State v. Rogers (Michael) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 64422
Appellant/Cross-Respondent,
vs.
MICHAEL WAYNE ROGERS,
FILED
Respondent/Cross-Appellant. APR 1 4 2016
TRACIE K. UNCIPMAN
CLERK OF SUPREME COURT_
By yctid=4._
!DEPUTY CLFIR
ORDER VACATING AND REMANDING
This is a State's appeal and a cross-appeal from an order
resolving a postconviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Kathleen E. Delaney, Judge.
In 1988, respondent Michael Wayne Rogers was convicted of 3
counts of sexual assault (counts 3, 4, 6), and 3 counts of sexual assault
with use of a deadly weapon causing substantial bodily harm (counts 11,
12, 14), all of which were committed when Rogers was 17 years old. The
district court sentenced Rogers to serve 3 consecutive terms of life with the
possibility of parole for counts 3, 4, and 6, 1 and 6 consecutive terms of life
without the possibility of parole for counts 11, 12, and 14. 2
In September 2010, Rogers filed a pro se postconviction
petition for a writ of habeas corpus, arguing that the life-without-parole
sentences were unconstitutional pursuant to the recent decision in
'Although the judgment of conviction did not so specify, for counts 3,
4, and 6, the term of parole eligibility began after serving a minimum of 5
years. 1977 Nev. Stat., ch. 598, § 3, at 1626-27 (NRS 200.366(2)(b)).
2 The district court expressly ordered that count 11 was to run
consecutive to count 3, meaning that every term was imposed to run
consecutively.
SUPREME COURT
OF
NEVADA
(0) 1947A e 110 -11727
Graham v. Florida, 560 U.S. 48 (2010), and the sentences for the
remaining terms were unconstitutional because the aggregate terms were
the functional equivalent of a sentence of life without the possibility of
parole. 3 The district court, agreeing that the life-without-parole sentences
were unconstitutional, entered an amended judgment of conviction
changing the sentences for counts 11, 12, and 14 to life with the possibility
of parole after 10 years. However, the amended judgment of conviction did
not mention sentences for the deadly weapon enhancements for counts 11,
12, and 14, and did not mention the sentences for counts 3, 4, and 6. The
district court denied the remaining claims in the petition. On appeal, this
court reversed in part, concluding that the district court abused its
discretion in partially denying the petition without appointing counsel,
and remanded for the district court to appoint counsel and to clarify the
amended judgment of conviction as it did not set forth terms for the deadly
weapon enhancements. Rogers v. State, 127 Nev. 981, 267 P.3d 802
(2011).
On remand, the district court conducted a hearing on whether
Graham applied to aggregate sentences and considered evidence regarding
life expectancy in prison and in the population in genera1. 4 The district
court concluded that the principles set forth in Graham applied to
aggregate consecutive sentences and determined that to provide Rogers a
meaningful opportunity for parole, the sentences for counts 11, 12, and 14
3 The district court ultimately determined that there was good cause
to litigate an untimely petition.
4We commend the district court on the thoughtful consideration
given to this very complex issue.
SUPREME COURT
OF
NEVADA
2
1011947A erz•
would be run concurrently with each other, but consecutively to the
sentences for counts 3, 4, and 6. The district court further determined
that the amended judgment of conviction contained an illegal sentence in
omitting the deadly weapon enhancements and that Rogers should receive
consecutive one-year sentences for the deadly weapon enhancements. The
district court entered a second amended judgment of conviction reflecting
the decision.
The State argues that the decision in Graham was limited to a
term of life without the possibility of parole and should not apply to
aggregate sentences. This court recently decided in State v. Boston, 131
Nev., Adv. Op. 98, 363 P.3d 453 (2015) that the principles in Graham
apply to juvenile offenders with aggregate sentences that are the
functional equivalent of life without the possibility of parole. Thus, we
conclude that the district court did not err in this regard. Nevertheless,
we note that Rogers' concern regarding the availability of parole has been
addressed by legislative action during the pendency of these proceedings.
In 2015, the Legislature enacted Assembly Bill 267, which makes Rogers
eligible for parole on his aggregate sentences after serving 15 calendar
years. 2015 Nev. Stat., ch. 152, § 3, at 618 (providing that a prisoner who
was sentenced as an adult for an offense or offenses that did not result in
the death of a victim is eligible for parole after the prisoner has served 15
calendar years of incarceration); see also Boston, 131 Nev., Adv. Op. 98,
363 P.3d at 458-59 (concluding that A.B. 267 applies to aggregate
sentences). We can afford no greater relief than that provided for by the
Legislature. Therefore, we conclude that the district court's determination
to alter the sentence structure to conform to the principles in Graham was
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
unnecessary in light of A.B. 267, and we vacate that portion of the district
court's decision.
We agree with the district court that the first amended
judgment of conviction contained illegal sentences by omitting the deadly
weapon enhancements for counts 11, 12, and 14. 5 However, we conclude
that the district court made an error in how it corrected the omission—at
the time Rogers committed his crimes, NRS 193.165(1) provided for an
enhancement that was equal and consecutive to the term imposed for the
primary offense. See 1981 Nev. Stat., ch. 780, § 1, at 2050. Thus, we
vacate that portion of the district court's decision to impose one-year terms
for the deadly weapon enhancements.
Rogers argues that the State may not appeal from entry of an
amended judgment of conviction. Rogers misconstrues the State's
arguments, which properly challenged the decision and relief granted in
the habeas corpus proceedings. See NRS 34.575(1).
Rogers further argues that because the first amended
judgment of conviction did not mention counts 3, 4, and 6, these sentences
must be read to run concurrently with one another and counts 11, 12, and
14. Rogers is in error. The first amended judgment of conviction was only
entered to correct the sentences of life without the possibility of parole in
accord with the decision in Graham and did not alter the other sentences
imposed in the original judgment of conviction. 6 The first amended
5We conclude that Rogers' arguments challenging the correction of
the illegal sentences in the first amended judgment of conviction are
without merit for the reasons discussed above.
6 In 2011, the Legislature amended NRS 176.025 to prohibit a
sentence of life without the possibility of parole for a juvenile convicted of
continued on next page...
SUPREME COURT
OF
NEVADA
4
(0) 1947A eq.)
judgment of conviction did not alter the consecutive sentences for counts 3,
4, and 6 as set forth in the original judgment of conviction or language in
the original judgment of conviction that the sentence for count 11 was to
run consecutively to the sentence imposed in count 6.
To correct the errors contained in the amended judgments of
conviction and to effectuate those portions of the original judgment that
were not invalidated by the decision in Graham, we remand this matter to
the district court with instructions to enter a third amended judgment of
conviction as follows: for count 3, a sentence of life with the possibility of
parole after 5 years; for count 4, a sentence of life with the possibility of
parole after 5 years, to be served consecutive to count 3; for count 6, a term
of life with the possibility of parole after 5 years, to be served consecutive
to count 4; for count 11, a term of life with the possibility of parole after 10
years for the primary offense, and an equal and consecutive term for the
deadly weapon enhancement, to be served consecutive to count 6; for count
12, a term of life with the possibility of parole after 10 years for the
primary offense, and an equal and consecutive term for the deadly weapon
enhancement, to be served consecutive to count 11; and for count 14, a
term of life with the possibility of parole after 10 years for the primary
offense, and an equal and consecutive term for the deadly weapon
enhancement, to be served consecutive to count 12. The third amended
judgment of conviction should include 128 days of presentence credit as set
forth in the original judgment of conviction and should be entered nunc
...continued
a non-homicide offense, and the Legislature provided that this change was
retroactive. See 2011 Nev. Stat., ch. 12, §§ 1, 2, at 19.
SUPREME COURT
OF
NEVADA
5
(0) 1947A
pro tunc to the original sentencing date of November 28, 1988.
Accordingly, we
ORDER the judgment of the district court VACATED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Douglas
cc: Hon. Kathleen E. Delaney, District Judge
Attorney General/Carson City
Clark County District Attorney
Law Offices of Gamage & Gamage
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
6
(0) 1947A