A man ordered to serve more than 30 years in prison after being convicted of armed robberies of two Tucson restaurants in 2019 must be resentenced, the Arizona Court of Appeals has ordered.
Jeremy George Thomas Fletcher was found guilty by a Pima County jury of committing 10 felonies, including armed robbery, aggravated robbery, aggravated assault, burglary, and fleeing from law enforcement. He was sentenced to 17.75 years for one of the robberies and 15.75 years for the other, to be served consecutively, or back to back.
But Judge Kimberly Ortiz of the Pima County Superior Court may have misunderstood that she had the authority to order Fletcher’s sentences to be served concurrently (at the same time) meaning he would be released after serving 17.75 years. As a result, the court of appeals issued a decision on June 8 ordering a new sentencing hearing.
Court records show Fletcher, now 34, was arrested for allegedly displaying a firearm during robberies of two Lucky Wishbone restaurants in January and February 2019. After his trial, Fletcher argued the two distinct armed robberies were committed “as part of a series of related actions” with a singular state of mind, and therefore he should be sentenced as if all of the crimes occurred as one.
It is an argument Ortiz rejected, explaining at the May 2020 sentencing hearing that Arizona’s laws “don’t favor” concurrent sentences in cases like Fletcher’s when distinctly separate offenses and different victims are involved.
“Separate people were injured. Separate people have emotional harm. And when I say injury, things that they will relive in their heads for the rest of their lives, not actual physical harm,” Ortiz said at the time.
However, the Arizona Court of Appeals noted in its decision that the language of Arizona’s sentencing laws had been recently revised and in situations involving multiple prison terms the sentences can be ordered to run consecutively or concurrently “as determined by the court.”
This meant Ortiz had the authority to impose consecutive terms, but her statement during the hearing left open the possibility she relied on a faulty belief that concurrent terms were specifically disfavored under Arizona law, Presiding Judge Karl Eppich wrote in the appellate decision.
“We agree with Fletcher that, to the extent the court believed such a presumption [for consecutive sentences] existed, it was mistaken,” Eppich wrote. “Accordingly, we must vacate Fletcher’s sentences and remand for resentencing, without expressing an opinion on what those sentences should be.”
Although Fletcher lost his appeal, the decision was not without some disagreement amongst the three judge panel.
Judge Sean Brearcliffe concurred with the decision to uphold Fletcher’s convictions, but strongly dissented on the conclusion that the trial court must conduct another sentencing hearing.
“We should not blithely reverse a legal sentence, supported by the evidence, that falls within the trial court’s discretion,” Brearcliffe wrote. “Because the majority mistakenly puts the worst possible gloss on the trial court’s statements, and fails to credit the record in full, I respectfully dissent in part.”
The 2-1 decision ordering a new sentencing hearing will be mandated to the Pima County Superior Court in 30 days unless Fletcher or the State choose to petition for review from the Arizona Supreme Court. If Ortiz imposes the same sentence then Fletcher will be eligible for release in July 2049.
Fletcher was not as successful on appeal in his argument that Ortiz erred in denying a motion for a mistrial.
According to the court file, Fletcher’s defense attorney filed a motion before the trial began to preclude jurors from hearing any mention of the fact Fletcher was in jail. The State did not object, but during the trial at least one juror figured out audio clips of Fletcher’s phone calls the jurors listened to were recorded at the jail.
In addition, one witness was asked by the prosecutor about going “down to the jail” to measure Fletcher’s feet. The prosecutor acknowledged the jury “should not have heard” any reference to the jail but argued there was no prejudice to Fletcher.
Under state case law, a defendant is not necessarily denied the presumption of innocence due simply to a jury’s knowledge of his or her in-custody status. After weighing whether Fletcher’s jurors were influenced by such comments, Ortiz denied the mistrial motion.
The Court of Appeals unanimously agreed, finding the limited references to the jail were “not clearly injurious” because the jurors were already aware Fletcher had been taken into custody based on testimony about his arrest for fleeing from police.
Fletcher wore street clothes during the seven day trial and was not shackled.
