                         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.

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                   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.

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                 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



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                    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
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                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.

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                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




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