State v. Brinkman (Slip Opinion)State v. Brinkman (Slip Opinion)
[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-2473
THE 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—
(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.
{¶ 1} Appellant, George C. Brinkman, was charged in the Cuyahoga County Common Pleas Court with counts of aggravated murder with capital 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
{¶ 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.
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.
{¶ 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
{¶ 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
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.
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
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}
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.
{¶ 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
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
{¶ 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
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,
{¶ 16} The state‘s argument that the court accepted Brinkman‘s guilty plea only after the second colloquy also overlooks an essential requirement of
{¶ 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
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
{¶ 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
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
{¶ 20} We pause to note that this is not the first time that this court has addressed a trial court‘s obligations under
{¶ 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
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
III. Conclusion
{¶ 23} Because the trial court failed to strictly comply with
Judgment vacated
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.