Fredrick Ulysses Rogers v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 29 2017, 9:48 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Michael Gene Worden
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Fredrick Ulysses Rogers, December 29, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1708-CR-1888
v. Appeal from the
Vanderburgh Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. David D. Kiely, Judge
The Honorable
Carl A. Heldt, Senior Judge
Trial Court Cause No.
82C01-1701-F1-111
Kirsch, Judge.
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[1] Fredrick Ulysses Rogers (“Rogers”) pleaded guilty to three counts of Level 1
felony child molesting,1 two counts of Level 4 felony child molesting,2 one
count of Level 5 felony child exploitation,3 four counts of Level 6 felony
performing sexual conduct in the presence of a minor,4 and two counts of Level
6 felony dissemination of matter harmful to minors5 and was sentenced to forty
years executed. Rogers appeals his sentence and raises the following issue for
our review: whether his sentence was inappropriate in light of the nature of the
offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] In 2016, Rogers, who was forty-two years old when he was sentenced, was
living with his girlfriend, K.B., and her twelve-year-old daughter, S.B.
Beginning at the end of the school year in spring 2016, and continuing until
December 2016, Rogers engaged in numerous sex acts and other sexual
conduct with S.B. Some of the sex acts and sexual conduct occurred with
K.B.’s participation. These acts included K.B. making S.B. masturbate Rogers
while Rogers would have videos of people engaging in sexual acts playing on
1
See Ind. Code § 35-42-4-3(a).
2
See Ind. Code § 35-42-4-3(b).
3
See Ind. Code § 35-42-4-4(b)(1).
4
See Ind. Code § 35-42-4-5(c)(1).
5
See Ind. Code § 35-49-3-3(a)(1).
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the television, K.B. filming S.B. while she engaged in these sexual acts, K.B.
directing S.B. to perform oral sex, K.B. making S.B. watch while K.B. had sex
with Rogers, and Rogers making S.B. watch pornographic videos, including the
ones of S.B. engaging in acts with Rogers. K.B. engaged in these acts involving
her child because she feared Rogers, and because Rogers and she used
methamphetamine and marijuana.
[4] On January 6, 2017, the State charged Rogers with twelve counts, including
three counts of Level 1 felony child molesting, two counts of Level 4 felony
child molesting, one count of Level 5 felony child exploitation, four counts of
Level 6 felony performing sexual conduct in the presence of a minor, and two
counts of Level 6 felony dissemination of matter harmful to minors. On June
30, 2017, Rogers pleaded guilty as charged to all twelve counts, with the
stipulation that he would not be treated as a credit restricted felon. The
probable cause affidavit was incorporated in the guilty plea hearing as the
factual basis for the guilty plea. Tr. Vol. II at 12.
[5] On July 26, 2017, a sentencing hearing was held, during which the State
presented members of S.B.’s family who testified regarding how Rogers’s
actions had affected S.B. and their entire family. The State also admitted a
letter from S.B. informing the trial court how Rogers’s actions had affected her.
S.B.’s letter stated that she feared Rogers because he had threatened to kill her
and her mother. Id. at 50. In his testimony at sentencing, Rogers admitted that
he committed all of the charged offenses. Id. at 37. Rogers also claimed that he
never threatened S.B. or K.B., that it was K.B.’s idea for him to commit the sex
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acts with S.B., and that he would not have committed the offenses if not for his
drug problem. Id. at 38-40. Rogers also offered an apology to S.B. for what he
had done to her. Id. at 40-41. As to his sentence, Rogers argued that, because
K.B. received a sentence of thirty years for her guilty plea, he should not receive
a sentence greater than what she received. Id. at 52.
[6] In sentencing Rogers, the trial court noted that he was a high risk to reoffend,
that he had expressed some remorse for his actions, and that he had pleaded
guilty. Id. at 58. The trial court took notice of Rogers’s criminal record, which
included two felony convictions and several misdemeanor convictions. Id. It
also found that the sexual acts perpetrated by Rogers in this case were ongoing
acts perpetrated against S.B. over a period of seven or eight months. Id. The
trial court sentenced Rogers to forty years for each of his convictions for Level 1
felony child molesting, to nine years for each of his convictions for Level 4
felony child molesting, to four years for his conviction for Level 5 felony child
exploitation, to two years for each of his convictions for Level 6 felony
performing sexual conduct in the presence of a minor, and to two years for each
of his convictions for Level 6 felony dissemination of matter harmful to minors.
The trial court ordered all of the sentences to be served concurrently, for a total
executed sentence of forty years. Rogers now appeals his sentence.
Discussion and Decision
[7] Pursuant to Indiana Appellate Rule 7(B), this Court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
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Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” Our Supreme Court has explained that the
principal role of appellate review should be to attempt to leaven the outliers, not
to achieve a perceived correct result in each case. Brown v. State, 52 N.E.3d 945,
954 (Ind. Ct. App. 2016) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008)), trans. denied. We independently examine the nature of Rogers’s offenses
and his character under Appellate Rule 7(B) with substantial deference to the
trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In
conducting our review, we do not look to see whether the defendant’s sentence
is appropriate or if another sentence might be more appropriate; rather, the test
is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315
(Ind. Ct. App. 2013), trans. denied. The defendant bears the burden of
persuading us that his sentence is inappropriate. Brown, 52 N.E.3d at 954.
[8] Rogers contends that his forty-year sentence is inappropriate in light of the
nature of his offense and his character. Specifically, he asserts that the nature of
his offenses was “no more egregious than the ‘typical’ offense contemplated by
the legislature” and that the offenses were perpetrated with K.B.’s participation
and acquiescence.” Appellant’s Br. at 7. Rogers argues that K.B. received a
thirty-year sentence for her offenses, and his forty-year sentence is, therefore,
inappropriate in light of the nature of the offense. As to his character, Rogers
points to the fact that he had accepted responsibility for his actions nearly from
the beginning of the investigation and that he pleaded guilty to every count with
which he was charged and saved the State and the trial court resources and
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time. He also argues that he apologized to S.B. and saved her from having to
testify at trial by pleading guilty and that in light of his character his sentence is
inappropriate.
[9] “As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). In the present case,
the following sentencing ranges are applicable. The advisory sentence for a
Level 1 felony is thirty years, with a range of between twenty and forty years.
Ind. Code § 35-50-2-4(b). The advisory sentence for a Level 4 felony is six
years, with a range of between two and twelve years. Ind. Code § 35-50-2-5.5.
The advisory sentence for a Level 5 felony is three years, with a sentencing
range of between one and six years. Ind. Code § 35-50-2-6(b). The advisory
sentence for a Level 6 felony is one year, with a sentencing range of between six
months and two and a half years. Ind. Code § 35-50-2-7(b). Here, Rogers
received the maximum sentence for his Level 1 felony convictions, and for the
other convictions, he received sentences that were above the advisory sentence
but less than the maximum sentence for those levels of felonies, with all of his
sentence running concurrently.
[10] The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). In the present case, the various sex acts
perpetrated on S.B. were numerous and occurred over a span of seven to eight
months. The acts were particularly egregious in that some were done in
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conjunction with S.B.’s mother, K.B., due to K.B.’s fear of Rogers.
Additionally, Rogers was living in the home with S.B. at the time the acts
occurred and was effectively acting as her step-father and, therefore, violated a
position of trust in perpetrating these crimes. We, therefore, conclude that
Rogers’s sentence is not inappropriate in light of the nature of the offense.
[11] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. As to Rogers’s character, the evidence
showed that he has a substantial criminal history that included two felony
convictions and several misdemeanor convictions. Rogers also admitted to a
lengthy history of substance abuse that he had made no effort to treat.
Additionally, Rogers’s violation of the position of trust that he held with S.B. is
also telling of his poor character. Although Rogers argues that his guilty plea
saved the State from expending the time and resources needed for a trial and
saved S.B. from the trauma of testifying, his guilty plea was merely a pragmatic
decision because the State’s case against him was overwhelming, particularly
after K.B. pleaded guilty and agreed to testify against him. We, therefore,
conclude that Rogers’s sentence is not inappropriate in light of his character.
We affirm his forty-year sentence.
[12] Affirmed.
[13] Bailey, J., and Pyle, J., concur.
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