THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

NORRIS, Judge.

¶1 Brown timely appeals from her conviction and sentence for burglary in the third degree, a class four felony. Ariz. Rev. Stat. ("A.R.S.") § 13-1506 (2009). After searching the record on appeal and finding no arguable question of law that was not frivolous, Brown's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Brown to file a supplemental brief in propria persona, but Brown did not do so.

¶2 Our review revealed the superior court's failure to advise Brown of her constitutional rights, under Arizona Rule of Criminal Procedure ("Rule") 17.6, before she stipulated to the existence of two prior felony convictions, may have constituted fundamental error. Pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 351, 102 L.Ed. 300 (1988), we ordered the parties to file supplemental briefs on whether the deficient Rule 17.6 colloquy constituted fundamental error requiring remand. For the reasons discussed below, we affirm the jury's guilty verdict, but remand for a determination of prejudice at sentencing.

FACTS AND PROCEDURAL BACKGROUND1

¶3 In 2009, Brown worked as a property inspector for M.G., a subcontractor whose business included inspecting vacant properties for banks when borrowers vacated homes or failed to make payments. On December 22, 2009, watched by undercover surveillance officers, Brown and her co-defendant, Whigham, pulled a truck up to T.M.'s vacant home and walked around the outside with a clipboard. When the couple moved the truck to a lot behind the house, the detective watched them leave T.M.'s fenced backyard with a wheelbarrow and patio table. The detective alerted another officer in a marked vehicle, who stopped the truck with Brown and Whigham inside. The officers found the wheelbarrow and table inside the truck.

¶4 At trial, Brown admitted she entered the yard and took the wheelbarrow and table. Although her job description did not include cleaning debris,2 she testified M.G. had given her permission to take debris, because cleaning crews would later remove the property anyway.

¶5 As noted, the jury found Brown guilty of burglary in the third degree. At sentencing, Brown admitted to two prior felony convictions which were not prior historical felony convictions, but triggered an enhanced sentencing range. A.R.S. § 13-703(B)(1) (2009). The superior court sentenced Brown to the mitigated term for non-dangerous, category-two repetitive offenses, 2.25 years in prison, with 111 days pre-sentence incarceration credit and eligibility for community supervision.

DISCUSSION

I. Sentencing

¶6 Consistent with State v. Carter, the State concedes the superior court's failure to advise Brown of her constitutional rights as part of the Rule 17.6 colloquy3 was fundamental error, and we agree. See 216 Ariz. 286, 292, ¶ 27, 165 P.3d 687, 693 (App. 2007).

¶7 The State also concedes, and we agree, this error is one for which remand on the issue of prejudice is appropriate. At trial, Brown did not testify regarding any prior convictions, nor does the record show she was aware of her constitutional rights in this context. Further, the State never entered certified copies of prior convictions on the record at trial or sentencing. Based on the state of the record, we cannot conclusively say the error was non-prejudicial. See State v. Morales, 215 Ariz. 59, 62, ¶ 10, 157 P.3d 479, 482 (2007); Carter, 216 Ariz. at 290, ¶ 18, 165 P.3d at 691. Thus, the proper remedy is remand for a hearing in which Brown may demonstrate she was prejudiced by the improper colloquy. If she demonstrates the error was prejudicial, the court must vacate her sentence and resentence her. Carter, 216 Ariz. at 292, ¶ 27, 165 P.3d at 693.

¶8 Although the applicable sentencing statute and range will depend on the resolution of the Rule 17.6 issue on remand, we note the sentencing minute entry contains an error. The sentencing transcript reflects the superior court relied on A.R.S. § 13-703(B)(1), (I), to sentence Brown as a non-dangerous, category-two repetitive offender. The sentencing minute entry, however, refers to A.R.S. § 13-702, the sentencing statute for first-time offenses. Because we remand the sentencing issue, the superior court may correct this discrepancy in the event it does not vacate her sentence.

II. The Jury's Verdict

¶9 We find no reversible error in the jury's verdict. See Leon, 104 Ariz. at 300, 451 P.2d at 881.

¶10 Brown received a fair trial. She was represented by counsel at all stages of the proceedings and was present at all critical stages. The evidence presented at trial was substantial and supports the verdict. The jury was properly comprised of eight members, and the court properly instructed the jury on the elements of the charge, Brown's presumed innocence, the State's burden of proof, and the necessity of a unanimous verdict.

CONCLUSION

¶11 After reviewing the record and supplemental briefing, we affirm Brown's conviction, but, because the superior committed fundamental error when it did not conduct the required Rule 17.6 colloquy, we remand to the superior court for a determination of prejudice. If Brown shows prejudice, the superior court must resentence her.

PETER B. SWANN, Presiding Judge, DANIEL A. BARKER, Judge, concurring.