State v. Brinkman (Slip Opinion) , 2021 Ohio 2473 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Brinkman, Slip Opinion No. 2021-Ohio-2473.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-2473THE STATE OF OHIO, APPELLEE, v. BRINKMAN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Brinkman, Slip Opinion No. 2021-Ohio-2473.]
Criminal law—Aggravated murder—Crim.R. 11(C)(2)(c)—Trial court did not
advise capital defendant at time guilty plea was entered that by pleading
guilty, defendant was waiving rights to confront witnesses against him and
to have guilt proved beyond a reasonable doubt—Because trial court
accepted defendant’s guilty plea without first strictly complying with
Crim.R. 11(C)(2)(c), the plea is invalid—Convictions and sentences
vacated and cause remanded to the trial court for new proceedings.
(No. 2019-0303—Submitted March 4, 2021—Decided July 21, 2021.)
APPEAL from the Court of Common Pleas of Cuyahoga County,
No. CR-17-618342-A.
_____________________
O’CONNOR, C.J.
{¶ 1} Appellant, George C. Brinkman, was charged in the Cuyahoga
County Common Pleas Court with counts of aggravated murder with capital
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specifications, aggravated burglary, kidnapping, and abuse of a corpse regarding
the murder of a woman and her two daughters. Brinkman pleaded guilty to all the
charges and specifications, and a three-judge panel sentenced him to death.
Because the trial court accepted his guilty plea without first strictly complying with
Crim.R. 11(C)(2)(c), we conclude that Brinkman’s guilty plea is invalid. We
therefore vacate Brinkman’s convictions and sentences and remand the cause to the
trial court for new proceedings.
I. Relevant Background
{¶ 2} Brinkman initially pleaded not guilty to all the charges and
specifications. However, during a pretrial hearing, Brinkman informed the trial
court that he wanted to change his plea to guilty.
A. The first plea colloquy
{¶ 3} The trial court held a plea hearing on November 5, 2018, during which
the following colloquy between Brinkman and the court took place:
The Court: Are you satisfied with the representation you
have received from your attorneys?
The Defendant: Yes.
The Court: Do you understand that by entering pleas of
guilty you will be giving up certain constitutional rights?
The Defendant: Yes, sir.
The Court: All right. I am going to go through your rights
with you, sir, and ask you if you understand each one. When I ask
you if you do understand, answer yes out loud. If you don’t
understand, say no, or feel free at any point to interrupt me and I’ll
explain it to you.
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First of all, sir, do you understand you have a right to an
attorney? If you cannot afford an attorney, one will be appointed to
represent you at no cost to yourself.
The Defendant: Yes.
The Court: Do you understand you have a right to a trial by
a jury or to a judge?
The Defendant: Yes.
The Court: Do you understand you have a right to use the
Court’s power of compulsory process through a subpoena to compel
witnesses to come to court and testify on your behalf?
The Defendant: Yes.
The Court: Do you also understand you have a right to
remain silent and not testify and no one could hold it against you
that you did not testify, nor could anyone make a comment about
your silence to the jury?
The Defendant: Yes.
{¶ 4} The trial court then read aloud each offense to which Brinkman was
entering a plea of guilty and the possible sentences for each offense. Brinkman
entered a plea of guilty to each offense, after which the trial court stated:
All right. At this point, the record should reflect that the
Court does accept the pleas, finds that they are knowingly and
voluntarily, with a full understanding of [Brinkman’s] rights,
entered at this point.
***
If the record is unclear, we’ve accepted the plea, haven’t
entered any judgment at this point. We need to have the hearing.
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{¶ 5} Because Brinkman had pleaded guilty to aggravated murder with
death specifications, the case proceeded to a hearing before a three-judge panel
pursuant to R.C. 2945.06 and Crim.R. 11(C)(3). From November 5 to 7, the state
presented its case in chief, calling numerous witnesses and presenting exhibits to
the panel. The state rested its case, subject to the admission of its exhibits, on
November 7.
B. The second plea colloquy
{¶ 6} Two days later, on November 9, the trial court noted on the record
that it had reviewed a transcript of the plea colloquy and “noticed that there were
some omissions that were not thoroughly covered.” The court then informed
Brinkman that it must ask him “a couple of questions like we did on Monday,” after
which the following colloquy occurred:
The Court: First of all, you understand that by your guilty
plea you’re giving up your constitutional rights with respect to a
trial? Do you understand that?
The Defendant: Yes, sir.
The Court: And that includes a trial by jury or to the judge.
Do you understand this?
The Defendant: Yes sir.
The Court: And you’re giving up your right to that jury trial
in which 12 jurors must unanimously find the evidence true beyond
a reasonable doubt. Do you understand that?
The Defendant: Yes sir.
The Court: And that you have a right to use this Court’s
power of compulsory process through a subpoena to compel
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witnesses to come to court and testify in your behalf. Do you
understand that?
The Defendant: Yes sir.
The Court: Do you also understand you have a right to have
the State, through its prosecuting attorney, prove your guilt by
evidence beyond a reasonable doubt, and your attorneys would have
the opportunity to confront and cross-examine each and every
witness the State would bring forward? Do you understand you’re
giving that up?
The Defendant: Yes, sir.
The Court: Do you also understand you have a right to
remain silent and not testify and no one could hold it against you
that you did not testify, nor make any comment about it to the jury
that you did not testify? Do you understand that?
The Defendant: Yes, sir.
The Court: And I think we very thoroughly went over all the
offenses, and you did indicate you understood those and the possible
consequences of this guilty plea.
Do you have any questions about any of these things we’ve
talked about?
The Defendant: No, sir.
The Court: All right. And so hopefully that will—anything
else, [Assistant Prosecutor]?
[Assistant Prosecutor]: I think we missed the right to
confront witnesses, Your Honor.
The Court: Okay. I’ll say—I think I said that, but I’ll—I’ll
make sure. I’ll say it again.
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That you do have a right to have the State, through its
prosecuting attorney, prove your guilt by evidence beyond a
reasonable doubt, and your attorneys would have the opportunity to
confront and cross-examine each and every witness the State would
bring forward?
The Defendant: Yes, sir.
The Court: And you are presumed innocent until, in fact, the
State proves you otherwise?
The Defendant: Yes, sir.
The Court: Okay. Is that satisfactory to everyone?
[Defense Counsel]: Yes, Your Honor.
[Assistant Prosecutor]: Yes, Your Honor.
[Second Defense Counsel]: Yes, Your Honor.
{¶ 7} Following this second colloquy, the three-judge panel ruled on the
admissibility of the state’s exhibits, heard the state’s closing arguments, and entered
findings of guilt on all the counts and specifications. At no point did the trial court
ask Brinkman to reenter his guilty plea. The court sentenced Brinkman to death for
each of the three capital offenses and a consecutive, aggregate prison term of 47
years for the noncapital offenses.
{¶ 8} Brinkman appealed his convictions and sentences to this court as of
right, presenting 13 propositions of law.
II. Analysis
{¶ 9} In proposition of law No. II, Brinkman argues that the trial court failed
to comply with Crim.R. 11(C)(2)(c) prior to accepting his plea, thereby rendering
his guilty plea invalid. More specifically, Brinkman contends that the trial court
did not advise him at the time that he entered his plea and the court accepted it, that
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by pleading guilty he was waiving his constitutional rights to confront the witnesses
against him and to have the state prove his guilt beyond a reasonable doubt.
A. A trial court must strictly comply with Crim.R. 11(C)(2)(c)
{¶ 10} A criminal defendant’s choice to enter a plea of guilty is a serious
decision. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
¶ 25. “Due process requires that a defendant’s plea be made knowingly,
intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.” State v.
Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10 (lead opinion),
citing Clark at ¶ 25.
{¶ 11} Crim.R. 11(C)(2) governs the process that a trial court must follow
before accepting a plea of guilty to a felony charge. Bishop at ¶ 11 (lead opinion).
Most relevant here, Crim.R. 11(C)(2)(c) requires the court to notify the defendant
that he has certain constitutional rights and to determine whether he understands
that by pleading guilty, he is waiving those rights. The court may not accept a
guilty plea without first doing the following:
Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s
favor, and to require the state to prove the defendant’s guilt beyond
a reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
Id. Crim.R. 11(C)(2)(c) requires the court to communicate this information so that
the defendant can make an intelligent and voluntary decision whether to plead
guilty. State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 18,
citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.
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{¶ 12} In Veney, the trial court did not advise the defendant that by entering
a guilty plea, he would waive his constitutional right to have the state prove his
guilt beyond a reasonable doubt at trial. Id. at ¶ 3-4, 30. We held that a trial court
is required to strictly comply with Crim.R. 11(C)(2)(c) and that its failure to do so
invalidates the plea. Veney at ¶ 32. We explained that “[a]lthough the trial court
may vary slightly from the literal wording of the rule in the colloquy, the court
cannot simply rely on other sources to convey these rights to the defendant.” Id. at
¶ 29. Because the record in that case showed that the trial court had “plainly failed
to orally inform [the defendant] of his constitutional right to require the state to
prove his guilt beyond a reasonable doubt,” the plea was invalid. Id. at ¶ 30. We
recently reaffirmed that a trial court must strictly comply with Crim.R. 11(C)(2)(c)
before accepting a defendant’s guilty plea and that its failure to notify the defendant
of his constitutional rights under that rule “amounts to plain error,” Miller at ¶ 13,
that “cannot be deemed harmless,” id. at ¶ 16.
B. The trial court did not strictly comply with Crim.R. 11(C)(2)(c)
{¶ 13} The state concedes the fact that during the first plea colloquy on
November 5, 2018, the trial court did not advise Brinkman of his rights to confront
the witnesses against him and to have the state prove his guilt beyond a reasonable
doubt. Nevertheless, it asserts that the trial court complied with Crim.R.
11(C)(2)(c) because, in its view, the court did not accept Brinkman’s guilty plea
until after it had conducted the second colloquy, during which the court advised
Brinkman of the constitutional rights that it had failed to inform him of during the
first colloquy.
{¶ 14} First and foremost, the record does not support what the state
suggests. After the first colloquy on November 5, the trial court explicitly stated,
“At this point, the record should reflect that the Court does accept the pleas, finds
that they are knowingly and voluntarily, with a full understanding of [Brinkman’s]
rights, entered at this point. * * * [W]e’ve accepted the plea, haven’t entered any
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judgment at this point.” Thus, the record reflects that the trial court indeed accepted
Brinkman’s guilty plea after the flawed first colloquy and before the second
colloquy.
{¶ 15} Moreover, R.C. 2945.06, which addresses guilty pleas in capital
cases, does not support the state’s contention that the trial court accepted
Brinkman’s guilty plea only after the second colloquy on November 9. That statute
provides, “If the accused pleads guilty of aggravated murder, a court composed of
three judges shall examine the witnesses, determine whether the accused is guilty
of aggravated murder or any other offense, and pronounce sentence accordingly.”
(Emphasis added.) Nothing within R.C. 2945.06 indicates that a guilty plea is not
accepted until after the three-judge panel enters its findings of guilt. Rather, R.C.
2945.06 contemplates that a trial court’s acceptance of a guilty plea precedes the
presentation of evidence. Crim.R. 11(C)(3)(c) similarly bolsters this conclusion,
stating, “If the indictment contains one or more specifications that are not dismissed
upon acceptance of a plea of guilty * * *, or if pleas of guilty * * * to both the
charge and one or more specifications are accepted,” then the three-judge panel
must, “if the offense is determined to have been aggravated murder, proceed as
provided by law to determine the presence or absence of the specified aggravating
circumstances and of mitigating circumstances, and impose sentence accordingly.”
(Emphasis added.) See State v. Post, 32 Ohio St.3d 380, 392-393, 513 N.E.2d 754(1987) (explaining that “Crim.R. 11(C)(3)(c), when read in pari materia with R.C.
2945.06, requires the three-judge panel, upon acceptance of a no contest plea to the
charge of aggravated murder, to hear evidence in deciding whether the accused is
guilty of aggravated murder beyond a reasonable doubt [emphasis added]”),
overruled in part on other grounds, State v. McDermott, 72 Ohio St.3d 570, 574,
651 N.E.2d 985 (1995); see also State v. Green, 81 Ohio St.3d 100, 104, 689 N.E.2d
556 (1998).
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{¶ 16} The state’s argument that the court accepted Brinkman’s guilty plea
only after the second colloquy also overlooks an essential requirement of Crim.R.
11(C)(2)(c)—that the trial court inform the defendant and ensure that the defendant
understands that “by the plea the defendant is waiving” certain constitutional rights.
It is clear from the record that the trial court did not advise Brinkman at the time
that he entered his plea that by pleading guilty he was waiving his rights to confront
the witnesses against him and to have the state prove his guilt beyond a reasonable
doubt. The trial court therefore failed to strictly comply with Crim.R. 11(C)(2)(c)
before it accepted Brinkman’s guilty plea. Consequently, Brinkman did not have a
“full understanding” that by pleading guilty, he would waive those two
constitutional rights. State v. Ballard, 66 Ohio St.2d 473, 478, 423 N.E.2d 115(1981) (“The criminal defendant’s interest is having a full understanding of what
rights he waives by pleading guilty. This interest is best protected when the trial
court fully informs the defendant what those rights are”). Thus, Brinkman’s guilty
plea is invalid. See Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,
at ¶ 32.
{¶ 17} The trial court did not advise Brinkman of his constitutional rights
to confront the witnesses against him and to have the state prove his guilt beyond a
reasonable doubt until November 9, four days after he had entered and the court
had accepted his guilty plea and after the state had presented evidence of
Brinkman’s guilt. The state contends that vacating the guilty plea would ignore the
purpose of Crim.R. 11(C) and that holding that the trial court did not strictly comply
here “would elevate form over substance,” because nothing in the record indicates
that Brinkman’s plea was not knowingly, intelligently, and voluntarily made. But
the purpose of Crim.R. 11(C)(2) is to require the trial court to “convey to the
defendant certain information so that he can make a voluntary and intelligent
decision whether to plead guilty” in the first place. Veney at ¶ 18. Informing the
defendant of his constitutional rights after he has already pleaded guilty does not
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support that interest. That is because when a defendant enters a plea of guilty he
“simultaneously waives” his constitutional rights. McCarthy v. United States, 394
U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); see also Class v. United
States, ___ U.S. ___, 138 S.Ct. 798, 805, 200 L.Ed.2d 37 (2018); Ballard at 478
(“a guilty plea is constitutionally infirm when the defendant is not informed in a
reasonable manner at the time of entering his guilty plea” of his constitutional rights
[emphasis added]). Here, the trial court accepted the guilty plea following an
incomplete colloquy that omitted important warnings to Brinkman regarding his
waiver of his constitutional rights. Additionally, the trial court never asked
Brinkman during the second colloquy whether he still wished to plead guilty. As
we emphasized in Miller, strict compliance with Crim.R. 11(C)(2)(c) is required
when informing a defendant of his constitutional rights; substantial compliance will
not do. 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, at ¶ 16. We
therefore reject the state’s “form over substance” argument.
{¶ 18} We also reject the state’s arguments that if Brinkman was confused
about his waiver of his rights, then either he or his attorneys could have brought
that issue to the panel’s attention or sought to withdraw his guilty plea after the
second colloquy. This court’s decision in Veney makes clear, however, that a “court
cannot simply rely on other sources to convey [constitutional] rights to the
defendant.” Veney at ¶ 29. And Crim.R. 11(C)(2)(c) makes clear that it is the trial
court that “shall not accept a plea of guilty” without first informing the defendant
of the constitutional rights he will waive by pleading guilty and determining that
the defendant understands the waiver. (Emphasis added.) “It is the trial court’s
duty, therefore, to ensure that a defendant ‘has a full understanding of what the plea
connotes and of its consequence.’ ” State v. Montgomery, 148 Ohio St.3d 347,
2016-Ohio-5487, 71 N.E.3d 180, ¶ 40, quoting Boykin v. Alabama, 395 U.S. 238,
244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); see also State v. Romero, 156 Ohio
St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, ¶ 18 (“A court’s duty to ensure that
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pleas are entered knowingly and voluntarily arises from the constitutional guarantee
of due process”).
{¶ 19} Based on this record, we hold that the trial court’s failure to strictly
comply with Crim.R. 11(C)(2)(c) before accepting Brinkman’s guilty plea renders
his plea invalid.
{¶ 20} We pause to note that this is not the first time that this court has
addressed a trial court’s obligations under Crim.R. 11. See, e.g., Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621; Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,
881 N.E.2d 1224. Because of the essential constitutional rights that a defendant
waives by pleading guilty, this court, time and time again, has emphasized the
seriousness of the plea decision and the importance of a trial court’s compliance
with Crim.R. 11(C). See, e.g., Ballard, 66 Ohio St.2d at 478-479, 423 N.E.2d 115;
Clark at ¶ 25; Veney at ¶ 21; Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124
N.E.3d 766, at ¶ 10 (lead opinion); Miller, 159 Ohio St.3d 447, 2020-Ohio-1420,
151 N.E.3d 617, at ¶ 17. And as we have said before regarding trial courts’
erroneous application of Crim.R. 11, “[i]n each instance, the trial court error was
easily avoidable.” Clark at ¶ 28. We therefore reiterate the advice that we have
provided before: “The best way to ensure that pleas are entered knowingly and
voluntarily is to simply follow the requirements of Crim.R. 11 when deciding
whether to accept a plea agreement.” Id. at ¶ 29. The court should use Crim.R. 11
as a checklist and explain the information to the defendant in a manner that can be
easily understood, see Miller at ¶ 18 and Veney at ¶ 27. By paying particular
attention to Crim.R. 11, the trial court can avoid errors such as failing to adequately
explain constitutional rights either completely or partially.
{¶ 21} While there are benefits to pleading guilty, the defendant
nevertheless loses several constitutional rights. Clark at ¶ 25, citing Boykin, 395
U.S. at 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. Thus, “the exchange of certainty for
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some of the most fundamental protections in the criminal justice system will not be
permitted unless the defendant is fully informed of the consequences of his or her
plea.” Id. “What is at stake for an accused facing death or imprisonment demands
the utmost solicitude of which courts are capable in canvassing the matter with the
accused to make sure he has a full understanding of what the plea connotes and of
its consequence.” Boykin at 243-244.
{¶ 22} Here, the trial court, as well as counsel for the state and the defense,
failed to adhere to the level of diligence expected in, and essential to, our criminal-
justice system. The trial court failed to strictly comply with the requirements for a
valid plea colloquy under Crim.R. 11(C)(2)(c) and neither the prosecutor nor
defense counsel brought the omitted constitutional rights to the court’s attention at
the time of the initial plea colloquy. And even after the court noticed its omissions,
during the second colloquy, it provided Brinkman with the bare minimum. It did
not engage Brinkman in a full Crim.R. 11(C)(2) colloquy and never requested that
Brinkman reenter his guilty plea. The court provided counsel for the state and the
defense with the opportunity to approve or object to the colloquy and each agreed
that it was “satisfactory.” This inattention is impermissible, especially in a case
such as this in which a death sentence is on the line. See, e.g., Clark at ¶ 41
(“Fundamental fairness requires courts to hold themselves to exceedingly high
standards when explaining the law to defendants who have waived constitutional
rights”).
III. Conclusion
{¶ 23} Because the trial court failed to strictly comply with Crim.R.
11(C)(2)(c) before accepting Brinkman’s guilty plea, we sustain proposition of law
No. II. As a result, we need not reach Brinkman’s remaining propositions of law.
We vacate Brinkman’s convictions and sentences and remand the cause to the
Cuyahoga County Common Pleas Court for new proceedings.
Judgment vacated
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and cause remanded.
KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ.,
concur.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Brandon A. Piteo, Katherine E. Mullin, and Saleh S. Awadallah, Assistant
Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Jeffrey M.
Gamso, Erika B. Cunliffe, and Noelle A. Powell, Assistant Public Defenders; and
Kevin M. Cafferkey, for appellant.
_________________
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