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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 12-24-2019
STATE v. SANCHEZ

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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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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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CONCLUSION

¶15 For the foregoing reasons we affirm the convictions, vacate 

the fine and remand for proper determination.