Glen Edward Rogers v. State of Florida

Supreme Court of Florida
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No. SC20-1863
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GLEN EDWARD ROGERS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
October 28, 2021
PER CURIAM.
Glen Edward Rogers, a prisoner under sentence of death,
appeals the circuit court’s order summarily denying his third
successive motion for postconviction relief, filed under rule 3.851 of
the Florida Rules of Criminal Procedure.1 We affirm.
I. Background
In 1995, Rogers robbed and brutally murdered Tina Marie
Cribbs in a Tampa motel room—later stealing a car which belonged
to her and using that car to leave Florida. Rogers v. State, 783 So.
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
2d 980, 985-86 (Fla. 2001) (direct appeal).2 After law enforcement
apprehended Rogers in another state, the State of Florida charged
him with first-degree murder, armed robbery, and grand theft of a
motor vehicle. Id. at 985-86. Following trial, the jury found Rogers
guilty as charged on all three offenses. Id. at 985, 987.
At the ensuing penalty phase, Rogers called a number of
witnesses, including two experts—Dr. Michael Maher (a
psychiatrist) and Dr. Robert Berland (a forensic psychologist). Id. at
995-96. Each opined that Rogers suffers from brain damage and
mental-health issues, including a rare genetic mental disorder
called porphyria. Id. Rogers also presented the testimony of
Claude Rogers, one of his older brothers.
After the presentation of mitigating evidence, the penalty-
phase jury unanimously recommended a sentence of death. Id. at
987. Accepting that recommendation, the trial court sentenced
Rogers to death. Id.
2. Weeks prior to killing Cribbs, Rogers murdered a woman in
California—strangling her and then burning her body. See People v.
Rogers, 304 P.3d 124, 128-33 (Cal. 2013). A California jury found
Rogers guilty of first-degree murder for that killing, and the court
sentenced Rogers to death. See id. at 128 (affirming first-degree
murder conviction and death sentence).
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Rogers appealed, but this Court affirmed in all respects. Id. at
1004. Since that time, Rogers has sought postconviction relief both
in state and federal court—obtaining no relief in either forum. See
Rogers v. State, 957 So. 2d 538, 556 (Fla. 2007) (affirming denial of
initial postconviction motion and denying habeas petition); Rogers
v. Sec’y, Dep’t of Corr., No. 8:07-CV-1365-T-30TGW, 2010 WL
668261 (M.D. Fla. Feb. 19, 2010) (denying federal habeas relief);
Rogers v. State, 97 So. 3d 824 (Fla. 2012) (affirming summary
denial of first successive postconviction motion); Rogers v. State,
235 So. 3d 306 (Fla. 2018) (affirming summary denial of second
successive postconviction motion).
Rogers has now filed his third successive postconviction
motion, the denial of which is at issue in this appeal. In the
motion, Rogers raised a single claim of newly discovered evidence
consisting of numerous instances of childhood sexual abuse he
allegedly experienced over the course of several years. That abuse
purportedly occurred in Hamilton, Ohio (where Rogers grew up) and
at the Training Institute of Central Ohio (TICO). According to
Rogers, his memories of that abuse had been unknowingly
repressed until 2019 when he had detailed discussions about the
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case history with clemency counsel and a criminologist. Relying on
Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000),3 Rogers argued
that no “procedural obstacles” should bar him from obtaining relief.
The circuit court summarily denied the motion, ruling that the
alleged childhood sexual abuse did not constitute newly discovered
evidence under prong one of the test set forth in Jones v. State, 709
So. 2d 512, 521 (Fla. 1998). 4 The court reasoned, in part, that the
alleged newly discovered evidence “could have been discovered with
due diligence where, according to the allegations in [Rogers’]
motion, [his] family members were well aware of the [alleged] sexual
abuse.”
This appeal follows.
3. Hearndon, 767 So. 2d at 1185-86 (holding that delayed
discovery doctrine may be applied in intentional tort cases involving
childhood sexual abuse).
4. The court declined to extend Hearndon, finding it
inapplicable in the criminal postconviction context.
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II. Analysis
Rogers argues that the circuit court erred in denying his
postconviction motion without first holding an evidentiary hearing.
We disagree.
A circuit court should hold an evidentiary hearing on a rule
3.851 motion “whenever the movant makes a facially sufficient
claim that requires a factual determination.” Pardo v. State, 108
So. 3d 558, 560 (Fla. 2012) (quoting Parker v. State, 89 So. 3d 844,
855 (Fla. 2011)).5 To be facially sufficient, a claim of newly
discovered evidence must meet the two-part Jones test. We have
described that test as follows:
First, the evidence must not have been known by the trial
court, the party, or counsel at the time of trial, and it
must appear that the defendant or defense counsel could
not have known of it by the use of diligence. Second, the
newly discovered evidence must be of such [a] nature
that it would probably produce an acquittal on retrial.
Long v. State, 183 So. 3d 342, 345 (Fla. 2016) (quoting Tompkins,
994 So. 2d at 1086).
5. The standard of review here is de novo. See Boyd v. State,
46 Fla. L. Weekly S124, S125 (Fla. May 13, 2021) (citing Tompkins
v. State, 994 So. 2d 1072, 1081 (Fla. 2008)).
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Consistent with the foregoing principles, the circuit court is
authorized to summarily deny a newly-discovered-evidence claim if
the motion, files, and record refute the allegations pertaining to
either (or both) prongs of the Jones test. Fla. R. App. P.
3.851(f)(5)(B); see also McDonald v. State, 296 So. 3d 382, 384 (Fla.
2020); Rodgers v. State, 288 So. 3d 1038, 1039-40 (Fla. 2019);
Bogle v. State, 288 So. 3d 1065, 1068-69 (Fla. 2019).
Additionally, when, as here, a newly-discovered-evidence claim
is brought as a successive claim, the defendant must demonstrate
an exception to the time limitation set forth in rule 3.851(d)(1).
See Howell v. State, 145 So. 3d 774, 775 (Fla. 2013). This rule
requires that “[a]ny motion to vacate judgment of conviction and
sentence of death shall be filed by the defendant within 1 year after
the judgment and sentence become final.” Fla. R. Crim. P.
3.851(d)(1). Rogers’ sentence became final in 2001. Thus, his
claim could be summarily denied if a timeliness exception does not
apply. See Fla. R. Crim. P. 3.851(d)(2) (precluding consideration of
an untimely motion). 6
6. Rule 3.851(d) contains three timeliness exceptions:
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Here, as noted above, the circuit court rejected Rogers’ newly-
discovered-evidence claim, concluding that the evidence of
childhood sexual abuse did not amount to newly discovered
evidence under prong one of the Jones test. We agree that trial
counsel could have discovered the alleged evidence of abuse if due
diligence had been exercised.
In the motion itself, Rogers alleged that three of his brothers
had knowledge that he was repeatedly abused over the course of
several years in Hamilton, Ohio and at TICO. The record on direct
appeal demonstrates that trial counsel knew of Rogers’ six siblings,
including the three siblings mentioned in Rogers’ motion. Thus,
trial counsel knew of the individuals whom Rogers now alleges had
knowledge of the abuse or at least knowledge of the allegations of
abuse. And, as such, trial counsel could have asked them whether
(A) the facts on which the claim is predicated were
unknown to the movant or the movant’s attorney and
could not have been ascertained by the exercise of due
diligence, or
(B) the fundamental constitutional right asserted
was not established within the period, or
(C) postconviction counsel, through neglect, failed to
file the motion.
Fla. R. Crim. P. 3.851(d)(2)(A)-(C).
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Rogers had been sexually abused as a child. In fact, Rogers has
offered no explanation—here or below—why trial counsel or
postconviction counsel could not have obtained this information
years before through at least two of the brothers. See Dailey v.
State, 46 Fla. L. Weekly S276, S278 (Fla. Sept. 23, 2021).
To the extent that Rogers separately suggests that evidence of
rampant juvenile abuse at TICO is also newly discovered, he is
wrong. In the motion, Rogers relied on articles about TICO which
were published well before his penalty phase. Those articles—
discussing the abuse of juveniles at TICO—could have been
discovered by trial counsel and, as a consequence, do not meet
prong one of the Jones test.
In sum, Rogers’ alleged childhood sexual abuse and the
systemic sexual abuse experienced by others at TICO do not
constitute newly discovered evidence. Accordingly, the circuit court
properly denied the motion on that basis.
III. Conclusion
For the reasons given above, we affirm the order summarily
denying Rogers’ third successive postconviction motion.
It is so ordered.
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CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Hillsborough County,
Michelle Sisco, Judge – 291995CF015314000AHC
Eric Pinkard, Capital Collateral Regional Counsel, Ali A. Shakoor,
Lisa Marie Bort, and Adrienne Joy Shepherd, Assistant Capital
Collateral Regional Counsel, Middle Region, Temple Terrace,
Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Stephen
D. Ake, Assistant Attorney General, Tampa, Florida,
for Appellee
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