Convicted murders have death sentence vacated by NM Supreme Court

• The New Mexico Supreme Court set aside the death sentences of Robert Fry and Timothy Allen on June 28 in a 3-2 decision.
• The death penalty was repealed in 2009 and before, the death penalty was only an option for first-degree murder convictions with certain circumstances.
• Fry will never be eligible for release from prison as he has 120 years to serve on the life sentences for his first-degree murder convictions.

FARMINGTON — Two convicted murders might return to San Juan County for a court hearing after their death sentences were vacated by the state Supreme Court after being deemed unlawfully disproportionate in contrast to similar murder cases.

The New Mexico Supreme Court set aside the death sentences of Robert Fry and Timothy Allen on June 28 in a 3-2 decision, according to an Administrative Office of the Courts press release.

The men will be sent to a San Juan County district court for sentences of life imprisonment to be imposed, the press release states.

The death penalty was repealed in 2009 and, before, the death penalty was only an option for first-degree murder convictions with certain circumstances including murder of a police officer and killing during a kidnapping.

Justice Barbara Vigil along with retired justices Charles Daniels and Edward Chavez were in the majority opinion while Chief Justice Judith Nakamura and retired Justice Petra Jimenez Maes issued a dissent opinion.

"In comparing Petitioner’s cases to other equally horrendous cases in which defendants were not sentenced to death, we find no meaningful distinction which justifies imposing the death sentence upon Fry and Allen," Justice Barbara Vigil wrote in the majority opinion.

Allen was arrested in December 1994 and later convicted in December 1995 of criminal sexual penetration, kidnapping and first-degree murder, according to The Daily Times archives.

Allen strangled 17-year-old Sandra Philips of Flora Vista to death with a rope. She disappeared in February 1994 and was found about six weeks later.

Fry was given the death sentence for the 2000 murder of 36-year-old Shiprock resident Betty Lee.

Lee had been bludgeoned to death with a sledgehammer and stabbed, according to the Associated Press.

Fry is also serving life sentences for the murders of Joseph Fleming, 25, of Farmington; Donald Tsosie, 41, of Shiprock; and Matthew Trecker, 18, of Farmington, according to The Daily Times archives.

"The Majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico," Chief Justice Judith Nakamura wrote in the dissenting opinion.

The press release states both men would be eligible for parole after serving 30 years for the life imprisonment sentence.

Both men have additional prison sentences to serve, which would go into effect if paroled.

Fry will never be eligible for release from prison as he has 120 years to serve on the life sentences for his first-degree murder convictions.

If Allen receives parole, he has 25 years to serve for other convictions.

Chief District Judge Karen Townsend of the 11th Judicial District Court told The Daily Times she did not know if the men would return to Aztec District Court for re-sentencing and is waiting on a remand order, which could take up to 30 days.

Judge Townsend denied motions by the men to have their death sentences dismissed in August 2013, according to The Daily Times archives.

Joshua Kellogg covers breaking news for The Daily Times. He can be reached at 505-564-4627 or via email at jkellogg@daily-times.com.