State v. Rogers

2017 Ohio 7972

Opinion

[Cite as State v. Rogers, 2017-Ohio-7972.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Craig R. Baldwin, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2016CA00227 LEEROY WILBERT ROGERS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2015CR1616

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 29, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO ANTHONY KAPLANIS Stark County Prosecutor 701 Courtyard Centre BY: DENNIS E. BARR 116 CLEVELAND AVENUE N.W. TONI BETH SCHNELLINGER Canton, OH 44702 Assistant Prosecuting Attorney 110 Central Plaza South – Suite 510 Canton, OH 44702 Stark County, Case No. 2016CA00227 2

Gwin, P.J.

{¶1} Appellant Leeroy Wilbert Rogers [“Rogers”] appeals his conviction and

sentence after a negotiated guilty plea in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} Rogers was accused of kidnaping and killing Kimberly Clupper and Kendra

Carnes. On or about November 20, 2015, Rogers was indicted on two counts of

Aggravated Murder in violation of R.C. 2903.01(B) each with Death Penalty Specification

under R.C. 2929.04(A)(5), with Repeat Violent Offender Specification in violation of R.C.

2941.149, and with Firearm Specification in violation of R.C. 2941.145; two counts of

Kidnaping in violation of R.C. 2905.01(A)(3) each with Repeat Violent Offender

Specification under R.C. 2941.149 and with Firearm Specification under R.C. 2941.145,

and three counts of Having Weapons While Under Disability in violation of R.C.

2923.13(A)(2)1.

{¶3} Two attorneys, who filed more than fifty pre-trial motions, represented

Rodgers. Numerous pre-trials and hearings were conducted in the case. An agreement

was reached between the State of Ohio and Rogers to resolve this matter, which included

the state agreeing to dismiss the death specifications on each of Count 1 and 2.

Accordingly, a plea and sentencing hearing was scheduled and held on September 16,

2016.

{¶4} On Count I (Aggravated Murder), Rogers was sentenced to Life

Imprisonment with parole eligibility after serving 25 full years with two years on the Repeat

Violent Offender specifications consecutively and a consecutive sentence of three years

1The parties entered the Stipulated Facts and 36 Exhibits underlying the Indictment into the record. Transcript, Plea/Sentencing, filed Mar. 17, 2017 at 75-92. [Hereinafter “Plea T.”]. Stark County, Case No. 2016CA00227 3

on the firearm specification. On the second Aggravated Murder charge, Rogers was

sentenced to Life Imprisonment with parole eligibility after serving 25 full years with an

additional consecutive two years on the Repeat Violent Offender specification. Rogers

was sentenced to 11 years on the Kidnaping charge to be served concurrently. No

sentence was imposed on the accompanying Repeat Violent Offender specification. A

three-year sentence was imposed on the firearm specification to be served concurrently.

On the second Kidnaping charge, Rogers was sentenced to 11 years to be served

concurrently. No sentence was imposed on the accompanying Repeat Violent Offender

specification and the three-year firearm specification was imposed concurrently. Rogers

was sentenced to 12 months on each of the three counts of Having a Weapon Under

Disability with one of those imposed consecutively and the others concurrently.

{¶5} The total sentence was Life Imprisonment with parole eligibility after 61

years.

{¶6} By Judgment Entry filed January 23, 2017, this Court granted Rogers’ pro

se motion to file a delayed appeal. Counsel was appointed to represent Rogers in this

appeal by the trial court.

Assignment of Error

{¶7} Rogers raises one assignment of error,

{¶8} “I. APPELLANT DID NOT VOLUNTARILY, KNOWINGLY, AND

INTELLIGENTLY ENTER HIS PLEA AGREEMENT.”

Law and Analysis

{¶9} In his sole assignment of error Rogers argues that he did not enter a

knowing voluntary and intelligent plea of guilty. Stark County, Case No. 2016CA00227 4

{¶10} The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise difficult

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete

admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not

simply stating that he did the discreet acts described in the indictment; he is admitting

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757,

762(1989). Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily.

{¶11} Rogers first contends that at that hearing, one of the first questions

addressed to him by the Court was whether he understood his right to a jury trial. At that

time, Rogers responded, "I guess I'd say yes to that. Yes.” Plea T. at 11.

{¶12} However, the record discloses the following exchange then occurred,

THE COURT: All right. So I’ll ask that question again. Do you

understand that you have the right to a trial by jury of 12 people?

THE DEFENDANT: Yes, ma’am.

Plea T. at 11. Thereafter, the trial court conducted a lengthy and through

explanation of the jury trial procedure in a capital case, explaining the special

venire (Plea T. at 12 -13); the three juror questionnaires (Plea T. at 13-17);

challenges for cause and preemptory challenges by both Rogers’ attorneys and

the state. (Plea T. at 18-22). The trial court asked Rogers if he understood how a

jury would be selected and he responded that he did. Plea T. at 22. The trial court

further inquired: Stark County, Case No. 2016CA00227 5

THE COURT: Okay. Do you have any questions specifically right

now that you would like to ask about that process?

THE DEFENDANT: No, Ma’am.

Plea T. at 22.

{¶13} With respect to statements made during change of plea hearings, the United

States Supreme Court has stated, “the representation of the defendant, his lawyer, and

the prosecutor in such a hearing, as well as any findings made by the judge accepting the

plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn

declarations in open court carry a strong presumption of verity. The subsequent

presentation of conclusory allegations unsupported by specifics is subject to summary

dismissal, as are contentions that in the face of the record are wholly incredible.”

Machibroda v. United States, 368 U.S. 487, 497, 82 S.Ct. 510, 515(1962).

{¶14} In the case at bar, the trial judge gave Rogers the opportunity to ask

questions or bring any concerns to her attention. He did not. In light of the thorough

explanation concerning Rogers’s right to a jury trial and how that process would procced,

we find Rogers suggestion that he did not understand this right to be unsupported by the

record.

{¶15} Rogers next argues, later in the hearing, the Court asked him if there was

any advice his attorneys gave him that he did not understand or that he had concerns

about. Appellant responded, "Well, to be truthful, yes, but it's okay.” Plea T. at 63.

{¶16} However, the record reveals the following exchange then occurred,

THE COURT: Okay. Do you want to –I want to give you a

moment to talk to them [your attorneys] about what it is that, that – Stark County, Case No. 2016CA00227 6

THE DEFENDANT: I’m okay.

THE COURT: -- you have a concern about.

THE DEFENDANT: I’m okay.

THE COURT: Okay?

THE DEFENDANT: Yes, ma’am.

THE COURT: Are you sure you don’t need a moment?

THE DEFENDANT: I’m good.

THE COURT: Okay.

Plea T. at 63-64. Accordingly, the trial court specifically asked Rogers if he wanted

to elaborate or to discuss the matter with his attorneys. Rogers did not. Rogers

was given several opportunities by the trial judge throughout the hearing to ask

questions or raise concerns. Plea T. at 22; 41; 60; 71. At one point during the

hearing, Rogers did ask the court if he could ask his attorneys a question. Plea T.

at 41-42. The trial court permitted Rogers to confer with his attorneys.

{¶17} In addition, the Criminal Rule 11(C) and (F) plea form signed by Rogers

states, “I have consulted with my attorneys and I fully understand and agree to the

negotiated plea as set forth above. I am doing so freely and voluntarily and no promises

or threats have been made to me.” Plea T. at 7-8.

{¶18} Under the doctrine of “invited error,” it is well settled that “a party will not be

permitted to take advantage of an error which he himself invited or induced the trial court

to make.” State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 1995-Ohio-40, 646

N.E.2d 1115(1995) citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359,1994- Stark County, Case No. 2016CA00227 7

Ohio-302, 626 N.E.2d 950(1994). See, also, Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d

145(1943) paragraph one of the syllabus. As the Ohio Supreme Court has stated,

[t]he law imposes upon every litigant the duty of vigilance in the trial

of a case, and even where the trial court commits an error to his prejudice,

he is required then and there to challenge the attention of the court to that

error, by excepting thereto, and upon failure of the court to correct the same

to cause his exceptions to be noted. It follows, therefore, that, for much

graver reasons, a litigant cannot be permitted, either intentionally or

unintentionally, to induce or mislead a court into the commission of an error

and then procure a reversal of the judgment for an error for which he was

actively responsible.

Lester at 92-93, quoting State v. Kollar (1915), 93 Ohio St. 89, 91, 112 N.E. 196.

{¶19} In the case at bar, the trial judge gave Rogers several opportunities to ask

questions or bring any concerns to her attention. He did not. We find Rogers suggestion

that he did not understand his rights, or that his plea was involuntary to be unsupported

by the record.

{¶20} Rogers’ final argument to support that his plea was not entered knowingly,

intelligently or voluntarily is that later in the proceedings, when the Court asked his

attorneys whether they or Rogers wished to say anything prior to sentencing, his

attorneys indicated that they advised Rogers not make a statement and that they had no

statement to make on his behalf. Plea T. at 98-99.

{¶21} This exchange occurred after Rogers had entered his negotiated guilty plea

on the record, after the stipulated facts were read into the record, the Exhibits were Stark County, Case No. 2016CA00227 8

entered into the record and members of the victims’ family had spoken. Rogers fails to

articulate how his failure to make a statement rendered his previously entered negotiated

guilty pleas to not have been entered knowingly, intelligently and voluntarily. The plea

agreement, including the sentence was read into the record at the start of the hearing.

(Plea T. at 5-8). The trial court imposed the agreed upon negotiated sentence on each

count.

{¶22} We find Rogers’ suggestion that he did not understand his rights or that his

plea was involuntary to be unsupported by the record.

{¶23} The transcript of the plea hearing reflects that Rogers indicated in response

to the court's questions that his pleas were voluntary, that he understood the nature of

the charges and penalties, and the agreement concerning his pleas and sentence. The

court further informed Rogers that a guilty plea is a complete admission of guilt, and that

upon acceptance the court would proceed to judgment and sentencing. Finally, the

record reflects that the court advised Rogers of each of his constitutional rights as set

forth in Crim.R.11. The record affirmatively discloses that: (1) a guilty plea was not the

result of coercion, deception or intimidation; (2) two attorneys were present at the time

of the plea; (3) their advice was competent in light of the circumstances surrounding the

plea (4) the plea was made with the understanding of the nature of the charges; and, (5)

the plea was motivated either by a desire to seek a lesser penalty or a fear of the

consequences of a jury trial, or both. See, State v. Piacella, 27 Ohio St.2d 92, 217 N.E.2d

852(1971), syllabus.

{¶24} Rogers’s sole assignment of error is overruled. Stark County, Case No. 2016CA00227 9

{¶25} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur