Jeremiah M. Rodgers v. State of Florida

Supreme Court of Florida
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No. SC17-1050
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JEREMIAH M. RODGERS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[February 8, 2018]
PER CURIAM.
Jeremiah M. Rodgers, a prisoner under sentence of death who waived a
penalty phase jury, appeals the circuit court’s summary denial of a postconviction
motion filed pursuant to Florida Rule of Criminal Procedure 3.851 seeking
sentencing relief pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.
State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const.1
1. We review the summary denial of a postconviction motion de novo.
Barnes v. State, 124 So. 3d 904, 911 (Fla. 2013).
We have consistently held that the Hurst decisions do not apply to
defendants, like Rodgers, who waive a penalty phase jury. See, e.g., Mullens v.
State, 197 So. 3d 16, 40 (Fla. 2016) (affirming the death sentence of a defendant
who waived a penalty phase jury and explaining that a defendant “cannot subvert
the right to jury factfinding by waiving that right and then suggesting that a
subsequent development in the law has fundamentally undermined his sentence”),
cert. denied, 137 S. Ct. 672 (2017); Brant v. State, 197 So. 3d 1051, 1079 (Fla.
2016) (concluding that the Mullens Court’s holding in the context of a direct
appeal “necessarily preclude[s]” a defendant who waived a penalty phase jury from
raising a Hurst claim on postconviction).
Rodgers, however, seeks to avoid this result by attacking the waiver itself,
arguing that an evidentiary hearing is required to determine if a recently diagnosed
condition of gender dysphoria, which Rodgers contends existed at the time of the
waiver, but went undiagnosed by prior evaluators, rendered Rodgers incompetent.
We agree with the circuit court that the time for Rodgers to contest the prior
competency determination has passed. See Fla. R. Crim. P. 3.851(d)(1). This
Court has long since affirmed Rodgers’ waiver of a penalty phase jury, see
Rodgers v. State, 3 So. 3d 1127, 1131-33 (Fla. 2009), and Rodgers has not
proffered any newly discovered evidence that would warrant revisiting the validity
of this waiver. Cf. Raleigh v. State, 932 So. 2d 1054, 1060 (Fla. 2006)
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(recognizing a “narrow exception to th[e] general procedural bar” of allowing an
Ake v. Oklahoma, 470 U.S. 68 (1985)-type claim of inadequate mental health
assistance that should have been raised on direct appeal to instead be raised on
postconviction for only those cases involving “psychiatric examinations so grossly
insufficient that they ignore clear indications of either mental retardation or organic
brain damage”) (quoting State v. Sireci, 502 So. 2d 1221, 1224 (Fla. 1987)).
Accordingly, we affirm the circuit court’s summary denial.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and LAWSON,
JJ., concur.
PARIENTE, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
PARIENTE, J., concurring in result.
The issue in this case is whether Rodgers’ waivers of the right to a penalty
phase jury and the right to postconviction proceedings and counsel should be
rendered invalid because Rodgers was suffering from undiagnosed and untreated
gender dysphoria2 when he made the waivers. See Rodgers v. State (Rodgers III),
2. The American Psychiatric Association defines “gender dysphoria” as “a
conflict between a person’s physical or assigned gender and the gender with which
he/she/they identify.” What is Gender Dysphoria?, Am. Psychiatric Ass’n,
https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-
dysphoria (last visited Nov. 8, 2017).
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No. SC11-1401, 104 So. 3d 1087, 2012 WL 5381782, *1-2 (Fla. Oct. 17, 2012)
(unpublished); Rodgers v. State (Rodgers II), 3 So. 3d 1127, 1130 (Fla. 2009).
Because both the trial court and this Court were aware of Rodgers’ long history of
mental illness in determining Rodgers’ competency to make the waivers and in
reviewing Rodgers’ waivers, respectively, I agree that Rodgers’ waivers remain
valid and, therefore, he is not entitled to Hurst3 relief. See Silvia v. State, No.
SC17-337 (Fla. Feb. 1, 2018); Mullens v. State, 197 So. 3d 16, 38-40 (Fla. 2016). I
write separately to emphasize the troubling history of Rodgers’ mental illness.
Direct Appeal in 2006
Rodgers pleaded guilty as a principal to the first-degree murder at issue in
this case. Rodgers v. State (Rodgers I), 934 So. 2d 1207, 1210 (Fla. 2006).
Rodgers then attempted to withdraw his plea and later waived his right to a guilt
phase jury trial, again entering a plea. Id. at 1214. After pleading guilty, Rodgers
was sentenced to death following the jury’s 9-3 recommendation for death. Id. at
1213.
On direct appeal, this Court affirmed the trial court’s decision prohibiting
Rodgers from withdrawing his plea, finding that “Rodgers understood at the time
of his plea that his attorneys disagreed on whether he should enter the plea.” Id. at
3. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).
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1216. As to Rodgers’ sentence of death, this Court reversed and remanded for a
new penalty phase after determining that the trial court erred in excluding evidence
related to two potential mitigating circumstances regarding domination by the
codefendant. Id. at 1219-20. As to the mitigation, including Rodgers’ difficult
childhood and his long history of suicide attempts, this Court explained:
Angela Mason, a social worker, reviewed a variety of records from
schools, institutions, hospitals, and law enforcement agencies. The
records contained reports that Rodgers was given his first beer at two
years of age and that he reported sexual abuse by his mother
numerous times, starting at age three. At fourteen, Rodgers reported
that his mother had full sexual intercourse with him on multiple
occasions, first getting him high on marijuana that was laced with
formaldehyde. Although Child Protection Services was called about
the abuse, Mason was unable to find any investigative report.
Another report stated that Rodgers’ father threatened to shoot him and
put an unloaded gun to Rodgers’ head. At school, Rodgers was
placed in a class for severely emotionally disturbed children. Rodgers
attempted suicide five times by the age of thirteen, including slitting
his wrists in a bathtub which left physical evidence.
David Foy, a professor of psychology at Pepperdine University,
reviewed Rodgers’ medical records and testified that six out of the six
classic risk factors for mental illness existed in Rodgers’ childhood
home life. Rodgers was diagnosed with post-traumatic stress disorder.
Dr. Sarah Deland, a psychiatrist, testified as an expert regarding
Rodgers’ mental health. Dr. Deland stated that Rodgers’ diagnoses
were post-traumatic stress disorder, disassociative disorder, substance
abuse in remission, and borderline personality disorder. She testified
in depth about these particular diagnoses and how Rodgers’ life events
shaped his development.
Id. at 1213. The Court concluded: “Given the extensive mitigation which
was presented in the case, including Rodgers’ significant mental health history, we
cannot say that the State has shown that there is no reasonable possibility that the
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error in excluding this evidence did not contribute to the sentence of death.” Id. at
1219-20 (emphasis added).
Direct Appeal from Resentencing in 2009
On remand for resentencing, Rodgers waived his right to a penalty phase
jury. Rodgers II, 3 So. 3d at 1130. Rodgers also waived his right and did not
allow his attorneys to present evidence of mitigation other than his own testimony.
Id. The trial court again imposed a sentence of death. Id. at 1128.
On appeal, this Court determined that Rodgers “clearly showed the capacity
to appreciate the proceedings and the nature of possible penalties; he showed that
he understood the adversarial nature of the legal process; he manifested appropriate
courtroom behavior; and he was able to testify in a relevant manner.” Id. at 1132-
33. Accordingly, this Court affirmed Rodgers’ sentence of death. Id. at 1135.
Postconviction
After this Court affirmed his sentence of death following resentencing,
Rodgers waived the right to postconviction proceedings and counsel. Rodgers III,
2012 WL 5381782, at *1. Following a Durocher4 hearing, the trial court “found
Rodgers competent and issued an order discharging counsel and dismissing the
proceedings.” Rodgers III, 2012 WL 5381782, at *1.
4. Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993).
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Rodgers’ discharged counsel appealed to this Court, challenging the trial
court’s competency finding. Id. at *1-2. Reviewing the record, which contained
evidence of severe mental illness, this Court denied counsel’s claim, stating that
Rodgers had previously been found “competent to: (1) plead guilty to the crime for
which [Rodgers] was convicted and sentenced to death, and (2) waive [the] right to
a penalty phase jury during [the] second penalty phase, and this Court affirmed on
direct appeal.” Id. Also, the Court noted that “two mental health experts examined
Rodgers in preparation for the Durocher hearing, and both determined that
Rodgers was competent.” Id. at 2.
This Case
Rodgers now asserts that, for most of his life, he has suffered from
undiagnosed and untreated gender dysphoria, which undermines the trial court’s
and this Court’s former findings of competency in determining that his waivers
were valid. However, Rodgers does not raise his condition of gender dysphoria as
a claim of newly discovered evidence or ineffective assistance of counsel. See per
curiam op. at 2.
From the age of 14, Rodgers spent most of his life incarcerated with mental
illness. In fact, Rodgers and his codefendant, Lawrence, who Rodgers testified
“appealed to [his] angry side,” Rodgers II, 3 So. 3d at 1130, met in a mental
hospital in Chattahoochee, Florida. Rodgers I, 934 So. 2d at 1209.
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While in State custody, at the age of 14 and again at the age of 18, Rodgers
attempted self-castration. Amici Curiae Br. of Am. Civil Liberties Union
Foundation & Am. Civil Liberties Union of Fla. (ACLU Br.) at 5. Shortly before
waiving the right to postconviction proceedings and counsel, Rodgers wrote letters
to defense counsel stating that Rodgers’ gender identity disorder was the driving
force behind Rodgers’ desire to die, stating that “gender dysphoria and the trauma
and excruciating pain of [Rodgers’] life ha[d] caused [Rodgers] to lose [the] will to
live and to choose death over life.” Id. at 8. In other words, Rodgers waived both
the right to a penalty phase jury and the right to postconviction while struggling
with the effects of his untreated gender dysphoria. Id. at 6-7.
According to the record, untreated gender dysphoria can cause severe harm
and lead to suicidality and debilitating depression. ACLU Br. at 4; see Appellant’s
Initial Br. at 10. In fact, when Rodgers pleaded guilty, Dr. Fredderic J. Sautter,
Ph.D. (a psychologist), opined in his report that Rodgers’ plea may have been
influenced by his mental illness and “wish to die.” Appellant’s Second Resp. to
State’s Mot. Suppl. R. & Withdrawal Req. for Protective Order at 12, Rodgers v.
State, No. SC01-185 (Fla. July 12, 2004). Likewise, the ACLU suggests that
Rodgers may have waived the penalty phase in an effort to commit suicide by
execution to escape the pain of the untreated condition. ACLU Br. at 2.
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Therefore, Rodgers’ reported suicidality, self-mutilations, and severe depression
are consistent with the severe symptoms of untreated gender dysphoria.
CONCLUSION
While it appears that untreated gender dysphoria has been a factor in
Rodgers’ mental health issues, this Court has already considered and affirmed
Rodgers’ waivers of a penalty phase jury, as well as postconviction proceedings
and counsel, with a record indicating severe mental illness. Thus, the recent
specific diagnosis of gender dysphoria, not raised as a newly discovered evidence
claim, does not invalidate Rodgers’ waivers. Therefore, I agree with the majority
that Rodgers is not entitled to have his waivers set aside.
An Appeal from the Circuit Court in and for Santa Rosa County,
John F. Simon, Jr., Judge - Case No. 571998CF000274XXAXMX
Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Northern District of Florida, Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,
for Appellee
Nancy G. Abudu, Daniel B. Tilley, and Jacqueline Nicole Azis of ACLU
Foundation of Florida, Inc., Miami, Florida,
Amicus Curiae American Civil Liberties Union Foundation of Florida, Inc.
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