PHOENIX — The first Arizonan ever charged with violating the state’s “ballot harvesting” law could end up behind bars because of a conspiracy movie and a bid by Attorney General Mark Brnovich to save his campaign for U.S. Senate, one of her lawyers is arguing.
It was an “abuse of discretion” by Yuma County Superior Court Judge Roger Nelson to deny Guillermina Fuentes of San Luis more time to fight his plan to lock her up for 30 days, Attorney Andy Gaona told the state Court of Appeals. He pointed out even prosecutors handling the case did not oppose the extension to ensure her trial attorneys could be at the hearing and her expert witnesses could testify.
“Ms. Fuentes already faces an inherently political prosecution, a toxic political environment surrounding her sentencing, a trial court that prejudged a sentence without considering relevant information, and an emboldened prosecutor who sought an aggressive and unprecedented sentence in the middle of his flailing political campaign,” Gaona wrote. “To deny her the right to counsel and the right to present a full mitigation case under these circumstances would add constitutional insult to constitutional injury.”
But time is running out.
That sentencing is set for Sept. 1. And the appellate judges, without comment, have so far refused to intercede.
There is no question but that Fuentes is guilty.
In December 2020 Brnovich, in a highly publicized announcement, charged her with violating the 2016 “ballot harvesting” law which makes it illegal to handle someone else’s voted ballot.
“The indictment accused Ms. Fuentes of possessing four — not 400, not even 40 — early ballots for the August 2020 primary ballot,” Gaona said.
Fuentes pleaded guilty in April.
The deal made no mention of a sentence.
An aide to Nelson told lawyers in June the judge intended to sentence Fuentes to 30 days in jail. And that came even before the Yuma County Adult Probation office recommended 24 months of supervised probation with no jail time.
Fuentes requested a delay in the Sept. 1 sentencing, saying her trial attorneys are unavailable that date. She also said two mitigation witnesses, including a private detective who researched sentences for similar offenses, could not be in court.
And Gaona said while the prosecutors handling the case locally had no problem with a delay, Nelson refused.
He said the Fuentes case is being affected by political developments.
One was the May 2022 release of “2000 Mules” which claims there was widespread coordinated voter fraud in the 2020 election sufficient to alter the outcome. The essence of the film is based on claims by True The Vote, using questionable research, that much of this was due through mass use of mail ballots and ballot harvesting.
Gaona said the movie release “coincided closely” to the court’s unilateral email stating the intent to impose a 30-day sentence.
On top of that, he said, Brnovich then used the judge’s proposal to advocate for an even longer sentence of a year in state prison, a move he said had more to do with politics than the offense.
“The AG’s harsh sentencing recommendation also occurred at the height of the AG’s campaign to win the Republican Party’s nomination for U.S. Senate, one in which he was criticized by many for not helping overturn the results of the 2020 general election,” Gaona said.
Brnovich ended up coming in third in the five-way race, behind Blake Masters and Jim Lamon, both of whom said they would have objected to the certification of the 2020 election results.
Gaona also suggested a political and racial tinge to this case.
He pointed out that the AG’s office recommended only a 30-day sentence for a white woman and registered Republican who actually voted and returned her dead mother’s early ballot. And in that case, the trial judge rejected the proposal, placing her on probation for two years.
All those events, he said, should entitle Fuentes the time necessary to prepare — and for Nelson to hear — information to try to convince the judge that his initial sentencing announcement was premature and that she is legally entitled to an “opportunity to be heard.”
“Ms. Fuentes — a trusted, long-time leader in her small community — is the subject of a political prosecution that threatens her liberty,” Gaona said. “The trial court’s denial of her unopposed motion (to delay the sentencing hearing) has the consequence of denying her due process rights to have counsel of her choice present at her mitigation hearing and present a full mitigation case.”
