[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Brinkman , Slip Opinion No. 2021-Ohio-2473.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2021-O HIO -2473
T HE S TATE OF O HIO , A PPELLEE , v . B RINKMAN , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e 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 pl ea 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 Marc h 4, 2021—Decided July 21, 2021.)
A PPEAL from the Court of Co mmon Pleas of Cuyahoga County,
No. CR-17-618342-A.

_____________________ O’C ONNOR , C.J. {¶ 1} Appellant, George C. Brinkma n, was charged in the Cuyahoga County Common Pleas Court with counts of aggravated murder with capitalS UPREME C OURT OF O HIO

2 specifications, aggravated bur glary, 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 h im to death. Because the trial court accepte d 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 convi ctions and sentences and reman d 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 i nformed the trial court that he wanted to change his plea to guilty. A. The first plea colloquy {¶ 3} The trial court held a plea h earing on November 5, 2018, during which the following colloquy between B rinkman and the court took plac e:

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 certa in 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 a nd I’ll explain it to you.January Term, 2021

3 First of all, sir, do you understand you have a right to an attorney? If you cannot afford an attorney, one will be appoin ted 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 pro cess through a subpoena to compe l
witnesses to come to c ourt and testify on your behalf?
The Defendant: Yes. The Court: Do you also understand you have a right to remain silent and not testify a nd 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 th e possible sentences for each o ffense. Brinkman entered a plea of guilty to each of fense, 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 hearin g.S UPREME C OURT OF O HIO

4 {¶ 5} Because Brinkman had p leaded guilty to aggravated murder with death specifications, the case pr oceeded 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, ca lling numerous witnesses and pre senting 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, th e trial court noted on the rec ord that it had reviewed a transcript of the plea colloquy and “not iced that there were
some omissions that were not t horoughly covered.” The court th en informed Brinkman that it must ask him “a couple of questions like we di d 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 t o a trial? Do you unders tand 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 r ight to that jury trial in which 12 jurors must unanimously find the evidence true beyo nd 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 compelJanuary Term, 2021

5 witnesses to come to court and testify in your behalf. Do you
understand that?
The Defendant: Yes sir. The Court: Do you also unders tand you have a right to have the State, through its prosecuting attorney, prove your guilt b y evidence beyond a reasonable doubt, and your attorneys would ha ve the opportunity to confront and cross-examine each and every witness the State would bring forward? Do you understand you’r e giving that up? The Defendant: Yes, sir. The Court: Do you also unde rstand you have a right to remain silent and not testify a nd 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 ver y thoroughly went over all the offenses, and you did indicate you understood those and the pos sible 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 s o 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.S UPREME C OURT OF O HIO

6 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 wou ld 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 closin g 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 B rinkman 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 a s of right, presenting 13 propositions of law. II. Analysis {¶ 9} In proposition of law No. II, Brinkman argues that the trial co urt 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, thatJanuary Term, 2021

7 by pleading guilty he was waiving his constitutional rights to confront the witnesses against him and to have the s tate prove his gu ilt beyond a reas onable 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 se rious
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 kn owingly, 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 (lea d opinion), citing Clark at ¶ 25. {¶ 11} Crim.R. 11(C)(2) governs the process that a trial court must fo llow 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 n otify the defendant that he has certain constitutional rights and to determine whet her he understands that by pleading guilty, he is wa iving those rights. The court may not accept a guilty plea without first doing the following:

Informing the defendant and de termining that the defendant understands that by the plea the defendant is waiving the right s 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 w hich the defendant cannot be compelled to testify again st himself or herself.

Id. Crim.R. 11(C)(2)(c) requires the court to communicate this info rmation so that the defendant can make an intelligent and voluntary decision wh ether 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.S UPREME C OURT OF O HIO

8 {¶ 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 reasonabl e 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 tha t 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 c olloquy, the court cannot simply rely on other sources to convey these rights to t he defendant.” Id . at ¶ 29. Because the record in that case showed that the trial co urt had “plainly failed to orally inform [the defendant] of his constitutional right to require the state to prove his guilt beyond a reasonabl e doubt,” the plea was invali d. Id. at ¶ 30. We recently reaffirmed that a trial court must strictly comply wit h 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 tha t during the first plea colloquy on November 5, 2018, the trial cour t did not advise Brinkman of hi s rights to confront the witnesses against him a nd to have the sta te 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 Brin kman’s guilty plea
until after it had conducted the second co lloquy, during which the court a dvised Brinkman of the constitutional rights that it had failed to inf orm 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 co urt explicitly stated, “At this point, the record shoul d reflect that the Court does a ccept the pleas, finds that they are knowingly and volunt arily, with a full understand ing of [Brinkman’s] rights, entered at this point. * * * [W]e’ve accepted the plea , haven’t entered anyJanuary Term, 2021

9 judgment at this point.” Thus, th e record reflects that the tr ial court indeed accepted Brinkman’s guilty plea after th e flawed first colloquy and befo re the second colloquy. {¶ 15} Moreover, R.C. 2945.06, which addr esses guilty pleas in capital cases, does not support the state’s contention that the trial c ourt accepted Brinkman’s guilty plea only after the second colloquy on Novemb er 9. That statute provides, “ If the accused pleads guilty of aggravated murder , a court composed of three judges shall examine the w itnesses, determine whether the accused is guilty of aggravated murder or any other offense, and pronounce senten ce accordingly.” (Emphasis added.) Nothing with in 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 guilt y plea precedes the presentation of evidence. Crim.R. 11(C)(3)(c) similarly bolste rs this conclusion, stating, “If the indictment cont ains 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 mur der, proceed as provided by law to determine the presence or absence of the spe cified aggravating circumstances and of mitigating circumstances, and impose sente nce 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 wheth er the accused is guilty of aggravated murder be yond 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).S UPREME C OURT OF O HIO

10 {¶ 16} The state’s argument that the court accepted Brinkman’s guilty plea only after the second colloquy al so overlooks an essential requ irement of Crim.R. 11(C)(2)(c)—that the trial court inform the defendant and ensur e 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 a nd to have the sta te prove his guilt beyond a reasonable
doubt. The trial court therefore failed to strictly comply wit h Crim.R. 11(C)(2)(c) before it accepted Brinkman’s guilty plea. Consequently, Brink man did not have a “full understanding” that by plead ing guilty, he would waive th ose 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 und erstanding of what rights he waives by pleading gu ilty. This interest is best pro tected when the trial court fully informs the defenda nt what those rights are”). Thu s, 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 r ights to confront the witnesses against him and to have the state pro ve 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 cont ends 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 th e record indicates that Brinkman’s plea was not knowingly, intelligently, and volu ntarily made. But the purpose of Crim.R. 11(C)(2) is to require the trial court t o “convey to the
defendant certain information so that he can make a voluntary a nd 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 notJanuary Term, 2021

11 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 i s 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 p lea following an incomplete colloquy that omitted important warnings to Brinkman regarding his waiver of his constitutional rights. Additionally, the trial c ourt never asked Brinkman during the second colloquy whether he still wished to plead guilty. As we emphasized in Miller , strict compliance with Cr im.R. 11(C)(2)(c) is required when informing a defendant of his constitutional rights; substa ntial 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 confu sed 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 g uilty plea after the second colloquy. This court’s decision in Veney makes clear, however, that a “court cannot simply rely on other sour ces to convey [constitutional] rights to the
defendant.” Veney at ¶ 29. And Crim.R. 11(C)(2)(c) makes clear that it is the t rial
court that “ shall not accept a plea of guilty” without first informing the defendant of the constitutional rights he will waive by pleading guilty a nd determining that
the defendant understands the wai ver. (Emphasis added.) “It i s the trial court’s duty, therefore, to ensure that a defendant ‘has a full underst anding 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 dut y to ensure thatS UPREME C OURT OF O HIO

12 pleas are entered knowingly and voluntarily arises from the con stitutional guarantee of due process”). {¶ 19} Based on this record, we hold th at the trial court’s failure to strictly comply with Crim.R. 11(C)(2)(c) before accepting Brinkman’s gui lty plea renders his plea invalid. {¶ 20} We pause to note that this is not the first time that this cour t 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 cons titutional right s 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 t rial 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 in formation 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 tr ial court can avoid errors such as failing to adequately explain constitutional rights e ither 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 exchang e of certainty forJanuary Term, 2021

13 some of the most fundamental protections in the criminal justic e system will not be permitted unless the defendant is fully informed of the consequ ences of his or her plea.” Id . “What is at stake for an accused facing death or imprisonmen t demands
the utmost solicitude of which c ourts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the pl ea 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 ess ential to, our criminaljustice system. The trial cour t failed to stric tly comply with the requirements for a valid plea colloquy under Crim.R. 11(C)(2)(c) and neither the p rosecutor nor defense counsel brought the omitte d constitutional rights to th e court’s attention at the time of the initial plea colloquy. And even after the cour t noticed its omissions, during the second colloquy, it provi ded Brinkman with the bare minimum. It did not engage Brinkman in a full Cr im.R. 11(C)(2) colloquy and nev er requested that Brinkman reenter his guilty plea. The court provided counsel f or the state and the defense with the opportunity to approve or object to the colloq uy 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 ex ceedingly 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 pr opositions of law.
We vacate Brinkman’s convictions and sentences and remand the c ause to the Cuyahoga County Common Pleas C ourt for new proceedings. Judgment vacatedS UPREME C OURT OF O HIO

14 and cause remanded.
K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ.,

concur.

_________________ Michael C. O’Malley, Cuyahoga Count y Prosecuting Attorney, and Brandon A. Piteo, Katherine E. M ullin, and Sale h S. Awadallah, Assistant Prosecuting Attorneys, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Jeffrey M. Gamso, Erika B. Cunliffe, and No elle A. Powell, Assistant Publi c Defenders; and Kevin M. Cafferkey, for appellant.

_________________