FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
204-429 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE
Phillip Terrell, Jr. 9th JDC DA Parish of Rapides COUNSEL FOR
PLAINTIFF/APPELLEE: State of Louisiana
Willard Trichel Armitage, Jr. COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana
Constance Hanes Louisiana Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT: Roger Wayne Nash 17544 Tunica Trace
Angola, LA 70712
Wayne Nash General Delivery Louisiana State Penitentiary
COUNSEL FOR DEFENDANT/APPELLANT: Roger Wayne Nash
composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G.
Defendant, Roger Wayne Nash, a.k.a. Roger Nash, entered a
guilty plea in 1982 to second degree murder in violation of
La.R.S. 14:30.1, when he was 15 years old. He was originally
sentenced to serve life in prison without the benefit of
parole, probation, or suspension of sentence. Following the
filing and consideration of numerous post-conviction motions
throughout the years, as will be discussed below, this court
granted an appeal related to the Defendant's sentence.
Appellate counsel has filed a brief pursuant to
Anders together with a motion to withdraw.
For the following reasons, we affirm the Defendant's
sentence. Further, we grant appellate counsel's motion to
and Procedural Background
about May 15, 1982, Defendant, who was fifteen years old at
the time, murdered Avy Johnson. The Defendant was charged
with second degree murder in an indictment filed on May 27,
1982. He entered a plea of guilty on October 4, 1982, and was
sentenced to life imprisonment at hard labor without benefit
of probation, parole, or suspension of sentence.
November 13, 2012, the Defendant filed a "Motion to
Correct an Illegal Sentence." Therein, the Defendant
asserted his sentence was illegal under the ruling in
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455
(2012), which declared unconstitutional a sentencing scheme
that mandated a life sentence without the possibility of
parole for those under the age of eighteen at the time of the
commission of a homicide. Therefore, he asserted that he
should be resentenced in accordance with the penalty
provision for the lesser included offense of manslaughter.
March 14, 2013, the trial court denied the Defendant's
request to vacate his life sentence and to resentence him to
the penalty for manslaughter. However, the trial court did
amend the Defendant's sentence to life imprisonment with
eligibility for parole.
April 8, 2013, the Defendant filed a "Notice of Intent
to Seek Supervisory Writ and Order Setting Return Date"
and thereafter filed a writ application with this court on
April 15, 2013. We issued the following ruling in State
v. Nash, 13-425 (La.App. 3 Cir. 7/31/13) (unpublished
WRIT DENIED: Relator filed a writ application with
this court seeking review of the trial court's March 14,
2013, ruling on Relator's November 13, 2012, motion to
correct illegal sentence. This court has recently held that
Miller v. Alabama, 567 U.S. , 132 S.Ct. 2455
(2012) does not apply retroactively. See State v.
Huntley, 13-127 (La.App. 3 Cir. 7/10/13),  So.3d
. Accordingly, Relator's writ application is denied.
State sought review of this court's ruling, and the
supreme court subsequently issued the following per curiam in
State ex rel. Nash v. State, 13-2032, pp. 1-2 (La.
9/19/14), 147 So.3d 1111, 1111:
Granted; relief denied; sentence corrected. The district
court erred in granting relator's motion to correct an
illegal sentence by amending his sentence to reflect that it
is no longer without parole eligibility and ordering the
Louisiana Department of Corrections to revise relator's
prison master accordingly. The court further erred by
directing the Department to calculate an eligibility date for
parole consideration according to the criteria provided by
La.R.S. 15:574.4(A)(2). Although relator seeks review because
the district court did not provide him the remedy he
sought-resentencing according to the applicable range for the
next responsive verdict of manslaughter-the district court
erred in granting relator any relief. The decision
in Miller v. Alabama, 567 U.S. , 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012), is not retroactive to final
sentences. State v. Tate, 12-2763 (La.l 1/5/13), 130
So.3d 829, cert, denied, Tate v. Louisiana, ___ U.S.
___ 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014). The
district court's order is therefore vacated in its
entirety. Relator's original sentence of life
imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence is reinstated.
See La.C.Cr.P. art. 882 (an appellate court may
correct an illegal sentence "at any time"); see
also State v. Williams, 00-1725 (La. 11/28/01), 800
So.2d 790. The Department of Corrections is directed to
maintain relator's prison master in conformity with the
terms of the sentence required by law.
April 1, 2016, the Defendant filed another "Motion to
Correct an Illegal Sentence." Therein, he asserted the
rulings in Miller, 567 U.S. 460, and Montgomery
v. Louisiana, 136 S.Ct. 718');">136 S.Ct. 718 (2016), rendered his life
sentence without parole unconstitutional. In
Montgomery, the United States Supreme Court found
Miller, 567 U.S. 460, announced a new substantive
constitutional rule that applied retroactively on state
August 29, 2016, the State moved to amend the Defendant's
sentence to provide for parole eligibility. The trial court
granted the motion, and there was no
objection by the Defendant.
"Motion to Reconsider Sentence" was filed on
September 23, 2016. In that motion, the Defendant asserted
the sentence of life with parole was not authorized by law,
he was entitled to immediate release, and the trial court did
not comply with the sentencing guidelines set forth in
State v. Montgomery, 13-1163 (La. 6/28/16), 194
So.3d 606. In Montgomery, the Louisiana Supreme
Court held that the statutory provisions regarding
prospective sentencing of juveniles were applicable to
resentencing hearings. The motion to reconsider was denied.
same day, September 23, 2016, the Defendant
filed a "Notice of Intent to Seek Supervisory Writ and
Order Setting Return Date." He also filed a "Motion
and Order for Designation of Record." The notice of
intent and designation of record were denied on December 29,
Defendant filed a writ application with this court on January
27, 2017. In State v. Nash, 17-59 (La.App. 3 Cir.
4/28/17) (unpublished opinion), this court stated:
WRIT GRANTED AND MADE PEREMPTORY; Relator filed a
writ application with this court seeking review of the trial
court's August 29, 2016 ruling that added the possibility
of parole to his life sentence. This court considers that
ruling a resentencing of Relator, review of which shall be by
appeal. See State ex rel Wise v. State, 15-224 (La.
2/17/17), 211 So.3d 378; State ex rel Gaskin v.
State, 15-225 (La. 2/17/17), 211 So.3d 3S\;Statev.
Montgomery, 13-1163 (La. 6/28/16), 194 So.3d606; La.Code
Crim.P. art. 912(C)(1). As such, the matter is remanded to
the trial court for further proceedings consistent herewith.
The trial court is to consider Relator's notice of intent
as a motion to appeal, to grant Relator an appeal, to appoint
Relator appellate counsel, and to order the preparation of an
appellate record for the purposes of the appeal.
16, 2017, the trial court issued an order granting the
Defendant an appeal. The Defendant's appellate counsel
has filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record
contains no non-frivolous issues for appeal, and requests
this court grant her accompanying motion to withdraw. The
Defendant was advised, via certified mail, that counsel filed
an Anders brief. The Defendant was given until
October 10, 2017, to file a pro se brief, and he has not done
so. For the following reasons, we affirm the Defendant's
sentence and grant appellate counsel's motion to
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. After
reviewing the record, we submit there are no errors patent.
counsel has filed a brief pursuant to Anders,
alleging that there are no non-frivolous issues upon which to
base an appeal. Further, she has also filed a motion to
withdraw as the defendant's appellate counsel. The
Defendant was given the opportunity to file a pro se brief,
but has failed to do so.
The Anders procedure used in Louisiana was discussed
in [State v.] Benjamin, 573 So.2d  at
529-31 [(La.App. 4 Cir. 1990)], sanctioned by the Louisiana
Supreme Court in [State v.] Mouton, [95-981
(La. 4/28/95), ] 653 So.2d  at 1177, and expanded by
the Louisiana Supreme Court in [State v.]
Jyles[, 96-2669 (La. 12/12/97), 704 So.2d 241].
According to Anders [v. California], 386
U.S.  at 744, 87 S.Ct.  at 1400 [1967)], "if
counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the
court and request permission to withdraw." To comply
with Jyles, appellate counsel must not only review
the procedural history of the case and the evidence, but his
brief also must contain "a detailed and reviewable
assessment for both the defendant and the appellate court of
whether the appeal is worth pursuing in the first
place." Jyles, 704 So.2d at 242 ...