STEPHEN D. PERRY VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

Citations: 208 A.3d 439; 459 N.J. Super. 186Docket: A-1338-17T4

Court: New Jersey Superior Court Appellate Division; May 16, 2019; New Jersey; State Appellate Court

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Stephen D. Perry, the appellant, is challenging a decision by the New Jersey State Parole Board, which set a 240-month future eligibility term (FET) for his parole due to infractions during his incarceration. Perry has a significant criminal history, including a life sentence stemming from a series of violent crimes, notably the murder of a police officer following a robbery and shootout in 1979. The court determined that the Parole Board incorrectly applied the amended statute N.J.S.A. 30:4-123.56 retroactively, which affected the assessment of Perry's parole eligibility. Consequently, the appellate court reversed and remanded the Board's May 31, 2017 decision, instructing it to reconsider Perry's eligibility in accordance with the correct standard. Perry's criminal record includes multiple convictions for various felonies and subsequent sentences spanning from 20 to life imprisonment, culminating in a 2003 conviction related to drug offenses while incarcerated.

Perry has a documented history of parole and probation violations prior to his murder conviction. His parole was revoked in August 1976, leading to a 364-day sentence, which was converted to probation contingent on completing a drug program. After escaping custody, he was re-sentenced to serve his original term. Post-release, his parole was revoked again in February 1979 due to the murder and other offenses. Perry became eligible for parole in 1997 but was denied, with a fifteen-year future eligibility term (FET) established. In 2010, he was again denied parole, this time with a three-year FET. During a third eligibility review in June 2013, a two-member panel denied him parole based on his extensive criminal history, severity of past offenses, and institutional infractions, despite recognizing some mitigating factors such as program participation and satisfactory institutional behavior. The panel noted Perry's lack of accountability for his actions, particularly regarding his murder of a police officer, and minimized his past infractions. A subsequent three-member panel established a 240-month FET, upholding the previous findings in a written decision dated May 28, 2014. The Board affirmed this decision on May 31, 2017, clarifying that each term of imprisonment has a separate parole eligibility term under N.J.S.A. 30:4-123.51(h). Perry's appeal raises three main points: the Board's failure to adequately articulate its reasons for denial, the alleged arbitrary nature of considering the remoteness of prior violent crimes, and the use of an unclear standard regarding his insight into past behavior, which he claims does not correlate with current recidivism risk.

The Board improperly applied the incorrect standard for determining parole fitness, violating the appellant's due process rights in several ways. The appeal highlights a violation of the Ex Post Facto Clause and argues that the Board's treatment of the appellant has been arbitrary and capricious, necessitating review by an impartial tribunal. The regulation N.J.A.C. 10A:71-3.21(d) is claimed to infringe upon the separation of powers doctrine and due process protections, rendering it unconstitutional. Specific points include: 

1. The Board's decision-making relies heavily on individualized discretionary assessments, with appellate review focusing on whether the Board’s findings are supported by sufficient credible evidence.
2. The reviewing court must evaluate if the agency’s actions align with legislative policies, if substantial evidence supports the findings, and whether the agency erred in its conclusions.
3. The appellant contends the Board incorrectly applied the 1997 amendment standards to a sentence for crimes committed prior to that amendment, which should have adhered to the pre-amendment standards for parole eligibility.
4. The pre-amendment statute allows the Board to deny parole if there is a substantial likelihood of reoffending, a standard not applied in this case.

The matter is remanded for further proceedings based on the improper application of the wrong standard.

For offenses committed after August 18, 1997, the Board may deny parole if there is a preponderance of evidence showing that the inmate has not cooperated in rehabilitation or is likely to violate parole conditions if released (N.J.S.A. 30:4-123.53(a)). When an inmate has multiple sentences, the Board aggregates the primary parole eligibility terms for determining eligibility dates, excluding juvenile commitments (N.J.S.A. 30:4-123.51(h)). N.J.A.C. 10A:71-3.2(d) outlines the aggregation process for consecutive sentences, which involves combining the parole eligibility terms while deducting county jail credits. The aggregation itself is deemed a "mechanical function" by the Board (Curry v. N.J. State Parole Bd., 309 N.J. Super. 66, 71 (App. Div. 1998)). 

The issue of retroactive application of N.J.S.A. 30:4-123.53 remains unresolved, as the regulations do not specify which parole eligibility standard applies to sentences before and after the amendment. Generally, laws are applied prospectively unless a statute indicates explicit or implicit intent for retroactivity, or unless exceptions apply, such as ameliorative statutes that reduce penalties (Ardan v. Bd. of Review, 444 N.J. Super. 576, 587 (App. Div. 2016)). The analysis requires determining if retroactive application would interfere with vested rights or cause manifest injustice. The legislative history of N.J.S.A. 30:4-123.56 shows no evidence of intent for retroactive application, and applying it retroactively could impose a higher standard for parole eligibility, which is not supported by legislative intent.

Prior to the 1997 codification of N.J.S.A. 30:4-123.56, the Board could deny parole only if it found, by a preponderance of the evidence, a substantial likelihood that the inmate would commit a crime upon release. The 1997 amendments removed the 'substantial likelihood' requirement, allowing the Board to deny parole based on the inmate's lack of cooperation in rehabilitation or a reasonable expectation of violating parole conditions. This change expanded the Board's discretion and the grounds for parole denial. Consequently, the revised statute does not apply retroactively to inmates sentenced before August 18, 1997; thus, for those inmates, the Board must still assess the likelihood of reoffending based on the pre-1997 standard. In this case, although the Board justified a substantial term of parole ineligibility (FET) based on the inmate's past conduct, it must align its findings with the length of the FET imposed, especially considering the short sentence for the underlying offense. The decision was reversed and remanded, with no retention of jurisdiction by the court.