James Perry, 37, is due back in court Thursday to be sentenced after being convicted for attempted kidnapping. Between his conviction and his sentencing, the state Supreme Court changed how it views such cases. (FILE PHOTO)
NH Supreme Court decision changes kidnapper's sentence
Judge N. William Delker said he will sentence Perry, 37, only on an attempted kidnapping conviction for trying to abduct a woman outside of an Ocean State Job Lot store Dec. 14, 2011.
A jury also convicted Perry of criminal restraint, which could have added up to 3½ to 7 years on his state prison sentence. But a state Supreme Court decision released days after Perry's conviction concluded that sentencing someone like Perry on both attempted kidnapping and criminal restraint charges would amount to double jeopardy.
Public defender Anthony Naro argued for dismissing the criminal restraint conviction following Perry's trial, saying that it would violate his client's right against double jeopardy. Prosecutors objected and Delker denied that request. Days later, Naro submitted a motion following Perry's conviction on Nov. 9 citing the case State vs. Gibbs, decided by the state Supreme Court on Dec. 21. The high court concluded that a person could not be charged with criminal restraint twice for the same course of action. More than once charge could be brought if a person was restrained or kidnapped, released then restrained again.
Instead of dismissing the criminal restraint conviction against Perry outright, Delker said he would hold off until his appeal is heard.
"If this court were to dismiss one of the charges now, that may bar retrial on that indictment if the conviction is overturned on appeal and remanded for a new trial," Delker said in a court order.
If the state Supreme Court upholds Perry's conviction on the attempted kidnapping case, then Delker will dismiss the criminal restraint charge. Perry now faces up 7½ to 15 years in prison on the attempted kidnapping charge. He is being held without bail at the Rockingham County jail.