A new law meant to clarify how prison sentences are calculated has spawned a dispute in a criminal case in the Northeast Kingdom. As a result, Roger Perry, a 52-year-old Irasburg resident with a long rap sheet, was sent to prison, released, and then put back behind bars — all in the course of two weeks.
Act. 4, signed into law by Gov. Peter Shumlin in April, seemed like a rare legislative achievement at the time. It settled a contentious issue in a way that was amenable to the key parties to those disputes.
Sen. Dick Sears, D-Bennington, introduced the bill, but Act 4 was also the handiwork of a number of groups — the courts, the Department of Corrections (DOC), the Defender General and the Prisoners’ Rights Office, the Attorney General’s office, and state’s attorneys.
The goal was to spell out how sentences should be calculated — clearing up questions about what counts as time served and what doesn’t — in order to avoid exactly the type of dispute that’s unfolded in the State v. Roger Perry case in Essex Superior Court.
Roger Perry accepted a plea deal on June 24 for two felony charges. He was convicted of burglarizing two homes, stealing items ranging from diamond earrings to a chain saw during the winter of 2010-2011. He was sentenced on July 31 to a three- to 15-year sentence, with all but six months suspended.
Six days later, Perry was out of jail, setting off a dispute between Essex County State’s Attorney Vince Illuzzi, who led the prosecution, and the DOC.
In the criminal justice system, the judge hands down the sentence, the offender serves the time, and then the DOC releases them.
It turns out that calculating the length of a prison sentence can be a tricky business. One indication of the complexity surrounding sentencing is the nearly-200-page manual that the DOC uses to make its determinations.
Corrections Commissioner Andy Pallito described the DOC’s procedure in an email: “Our sentence comp people go through and verify the sentence in accordance with current laws. Sentences stemming from multiple convictions usually contain a lot of information and require considerable calculations.”
The case in question defies chronology. Perry had already been serving time on furlough for different, more recent convictions for selling narcotics in December 2012.
At the time he was convicted of those charges, his burglary offenses hadn’t been uncovered. According to Illuzzi, those only came to light in February 2013, once police began questioning his niece, Sheila Conley, about Keith Baird, the father of Conley’s son, who was named a suspect in the 2010 murder case of Sheffield resident Patricia O’Hagan.
Conley confessed to being present at the burglaries with Perry.
Based on its interpretation of Act 4, the DOC determined that the time Perry served for the narcotics sentence could be credited to the sentence handed down to him on July 31.
On Wednesday afternoon, Judge Walter M. Morris Jr. ruled in Illuzzi’s favor, and Perry was promptly brought back to Northeast Regional Correctional Facility in St. Johnsbury to serve six months, minus the six days he had served during the first week of August.
When he found out — from one of Perry’s victims — that Perry had been released, Illuzzi was flummoxed. Illuzzi argues that in light of the lengthy list of Perry’s past brushes with the law, which date back to 1980, letting him off with only six additional days of prison time would be ludicrous.
“The entire framework of our law is that there are enhanced penalties for habitual offenders,” Illuzzi said. “This statute seems to be operating in reverse and gives credit for time served on unrelated offenses.”
Illuzzi filed a motion, arguing that the department’s interpretation of Act 4 didn’t hold water and it didn’t do with what the judge had intended — to put Perry behind bars for six months.
On Wednesday afternoon, Judge Walter M. Morris Jr. ruled in Illuzzi’s favor, and Perry was promptly brought back to Northeast Regional Correctional Facility in St. Johnsbury to serve six months, minus the six days he had served during the first week of August.
In Illuzzi’s opinion, Act 4 has muddied the legal waters. “Instead of adding clarity, this statute has added confusion,” he said.
The controversy has some of the law’s creators scratching their heads, wondering whether the four-month-old law should be revisited.
Sears concedes that the law may have left gray areas in certain cases, but, he said, “Trust me, it was more confusing before we passed this law.”
Defender General Matthew Valerio was adamant that the statute isn’t to blame for the Perry conundrum.
“This is one of those things when you get in a situation where you don’t get the result you want and then you blame the Legislature. There were too many people involved for this to be a legislative mistake.”
The genesis of Act 4 was a case where a man had been held roughly 18 months past his sentence, due to a disputed interpretation of how much time he was supposed to serve.
Act 4, Valerio said, is intended to prevent that type of situation and other “nonsensical” outcomes that used to arise out of misunderstandings about sentence calculations.
“There were a number of perplexing statutes [prior to Act 4] that were subject to odd interpretations. What this bill attempted to do, and frankly did do, was to resolve those interpretation issues,” Valerio said.
The defense can appeal Wednesday’s ruling; the public defender representing Perry couldn’t be reached for comment before publishing time.
