Appeals court turns Fry down
by C.F. David
According to Oklahoma Criminal appeals documents, an attempt at an appeal by DeWayne Fry has been denied.
Fry had been initially sentenced to 11 years suspended, and fined $4,000 on a Sept. 2000 charge of Endeavor, Solicit, Encourage or conspire to distribute a Controlled Dangerous Substance, (methamphetamine).
In 2002, the court found that Fry had been in violation of the probation and revoked the suspended sentence, and resentenced to nine years and 65 days, (suspended).
In April, 2005, Fry who had been on probation filed for a modification of the rules and conditions of the probation. Part of those rules and regulations required Fry to stay at least 2,000 yards from numerous people who lived in Boise City and Cimarron County . In considering Fry's request District Judge Greg Zigler, gave those individuals an opportunity to be heard. Consequently, due to letters received, Zigler requested Probation and parole to investigate any specific allegations of violations of the rules and conditions of the probation.
On June 10, 2005 the State filed a motion to revoke Fry's suspended sentence, and in a September, 2005 joint hearing, the sentence was revoked in full. It was that revocation that Fry, now imprisoned, appealed.
The propositions of error were:
1. There were no violations which warranted jail time for Fry.
2. Appellant was deprived of the right of confrontation; and the trial court erred in considering improper issues and evidence.
In the court documents, the Appeals Court Judges note that while Fry contends there were no violations warranting jail time, he did not argue that didn't violate the rules and conditions of his probation.
The judges add that in reviewing Fry's testimony, they found several admissions by Fry that he had violated the rules and conditions of the probation.
“Revocation is proper even if only one violation is shown by a preponderance of the evidence. McQueen v. State, 1987 OKCR 162, para. 2, 740 P2d 744 ” the judges wrote.
“Further, the decision to revoke a suspended sentence in whole or only in part lies within the discretion of the trial court whose decision will not be disturbed absent and abuse of discretion,” the judges continued. “In this case Appellant has not shown the trial judge abused his discretion by revoking Appellant's suspended sentence in full.” the judges added.
On the second proposition, that Fry had been deprived of confrontation and improper issues and evidence had erroneously been considered, the judges found that the court record did not support the argument.
“Very detailed findings of fact and conclusions of law can be found in the record setting forth Judge Zigler's basis for revoking Appellant's suspended sentence. the judges wrote.
According to the Oklahoma Department of Corrections website, Fry will be eligible for a parole hearing in July, 2007.
Boise City News