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High court’s ruling may mean leniency for man who fired at cop

Citizen Staff

Plea deal in doubt after U.S. Supreme Court bars judges from imposing stiffer terms unless juries decide they are warranted.

CORRECTION (7/22/04)

Because of an editing error, an article yesterday about the impact of a U.S. Supreme Court ruling on criminal sentencings misstated how many times a sheriff’s deputy shot suspect Jorge Luis Fimbres. The deputy shot Fimbres twice.

By A.J. FLICK

ajflick@tucsoncitizen.com

Sentencing for a man who shot at a sheriff’s deputy is likely to be the first local case sent to a higher court for answers to questions arising from a landmark U.S. Supreme Court ruling.

Because of the court’s decision in Blakely vs. Washington, prosecutors in the Pima County Attorney’s Office are carefully choosing when to accept lighter terms and when to fight for maximum sentences, said Deputy County Attorney Elizabeth Hurley.

Jorge Luis Fimbres, 20, pleaded guilty last month to aggravated assault with a deadly weapon and transportation of marijuana, court records indicate. Prosecutors dropped an attempted first-degree murder charge. Before Superior Court Judge Howard Fell could sentence Fimbres, the Supreme Court ruled in Blakely that judges cannot impose “aggravated” sentences – that is, stiffer terms based on factors that make a crime more serious – unless a jury decides at least one aggravating factor has been proved.

Under current Arizona law, except in death-penalty cases, juries are dismissed after ruling on a defendant’s guilt. It is then up to a judge to decide if there are aggravating factors. The Blakely case is expected to spur a rewrite of Arizona’s laws.

“People like Mr. Fimbres, who shot five times at a police officer, those are people we would like to seek the aggravated sentences (for),” said Hurley.

Fimbres fired the shots after a deputy pulled him over Dec. 17 near Green Valley. The deputy fired back, hitting Fimbres twice. Investigators found 400 pounds of marijuana in Fimbres’ truck.

Fimbres’ plea agreement spelled out sentences the judge could impose, from 10 1/2 years to an aggravated term of 21 years for assault and three to 12 1/2 years for the marijuana charge.

Because an officer’s life was endangered, prosecutors sought the aggravated terms, Hurley said.

On Monday, Fell denied Hurley’s request to empanel a jury that could rule on whether prosecutors had proved aggravating factors. Hurley said that refusal violates the terms of the plea deal and the deputy’s rights as a victim.

Fell then denied Hurley’s request to withdraw the plea so prosecutors could either try Fimbres or work out another deal for the aggravated terms. He set sentencing for Aug. 2.

Hurley said she would ask the Arizona Court of Appeals to review Fell’s decisions.

Also this week, Fell is expected to decide how the Blakely decision applies in an unrelated case.

On June 11, a jury convicted Edward John Sanders, 48, of first-degree murder and other charges in the July 2000 rape and killing of Irene Johnson, 88.

Sanders was facing life in prison without parole or life with the possibility of parole after 25 years when the Blakely decision came down.

Sanders’ attorney, Harold Higgins, told Fell Monday that Blakely limits Fell to imposing a prison term of no more than 25 years. Giving more, Higgins said, would require a jury’s decision on aggravating factors.

Hurley countered that life without parole is not an aggravated sentence, but an ‘alternate’ sentence.

She said she will take the case to the state Court of Appeals if Fell picks the sentence that allows for parole in 25 years. Sanders’ sentencing is set for Aug. 30.

He will be tried Oct. 12 in the rape of a 78-year-old woman in August 2000.

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