                          NOTICE: NOT FOR PUBLICATION.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, Appellee

                                        v.

                           LEON SAJNA, Appellant.

                             No. 1 CA-CR 12-0797
                               FILED 5-15-2014


           Appeal from the Superior Court in Maricopa County
                          No. CR 2012-134538
                The Honorable John R. Ditsworth, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
                              STATE v. SAJNA
                             Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.


T H U M M A, Judge:

¶1             Defendant Leon Sajna appeals from his drug-related
convictions and resulting prison sentences and probation grants, arguing
the superior court improperly found he agreed to submit the case for
decision based on Exhibit 1 without a contested trial. Because the record
does not contain a waiver by Sajna of his right to a contested trial, his
convictions and resulting sentences and probation grants are vacated and
this matter is remanded to the superior court for a new trial.

                  FACTS AND PROCEDURAL HISTORY

¶2            Sajna was charged with six methamphetamine and
marijuana-related felonies, alleged to have occurred on June 28, 2012, the
most serious of which were two Class 2 felonies involving sale or
transportation of dangerous drugs and possession of dangerous drugs for
sale. On the morning of trial, Sajna, his attorney and the prosecutor signed
a Waiver of Trial by Jury as contemplated by Form 20 of the Arizona Rules
of Criminal Procedure and submitted the waiver to the court. The waiver
did not address or waive Sajna’s right to a contested trial or contain an
agreement to submit the case for decision on the record.

¶3           On the morning of trial, after counsel made their
appearances and Sajna told the court his name, the following occurred:

             [THE COURT]: Mr. Sajna, I’ve been given a
             form, which is a waiver of trial by jury. Is this
             your signature, sir?

             A.     It is.

             Q.    Have you had an opportunity to talk to
             your attorney about this?

             A.     I have.



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              STATE v. SAJNA
             Decision of the Court

[THE COURT:] I have signed the waiver of
jury trial.

THE COURT: At this time, does the
prosecution have an exhibit it wishes to [offer]?

[PROSECUTOR]: I do, Your Honor.

[DEFENSE COUNSEL]: Your Honor, we have
no objection to that. I saw it earlier. We
stipulate to its admission.

[PROSECUTOR]: Do you need it marked?

THE COURT: Let me take a look at it.

[PROSECUTOR: It contains] . . . the indictment,
police report, lab results and a photograph at
the end.

THE CLERK: We’re going to mark this as an
admitted exhibit or just marking it?

[PROSECUTOR]: Your Honor, I apologize, I’ve
never gone through this process before. Is there
any kind of colloquy that needs to be done on
the waiver of jury trial?

THE COURT: No. That’s why I just asked him
if that was his signature and he signed it.

All right. Then what I’m going to do is, I will
admit the exhibit [designated Exhibit 1], I will
take the matter under advisement. I’m going to
review it and we will set a date for my findings
and if necessary a sentencing in about two
weeks.

[DEFENSE COUNSEL]: I think we have . . .
[December] 18th as the date. The only other
issue is, I talked to the prosecutor, we are not
going to have an aggravation hearing. Because
this is a trial, there would need to be an
aggravation hearing, but we are not going to
have one, so --


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                            STATE v. SAJNA
                           Decision of the Court

             [PROSECUTOR]: That’s correct. That’s based
             on my understanding. And I believe the Court
             would agree that aggravating factors can be
             used – aggravating factors not proven can be
             used to counter or mitigate so long as the
             sentence does not exceed the presumptive.

             THE COURT: You’re going to give me the
             material I need regarding his military
             background and his family?

             [DEFENSE COUNSEL]: Yeah. I can get that,
             Your Honor.

             THE COURT: We’ll see everybody on the 18th.

             BAILIFF: At 8:30 or do we want it later?

             THE COURT: It’s just -- technically it’s a
             sentencing.

             BAILIFF: 8:30 then, that’s fine.

             THE COURT: Thank you, folks.

             (Matter concludes).

The transcript is three written pages and the corresponding Minute Entry
states the hearing lasted four minutes. The Minute Entry also states the
court advised Sajna “of the right to trial by jury,” that he “waives trial by
jury and agrees to submit the matter to the Court based on the items
indicated on the record” and that the court took the matter under
advisement.

¶4             The sentencing Minute Entry states that Sajna “knowingly,
intelligently and voluntarily waived the right to a trial by jury and was
found guilty [as charged] after a trial to the Court by submission,” each
conviction being a non-dangerous, non-repetitive offense. 1 The superior



1 The record on appeal does not include the transcript from sentencing.
Although the State timely alleged Sajna had one historical non-dangerous
felony conviction (for possession of marijuana, a class 6 felony, in



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                            STATE v. SAJNA
                           Decision of the Court

court sentenced Sajna to four concurrent flat-time prison terms, the
longest of which was five years, with appropriate presentence
incarceration credit. For the remaining two counts, the superior court
ordered concurrent three-year probation grants to begin on Sajna’s
absolute discharge from prison. From Sajna’s timely appeal, this court has
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution
and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031,
and -4033(A)(1) (2014). 2

                              DISCUSSION

¶5            Sajna argues the superior court improperly found he agreed
to submit the case for decision based on Exhibit 1 without a contested trial
and that the appropriate remedy is reversal and remand for a new trial. It
is undisputed that the superior court did not conduct the colloquy
required by Arizona Rule of Criminal Procedure 17.2 before finding Sajna
agreed to submit the case to the Court for decision on the record and
without a contested trial. The question then becomes the appropriate
consequence, with the State’s answering brief capturing the parties’
positions, noting Sajna:

             argues that he is entitled to reversal because
             the court accepted his submission of the case
             on a stipulated record without first giving him
             the advisements the Arizona Supreme Court
             prescribed four decades ago. However, . . .
             remand for further development of the record
             is the prescribed remedy for this type of error.
             [citations omitted] The trial court’s failure to
             address [Sajna] does not warrant resort to this
             remedy because the expanded record
             demonstrates that he had learned from other
             sources the information [the judge] did not
             discuss in open court.



Maricopa County Superior Court on September 8, 2009), Sajna was
convicted and sentenced as a non-repetitive offender in this case.

2 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.




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                             STATE v. SAJNA
                            Decision of the Court

Arizona’s appellate courts have not always spoken with one voice on
these and related issues. 3 Some undisputed concepts, however, can be
identified.

¶6             Faced with felony charges, Sajna had a fundamental right to
a contested jury trial under the Sixth Amendment of the United States
Constitution and Article 2, Section 23, of the Arizona Constitution. State v.
Butrick, 113 Ariz. 563, 565, 558 P.2d 908, 910 (1976). Among others, Sajna
also has a constitutional right “to be confronted with the witnesses against
him,” U.S. Const. amend. VI, and “to testify in his own behalf, to meet the
witnesses against him face to face, to have compulsory process to compel
the attendance of witnesses,” Ariz. Const. art 2, § 24. To be valid, any
waiver of these rights must be the intentional relinquishment of known
rights that is made knowingly, voluntarily and intelligently. See State v.
Conroy, 168 Ariz. 373, 375, 814 P.2d 330, 332 (1991); see also Ariz. Const. art.
6, § 17. This court “cannot presume a waiver” of such rights “from a silent
record.” Boykin v. Alabama, 395 U.S. 238, 243 (1969) (superseded on other
grounds); accord State v. Ward, 211 Ariz. 158, 162 ¶ 13, 118 P.3d 1122, 1126
(App. 2005) (citing Boykin, 395 U.S. at 243). Similarly, by definition, before
addressing whether any waiver is valid, there must first be a waiver.

¶7             The record in this case contains no written agreement signed
by or on behalf of Sajna in which he waived his right to a contested trial
and agreed to submit the case for decision on the record. The Form 20
Sajna signed addressed a waiver “of trial by jury;” it did not discuss or
purport to waive the right to a contested trial or agree to submit the case
for decision on the record. In fact, by stating that Sajna could not change
his jury trial waiver “at all once the trial has actually begun,” the Form 20
indicates that a contested trial would be held, with the court (rather than
the jury) hearing testimony and argument and then making a decision.

3 Noting its duty of candor to the tribunal, the State cites opinions by this
court holding that a failure to conduct a colloquy regarding a jury trial
waiver to obtain a knowing, intelligent and voluntary waiver “requires
automatic reversal.” See State v. Becerra, 231 Ariz. 200, 204 ¶ 12, 291 P.3d
994, 998 (App. 2013); State v. Innes, 227 Ariz. 545, 546 ¶ 5, 260 P.3d 1110,
1111 (App. 2011); State v. Baker, 217 Ariz. 118, 119-20 ¶ 6, 170 P.3d 727, 728-
29 (App. 2007); State v. Le Noble, 216 Ariz. 180, 184 ¶ 19, 164 P.3d 686, 690
(App. 2007). Although the State argues those cases “improperly conflate”
rules violations with the deprivation of a constitutional jury trial right, this
court need not address or decide that argument given the resolution of
this appeal on other grounds.



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                             STATE v. SAJNA
                            Decision of the Court

Moreover, the Form 20 did not address the constitutional rights Sajna
would be giving up if he waived his right to a contested trial and
submitted the case for decision on the record, such as his right to testify, to
confront witnesses and to use the court’s power to compel the attendance
of witnesses at trial. See Ariz. Const. art 2, § 24. In short, in the Form 20,
Sajna did not waive his right to a contested trial or agree to submit the
case for decision on the record.

¶8            The trial transcript does not contain any statement by Sajna
that he wished to waive his right to a contested trial and wished to submit
the case for decision on the record. The court’s two questions to Sajna
were limited to “a waiver of trial by jury.” There was no discussion about
the constitutional rights Sajna would be waiving by giving up his right to
a contested trial and submitting the case for decision on the record.
Indeed, other than telling the court his name and that he had signed the
Form 20, Sajna was silent during the entire hearing. Given this lack of any
waiver by Sajna of his right to a contested trial and the lack of any
evidence at the hearing that Sajna wished to submit the case for decision
on the record, there is no record support for the conclusion in the resulting
Minute Entry that he “agree[d] to submit the matter to the Court based on
the items indicated on the record.”

¶9            Sajna’s counsel did not object to the process at trial. The State
asks this court to find, based on the record on appeal, that Sajna knew of
the rights he was waiving in submitting the case for decision on the record
and waiving his right to a contested trial. The record on appeal, however,
does not contain any statement of any type by or on behalf of Sajna that he
wished to waive his right to a contested trial and wished to submit the
case for decision on the record, a prerequisite to addressing whether the
record shows that he knew of the resulting consequences. This court
“cannot presume a waiver” of such rights “from a silent record.” Boykin,
395 U.S. at 243.

¶10           In State v. Avila, the defendant signed “a ‘Waiver of Trial By
Jury’ and agreed to submit the determination of guilt or innocence to the
court, based solely upon the transcripts of the preliminary hearing and the
departmental report.” 127 Ariz. 21, 22, 617 P.2d 1137, 1138 (1980). Given
defendant’s waiver and agreement to submit the matter to the superior
court, when the record on appeal reflected a deficiency in the colloquy
regarding the possible length of sentence, the Arizona Supreme Court
remanded for “an evidentiary hearing . . . to determine whether
[defendant] was aware, prior to submission, of the possible range of
sentence.” Id. at 25, 617 P.2d at 1141. As applied here, however, there is no


                                      7
                             STATE v. SAJNA
                            Decision of the Court

statement of any type by Sajna that he wished to waive his right to a
contested trial and “to submit the determination of guilt or innocence to
the court” based on the record, id. at 22, 617 P.2d at 1138, meaning the
Avila remand does not apply to the unique facts of this case.

¶11           In State v. Offing, the Arizona Supreme Court considered a
defendant’s claim “that his waiver of a jury trial and submission of . . .
[the] case to the trial court on the basis of the preliminary hearing
transcript and police report was not knowingly, voluntarily and
intelligently made.” 113 Ariz. 287, 288, 551 P.2d 556, 557 (1976). In that
comparable setting, Offing found the record did “not affirmatively show
that Offing knew he was giving up the right to testify in his own behalf, to
call any witness, offer any further evidence and that the whole issue of his
guilt or innocence of the offense charged was to be made upon the
preliminary hearing transcript.” 113 Ariz. at 289, 551 P.2d at 558. On that
record, Offing held that defendant’s “conviction on both counts must,
therefore, be reversed.” Id. This same analysis applies to the unique facts
of this case, where there is no statement of any type by Sajna that he
wished to waive his right to a contested trial and submit the case for
decision on the record. Accordingly, Sajna’s convictions and resulting
sentences and probation grants must be reversed. Id. at 289, 551 P.2d at
558. 4

                               CONCLUSION

¶12           Sajna’s convictions and resulting sentences and probation
grants are vacated and this matter is remanded for a new trial.




                                   :MJT




4 Having vacated the convictions, this court need not address whether
Sajna properly waived his right to a jury trial, leaving for the superior
court to consider any such waiver on remand. See State v. Porras, 133 Ariz.
417, 420, 652 P.2d 156, 159 (App. 1982) (rejecting State’s argument that
“waiver of jury entered prior to the first trial carries forward to the second
trial after appeal”); see also State v. Bunting, 226 Ariz. 572, 576 ¶ 8, 250 P.3d
1201, 1205 (App. 2011).



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