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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

MARIE OFELIA SANCHEZ
, Appellant

.
No. 1 CA

- CR 18

- 0903

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 C ounsel for Appellant FILED 12-24-2019STATE v. SANCHEZ Decision of the Court

2 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. T he State charge d 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?

S anchez: Yes, sir.STATE v. SANCHEZ Decision of the Court

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

¶4 The resulting minute entry reflect ed th at exchange : Defense Counsel reports that the D efendant 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, a nd one count of possession of drug paraphernalia , and acquitted her on both counts of possession of dangerous drug s 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 parap hernalia. A dditionally, 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 Sanche z timely appealed; w e 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 righ t 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, t he 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 defendantSTATE v. SANCHEZ Decision of the Court

4 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." Ar iz. R. Crim. P. 18.1(b)( 2 ). Beyond that, a valid wai ver 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 d efendant'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 constituti onal 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 wa iving 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 intenti onal 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 S anchez contends that even under Conroy
, the colloquy here was deficient because its substance was no more than "vestigial." We disagree. T he record shows the court personally addressed Sanchez
, informed her of her right to a jury trial, explained th at 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 re corded 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 "contempo raneous finding, expressed in open court or in a minute entry," that her jury trial waiver was knowing, voluntary, and intelligent. However, Sanchez mis interprets 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 th at ex actSTATE v. SANCHEZ Decision of the Court

5 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.") ( e mphasis 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 .") ( e mphasis added). B ecause the record shows that Sanchez's waiver wa s knowing, voluntary, and intelligent
, s upra ¶ 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. Stat e 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
p resentence r eport. However, the State concedes that the calculations in t he 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 error s conceded by the State, the fine for Count 8 would have necessarily exceeded the statutory maximum and constitute fundamental error.STATE v. SANCHEZ Decision of the Court

6 CONCLUSION

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

.