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BRANCH NAME:Court of Appeals Division 1
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ATTACHMENT NAME: PETITION - Special Action: Petition for Special Action

By Deputy Clerk: JT

CASE NAME: Guillermina Fuentes vs. Roger A. Nelson CASE NUMBER:

SA-22-0158

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AZturboCourt.gov Form Set #7124719
 ARIZONA COURT OF APPEALS
DIVISION ONE

GUILLERMINA FUENTES, ) No. ________________

)
Petitioner, ) Yuma County Superior Court
) No. S1400CR202101029
v. )
)
THE HONORABLE ROGER A. )
NELSON, in his official capacity as a )
judge of the Superior Court for Yuma )
County, )
Respondent, and )
)
)
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
)
)

PETITION FOR SPECIAL ACTION

D. Andrew Gaona (028414) Anne Chapman (025965)

agaona@cblawyers.com
COPPERSMITH BROCKELMAN PLC
2800 N. Central Avenue, Suite 1900
Phoenix, Arizona 85004
T: (602) 381-5486
anne@mscclaw.com
Kathleen E. Brody (026331)
kathy@mscclaw.com
MITCHELL | STEIN | CAREY |
CHAPMAN, PC
2600 N. Central Avenue, Suite 1000
Phoenix, Arizona 85004
T: (602) 358-0290

Attorneys for Petitioner Guillermina Fuentes

1109439.2
 Introduction

A criminal defendant in Arizona has a “due process right to a fair

sentencing procedure,” State v. Grier, 146 Ariz. 511, 515 (1985), including

the right to “present evidence in mitigation” of their sentence, State v.

Talton, 153 Ariz. 433, 436 (App. 1987). To fully exercise that fundamental

right, Petitioner Guillermina Fuentes sought a brief continuance –

unopposed by the State – of her mitigation and sentencing hearing

because her lead counsel, local counsel, and two key mitigation witnesses

are unavailable on the date set by the court. Yet the trial court denied

Ms. Fuentes’ request without explanation, nor is there a valid

explanation that could justify the constitutional rights violated by its act.

The trial court’s denial of Ms. Fuentes’ requested continuance was

an abuse of discretion that will prejudice Ms. Fuentes and her

constitutional rights. Ms. Fuentes now faces a fast-approaching

September 1 mitigation hearing without the ability to (1) present critical

mitigation evidence and (2) have her counsel of choice representing her.

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

1
emboldened prosecutor who sought an aggressive and unprecedented

sentence in the middle of his flailing political campaign. 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.

As detailed below, this Court should accelerate the timing

requirements of Rule 7(d), R.P.S.A., to allow the Court to rule well before

September 1, accept special action jurisdiction, and reverse the trial

court’s inexplicable order. The constitutional guarantees of due process

and the right to counsel demand no less.

Jurisdiction

This Court may exercise special action jurisdiction when there is no

“equally plain, speedy, and adequate remedy by appeal.” R.P.S.A. 1(a).

Though Ms. Fuentes could challenge the trial court’s rulings related to

sentencing after the hearing, “[t]he availability of an appeal . . . does not

foreclose the exercise of this [C]ourt’s discretion to accept jurisdiction.”

Nordstrom v. Cruikshank, 213 Ariz. 434, 437–38 ¶ 8 (App. 2006). Indeed,

“[t]he remedy by appeal may be inadequate, such as here, where the

sentencing [hearing] would proceed in an incorrect manner.” Id. “The

issue raised here might recur in future cases, and judicial economy, not

2
to mention the time and expense incurred by conducting the [mitigation

hearing] incorrectly, is best served by addressing the issue now.” Id.

(alterations omitted) (quoting Sonoran Desert Investigations, Inc. v.

Miller, 213 Ariz. 274, 276 ¶ 3 (App. 2006).

What’s more, this special action involves the legal question of

whether the trial court violated Ms. Fuentes’ rights by compelling her to

proceed with a mitigation hearing during which she cannot present

critical mitigation evidence – an issue of statewide importance that could

impact other defendants in criminal cases. See State v. Nichols, 219 Ariz.

170, 174 ¶ 8 (App. 2008) (accepting special action jurisdiction to decide

scope of admissible evidence at upcoming sentencing trial because it is

“an issue of statewide importance involving questions of law and

statutory construction” and “the same or similar issues are likely to

recur”); cf. Dominguez v. Foster, 243 Ariz. 499, 501 ¶ 5 (App. 2018)

(exercising special action jurisdiction where criminal defendant argued

that trial court procedure violated his due process rights).

Unless this Court steps in, the trial court will deprive Ms. Fuentes

of the ability to present a complete defense by her counsel of choice at a

mitigation hearing where her liberty is at stake. Ms. Fuentes thus has no

3
“equally plain, speedy, and adequate remedy by appeal,” and this Court

should exercise its discretion to accept jurisdiction and reverse the trial

court’s denial of Ms. Fuentes’ Unopposed Motion to Continue.

Statement of the Issues

Ms. Fuentes requested a brief continuance of her mitigation

hearing based on the unavailability of two key mitigation witnesses and

her counsel, a request the trial court denied without explanation. Did the

trial court abuse its discretion by denying that request and compelling

Ms. Fuentes to proceed with a mitigation hearing during which she

cannot present a complete defense in this unprecedented criminal

prosecution?

Statement of Facts

The State’s criminal prosecution of Ms. Fuentes began with a grand

jury indictment secured in early December 2020 for one count of

“knowingly collect[ing] voted or unvoted ballots from another person,” an

alleged violation of A.R.S. § 16-1005(H). [SA002] The indictment accused

Ms. Fuentes of possessing four – not 400, not even 40 – early ballots for

the August 2020 Primary Election. [Id.] This indictment was the first

ever under A.R.S. § 16-1005(H), the third-party ballot collection ban

4
enacted by the Legislature in 2016 through House Bill 2023 (“HB 2023”).

It’s thus only a small part of the story.

I. The History of Arizona’s Ballot Collection Statute.

For decades, the commission of actual fraud related to the collection

of early ballots has been a crime in Arizona. See, e.g., A.R.S. § 16-1005(F)

(collecting and failing to return a ballot is a class 5 felony); A.R.S. § 16-

1005(A) (marking someone else’s ballot a class 5 felony); A.R.S. § 16-

1005(B)-(E) (class 5 felony to sell a ballot, possess another’s ballot with

intent to sell, soliciting ballots by claiming to be an elections official, or

misrepresenting a ballot drop-off location). Those statutes protected the

integrity of early ballots well; indeed, before the Legislature enacted HB

2023, there had never been a case of voter fraud associated with ballot

collection charged in Arizona, Democratic Nat’l Comm. v. Reagan, 329 F.

Supp. 3d 824, 852 (D. Ariz. 2018). 1 There also was “no evidence of

1 Though this district court decision has a long and complicated

procedural history, both the en banc panel of the Ninth Circuit and
United States Supreme Court credited its factual findings. See
Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020), reversed
and remanded, Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321
(2021).
5
widespread public concern that ballot collectors were engaging in voter

fraud.” Id.

Despite these safeguards, the Legislature passed HB 2023 “in the

context of racially polarized voting, increased use of ballot collection as a

Democratic GOTV strategy in low-efficacy minority communities, and on

the heels of several prior efforts to restrict ballot collection, some of which

were spearheaded by former Arizona State Senator Don Shooter.” Id. at

879. The efforts of (now unquestionably) disgraced2 Senator Shooter

turned on “unfounded and often farfetched allegations of ballot collection

fraud,” including his reliance on “a racially charged video created by

[former] Maricopa County Republican Chair A.J. LaFaro.” Id. at 877.

That video “merely shows a man of apparent Hispanic heritage dropping

off ballots and not obviously violating any law,” but became a lightning

rod for Senator Shooter and his legislative colleagues. Id.

2 See Dustin Gardiner & Yvonne Wingett Sanchez, Arizona House expels
Rep. Don Shooter, citing ‘dishonorable’ pattern of workplace harassment,
Ariz. Republic (Feb. 1, 2018), available at https://www.azcentral.com
/story/news/politics/legislature/2018/02/01/arizona-house-votes-whether-
remove-rep-don-shooter-office-sex-harassment/1086577001/ (describing
Shooter’s expulsion from the Legislature based on “credible evidence” of
a pattern of misconduct directed at women).
6
 After its effective date, HB 2023 was the subject of many years of

litigation in federal court. Several groups challenged its legality under

the Voting Rights Act of 1965, arguing that it burdened minority

communities throughout Arizona where ballot collection is a useful tool.

One community identified in that litigation was San Luis. That small city

near Yuma is “98 percent Hispanic,” “[a]lmost 13,000 [of its] residents

rely on a post office located across a major highway,” and “[w]ith no mass

transit, a median income of $22,000, and many people not owning cars,

receiving and sending mail in San Luis can be more difficult than in other

communities.” Id. In addition, “[a] surprising number of voters in the

Hispanic community also distrust returning their voted ballot via mail,

particularly in low-income communities where mail theft is common.” Id.

II. The State’s Investigation and Indictment of Ms. Fuentes.

After almost five years of litigation, the United States Supreme

Court held in July 2021 that HB 2023 did not violate the VRA. Brnovich,

141 S. Ct. at 2343-44. But while briefing in that case was still ongoing in

the Supreme Court, the Yuma County Sheriff’s Office (“YCSO”) and the

Arizona Attorney General (“AG”) began investigating the first-ever case

arising under HB 2023 in none other than San Luis, Arizona. In late

7
October 2020 – during the early voting period for the 2020 general

election – members of the San Luis community reported that uniformed

YCSO deputies “were knocking on doors . . . during early morning hours

to ask about residents’ voting histories.” 3 These were disturbing tactics

because “law enforcement actions can constitute voter intimidation, see,

e.g., United States v. MacLeod, 385 F.2d 734, 740-41 (5th Cir. 1967).” Id.

On December 23, 2020, the AG announced the grand jury’s

indictment of Ms. Fuentes and another woman from San Luis under HB

2023. Ariz. Att’y Gen. Mark Brnovich, Two Individuals Accused of Ballot

Harvesting in Yuma County (Dec. 23, 2020), https://www.azag.gov/press-

release/two-individuals-accused-ballot-harvesting-yuma-county. Though

the AG noted that the four collected ballots at issue “were processed and

counted by the Yuma County Recorder,” he still referenced the maximum

possible penalties faced by both women. Id. There was no urgency to

indict Ms. Fuentes when the AG did (he could have waited years), nor

was there any reason to charge a case of four collected ballots as a felony

3 Br. of Amici Curiae Fair Fight Action, Inc. and the Arizona Voter
Empowerment Task Force in Support of Respondents, Brnovich v.
Democratic National Committee, Nos. 19-1257; 19258, at 4-5, available
at http://www.supremecourt.gov/DocketPDF/19/19-1257/166817/202101
20133411775_40570%20pdf%20McAlister.pdf.
8
when a misdemeanor charge was available. See A.R.S. § 13-604(B). And

as it turns out, the investigation of Ms. Fuentes began with a complaint

from Gary Snyder, her longtime political opponent.

III. The Prosecution of Ms. Fuentes.

The State secured its original one-count grand jury indictment

against Ms. Fuentes in early December 2020 [SA001-2], and later

obtained a superseding indictment in September 2021 [SA003-6]. Then,

on April 11, 2022, Ms. Fuentes agreed to plead guilty to one count of

“Ballot Abuse” under A.R.S. § 16-1005(H). [SA017-234] The factual basis

for her plea was as follows:

On August 4, 2020, I, Guillermina A. Fuentes, did knowingly

collect voted early ballots from another person, and those
early ballots belonged to individuals for whom I am not a
family member, household member, or caregiver. I did this
when I possessed four (4) early ballots for the August 4, 2020,
primary election, which I later provided to Alma Yadira
Juarez.

4The AG – in the middle of a difficult primary election race for the United
States Senate where he was oft-criticized by factions of his own political
party for not doing enough to protect “election integrity” – couldn’t resist
the opportunity to publicize the guilty plea. Ariz. Att’y Gen. Mark
Brnovich, Guillermina Fuentes Enters Guilty Plea in Yuma County Ballot
Harvesting Case (June 2, 2022), https://www.azag.gov/press-release/
guillermina-fuentes-enters-guilty-plea-yuma-county-ballot-harvesting-
case.
9
[SA023] The trial court accepted Ms. Fuentes’ plea on June 2, and set a

sentencing hearing for July 7.

On June 15, the trial court’s judicial assistant emailed all parties

and explained that the trial court “intends to sentence” Ms. Fuentes to

30 days in jail. [SA030] The timing of the trial court’s announcement

makes no sense when considering the matter’s procedural posture; that

is, the trial court had neither received nor reviewed any evidence or

information relevant to its determination of an appropriate sentence for

Ms. Fuentes before prejudging the issue. Indeed, it wasn’t until more

than two weeks later (on July 1) when the Yuma County Adult Probation

Office filed its comprehensive Presentence Report recommending that

Ms. Fuentes be sentenced to supervised probation for 24 months with no

period of incarceration as a condition. [SA041] The AG then seized on the

trial court’s statements and upped the ante by filing a Sentencing

Memorandum requesting that Ms. Fuentes be sentenced to one year in

prison. [SA047-72]

On July 6, the trial court’s judicial assistant emailed all counsel

“wanting to know if [they] are requesting a mitigation hearing,”

reiterating that the trial court “is intending to give [the defendants] 30

10
days in jail” with no home confinement. [SA081] Ms. Fuentes requested

a mitigation hearing, which the trial court set for September 1. [SA074]

Ms. Fuentes’ counsel immediately recognized that they had

conflicts with the September 1 date; specifically, Ms. Chapman will be

out-of-state (and traveling back to Arizona), and Mr. Cordova has out-of-

state family medical appointments. In addition, at least two anticipated

mitigation witnesses have scheduling conflicts. Ms. Fuentes’ mitigation

specialist (Sheri Castillo) will be out of the country, and her private

investigator (Rich Robertson of R3 Investigations) is scheduled to be on

a pre-planned trip. As a result, counsel contacted the State’s counsel to

advise him of the scheduling conflicts for both counsel and anticipated

witnesses. Based on the commitments and calendars of the State’s

counsel, anticipated mitigation witnesses, and Ms. Fuentes’ counsel, the

parties agreed that October 6 could work for the mitigation hearing,

subject to the trial court’s approval. On July 27, counsel for Ms. Fuentes

advised the trial court via email of both these scheduling conflicts and

the alternative October 6 date. [SA084]

Almost two weeks later, the trial court’s judicial assistant

responded saying that “Judge is not going to continue the mitigation

11
hearing.” [SA083] Ms. Fuentes then filed an Unopposed Motion to

Continue Mitigation Hearing (“Unopposed Motion”) providing more

detail about the various scheduling conflicts at issue to no avail. [SA076-

87] After almost a week, the judicial assistant emailed counsel to say that

“Judge Nelson has reviewed the [Unopposed Motion] and he is not going

to continue the mitigation/aggravation hearing.” [SA085] The trial court

has not, to date, issued a written order. And on August 22, Ms. Fuentes

requested that the trial court stay all proceedings pending the decision

on this Petition for Special Action. [SA088-91] 5

IV. The Prejudice to Ms. Fuentes.

As Ms. Fuentes made clear to the trial court, her lead counsel (Ms.

Chapman) and local counsel (Mr. Cordova) will both be out of town on

September 1. She has a right to have them, as her counsel of choice,

present throughout the proceedings against her, and to deny her that

right will no doubt prejudice her.

5To comply with Rule 5, Rule 7(d), and Rule 7(i), R.P.S.A., and Rule 7(c)
Ariz. R. Civ. App. P., Ms. Fuentes first requested this relief from the trial
court. If the trial court doesn’t rule by tomorrow, Ms. Fuentes will seek a
stay from this Court.
12
 But even putting aside the unavailability of Ms. Fuentes’ counsel

because of pre-planned commitments, the fact that two of Ms. Fuentes’

mitigation witnesses are unavailable will unquestionably prejudice her

ability to present evidence that the trial court must consider under A.R.S.

§ 13-701(E).

First, Ms. Castillo is Ms. Fuentes’ mitigation specialist. She is

expected to testify about the information she collected and compiled

during her comprehensive investigation into Ms. Fuentes’ background

and other circumstances that will bear on the trial court’s sentencing

decision. She’s also expected to testify on other relevant matters,

including Ms. Fuentes’ early life and work as a farmworker, her

migration to the United States, her relationships with family throughout

the decades, and her professional life and community service.

Second, Mr. Robertson is Ms. Fuentes’ private investigator, and will

testify about a comprehensive report he prepared that catalogues (in

great detail) the sentencing outcomes in other cases in which defendants

faced charges like those against Ms. Fuentes. Mr. Robertson is expected

to testify that the only cases in the country when a defendant was

charged with violating a ballot collection (or “ballot harvesting,” as it is

13
often referred to pejoratively) ban were in Texas with dramatically

different facts (including false claims of voter disabilities and trying to

influence the outcome of a utility board election). Even then, neither

defendant was subject to any period of incarceration. And as for Arizona,

there is no “apples-to-apples” comparison because this will be the first

sentencing for a violation of A.R.S. § 16-1005(H). But Mr. Robertson will

testify that based on his review of 79 prosecutions under Title 16 of the

Arizona Revised Statutes, the only cases that led to any jail or prison

sentence are materially distinguishable from the factual basis of Ms.

Fuentes’ plea.

To get some sense of comparative resolutions that Mr. Robertson

studied, some examples are helpful. First, here are two that led to a

period of incarceration:

• State v. James Joseph Chavez, Jr., Maricopa Cnty. Superior

Court Case No. CR2005-014824: Mr. Chavez was charged with

eleven felonies for knowingly voting in a precinct where he was

not a resident at the time of registration, lying on an Affidavit

for Qualification to run for office with false information, and

notarizing false forms to run for office. He pleaded guilty to two

14
 class 6 felonies, executing a false registration and false swearing.

He was sentenced to two concurrent one-year terms in prison,

with credit for time served.

• State v. Dale Schwartz, Maricopa Cnty. Superior Court Case No.

CR2005-015051: Mr. Schwartz was charged with two felonies for

lying on a voter registration form because he was a felon and did

not have his civil rights restored and voting unlawfully in the

2004 general election. He was also on probation at the time of his

conduct for fraudulently obtaining unemployment benefits. He

pleaded guilty to one class 6 felony, attempted illegal voting, and

was sentenced to three days in jail (time served).

Mr. Robertson identified two cases in which a suspended jail

sentence was imposed:

• State v. Laurel Anne Romm, Yavapai Cnty. Superior Court Case

No. CR2021-01187: Ms. Romm was charged with a class 6 felony for

attempted early voting and a class 3 felony for falsifying a ballot

when she voted more than once in the general election and forged a

ballot. She pleaded guilty to a class 6 felony, illegal voting. She was

15
 sentenced to supervised probation for one year, ninety hours of

community service, and a suspended sentence of 120 days in jail.

• State v. Allen Rouse, Maricopa Cnty. Superior Court Case No.

CR2005-015050: Mr. Rouse lied on his voter registration form about

his several felony convictions and his civil rights not being restored

and voted in the 2002 and 2004 general elections. He was charged

with five felonies for illegal voting and filing a false public

instrument. He pleaded guilty to a class 6 felony, attempted illegal

voting, and received a suspended sentence (length unknown) and

one year of supervised probation, to be served concurrently with

another felony sentence.

Mr. Robertson found a host of other cases that led to no period of

incarceration, including:

• State v. Mitchell Edward Gordon, Yavapai Cnty. Superior Court

Case No. CR202101031: Mr. Gordon voted more than once in the

general election, forged a ballot, and knowingly said that his wife

could not mark her own ballot. He was charged with one class 5

felony, illegal voting, and two misdemeanors. He pleaded guilty

16
 to a misdemeanor and was sentenced to three months of

probation.

• State v. Evelyn Rae Fierro, Yavapai Cnty. Superior Court Case

No. CR202101028: Ms. Fierro voted more than once in the

general election and forged a ballot. She was charged with one

class 5 felony, illegal voting, and one misdemeanor. She pleaded

guilty to a class 6 felony, attempted illegal voting, and was

sentenced to supervised probation for one year and 100 hours of

community service.

• State v. Linda Jane Minyard, Maricopa Cnty. Superior Court

Case No. CR2016-002415: Ms. Minyard voted in Arizona and

Colorado in the 2012 general election. She was charged with

three felonies, for illegal voting and perjury. She pleaded guilty

to a misdemeanor and was sentenced to one day of probation.

• State v. Peter Canova, III, Maricopa Cnty. Superior Court Case

No. CR2011-005543: Mr. Canova voted in both Nevada and

Arizona and voted in 2008 despite not being registered to vote.

He was charged with five felonies for false voter registration,

illegal voting, and filing a false instrument and one

17
 misdemeanor. He pleaded guilty to a misdemeanor and was

sentenced to two years of unsupervised probation and 200 hours

of community service.

• State v. Vendala Louise Cochran, Maricopa Cnty. Superior Court

Case No. CR2013002439: Ms. Cochran voted thirteen times even

though she was not eligible to vote because of prior felony

convictions. She was charged with two felonies, pleaded guilty to

a class 5 felony, illegal voting, and was sentenced to one year of

supervised probation.

• State v. Eugene Frederick Woltz, Maricopa Cnty. Superior Court

Case No. CR2007-008629: Mr. Woltz was a Canadian national

and a U.S. legal permanent resident. He unlawfully registered

to vote four times and voted in every general election. He was

charged with one felony and one misdemeanor, pleaded guilty to

a misdemeanor, and was sentenced to one year of unsupervised

probation and ten hours of community service.

• State v. Margarito Hernandez Blancas, Maricopa Cnty. Superior

Court Case No. CR2008-146245: Mr. Blancas falsely claimed to

be a U.S. citizen and registered to vote. He was charged with

18
 three felonies, pleaded to one misdemeanor, and was sentenced

to twelve months of unsupervised probation.

In short, Mr. Robertson will present compelling evidence that in

most cases involving voting or election irregularities, the defendant’s

sentence did not include a period of incarceration, even in cases involving

actual fraudulent conduct. This includes a very recent case prosecuted by

the very same Assistant Attorney General responsible for this matter

involving a white woman (and registered Republican) from Scottsdale

who fraudulently voted and returned her dead mother’s early ballot.

[SA009-016 (State v. Mckee)] Unlike the AG’s aggressive sentencing

recommendation here, the AG recommended that the defendant be

sentenced to only 30 days in jail [SA015], and the court rejected that

recommendation in favor of sentencing her to two years of supervised

probation [SA024-28].

Without Mr. Robertson’s testimony, Ms. Fuentes will be unable to

present the full extent of his research.

19
V. The Toxic Political Climate Surrounding Ms. Fuentes’
Sentencing.

Ms. Fuentes’ right to present a complete mitigation case is all-the-

more important considering recent political developments in both Yuma

County and the country at large.

In May 2022, filmmaker (and convicted felon) Dinesh D’Souza

released a film called “2000 Mules,” which claims that there was

“widespread, coordinated voter fraud in the 2020 election, sufficient to

change the overall outcome.” IMDb, 2000 Mules. https://www.imdb.com/

title/tt18924506/ (last visited Aug. 18, 2022). The film’s most notable

claim is that the “2020 election was manipulated, in part, though the

mass use of mail ballots and ballot harvesting.” Hannah Bleau, Exclusive

– Dinesh D’Souza: Latest Film Contains ‘Smoking Gun’ on How Ballot

Harvesting Manipulated the 2020 Election, Breitbart.com (Apr. 30, 2022),

https://www.breitbart.com/politics/2022/04/30/exclusive-dinesh-dsouza-

latest-film-contains-smoking-gun-how-ballot-harvesting-manipulated-

2020-election/. And the official website for the film claims that an

organization known as “True the Vote” provided the research. See 2000

Mules, https://node-1.2000mules.com/ (last visited Aug. 18, 2022).

20
 Around the same time, YCSO announced that it has “16

voting/registration open cases” under investigation. Yuma Cnty. Sheriff’s

Office, Yuma County Voting Fraud (May 11, 2022), https://

www.yumacountysheriff.org/pr-2022/PR-2022-30-Yuma-County-Voting-

Fraud.pdf. True the Vote was quick to claim credit for these

investigations. See True the Vote, Yuma County Sheriff’s Office Opens

Massive Voter Fraud Investigation After 2000 Mules Goes Viral,

https://www.truethevote.org/yuma-county-sheriffs-office-opens-massive-

voter-fraud-investigation/ (last visited Aug. 18, 2022). Though YCSO

denied any connection to “2000 Mules,” the timeline of events speaks for

itself. The release of “2000 Mules” also coincided closely the trial court’s

sua sponte email to the parties stating its intent to sentence Ms. Fuentes

to 30 days of jail.

As if that weren’t enough, 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. See, e.g., Katherine Fung, Trump Seeks Revenge in Arizona Even

After AG Supports His Election Claims, Newsweek (June 2, 2022),

21
https://www.newsweek.com/trump-seeks-revenge-arizona-even-after-ag-

supports-his-election-claims-1712499.

A timeline of events highlights (1) how all the dates here relate to

each other, and (2) why a complete mitigation presentation is critical:

Date Event

Oct. 2020 Investigation into Ms. Fuentes begins

with uniformed deputies knocking on
doors during early voting after a complaint
filed by Ms. Fuentes’ political opponent.
Dec. 7, 2020 AG secures a grand jury indictment
against Ms. Fuentes.
Dec. 23, 2020 AG announces grand jury indictment
against Ms. Fuentes while Brnovich was
pending before the U.S. Supreme Court.
June 10, 2021 AG announces his campaign for U.S.
Senate.6
Sep. 16, 2021 AG secures a superseding indictment
against Ms. Fuentes.
Mar. 1, 2022 AG files its Sentencing Recommendation
in State v. McKee.
April 11, 2022 Ms. Fuentes enters into a plea agreement.

May 2, 2022 Trial court in McKee sentences the

defendant to two years of supervised
probation.
May 2022 “2000 Mules” is released, and Yuma
County is placed in the spotlight after
True the Vote claims responsibility for

6 Yvonne Wingett Sanchez, Mark Brnovich, Arizona’s attorney general,

launches U.S. Senate campaign, Ariz. Republic (June 10, 2021),
https://www.azcentral.com/story/news/politics/elections/2021/06/10/mar
k-brnovich-launches-us-senate-campaign/7644924002/.
22
 YCSO investigations announced in mid-
May.
June 2, 2022 Trial court accepts Ms. Fuentes’ guilty
plea and sets a July 7 sentencing hearing.
June 15, 2022 Trial court emails the parties stating its
intent to sentence Ms. Fuentes to 30 days
in jail.
July 1, 2022 Presentence Report is filed recommending
two years of supervised probation with no
term of incarceration.
July 6, 2022 Trial court emails the parties asking
whether Ms. Fuentes is requesting a
mitigation hearing, reiterating the trial
court’s intent to sentence her to 30 days in
jail, and adding that home confinement is
not being considered.
July 6, 2022 AG files a sentencing memorandum
asking the trial court to sentence Ms.
Fuentes to one year in prison.
July 6, 2022 Trial court vacates the July 7 sentencing
hearing and sets a mitigation hearing for
September 1.
July 27, 2022 Ms. Fuentes’ counsel emails chambers
presenting the parties’ unopposed request
to continue the mitigation hearing to
October 6 due to scheduling conflicts.
Aug. 8, 2022 Trial court informs the parties by email
that it “is not going to continue the
mitigation hearing.”
Aug. 10, 2022 Ms. Fuentes files the Unopposed Motion.

Aug. 16, 2022 Trial court emails counsel to say that it

“has reviewed the motion and [] is not
going to continue the
mitigation/aggravation hearing.”

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 Argument

This Court reviews a trial court’s denial of a motion to continue a

mitigation hearing for an abuse of discretion. State v. Barreras, 181 Ariz.

516, 520 (1995). A court abuses its discretion when denying a motion to

continue if the denial “substantially prejudiced the defendant.” Id.

(quotation omitted). And this Court must reverse if the “denial of a

motion to continue violated a defendant’s rights.” Id.

A trial court also abuses its discretion in the sentencing context

when it “fail[s] to conduct an adequate investigation into the facts

relevant to sentencing.” State v. Stotts, 144 Ariz. 72, 87 (1985). This is

because “[c]onvicted defendants have a due process right to a fair

sentencing procedure,” Grier, 146 Ariz. at 515, which includes “the right

to be sentenced on the basis of accurate information,” id., and the right

to “present evidence in mitigation,” Talton, 153 Ariz. at 436.

Here, the trial court abused its discretion in denying Ms. Fuentes’

Unopposed Motion because forcing her to proceed on September 1

without her key witnesses and her counsel of choice will cause her severe

prejudice and violate her constitutional rights.

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I. The Trial Court Prejudiced Ms. Fuentes By Denying Her
Unopposed Motion to Continue the Mitigation Hearing.

First, the trial court’s denial of the Unopposed Motion is highly

prejudicial. Ms. Fuentes moved to continue the hearing – with the State’s

agreement – because her lead counsel and key mitigation witnesses

cannot attend on September 1. Ms. Fuentes’ mitigation specialist and

investigator will testify about critical information that the trial court

must consider in its sentencing decision. A.R.S. § 13-701(E). Among other

mitigating factors, the mitigation specialist is expected to testify about

Ms. Fuentes’ early life and work as a farmworker, her migration to the

United States, her family relationships, and her professional life and

community service. And the investigator is expected to testify about his

comprehensive report detailing the sentencing outcomes in other cases in

which defendants faced charges like those against Ms. Fuentes.

Forcing Ms. Fuentes to proceed to a mitigation hearing without her

mitigation witnesses will destroy her ability to present a complete

defense. In contrast, continuing the hearing by a few weeks will not

prejudice the State; the State had plenty of notice before the mitigation

hearing, and it did not oppose the Unopposed Motion. By refusing to

continue the mitigation hearing, the trial court is conducting an

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inadequate and unfair “investigation into the facts relevant to

sentencing.” Stotts, 144 Ariz. at 87. That is an abuse of discretion. Id.

II. Proceeding With the September 1 Mitigation Hearing Will

Violate Ms. Fuentes’ Rights.

Next, holding a mitigation hearing without allowing Ms. Fuentes to

present her mitigation evidence violates due process. “Because a person’s

liberty is at stake in a sentencing procedure, it obviously involves the

deprivation of due process if the procedure is improper. Therefore, the

sentencing process . . . must satisfy the requirements of due process.”

State v. Ritch, 160 Ariz. 495, 498 (App. 1989).

“The touchstone of due process under both the Arizona and federal

constitutions is fundamental fairness.” State v. Melendez, 172 Ariz. 68,

71 (1992). It demands “notice and opportunity to be heard” in sentencing

proceedings. See State v. Smith, 166 Ariz. 118, 119 (App. 1990). Ms.

Fuentes is thus entitled to “a meaningful opportunity” to be heard and

present mitigation evidence at the mitigation hearing. See State v.

Quijada, 246 Ariz. 356, 365 ¶ 27 (App. 2019) (emphasis in original).

Requiring Ms. Fuentes to have a mitigation hearing without her key

witnesses violates her right to due process. See Talton, 153 Ariz. at 435

26
(trial court violated defendant’s due process rights by depriving her of

“opportunity to present mitigating evidence”).

Beyond that, the trial court’s denial of the Unopposed Motion

implicates Ms. Fuentes’ right to counsel. Ms. Fuentes has a “right

to counsel of choice” under the Sixth Amendment to the U.S.

Constitution and Article 2, Section 24 of the Arizona Constitution. State

v. Aragon, 221 Ariz. 88, 90 ¶ 5 (App. 2009). After the trial court scheduled

the mitigation hearing for September 1, Ms. Fuentes promptly informed

the court that her lead counsel and local counsel cannot appear on that

date. This is Ms. Fuentes’ first request for an extension, she requested

the extension so she could meaningfully present mitigation evidence, she

made the request well before the hearing, and the State agreed to the

request. The trial court’s “unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay violates [Ms.

Fuentes’] right to counsel of choice.” Aragon, 221 Ariz. at 90.

At bottom, the trial court abused its discretion when it inexplicably

denied Ms. Fuentes’ Unopposed Motion and deprived her of the right to

call mitigation witnesses and be represented by her counsel of choice.

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 Conclusion

Ms. Fuentes – a trusted, long-time leader in her small community

– is the subject of a political prosecution that threatens her liberty. The

trial court’s denial of her Unopposed Motion 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.

As a result of this clear abuse of discretion, this Court should accept

special action jurisdiction, reverse the trial court’s order, and compel the

trial court to vacate the September 1 mitigation hearing and re-schedule

it for October 6 (or some other future date when Ms. Fuentes’ counsel and

mitigation witnesses are available). The Court should also accelerate the

deadlines in Rule 7(d), R.P.S.A., to allow this special action to be briefed

and decided before September 1.

RESPECTFULLY SUBMITTED this 22nd day of August, 2022.

COPPERSMITH BROCKELMAN PLC

By /s/ D. Andrew Gaona

D. Andrew Gaona

MITCHELL | STEIN | CAREY |

CHAPMAN, PC
Anne Chapman
Kathleen E. Brody

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