether Baker effectively
waived his constitutional right.") (emphasis added). Because the record
shows that Sanchez's waiver was knowing, voluntary, and intelligent, supra
¶ 10, we affirm the convictions.

              II. Sentencing - Fine

¶12             Sanchez also maintains the court erred in imposing a fine not
supported by reliable evidence. Because Sanchez did not object to the
imposition or the amount of the fine at trial, we review for fundamental
error. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005). A fine in excess
of the statutory maximum constitutes fundamental error. State v.
McDonagh, 232 Ariz. 247, 248-49 (App. 2013).

¶13           Here, the court based the amount of the $340,800 fine on the
street value of the drugs seized, "as calculated by probation" in the
presentence report. However, the State concedes that the calculations in the
presentence report are flawed and asks us to either reduce the fine imposed
to $185,700 or remand the case to the superior court to determine the correct
fine amount.1

¶14           We accept the State's concession, vacate the fine, and remand
to the superior court for the limited purpose of determining an appropriate
fine based on the evidence offered at trial. Because we vacate the fine and
remand, we do not consider Sanchez's argument regarding evidence
supporting the fine amounts nor her Eighth Amendment challenge to the
amount of the fine imposed.




1      Because of the calculation errors conceded by the State, the fine for
Count 8 would have necessarily exceeded the statutory maximum and
constitute fundamental error.


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                          Decision of the Court

                              CONCLUSION

¶15           For the foregoing reasons we affirm the convictions, vacate
the fine and remand for proper determination.




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




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