STEPHEN D. PERRY, Appellant,
NEW JERSEY STATE PAROLE BOARD, Respondent.
Submitted April 10, 2019
appeal from the New Jersey State Parole Board.
Stephen D. Perry, appellant pro se.
S. Grewal, Attorney General, attorney for respondent (Melissa
Dutton Schaffer, Assistant Attorney General, of counsel;
Erica R. Heyer, Deputy Attorney General, on the brief).
Judges Alvarez, Reisner and Mawla.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
the panel concluded incarceration had not deterred
Perry's criminality, he lacked insight into his behavior,