[Cite as State v. Rogers, 2017-Ohio-9161.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 105335 and 105518

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

PIERRE ROGERS 

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART; REVERSED IN PART, 

AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case Nos. CR-15-600299-A, CR-15-600765-A, and CR-16-607691-A 

BEFORE: Keough, A.J., S. Gallagher, J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: December 21, 2017 
ATTORNEY FOR APPELLANT

Gregory Scott Robey 

Robey & Robey 

14402 Granger Road 

Cleveland, Ohio 44137 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Nathalie E. Naso 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, A.J.: 

{¶1} In this consolidated appeal, defendant-appellant, Pierre Rogers, appeals his 

convictions following guilty pleas in three separate cases. For the reasons that follow, 

we affirm in part, reverse in part, and remand. 

{¶2} In October 2015, Rogers was named in a four-count indictment under 

Cuyahoga C.P. No. CR-15-600299 charging him with two counts each of aggravated 

vehicular assault, second-degree felonies, and driving while under the influence of 

alcohol or drugs, first-degree misdemeanors. The case stemmed from a February 2105 

automobile accident where Rogers was driving on a suspended license at a high rate of 

speed and struck another vehicle, causing the driver injury. 

{¶3} In November 2015, Rogers was named in a single-count indictment under 

Cuyahoga C.P. No. CR-15-600765, charging him with drug possession, a felony of the 

fifth degree. 

{¶4} In July 2016, Rogers was named in a seven-count indictment under Cuyahoga 

C.P. No. CR-16-607691, charging him with three first-degree felony counts of aggravated 

arson; one count of aggravated arson in the second-degree; arson, a first-degree 

misdemeanor; aggravated menacing, a misdemeanor of the first degree; and criminal 

damaging or endangering, a first-degree misdemeanor. The case stemmed from Rogers 

setting the porch of a multifamily home where his ex-girlfriend resided on fire. 

{¶5} After being found competent to stand trial and sane at the time of the 

commission of the offenses, Rogers entered guilty pleas in each case in October 2016. 
{¶6} In Case No. CR-15-600299, Rogers pleaded guilty to one count each of 

aggravated vehicular assault (Count 1) and driving while under the influence of alcohol or 

drugs (Count 3). The trial court imposed a five-year sentence on Count 1, and ordered 

Rogers to serve a three-day sentence in the county jail on Count 3. The sentences were 

ordered concurrent to each and to the other cases. The court also ordered Rogers to pay 

restitution to the victim in the amount of $35,507.69, and a fine of $375. Finally, the 

court imposed a lifetime suspension of Rogers’s driver’s license. 

{¶7} In Case No. CR-15-600765, Rogers pleaded guilty to drug possession and 

was sentenced to six months in prison, to be served concurrently with the other sentences. 

{¶8} In Case No. CR-16-607691, Rogers pleaded guilty to an amended charge of 

attempted aggravated menacing, a felony of the third degree (Count 4), aggravated 

menacing (Count 6), and criminal damaging (Count 7). The court sentenced Rogers to 

twelve months in prison on Count 1, and six months each for Counts 6 and 7. The 

sentences were ordered to be served concurrent to each other and with the other cases. 

Additionally, Rogers was advised at sentencing of the mandatory lifetime registration 

requirements for the arson-related offense. 

{¶9} Rogers now appeals, raising four assignments of error. 

I. Sentence Unsupported by the Record 

{¶10} In his first assignment of error, Rogers contends that the trial court erred 

when it imposed a five-year prison term and a lifetime driver’s license suspension 

because the sentence is not supported by the record. 
{¶11} Appellate review of felony sentences is governed by R.C. 2953.08, which 

provides that when reviewing felony sentences, this court may increase, reduce, modify a 

sentence, or vacate and remand for resentencing if we clearly and convincingly find that 

the record does not support the sentencing court’s statutory findings, if applicable, or the 

sentence is contrary to law. R.C. 2953.08(G)(2). A sentence is contrary to law if (1) the 

sentence falls outside the statutory range for the particular degree of offense, or (2) the 

trial court failed to consider the purposes and principles of felony sentencing set forth in 

R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist. 

Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga 

No. 100206, 2014-Ohio-1520, ¶ 13. When a sentence is imposed solely after 

consideration of the factors in R.C. 2929.11 and 2929.12, appellate courts “may vacate or 

modify any sentence that is not clearly and convincingly contrary to law only if the 

appellate court finds by clear and convincing evidence that the record does not support 

the sentence.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, 

¶ 23. 

{¶12} In this case, Rogers was sentenced in multiple cases on a number of charges 

— the most egregious being aggravated vehicular assault, a second-degree felony, and 

was sentenced to a prison term of five years. The five-year sentence imposed is within 

the statutory range for a second-degree felony. See 2929.14(A)(2) (range is two to eight 

years in prison). The sentences for the offenses in the other cases — driving while under 

the influence of alcohol or drugs (3 days); attempted aggravated arson (12 months); 
aggravated menacing (6 months); criminal damaging (6 months); and drug possession (6 

months) — were ordered to run concurrent with each other, for a total prison sentence of 

five years. Therefore, the prison term itself is not contrary to law. 

{¶13} Additionally, the record reflects that the trial court considered the purposes 

and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and 

recidivism sentencing factors in R.C. 2929.12. The trial court’s journal entry of sentence 

states, “[t]he court considered all required factors of the law. The court finds that prison 

is consistent with the purpose of R.C. 2929.11.” These statements alone are sufficient to 

satisfy the trial court’s obligations under the law. State v. Clayton, 8th Dist. Cuyahoga 

No. 99700, 2014-Ohio-112, ¶ 9. The trial court is not required to make any findings in 

support of the factors contained in R.C. 2929.11 or 2929.12. See, e.g., State v. Gay, 8th 

Dist. Cuyahoga No. 103641, 2016-Ohio-2946, ¶ 23. 

{¶14} Nevertheless, the trial court discussed on the record that despite Rogers 

having no prior felony criminal history, his conduct caused serious injury and he 

subsequently engaged in serious criminal conduct following the accident. The court felt 

that a minimum term of incarceration would demean the seriousness of the offense. 

These statements reveal that the trial court considered the purposes and principles of 

felony sentencing under R.C. 2929.11 and the serious and recidivism factors contained in 

R.C. 2929.12 prior to imposing the sentence. The sentence is not contrary to law. 

Accordingly, the only way this court “may vacate or modify any sentence that is not 
clearly and convincingly contrary to law” is if we find by clear and convincing evidence 

that the record does not support the sentence. Marcum at ¶ 23. 

{¶15} Rogers contends that there is clear and convincing evidence that the record 

does not support the trial court’s findings and the five-year sentence because the trial 

court failed to consider all of the “less serious” and “less likely” recidivism factors, and 

gave undue weight to the more serious and more likely recidivism factors. Prior to 

imposing sentence, the court had the opportunity to review the presentence investigation 

report, and hear statements by the prosecutor, the victim in the accident, an investigating 

officer, defense counsel, Rogers, and Rogers’s mother. 

{¶16} The seriousness and recidivism factors listed in R.C. 2929.11 are 

nonexhaustive lists, and the trial court may consider any other relevant factors it deems 

appropriate. Additionally, “‘the weight to be given to any one sentencing factor is purely 

discretionary and rests with the trial court.’” State v. Price, 8th Dist. Cuyahoga No. 

104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert, 8th Dist. Cuyahoga No. 103208, 

2016-Ohio-1543, ¶ 10. 

{¶17} Rogers contends that a “less serious” factor that the court did not consider is 

that he did not expect to cause any harm to the victim. The trial court heard statements in 

mitigation that Rogers did not intend to hurt anyone, but also heard that he did not care 

what happened to himself and “whatever happened, happened.” The court also heard 

from the accident reconstructionist, who stated that Rogers was driving approximately 

109 m.p.h. when the accident occurred. Therefore, while he may not have intended to 
hurt anyone, the court heard that Rogers had a complete disregard for anyone’s safety 

when he drove at a high rate of speed while under the influence of alcohol and drugs. 

{¶18} Rogers also contends that the unique circumstances of the case, specifically 

“breaking up with his girlfriend that night and then self-medicating with alcohol in an 

effort to calm his bi-polar disorder, are unlikely to recur.” However, the record reflects 

that despite the accident, Rogers continued to self-medicate and engage in serious 

conduct when he attempted to set fire to his ex-girlfriend’s residence. Subsequent 

criminal conduct may be considered during sentencing. State v. Hinton, 8th Dist. 

Cuyahoga No. 84582, 2005-Ohio-3427; State v. Huff, 10th Dist. Franklin No. 04AP-1179, 

2005-Ohio-5533, State v. Jordan, 4th Dist. Athens No. 01CA4, 2002-Ohio-417. 

Rogers’s sentence is supported by the record. 

{¶19} However, the driver’s license suspension imposed on Rogers is contrary to 

law. Rogers pleaded guilty to a second-degree felony charge of aggravated vehicular 

assault. The offense was enhanced because he was driving under suspension at the time 

of the offense. In addition to the other penalties and sanctions, the law mandates at least 

a Class 3 driver’s license suspension. However, the enhancement of the driver’s license 

suspension from a Class 3 to a Class 2 suspension does not arise unless Rogers was 

previously convicted or pleaded guilty to an offense named in R.C. 2903.08(B)(2), which 

he did not. Accordingly, Rogers was subject only to a Class 3 suspension, which is a 

license suspension from two to ten years. See R.C. 2903.08(B)(2) and 4510.02(A)(3). 
{¶20} Accordingly, based on the record before this court, we cannot find by clear 

and convincing evidence that the record does not support the five-year prison sentence. 

However, we find that Rogers’s license suspension is contrary to law. The first 

assignment of error is sustained in part, and overruled in part. 

II. Plea — Arson Registration Requirement 

{¶21} Rogers contends in his second assignment of error that he did not enter a 

knowing, intelligent, and voluntary plea because the trial court failed to fully advise him 

at the time of his plea of the lifetime arson registration requirement. 

{¶22} Pursuant to Crim.R. 11(C)(2)(a), the court shall not accept a plea of guilty in 

a felony case without first addressing the defendant personally and determining whether 

he is making the plea voluntarily and with full understanding of the nature of the charge 

and of the maximum penalty involved. The maximum penalty, however, does not 

include the registration requirements under the Ohio Arson Registry. 

{¶23} R.C. 2909.14 and 2909.15 requires all arson offenders, including those 

convicted of attempted arson, to register for life with the sheriff of the county in which 

the offender resides. This registration period may be limited by the court after ten years 

of reporting. Who notifies the defendant of the registration requirements depends on the 

sentence imposed. R.C. 2909.14. For defendants sentenced to community control 

sanctions, the notification duty falls on the “the judge” at the time of sentencing. R.C. 

2909.14(A)(2). However, for defendants receiving a term of incarceration, the “official 
of a jail” is required to notify the defendant of the registration requirements prior to 

release. R.C. 2909.14(A)(1). 

{¶24} In this case, Rogers was sentenced to a term of imprisonment; therefore, the 

trial court was not statutorily required to notify Rogers of his obligation to register. This 

obligation falls upon the official at the correctional facility where he was confined. See 

State v. Jones, 6th Dist. Lucas No. L-16-1014, 2017-Ohio-413, ¶ 22. 

{¶25} Notwithstanding who must notify a defendant, the arson registration 

obligations are not punitive; they are considered remedial, collateral consequences of the 

underlying arson-related offense. Jones at ¶ 26, citing State v. Reed, 11th Dist. Lake No. 

2013-L-1, 2014-Ohio-5463; State v. Caldwell, 1st Dist. Hamilton No. C130812, 

2014-Ohio-3566; State v. Galloway, 2015-Ohio-4949, 50 N.E.3d 1001 (5th Dist.). 

Accordingly, because they are collateral consequences and not punishment, Crim.R. 11 

does not require a trial court to inform a defendant of the registration and notification 

requirements. See, e.g., State v. Rice, 8th Dist. Cuyahoga No. 72685, 1999 Ohio App. 

LEXIS 535 (Feb. 18, 1999) (discussing remedial nature of Megan’s Law; notification of 

all collateral consequences of plea is not required). 

{¶26} Accordingly, the trial court had no obligation to inform Rogers of the 

applicable registration requirements before accepting his guilty plea. The assignment of 

error is overruled. 

III. Court Costs Imposed After Sentencing 
{¶27} In his third assignment of error, Rogers contends that the trial court erred 

when it later imposed court costs in the sentencing journal entry, after waiving them at the 

sentencing hearing. 

{¶28} The record is clear that during sentencing, the court stated that court costs 

were waived. (Tr. 22.) However, in each of the judgment entries of conviction, the trial 

court entered judgment against Rogers for court costs, effectively modifying Rogers’s 

sentence outside his presence. The court’s actions violated Crim.R. 43(A), which 

requires that a defendant “be present at the arraignment and every stage of the trial, 

including the impaneling of the jury, the return of the verdict, and the imposition of 

sentence, except as otherwise provided by these rules.” 

{¶29} Accordingly, the assignment of error is sustained and the case is remanded 

with instructions for the court to issue a nunc pro tunc entry to make the sentencing 

entries reflect what occurred during sentencing — costs were waived. See State v. 

Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 13. 

IV. Effective Assistance of Counsel 

{¶30} In his fourth assignment of error, Rogers contends that he was denied 

effective assistance of counsel when his counsel (1) stipulated to the competency and 

sanity report from the court psychiatric clinic, and (2) failed to request an independent 

psychiatric examination when there was a documented history of mental health issues. 

{¶31} A plea will not be considered voluntary if it is the result of ineffective 

assistance of counsel. State v. Banks, 9th Dist. Lorain No. 01CA007958, 
2002-Ohio-4858, ¶ 16. In order to prevail on this claim, Rogers must meet the test for 

ineffective assistance of counsel. State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 

(1992). This requires a convicted defendant to prove two things — counsel’s 

performance was deficient and the deficient performance prejudiced the defense. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 

The claim fails if the defendant cannot satisfy either prong of the test. State v. Bradley, 

42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). 

{¶32} Where a defendant challenges trial counsel’s performance in connection 

with a guilty plea, the defendant can establish the prejudice necessary for an ineffective 

assistance of counsel claim only by demonstrating that there is a reasonable probability 

that, but for counsel’s deficient performance, he would not have pled guilty to the offense 

at issue and would have insisted on going to trial. State v. Williams, 8th Dist. Cuyahoga 

No. 100459, 2014-Ohio-3415, ¶ 11, citing Xie at 524, and Hill v. Lockhart, 474 U.S. 52, 

106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Wright, 8th Dist. Cuyahoga No. 98345, 

2013-Ohio-936, ¶ 12. 

{¶33} A defendant is presumed competent to stand trial. This presumption is 

rebutted only when a preponderance of the evidence shows that due to his present mental 

condition, the defendant is incapable of understanding the nature and objective of the 

proceedings against him or of assisting in his defense. R.C. 2945.37(G). 

{¶34} In this case, defense counsel stipulated to the competency and sanity 

evaluations without requesting any additional evaluations. Pursuant to R.C. 2945.37(E), 
it is not ineffective assistance of counsel to stipulate to the admission of a report rather 

than requiring the expert to testify, especially when there is nothing in the report that 

seems to require cross-examination. 

{¶35} Although counsel was aware that Rogers suffered from mental health issues, 

the record reveals that Rogers understood the legal proceedings and was able to 

participate and assist in his defense. Furthermore, there is nothing in the record that 

conflicts with the findings in the competency and sanity evaluation reports. Accordingly, 

even if another evaluation had been performed, it is unlikely the results would have been 

different. See In re Anderson, 5th Dist. Tuscarawas No. 2001AP030021, 2002-Ohio-776 

(where there is no indication that a second evaluation would reveal a different conclusion, 

a defendant is hard-pressed to establish ineffective assistance of counsel for failing to 

request a second exam); In re Gooch, 2d Dist. Montgomery No. 19339, 2002-Ohio-6859, 

¶ 29-31 (stipulating to a competency report and failing to request an additional report can 

fall within the realm of reasonable professional assistance). 

{¶36} Accordingly, Rogers has failed to withstand his burden of proving that he 

was denied effective assistance of counsel or that he was prejudiced by his counsel’s 

performance to render his plea invalid. The assignment of error is overruled. 

{¶37} Judgment affirmed in part, reversed in part, and remanded to the trial court 

to impose a Class 3 driver’s license suspension against Rogers in Case No. 

CR-15-600299. Additionally, the trial court is ordered to correct nunc pro tunc all 
judgment entries of conviction subject to this appeal, to reflect that court costs are 

waived. 

It is ordered that the parties share equally the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, in part, any bail pending appeal is terminated. Case remanded to the trial 

court for correction and execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE 

SEAN C. GALLAGHER, J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR