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State v. Nash

Court of Appeals of Louisiana, Third Circuit

January 31, 2018

STATE OF LOUISIANA
v.
ROGER WAYNE NASH AKA ROGER NASH

         APPEAL 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

          Mary Constance Hanes Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Roger Wayne Nash 17544 Tunica Trace Angola, LA 70712

          Roger Wayne Nash General Delivery Louisiana State Penitentiary COUNSEL FOR DEFENDANT/APPELLANT: Roger Wayne Nash

          Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

          VAN H. KYZAR, JUDGE

         The 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[1] together with a motion to withdraw. For the following reasons, we affirm the Defendant's sentence. Further, we grant appellate counsel's motion to withdraw.

         Facts and Procedural Background

         On or 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.

         On 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.

         On 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.

         On 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 opinion):

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. [460], 132 S.Ct. 2455 (2012) does not apply retroactively. See State v. Huntley, 13-127 (La.App. 3 Cir. 7/10/13), [118] So.3d [95]. Accordingly, Relator's writ application is denied.

         The 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. [460], 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.

         On 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 collateral review.

         On 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.

         A "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.

         That 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, 2016.

         The 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.

         On May 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 withdraw.

         Discussion

         Errors Patent

         In 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.

         Anders Analysis

         Appellate 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 [528] 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 [1176] 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. [738] at 744, 87 S.Ct. [1396] 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 ...

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