Petition for Writ of Certiorari — Ohio, Petitioner v. George Brinkman

No. ______

In the

Supreme Court of the United States

__________________

STATE OF OHIO,

Petitioner,

v.

GEORGE BRINKMAN,

Respondent.

__________________

On Petition for Writ of Certiorari to

the Supreme Court of Ohio

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

MICHAEL C. O'MALLEY

Cuyahoga County Prosecutor

KATHERINE E. MULLIN*

SALEH S. AWADALLAH

Assistant Prosecuting Attorneys

*Counsel of Record

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

(216) 698-6454

kemullin@prosecutor.cuyahogacounty.us

sawadallah@prosecutor.cuyahogacounty.us

Counsel for Petitioner State of Ohio

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

George Brinkman confessed to murdering a mother

and her two daughters. In the face of overwhelming

evidence, Brinkman, represented by counsel, chose to

enter a guilty plea to the indictment. Fifty-two years

ago, the Court held that due process requires an

affirmative showing that a guilty plea was entered

knowingly, voluntarily, and intelligently. Boykin v.

Alabama, 395 U.S. 238 (1969). Boykin held that the

waiver of constitutional rights during a plea cannot be

presumed from a silent record, but it did not limit what

a reviewing court can consider. Despite a lack of

objection, the Supreme Court of Ohio vacated

Brinkman's plea finding that due process can only be

satisfied by a narrow review of the plea proceedings-a

standard the Court has never previously required. The

Supreme Court of Ohio's "presumption of prejudice"

standard conflicts with decisions from the Court as well

as nearly all other state and federal courts. The two

questions presented for the Court are:

1. Does the Due Process Clause of the Fourteenth

Amendment to the United States Constitution

prohibit review of the entire record to determine

whether a guilty plea was knowingly,

intelligently and voluntarily entered?

2. Should this Court grant certiorari to resolve the

conflict among the courts on whether the failure

to strictly adhere to the advisement of rights in

Boykin should result in the automatic reversal

of a guilty plea?

ii

LIST OF PARTIES AND

CORPORATE DISCLOSURES

The caption of the case contains the names of all the

parties. No corporations are involved.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

• State of Ohio v. George Brinkman, Criminal

Case No. 618342, Court of Common Please

Cuyahoga County, Ohio (sentencing entry filed

December 28, 2018 and sentencing opinion filed

January 18, 2019).

• State of Ohio v. George Brinkman, Supreme

Court of Ohio Case No. 2019-0303, Slip Opinion

No. 2021-Ohio-2473 (decision filed on July 21,

2021).

•

State of Ohio v. George Brinkman, Criminal

Case No. 618342, Court of Common Please

Cuyahoga County, Ohio (petition for

postconviction relief filed November 17, 2020 but

rendered moot by the decision of the Supreme

Court of Ohio).

There are no other proceedings in state or federal

trial or appellate courts directly related to this case.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES AND

CORPORATE DISCLOSURES . . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . 1

RELEVANT CONSTITUTIONAL PROVISIONS . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

A. The Indictment. . . . . . . . . . . . . . . . . . . . . . 2

B. The Plea Hearing . . . . . . . . . . . . . . . . . . . . 3

C. The Appeal . . . . . . . . . . . . . . . . . . . . . . . . . 8

REASONS FOR GRANTING THE WRIT. . . . . . . . . 8

I.

THE PETITION FOR A WRIT OF

CERTIORARI RAISES ISSUES THAT

RECUR IN THE CRIMINAL JUSTICE

SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.

THE SUPREME COURT OF OHIO’S

DECISION TO APPLY A STRUCTURAL

ERROR ANALYSIS CONTRADICTS THE

COURT’S RULINGS THAT THE TOTALITY

OF THE RECORD SHOULD BE

CONSIDERED. . . . . . . . . . . . . . . . . . . . . . . . 14

iv

III.

A CONFLICT EXISTS BETWEEN OHIO

AND OTHER STATE AND FEDERAL

COURTS ON WHETHER A BOYKIN

VIOLATION REQUIRES AUTOMATIC

REVERSAL OF A PLEA . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

APPENDIX

Appendix A Slip Opinion in the Supreme Court of

Ohio No. 20-Ohio-2473

(July 21, 2021) . . . . . . . . . . . . . . . App. 1

Appendix B Journal Entry in the Court of Common

Pleas Cuyahoga County, Ohio

(January 18, 2019) . . . . . . . . . . . App. 19

Appendix C Journal Entry in the Court of Common

Pleas Cuyahoga County, Ohio

(January 14, 2019) . . . . . . . . . . . App. 42

Appendix D Journal Entry Defendant’s Waiver of

Jury Trial in the Court of Common

Pleas Cuyahoga County, Ohio

(October 15, 2018) . . . . . . . . . . . . App. 45

v

TABLE OF AUTHORITIES

CASES

Arizona v. Fulminante,

499 U.S. 279, 111 S.Ct. 1246,

113 L.Ed.2d 302 (1991) . . . . . . . . . . . . . . . . . 11, 12

Blankenship v. State,

858 S.W.2d 897 (Tenn. 1993) . . . . . . . . . . . . . . . 19

Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969) . . . . . . . . . . . . . . . . . passim

Chapman v. California,

386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967) . . . . . . . . . . . . . . . . . . . . . 11

Commonwealth v. Morrow,

363 Mass. 601, 296 N.E.2d 468 (1973). . . . . . . . 19

Davis v. State,

278 Md. 103, 361 A.2d 113 (1976) . . . . . . . . . . . 19

Dewitt v. State,

755 N.E.2d 167 (Ind. 2001). . . . . . . . . . . . . . . . . 19

Fontaine v. United States,

526 F.2d 514 (6th Cir. 1975). . . . . . . . . . . . . . . . 18

Greer v. United States,

___ U.S. ___, 141 S.Ct. 2090 (2021) . . . . . . . 12, 16

Jhun v. State,

2004 Haw. LEXIS 348 (Haw. 2004) . . . . . . . . . . 11

vi

Kercheval v. United States,

274 U.S. 220, 47 S. Ct. 582,

71 L. Ed. 1009 (1927) . . . . . . . . . . . . . . . . . . . . . 14

Lacy v. People,

775 P.2d 1 (Colo. 1989) . . . . . . . . . . . . . . . . . . . . 19

Lafler v. Cooper,

566 U.S. 156, 132 S.Ct. 1376,

182 L.Ed.2d 398 (2012) . . . . . . . . . . . . . . . . . . . . 13

Mabry v. Johnson,

467 U.S. 504, 104 S. Ct. 2543,

81 L. Ed. 2d 437 (1984) . . . . . . . . . . . . . . . . . . . . 14

McCarty v. United States,

394 U.S. 459 (1969). . . . . . . . . . . . . . . . . . . . . . . 15

Michigan v. Long,

463 U.S. 1032, 103 S.Ct. 3469,

77 L.Ed.2d 1201 (1983) . . . . . . . . . . . . . . . . . . . . 14

Missouri v. Frye,

566 U.S. 134, 132 S.Ct. 1399,

182 L.Ed.2d 379(2012) . . . . . . . . . . . . . . . . . . . . 13

Morgan v. State,

582 P.2d 1017 (Alaska 1978) . . . . . . . . . . . . . . . 19

Neyland v. Blackburn,

785 F.2d 1282 (5th Cir. 1986). . . . . . . . . . . . . . . 18

Parke v. Raley,

506 U.S. 20, 113 S.Ct. 517,

121 L.Ed.2d 391 (1992) . . . . . . . . . . . . . . . . . . . . 14

People v. Fuller,

793 N.E.2d 526 (Ill. 2002). . . . . . . . . . . . . . . . . . 19

vii

People v. Howard,

1 Cal.4th 1132, 824 P.2d 1315 (1992) . . . . . 11, 19

People v. Pellegrino,

44 N.E.3d 145 (N.Y. 2015) . . . . . . . . . . . . . . . . . 19

State v. Ballard,

66 Ohio St.2d 473, 423 N.E.2d 115 (1981). . . . . 17

State v. Balsano,

11 So.3d 475 (La. 2009) . . . . . . . . . . . . . . . . . . . 19

State v. Beckley,

742 N.W.2d 841 (S.D. 2007) . . . . . . . . . . . . . . . . 19

State v. Billups,

57 Ohio St.2d 31, 385 N.E.2d 1308 (1979). . . . . 17

State v. Colyer,

98 Idaho 32, 557 P.2d 626 (1976) . . . . . . . . . . . . 19

State v. Engle,

74 Ohio St.3d 525, 660 N.E.2d 450 (1996). . . . . 13

State v. Kelley,

57 Ohio St. 3d 127, 566 N.E.2d 658 (1991) . . . . 14

State v. Lambert,

266 S.C. 574, 225 S.E.2d 340 (1976) . . . . . . . . . 19

State v. Olsen,

544 N.W.2d 144 (N.D. 1996). . . . . . . . . . . . . . . . 19

State v. Propotnik,

299 Minn. 56, 216 N.W.2d 637 (1974) . . . . . . . . 19

viii

State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621 (2008), cert. declined

557 U.S. 929, 129 S.Ct. 2824,

174 L.Ed.2d 569 (2009) . . . . . . . . . . . . . . . . . 13, 16

Stinson v. Turner,

473 F.2d 913 (10th Cir. 1973). . . . . . . . . . . . . . . 19

Todd v. Lockhart,

490 F.2d 626 (8th Cir. 1974). . . . . . . . . . . . . . . . 19

United States v. Akinsola,

105 F.3d 331 (7th Cir. 1997). . . . . . . . . . . . . . . . 16

United States v. Dominguez-Benitez,

542 U.S. 74 (2004) . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Hastings,

461 U.S. 499, 103 S.Ct. 1974,

76 L.Ed.2d 96 (1983) . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Monroe,

353 F.3d 1346 (11th Cir. 2003). . . . . . . . . . . . . . 18

United States v. Simmons,

961 F.2d 183 (11th Cir. 1992). . . . . . . . . . . . . . . 19

United States v. Stewart,

977 F.2d 81 (3d Cir. 1992) . . . . . . . . . . . . . . . . . 18

United States v. Vonn,

535 U.S. 55, 122 S.Ct. 1043,

152 L.Ed.2d 90 (2002) . . . . . . . . . . . . . . . . . . 12, 15

United States v. Wagner,

996 F.2d 906 (7th Cir. 1993). . . . . . . . . . . . . 18, 19

ix

United States v. Ward,

518 F.3d 75 (1st Cir. 2008) . . . . . . . . . . . . . . . . . 18

Wade v. Coiner,

468 F.2d 1059 (4th Cir. 1972). . . . . . . . . . . . . . . 18

Washington v. Recuenco,

548 U.S. 212, 126 S.Ct. 2546,

165 L.Ed.2d 466 (2006) . . . . . . . . . . . . . . . . . . . . 11

Wilkins v. Erickson,

505 F.2d 761 (9th Cir. 1974). . . . . . . . . . . . . . . . 18

Wood v. Morris,

87 Wash.2d 501, 554 P.2d 1032 (1976) . . . . . . . 19

CONSTITUTION AND STATUTES

U.S. Const. amend. v . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. amend. vi. . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RULES

Fed. R. Crim. P. 11(b)(1)(E) . . . . . . . . . . . . . . . . . . . 15

Fed.R.Crim.P. 11 . . . . . . . . . . . . . . . . . . . . . . . . 12, 15

Ohio Crim. R. 11(C)(2)(c) . . . . . . . . . . . . . . . . . . . . . 15

Ohio Crim. R. 11(C)(3) . . . . . . . . . . . . . . . . . . . 5, 9, 10

OTHER AUTHORITY

Advisory Committee Notes 1569 . . . . . . . . . . . . . . . 16

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner State of Ohio respectfully petitions for a

writ of certiorari to review the judgment of the

Supreme Court of Ohio which vacated a knowing,

voluntary and intelligent guilty plea though an

overexpansive interpretation of what process is due

when a criminal defendant resolves his case by a plea.

OPINIONS BELOW

The Supreme Court of Ohio’s opinion is reproduced

at Pet. App. 1.

JURISDICTIONAL STATEMENT

The Supreme Court of Ohio issued its order

vacating Brinkman’s guilty plea on July 21, 2021. Pet.

App. 1. The state has timely sought certiorari in the

Court. The Court has jurisdiction under 28 U.S.C.

§ 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS

United States Constitution, Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases

arising in the land or naval forces, or in the militia,

when in actual service in time of war or public

danger; nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

2

shall private property be taken for public use,

without just compensation.

United States Constitution, Sixth Amendment

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an

impartial jury of the state and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

United States

Amendment

Constitution,

Fourteenth

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of laws.

STATEMENT OF THE CASE

A. The Indictment

An Ohio grand jury in Cuyahoga County returned

a thirteen-count indictment charging Brinkman with

the aggravated capital murders of Suzanne Taylor and

her daughters, Taylor Lynne Pifer and Kylie Elizabeth

Pifer. Pet. App. 2. If found guilty as charged, Brinkman

could be subject to capital punishment. Brinkman was

3

appointed two attorneys qualified to handle capital

cases.

B. The Plea Hearing

On November 5, 2018, the trial court conducted a

plea hearing after being informed that Brinkman

wanted to change his pleas of not guilty and enter a

guilty plea to the indictment as charged. After some

preliminary questions, the trial court advised

Brinkman of the following:

The Court:

Do you understand that by entering

pleas of guilty you will be giving up

certain constitutional rights?

Brinkman: Yes, sir.

The Court:

All right. I’m going to go through your

rights with you, sir, and ask you if you

understand each one. When I ask you

if you 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 that you

have a right to an attorney? If you

cannot afford an attorney, one will be

appointed to you at no cost to yourself.

Brinkman: Yes.

The Court:

Do you understand that you have a

right to a trial by a jury or to a judge?

Brinkman: Yes.

4

The Court:

Do you understand you have the 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?

Brinkman: Yes.

The Court:

Do you also understand that 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?

Brinkman: Yes.

...

The Court:

Do you have any questions for this

Court about any of those proceedings

or the consequences of your plea here

today?

Brinkman: No, sir.

The Court:

Has anyone threatened you or

promised you anything to force you to

change your plea here today?

Brinkman: No, sir.

Pet.App. 3-4.

The trial court found Brinkman’s plea to be knowingly

and voluntarily entered. Brinkman did not raise any

objection during this proceeding.

5

Ohio Criminal Rule 11(C)(3) contains additional

protections for capital defendants by requiring the trial

court to make an additional determination that the

defendant is in fact guilty of aggravated murder before

making a formal finding of guilt. This is accomplished

through an evidentiary hearing. During that

proceeding, the trial court corrected the omissions from

the November 5, 2018 hearing. At that time, before any

finding of guilt, the following exchange took place:

The Court:

The Court reviewed a transcript of a

plea colloquy and noticed that there

was [sic] some omissions that were not

thoroughly covered, and the Court

would like to make sure that they are

thoroughly

covered. So, Mr.

Brinkman, I must ask you a couple of

questions like we did on Monday. 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?

Brinkman:

Yes, sir.

The Court:

And that includes a trial by jury or to

the judge. Do you understand this?

Brinkman: 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.

Brinkman: Yes, sir.

6

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

on your behalf. Do you understand

that?

Brinkman: Yes, sir.

The Court:

Do you also understand that 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 crossexamine each and every witness the

State would bring forward? Do you

understand you're giving that up?

Brinkman: 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?

Brinkman: 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

7

any of these things we've talked

about?

Brinkman: No, sir.

The Court:

All right. And so hopefully that will- anything else, Mr. Schroeder?

Mr. Schroeder: 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 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 Court:

Yes, sir.

The Court:

And you are

presumed innocent

until, in fact, the State proves you

otherwise?

Brinkman: Yes, sir.

The Court:

Okay. Is that satisfactory to everyone?

Mr. Conway:Yes, Your Honor.

Mr. Schroeder: Yes, Your Honor.

8

Mr. Mack:

Yes, Your Honor. Thank you.

Pet.App. 5-8.

Following the multiple colloquies and the admission

of evidence, the trial court found Brinkman guilty of

the charges that he pled to. The matter proceeded to

the sentencing phase, where the three-judge panel

unanimously imposed a death sentence. Pet.App. 2.

C. The Appeal

As a defendant sentenced to death, the Ohio

Constitution provided Brinkman with an automatic

direct appeal to the Supreme Court of Ohio. Citing both

the Sixth and Fourteenth Amendments of the United

States Constitution, as well as sections of the Ohio

Constitution, Brinkman argued that his plea was

invalid because he was not advised of his constitutional

rights. The prosecution argued that, reviewing the

entire record, Brinkman was advised of his rights and

that his plea was knowingly, intelligently, and

voluntarily entered. The Supreme Court of Ohio

vacated Brinkman’s guilty plea and remanded the

matter to the trial court. Pet. App. 17.

REASONS FOR GRANTING THE WRIT

The Court should grant the petition for writ of

certiorari to review the Supreme Court of Ohio’s

decision in this case.

First, the Supreme Court of Ohio decided a federal

question when it held that Due Process demands

automatic reversal of a guilty plea when a trial court

omits a constitutional advisement during a plea

9

colloquy. The Supreme Court of Ohio’s decision

conflicts with the Court’s precedent and is in conflict

with state and federal precedent throughout the

country on this issue. Compounding the issue was the

Supreme Court of Ohio’s decision to limit review to only

a portion of the record. That decision conflicts with the

Court’s precedent on a federal question.

Second, this case presents a good vehicle to decide

the questions that have been presented. The Supreme

Court of Ohio vacated George Brinkman’s guilty plea

on direct review. The record is uncomplicated, and the

state court’s decision is clear. The Supreme Court of

Ohio has taken an overly rigid approach to its review

of this issue for years, causing the mandated reversal

of otherwise knowing, intelligent, and voluntarily

entered guilty pleas. That result is not required by the

United States Constitution.

In Boykin, the Court found that due process was

violated when the Alabama trial court had accepted the

defendant's guilty plea without any evidence in the

record that the defendant was aware of the following

constitutional rights: (1) the right to jury trial; (2) the

right to confront witnesses; and (3) the right not to be

compelled to testify against himself. The “wholly silent”

record was not sufficient to comply with Due Process.

Id. at 240. Ohio’s Criminal Rule 11(C)(2)(c) extends

Boykin to require trial courts advise defendants of their

right to compulsory process and the right to require the

prosecution to prove guilt beyond a reasonable doubt at

a trial.

When George Brinkman entered his guilty plea, the

trial court initially failed to orally advise Brinkman of

10

his right to confront witnesses and his right to have the

prosecution prove his guilt beyond a reasonable doubt.

Pet.App. 11. In Ohio, Criminal Rule 11(C)(3) requires

a trial court to “determine” that defendant’s guilty plea

to a capital offense is supported by the evidence. When

the parties returned for that portion of the proceeding,

the trial court discovered the omissions in Brinkman’s

plea, and the trial court properly advised Brinkman of

his rights.

Brinkman was ultimately advised of his Boykin

rights as well as the other requirements of Ohio

Criminal Rule 11. Although not mentioned by the

Supreme Court of Ohio, Brinkman used his right to

confront the state’s witnesses during the evidentiary

hearing. For that reason, any “error” in the timing of

the advisement of Brinkman’s constitutional rights was

harmless. Nor was there any error under Boykin

because the record affirmatively shows that Brinkman

was properly advised of and waived his rights.

The Supreme Court of Ohio concluded that the

guilty plea must be vacated. As it has done before, the

court “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,’ that ‘cannot be deemed harmless.’”

Pet.App. 10. Applying this standard, the court found

that the error required automatic reversal.

The Supreme Court of Ohio’s ruling was rooted in

its interpretation of Due Process. Pet.App. 9 (“Due

process requires that a defendant’s plea be made

knowingly, intelligently, and voluntarily; otherwise,

11

the defendant’s plea is invalid.”). But the Court has

never expanded Boykin to demand automatic reversal,

and it has not demanded that result without

considering the entire record. Nor has nearly every

federal or state court who has addressed this issue.

“[T]he overwhelming weight of authority no longer

supports the proposition that the federal Constitution

requires reversal when the trial court has failed to give

explicit admonitions on each of the so-called Boykin

rights.” People v. Howard, 1 Cal.4th 1132, 1175, 824

P.2d 1315, 1339 (1992); see also, Jhun v. State, 2004

Haw. LEXIS 348 (Haw. 2004) (collecting cases; “this is

the prevailing view among the federal appellate

courts.”).

The Supreme Court of Ohio “rejected” the

prosecution’s argument that the record showed a

knowing, intelligent, and voluntary plea. Pet.App. 14.

The court reasoned that “[i]nforming the defendant of

his constitutional rights after he has already pleaded

guilty” did not satisfy due process. Pet.App. 14.

(Emphasis in Original). In doing so, the state court

raised a federal question. Washington v. Recuenco, 548

U.S. 212, 217-218, 126 S.Ct. 2546, 165 L.Ed.2d 466

(2006) (reversing the Supreme Court of Washington’s

holding that a Blakely violation could never be

harmless); Chapman v. California, 386 U.S. 18, 21, 87

S.Ct. 824, 17 L.Ed.2d 705 (1967).

Like the Supreme Court of Washington’s decision in

Recuenco, the Supreme Court of Ohio’s automaticreversal standard is unnecessary as “most

constitutional errors can be harmless.” Arizona v.

Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113

12

L.Ed.2d 302 (1991). Indeed, the Court has held that

the failure to advise a defendant of his right to counsel

during a plea colloquy did not preclude a plain error

review. United States v. Vonn, 535 U.S. 55, 61-62, 122

S.Ct. 1043, 152 L.Ed.2d 90 (2002). See also United

States v. Dominguez-Benitez, 542 U.S. 74, 81 n. 6 (2004)

(the omission of a non-constitutional advisement

required by Fed.R.Crim.P. 11 is not structural error).

The Supreme Court of Ohio’s refusal to apply a plainerror standard of review was compounded by its refusal

to review the entire record. Put simply, the Supreme

Court of Ohio was wrong to hold that the United States

Constitution compelled such a rigid approach. See

Greer v. United States, ___ U.S. ___, 141 S.Ct. 2090,

2098, (2021) (“This Court has repeatedly stated that an

appellate court conducting plain-error review may

consider the entire record-not just the record from the

particular proceeding were the error occurred.”).

(Emphasis in original).

Given the large number of cases rejecting any

“specific articulation” requirement for even the Boykin

rights, and considering that automatic reversal is not

required regardless, the questions presented for review

warrant the granting of a writ of certiorari.

I.

THE PETITION FOR A WRIT OF

CERTIORARI RAISES ISSUES THAT

RECUR IN THE CRIMINAL JUSTICE

SYSTEM.

The petition for a writ of certiorari raises

substantial constitutional questions that regularly

occur. “[C]riminal justice today is for the most part a

system of pleas, not a system of trials. Ninety-seven

13

percent of federal convictions and ninety-four percent

of state convictions are the result of guilty pleas.”

Lafler v. Cooper, 566 U.S. 156, 170, 132 S.Ct. 1376, 182

L.Ed.2d 398 (2012)(citing Missouri v. Frye, 566 U.S.

134, 132 S.Ct. 1399, 182 L.Ed.2d 379(2012)).

The Supreme Court of Ohio’s unworkable and

unnecessary standard of review for pleas is an outlier

among state and federal courts. If the United States

Constitution does not demand an “error-free, perfect

trial,” United States v. Hastings, 461 U.S. 499, 508, 103

S.Ct. 1974, 76 L.Ed.2d 96 (1983), why would it demand

perfection from a guilty plea? A review of the Supreme

Court of Ohio’s precedent shows that its decision in

Brinkman is not a one-time decision. And in each case,

the Supreme Court of Ohio based its decision on its

interpretation of federal law.

In State v. Veney, 120 Ohio St.3d 176, 2008-Ohio5200, 897 N.E.2d 621 (2008), cert. declined 557 U.S.

929, 129 S.Ct. 2824, 174 L.Ed.2d 569 (2009), the court

held that when “‘a defendant enters a plea in a

criminal case, the plea must be made knowingly,

intelligently, and voluntarily. Failure on any of those

points renders enforcement of the plea unconstitutional

under both the United States Constitution and the

Ohio Constitution.’” Veney at ¶ 7 (citing State v. Engle,

74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996)). Like

Brinkman, the Veney court relied on Boykin to support

its holding.

If there was any doubt of the federal basis for the

Supreme Court of Ohio’s decision, one needs to look no

further than Engle, supra. There, the court allowed

Engle to move to withdraw her plea because of a

14

misunderstanding of her appellate rights. The primary

support for the Supreme Court of Ohio’s decision came

from the Court’s precedent in Kercheval v. United

States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed.

1009, 1012 (1927), Mabry v. Johnson, 467 U.S. 504,

508-509, 104 S. Ct. 2543, 2546-2547, 81 L. Ed. 2d 437,

443 (1984), Boykin, and its own precedent in State v.

Kelley, 57 Ohio St. 3d 127, 566 N.E.2d 658 (1991). The

Kelley court similarly relied on Boykin for its analysis.

To be sure, the Supreme Court of Ohio consistently

references Ohio Criminal Rule 11 in its review of guilty

pleas, but it did not satisfy this Court's “plain

statement” standard by relying on the state rule as an

adequate and independent basis for decision. Michigan

v. Long, 463 U.S. 1032, 1044, 103 S.Ct. 3469, 77

L.Ed.2d 1201 (1983). The Supreme Court of Ohio’s

focus was on Boykin and whether Due Process was

satisfied.

Having squarely decided the matter on

constitutional grounds, the severe remedy of automatic

reversal is a question properly before the Court.

II.

THE SUPREME COURT OF OHIO’S

DECISION TO APPLY A STRUCTURAL

ERROR ANALYSIS CONTRADICTS THE

COURT’S RULINGS THAT THE TOTALITY

OF THE R E C OR D S HOULD B E

CONSIDERED.

“It is beyond dispute that a guilty plea must be both

knowing and voluntary.” Parke v. Raley, 506 U.S. 20,

28, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). But what

does that look like? In Boykin, the Court identified

15

three federal constitutional rights that are “involved in

a waiver that takes place when a plea of guilty is

entered in a state criminal trial.” Those are (1) the

privilege against compelled self-incrimination, (2) the

right to a trial by jury, and (3) the right to confront

one’s accusers. Id. A defendant’s waiver of those rights

will not be presumed from a silent record. Id.

Both Fed. R. Crim. P. 11 and Ohio Crim.R. 11

require trial courts to advise defendants of their Boykin

rights. Fed. R. Crim. P. 11(b)(1)(E); Ohio Crim. R.

11(C)(2)(c). The Ohio Rule also requires that a

defendant be advised of his right to compulsory process

for obtaining witnesses in his favor, and an advisement

that the state must prove the defendant’s guilt beyond

a reasonable doubt. Ohio Crim. R. 11(C)(2)(c).

In McCarty v. United States, 394 U.S. 459, 463-464

(1969), the Court held that “a defendant is entitled to

plead anew if a United States district court accepts his

guilty plea without fully adhering to the procedure

provided for in Rule 11.” The Court stressed, however,

that it reached its conclusion without consideration of

any constitutional arguments raised by the petitioner.

Id. Following McCarthy, Fed. R. Crim. P. 11 was

amended to include subsection (h), that “a variance

from the requirements of this rule is harmless error if

it does not affect substantial rights.” Years later, the

Court clarified that a “defendant who lets Rule 11 error

pass without objection in the trial court must satisfy

Rule 52(b)'s plain-error rule.” Vonn, 535 U.S. at 58.

In Vonn, the Court specifically rejected the lower

court’s decision to confine itself to only considering the

record of the plea proceeding. Id. at 74. “The Advisory

16

Committee intended the effect of error to be assessed

on an existing record, no question, but it did not mean

to limit that record strictly to plea proceedings: the

enquiry ‘must be resolved solely on the basis of the

Rule 11 transcript’ and the other portions (e.g.,

sentencing hearing) of the limited record made in such

cases.’” Id. (citing Advisory Committee Notes 1569).

The Court reaffirmed this review just this year. Greer

v. United States, ___ U.S. ___, 141 S.Ct. 2090, 2098,

(2021) (“This Court has repeatedly stated that an

appellate court conducting plain-error review may

consider the entire record-not just the record from the

particular proceeding were the error occurred.”).

(Emphasis in original).

The Supreme Court of Ohio’s confined review is not

limited to this case. Nor is this case the first time Ohio

has sought certiorari in the Court on this issue. Veney,

supra. But this case does deserve the Court’s review

because it is “of vital importance to the system of

criminal justice that guilty pleas not be lightly set

aside on fanciful arguments that exalt form over

substance ***.” United States v. Akinsola, 105 F.3d

331, 332-33 (7th Cir. 1997). The victim’s surviving

family members should not be subjected to a potential

trial when Brinkman’s plea should not have been

vacated. Due Process does not require the result

reached by the Supreme Court of Ohio.

17

III.

A CONFLICT EXISTS BETWEEN OHIO

AND OTHER STATE AND FEDERAL

COURTS ON WHETHER A BOYKIN

VIOLATION REQUIRES AUTOMATIC

REVERSAL OF A PLEA.

Ohio has long interpreted the federal constitution to

require the presumption of prejudice for a Crim.R. 11

omission. The Supreme Court of Ohio has created a

conflict between itself and other courts throughout the

country.

The Supreme Court of Ohio has recognized a split in

authority: “[n]umerous authorities have refused to ipso

facto invalidate a guilty plea merely because the trial

court failed to conduct a full colloquy with the

defendant with regard to each of his rights […].” State

v. Billups, 57 Ohio St.2d 31, 37, 385 N.E.2d 1308

(1979); State v. Ballard, 66 Ohio St.2d 473, 478, 423

N.E.2d 115 (1981)(recognizing a “split of authority as

to whether the complete omission of a Boykin

constitutional right alone is cause to nullify a guilty

plea.”). Ohio chose to proceed with the minority of

states, holding that “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 rights to a trial by jury and to confront his

accusers, and his privilege against self-incrimination,

and his right to compulsory process for obtaining

witnesses in his behalf.” Ballard at 478.

The Supreme Court of Ohio created a conflict with

most other state and federal courts. Avoiding the

ceremony over substance approach, the Eleventh

Circuit, “[e]ven prior to Vonn, . . .

has not

18

automatically reversed a conviction simply because a

defendant has shown a Rule 11 error.” United States v.

Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003). The

court continued that instead, it “has applied plain-error

review in Rule 11 appeals and evaluated whether the

defendant has carried the burden to show that his

rights were substantially affected by the Rule 11 error,

or what we have also sometimes called ‘prejudice.’”

United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir.

2003).

Instead of the per se reversal favored by Ohio,

federal courts examine “the three ‘core objectives’ of

Rule 11, which are: (1) ensuring that the guilty plea is

free of coercion; (2) ensuring that the defendant

understands the nature of the charges against him; and

(3) ensuring that the defendant is aware of the direct

consequences of the guilty plea.” United States v.

Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003). This

review adequately protects the constitutional rights of

defendants in federal courts. Ohio’s decision that this

review is inadequate in its state courts suggests that

Ohio interprets greater constitutional protections from

the United States Constitution than the federal courts.

Ohio’s approach conflicts with the federal courts.

The Eleventh Circuit is not alone in its view. See

Wilkins v. Erickson, 505 F.2d 761, 763-764 (9th Cir.

1974); United States v. Ward, 518 F.3d 75, 83, 84, 86

(1st Cir. 2008); United States v. Stewart, 977 F.2d 81,

84-85 (3d Cir. 1992); Wade v. Coiner, 468 F.2d 1059,

1060 (4th Cir. 1972); Neyland v. Blackburn, 785 F.2d

1282, 1287 (5th Cir. 1986); Fontaine v. United States,

526 F.2d 514, 516 (6th Cir. 1975); United States v.

19

Wagner, 996 F.2d 906, 913 (7th Cir. 1993); Todd v.

Lockhart, 490 F.2d 626, 628 n. 1 (8th Cir. 1974);

Stinson v. Turner, 473 F.2d 913, 915-16 (10th Cir.

1973); United States v. Simmons, 961 F.2d 183, 187

(11th Cir. 1992).

It also conflicts with many of the state courts.

Morgan v. State, 582 P.2d 1017 (Alaska 1978); People

v. Howard, 1 Cal.4th at 1175, 824 P.2d 1315, 1341-1342

(1992); Lacy v. People, 775 P.2d 1 (Colo. 1989); State v.

Colyer, 98 Idaho 32, 35-36, 557 P.2d 626, 629-30 (1976);

People v. Fuller, 793 N.E.2d 526 (Ill. 2002); Dewitt v.

State, 755 N.E.2d 167, 171 (Ind. 2001); Davis v. State,

278 Md. 103, 116, 361 A.2d 113 (1976); Commonwealth

v. Morrow, 363 Mass. 601, 604, 296 N.E.2d 468, 472-73

(1973); State v. Propotnik, 299 Minn. 56, 57-58, 216

N.W.2d 637, 638 (1974); State v. Balsano, 11 So.3d 475

(La. 2009); People v. Pellegrino, 44 N.E.3d 145 (N.Y.

2015); State v. Olsen, 544 N.W.2d 144 (N.D. 1996);

State v. Lambert, 266 S.C. 574, 579, 225 S.E.2d 340,

342 (1976); State v. Beckley, 742 N.W.2d 841, 844 (S.D.

2007); Blankenship v. State, 858 S.W.2d 897, 904

(Tenn. 1993); Wood v. Morris, 87 Wash.2d 501, 508, 554

P.2d 1032, 1036 (1976).

The Court’s review would resolve the conflict

created by the Supreme Court of Ohio. This benefits

not only Ohio, but also the minority of states which

have either not spoken on the issue or have taken a

minority approach.

Reviewing the entire record, Brinkman was advised

of the constitutional rights that he waived because of

his guilty plea. His plea was knowingly, intelligently,

and voluntarily entered consistent with Boykin. The

20

Supreme Court of Ohio’s presumption of prejudice

standard is not required by the United States

Constitution, and Brinkman’s guilty plea and certiorari

should be granted so that this recurring issue can

come to an end.

CONCLUSION

For all of the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

MICHAEL C. O'MALLEY

Cuyahoga County Prosecutor

KATHERINE E. MULLIN*

SALEH S. AWADALLAH

Assistant Prosecuting Attorneys

*Counsel of Record

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

(216) 698-6454

kemullin@prosecutor.cuyahogacounty.us

sawadallah@prosecutor.cuyahogacounty.us

Counsel for Petitioner State of Ohio