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Perry v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

May 16, 2019

STEPHEN D. PERRY, Appellant,

          Submitted April 10, 2019

          On appeal from the New Jersey State Parole Board.

          Stephen D. Perry, appellant pro se.

          Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Erica R. Heyer, Deputy Attorney General, on the brief).

          Before Judges Alvarez, Reisner and Mawla.


          MAWLA, J.A.D.

         Appellant Stephen D. Perry has a lengthy criminal history. In addition to other sentences, he is serving a life sentence. Although Perry has been parole eligible, he has incurred infractions during his incarceration which resulted in the New Jersey State Parole Board (Board) imposing a 240-month future eligibility term (FET), outside of the twenty-seven-month presumptive FET, which Perry now challenges.

         We hold the Board used the incorrect standard to determine Perry's parole eligibility because it retroactively applied the amended version of N.J.S.A. 30:4-123.56, which became effective in 1997. Accordingly, we reverse and remand the Board's May 31, 2017 decision for reconsideration consistent with this opinion.

         We take the following facts from the record. In January 1979, Perry and two other individuals broke into a Bergen County residence and stole a stereo, a rifle, and jewelry. Police encountered the trio and when ordered to stop, they fled. During the pursuit, Perry began shooting at the officers, striking one in the wrist and chest. Officers returned fire, striking Perry twice in the abdomen. Police apprehended Perry, who had jewelry from the residence in his possession.

         Officers transported Perry to the hospital, restrained him in a hospital bed, and posted a sheriff's officer as a guard. The officer loosened Perry's restraints only to permit him to use the restroom. At night, during trips to the restroom, Perry managed to gradually loosen the top of his metal intravenous stand. In the morning, Perry attacked the officer with the stand and disarmed him. He shot and killed the officer before fleeing.

         Perry was also indicted for various offenses which occurred before the murder. He was found guilty and sentenced in September 1979, to an aggregated term of twenty to twenty-five years of incarceration for breaking and entering with intent to steal, larceny, carrying a concealed weapon, possession of a weapon, assault with intent to kill, being armed, assault with a dangerous weapon, and assault and battery on a police officer. Following these convictions, Perry was indicted for the officer's murder and pled guilty to the offense. In October 1979, he was sentenced to life in prison to be served consecutive to his first indictment.

         Perry was indicted five more times for crimes committed in August (two), September, October, and November 1978. In 1980, he was sentenced to the following: concurrent three to five years imprisonment for attempted breaking and entering and carrying a concealed weapon, to be served concurrently with his other sentences; concurrent five to seven years imprisonment for assault and battery of a police officer; concurrent five to ten years imprisonment for possession of a stolen motor vehicle, larceny, and utter forged check; a concurrent term of four to eight years imprisonment for forging a check and obtaining money by false pretenses; and a concurrent term of six to ten years imprisonment for breaking and entering and larceny.

         In 2001, Perry was indicted for possession of a controlled dangerous substance (CDS), possession with intent to distribute, and distribution of a CDS for distributing a packet of heroin to a fellow inmate. In 2003, he pled guilty to the offenses and was sentenced to a four-year prison term consecutive to the sentences he was serving under the 1979 convictions, with a one-year mandatory-minimum.

         Perry also had a history of parole and probation violations related to arrests, which occurred prior to the murder. In August 1976, his parole was revoked for parole violations. Perry was sentenced to 364 days of incarceration, which was converted to probation, conditioned on his completion of an inpatient drug program. However, he escaped custody, was re-apprehended, and sentenced to complete the original term of incarceration. Afterwards, Perry was released on parole, which was again revoked in February 1979, following the murder and additional offenses we noted.

         In 1997, Perry became eligible for parole on the murder sentence. He was denied parole and the Board established a fifteen-year FET. Perry became parole eligible for a second time in 2010, and the Board established a three-year FET. When he became eligible for parole for a third time in June 2013, a two-member panel denied parole and referred his case to a three-member panel to establish an FET outside of the guidelines.

         The two-member panel noted Perry's prior criminal record, the increasing severity of his crimes, his multiple convictions, and the fact he had previously violated the conditions of his probation and parole by committing additional offenses. The panel also noted Perry had committed several institutional infractions since the last parole hearing, including two since that hearing, and displayed insufficient problem resolution. The panel found mitigating factors, including that Perry had participated in programs specific to his behavioral deficiencies and other institutional programs, had obtained average to above average institutional reports, attempted to enroll and participate in other programs, and had his commutation time restored.

         However, the panel concluded incarceration had not deterred Perry's criminality, he lacked insight into his behavior, and ...

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