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

Supreme Court briefOct 19, 2021

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APPENDIX

TABLE OF CONTENTS

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

App. 1

APPENDIX A

SUPREME COURT OF OHIO

No. 2021-Ohio-2473

[Filed: July 21, 2021]

__________________________________________

)

APPELLEE,

)

BRINKMAN,

)

APPELLANT.

)

__________________________________________)

THE STATE OF OHIO,

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.

App. 2

[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

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

App. 3

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

App. 4

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:

App. 5

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 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

App. 6

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

App. 7

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?

App. 8

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 by pleading guilty he was waiving his

constitutional rights to confront the witnesses against

App. 9

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.

App. 10

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.

{¶ 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.

App. 11

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 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

App. 12

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).

{¶ 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

App. 13

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.

App. 14

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 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

App. 15

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

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.,

App. 16

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 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.

App. 17

{¶ 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 criminaljustice 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.

App. 18

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.

_________________

App. 19

APPENDIX B

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

Case No: CR-17-618342-A

[Filed: January 18, 2019]

__________________________________________

)

GEORGE C BRINKMAN

)

Defendant

)

__________________________________________)

THE STATE OF OHIO

Plaintiff

Judge:

PETER J CORRIGAN

INDICT: 2903.01 AGGRAVATED

MURDER /FMS /CCS

2903.01 AGGRAVATED

MURDER /FMS /CCS

2903.01 AGGRAVATED

MURDER /FMS /CCS

ADDITIONAL COUNTS...

JOURNAL ENTRY

THE COURT ISSUES THIS SENTENCING OPINION

PURSUANT TO R.C. 2929.03(F).

JOURNAL ENTRY SIGNED BY 3-JUDGE PANEL,

ATTACHED AND ORDERED FILED. OSJ.

App. 20

01/18/2019

CPEDB 01/18/2019 09:11:49

__________________________________

Judge Signature

Date

App. 21

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

Case No: CR-17-618342

__________________________________________

)

PLAINTIFF

)

vs.

)

GEORGE C. BRINKMAN

)

DEFENDANT

)

__________________________________________)

STATE OF OHIO

JUDGES

PETER J.CORRIGAN

TIMOTHY P. MCCORMICK

MICHAEL P. SHAUGHNESSY

JOURNAL ENTRY

This Court issues this sentencing opinion pursuant

to R.C. 2929.03(F).

On June 27, 2017, the Cuyahoga County Grand

Jury returned a thirteen count indictment against

defendant George C. Brinkman for events occurring on

June 10, 2017 in North Royalton, Ohio that resulted in

the deaths of Suzanne P. Taylor and her two

daughters, Taylor Lynne Pifer and Kylie Elizabeth

Pifer. Counts one, two, three, four, five, and six charged

defendant with aggravated murder in violation of R.C.

2903.01(A) with two felony murder specifications in

violation of R.C. 2929.04(A)(7) and one course of

App. 22

conduct specification in violation of R.C. 2929.04(A)(5).

Count seven charged defendant with aggravated

burglary in violation of R.C. 2911.11(A)(1). Counts

eight, nine, and ten charged defendant with

kidnapping in violation of R.C. 2905.01(A)(3). Counts

eleven and twelve charged defendant with violating

R.C. 2927.01(B), gross abuse of a corpse. On November

5, 2018, the State of Ohio dismissed without prejudice

and with no exchange of any consideration from

defendant, the course of conduct specification with

respect to the purposeful killing of Rogell Eugene John

II and Roberta Ray John in Stark County alleged in

connection with the purposeful killing of Ms. Taylor

and her daughters in North Royalton.

Defendant waived his right to a jury trial, pled

guilty to all the counts in the indictment, and

requested that the matter be tried to a three judge

panel pursuant to R.C. 2945.06. A three judge panel

was randomly selected and after hearing testimony and

taking evidence, the panel found defendant guilty of

each count and the death penalty specifications.

Aggravating Circumstances

The panel found defendant guilty of three different

death penalty specifications attached to each count of

aggravated murder unanimously beyond a reasonable

doubt:

1. A course of conduct specification under R.C.

2929.04(A)(5) for killing each victim as part of a

course of conduct involving the purposeful

killing of two or more persons;

App. 23

2. A felony-murder specification under R.C.

2929.04(A)(7) for killing each victim while

committing an aggravated burglary, and the

defendant was both the principal offender in the

commission of the aggravated murder and

committed the aggravated murder with prior

calculation and design; and,

3. A felony-murder specification under R.C.

2929.04(A)(7) for killing each victim while

committing a kidnapping, and the defendant

was both the principal offender in the

commission of the aggravated murder and

committed the aggravated murder with prior

calculation and design.

The evidence and reasonable inferences from the

evidence presented to the panel support these findings.

The defendant purchased two knives, one of which

had a curved tip, from Walmart on June 9th. On June

10th at 7:11 am he purchased a knife sharpener, razor,

cargo pants, and work shirt. He withdrew $1,600 from

his bank account. He contacted Suzanne Taylor by text

message asking to see her that day, but insisted the

girls (Taylor and Kylie) not be present. In these texts

defendant insisted on seeing Suzanne alone,

acknowledged that he knew she was “mad” at him, and

indicated that he was leaving the area and that she

would not have to worry about him anymore.

Defendant’s nine-hour video statement provided

some details and the panel considered these statements

weighing the credibility of defendant and the evidence

gathered by investigators. Defendant at first denied all

App. 24

knowledge of these crimes. Eventually, defendant

confessed to the murders. Defendant claimed to arrive

at Suzanne’s house and Taylor and Kylie were present.

He gave the girls cash to go shopping and asked them

to leave so he could speak with Suzanne alone.

Independent evidence revealed that the girls went

shopping in Strongsville, got a flat tire and had to call

Suzanne’s former boyfriend, Scott Plamel, for

assistance. Scott arrived to help the girls at 3:00 pm.

Suzanne had recently ended the relationship with

Scott. Scott testified he bought a new tire for the

vehicle and the girls received text messages to return

home, and Scott received a call from Suzanne and was

told to send the girls home but not to come to the home.

Scott received Suzanne’s call at 3:08 pm, the last

known contact she had with anyone other than

defendant. At 4:26 pm Scott texted Suzanne’s phone

that he was coming over, he did arrive at the home

with a bouquet of flowers at approximately 4:30 pm. At

the home he saw defendant’s van, Suzanne, Taylor and

Kylie’s cars. He found the house locked, windows

closed, curtains drawn and did not receive any

response to his knocks. He testified that this was

unusual because the house did not have air

conditioning, therefore, windows and the door would

usually be open or unlocked as that day was warm.

Because the house was quiet, he believed they may

have left with someone else in another vehicle. Scott

left the flowers outside the side entrance door.

No text messages, phone calls or social media

posting occurred from the devices of the victims after

5:00 pm on June 10th. Suzanne, Taylor and Kylie were

App. 25

discovered dead June 11th arranged on a bed in the

back bedroom face down. Suzanne had a mortal wound

incising her throat musculature, jugular vein, carotid

artery, thyroid and cricoid cartilage, and a gaping

wound of her airway. Taylor and Kylie were found to

have been asphyxiated. Kylie also suffered cervical

compression injuries. Defendant admitted to police that

he restrained all the women with black zip ties or duct

tape, forced them onto the bed, stabbed Suzanne in the

back of her throat, then slit her throat. He admitted he

smothered Taylor by forcing her head onto a pillow

restricting her ability to breathe, and strangled Kylie

with a phone charger cord. Defendant told police he

murdered Suzanne while the daughters were

restrained in the same bed. He explained that Suzanne

called out that he had killed her after he stabbed her in

the back of the throat which caused him to inflict the

throat wounds. Suzanne emitted gurgling and choking

sounds all of which upset the girls. He then strangled

Kylie and then smothered Taylor. At some point

defendant cut off a large portion of Suzanne’s long hair,

which was found outside the bedroom in an open box.

Defendant described the weapon in detail to

investigators after his arrest: a knife with a uniquely

curved tip. The knife and a t-shirt were never

recovered by police, as defendant provided several

different versions of what he did after committing the

murders with the knives purchased, the knife he

claimed to have used to kill Suzanne, and the bloody

shirt. Defendant denied that the knives he bought were

used in the crime, although one had a uniquely curved

tip consistent with his description of the murder

weapon.

App. 26

Police investigators found remnants of black zip

ties, blood evidence near Suzanne’s body and trace

blood evidence in the bathroom. The water meter

records indicated a spike in water consumption

between 5pm and 8pm on the June 10th. Defendant’s

DNA was found on the wrists of Kylie, and Suzanne.

Two toy guns were found in the bedroom. One of the

toy guns contained Suzanne’s, Taylor’s and defendant’s

DNA. Suzanne’s DNA was found in the bathroom, on

both Kylie’s wrists and ankles, and on both Taylor’s

wrists. Suzanne and defendant’s DNA was found on an

intact engaged zip tie. The remnant of a zip tie that

had been engaged then cut contained Suzanne’s DNA.

The trace evidence forensic scientist found adhesive

consistent with pressure sensitive tape commonly

referred to as “duct” tape on both of Kylie’s wrists. Duct

tape adhesive was found near wounds on Suzanne’s leg,

and Taylor’s ankles. No rolls of duct tape were found

matching the chemical composition of the adhesive

found on either body. Suzanne had injuries to her

wrists and ankles consistent with being bound. No

other black zip ties were found in the home apart from

the ones found in the bedroom. The medical examiner

found evidence that Kylie and Taylor’s bodies had been

manipulated post mortem. The bouquet of flowers was

found by police in the home. Several days later when

the home was being cleaned, a large mass of Suzanne’s

hair, the engaged cut zip tie remnant, and the two toy

guns were found. The hair had the appearance of a wig

and the guns and zip tie were concealed in the bedding

and clothes littering the bedroom floor and had not

been noticed by police.

App. 27

After the murders, defendant took steps to conceal

his crimes and avoid apprehension, and suggest other

suspects and motives. He texted photos of the dogs he

was caring for in the home of Amy Szijarto, a family

friend who allowed defendant to live in her home. Ms.

Szijarto testified she was gone from the home for the

weekend and defendant was caring for the pets. She

also testified that she was dissatisfied with the

arrangement and the defendant recognized her

dissatisfaction. She testified that she was going to ask

defendant to move out when she returned. Defendant

sent the photos giving the impression he was present

with the dogs at the time. The photos were sent at 2:53

pm on June 10th. Defendant sent text messages to

Suzanne’s phone on June 11th suggesting she had a

dinner date the evening of the 10th and that he had not

seen the girls. He lied to his stepfather that his van

was inoperable and could not help him that weekend.

He disposed of the murder weapon and bloody shirt

and changed his explanation of where he discarded

them several times. Trace evidence suggests he cleaned

up in the bathroom between 5:00 pm and 8:00 pm. He

denied knowing anything about the murders to the

police, barricaded himself in Amy’s home, and claimed

he broke his hand by punching a wall at work. He

engaged a television reporter via social media and

denied the crimes suggesting North Royalton Police

were setting him up.

The defendant took action to leave the area and

suggest he was going to commit suicide. Witnesses

testified that prior to moving in with Amy the

defendant lived in his van. On June 12th defendant

purchased new bedding and pillows and set up his van

App. 28

to live in. He wrote letters to his friend Debbie Stenger,

his ex-wife Margaret Berry, and to Amy giving away

money and suggesting that losing his mother, brother,

Suzanne and the girls, and his diabetes was too much

pain and everyone would be better off if he was gone.

North Royalton police attempted to have him come in

for questioning, but he avoided them. Finally, police

learned defendant was in Amy’s home in Brunswick

and defendant barricaded himself inside threatening

suicide with a handgun. The standoff started on June

12th at 9:30 pm and ended on June 13th at 5:30 am.

Defendant consumed alcohol and sugar during this

period which required him to be transported to the

hospital to stabilize his blood sugar.

When defendant made his statement confessing to

police, he did not provide information to recover the

murder weapon, the clothes he wore, he denied he

brought the zip ties and duct tape to Suzanne’s home.

He claimed that Suzanne had provoked him by

insulting him and getting in his personal space too

close to his face. He claimed he punched her with

enough force to break his hand. He found a knife in the

kitchen and forced her into the bedroom. He claimed

that he threatened the girls, who had arrived home,

with the knife forcing them into the bedroom. He forced

them to lie on the bed next to one another, and then

had Kylie tie up Suzanne and Taylor with zip ties. He

claimed he used duct tape to bind the hands of Kylie.

Defendant then climbed on top of Suzanne, rolled her

over onto her stomach, and put duct tape around both

her legs and Taylor’s legs. Although both her hands

and feet were bound, defendant claimed Suzanne

refused to be quiet. He stabbed Suzanne several times

App. 29

with the knife in the back of her throat. He claimed

that Suzanne further provoked him by mentioning his

mother, so he cut her throat. The cries of Suzanne and

the sounds from her gaping airway wound upset the

girls, so he then smothered Taylor to death with a

pillow and strangled Kylie to death with a phone

charging cord to make them all quiet. Defendant

claimed he just “snapped” when Suzanne provoked

him. This explanation as to his motive or lack of motive

is not credible.

Although denying any romantic interest in Suzanne

who he met in high school, Defendant claimed that he

did not approve of Suzanne’s dating. He did not

approve of Suzanne breaking up with Scott after he

took Suzanne and the girls to Disney World. He told

police that Suzanne had already planned another date

for that very evening which he did not approve of

either. He claimed he was visiting Suzanne to tell her

he was leaving town and to give the girls $800 each for

college and that he left the cash in envelopes at the

home. No cash was found in the home. Defendant

would soon be asked to leave Amy’s home and knew

Suzanne’s landlord was requiring her to move out. Both

girls were planning on being out of the house at college

by the end of the summer. Defendant had a

conversation that disappointed Suzanne and as a result

of the conversation defendant was going away not to

bother her again. Thereafter, defendant planned and

carried out her murder, murdered the girls who came

home and knew he was visiting. Scott was knocking on

the door during this time period and defendant needed

to silence all of the women. He also set up a plan to

disappear, suggesting perhaps suicide but intending to

App. 30

live in his van and never be found. This course of

conduct suggests other selfish motives, prior

calculation and design in purposely causing the deaths

and as the principal offender in the kidnapping, and

aggravated burglary.

Mitigating Evidence Presented

Against the aggravating circumstances, the panel

must weigh the statutory mitigating factors contained

in R.C. 2929.04(B). The defense argued that factors

(B)(2) duress, (B)(3) mental disease or defect, and (B)(7)

any other factors all applied to this case. The panel is

not limited to these factors, however. The panel may

consider other mitigation factors as listed in R.C.

2929.04(B) where appropriate.

Duress

Defense counsel suggests that defendant’s

background and mental state is evidence that duress

was a mitigation factor to be weighed. R.C.

2929.04(B)(2) (“Whether it is unlikely that the offense

would have been committed, but for the fact the

offender was under duress, coercion, or strong

provocation”). The legal definition of duress compared

to the evidence herein does not fully support defense

counsel’s argument. Specifically, the defendant was not

forced or threatened and there is no evidence he felt

the strong persuasion or domination of another.

Likewise, there is no evidence that defendant acted out

of necessity. The record lacks evidence that any

combination of the aforementioned forces overcame his

ability to act as he would ordinarily absent these

influences. RC 2929.04(B)(2); State v. Osborne, 50 Ohio

App. 31

St.2d 211, 220, 364 N.E.2d 216 (1977). The evidence

does not support defendant was under duress when he

committed these crimes.

Mental Disease or Defect

John Fabian, a forensic and clinical psychologist,

diagnosed defendant with (1) Major Depressive

Disorder, Recurrent, Moderate, without Psychotic

Features, (2) Posttraumatic Stress Disorder,

(3) Borderline Personality Disorder with Paranoid,

Avoidant, and Antisocial Traits, (4) Alcohol Use

Disorder, Severe, and (5) Opioid Use Disorder. Upon

review of the evidence and relevant law, the panel finds

that none of these diagnoses caused defendant to lack

the capacity to appreciate the criminality of his

criminal conduct, control his actions, or contributed to

his actions on June 9th, 10th, 11th, 12th, or 13th. See R.C.

2929.04(B)(3); State v. Mink, 101 Ohio St. 3d 350, 2004

Ohio 1580, 805 N.E.2d 1064; State v. Wilson, 74 Ohio

St.3d 381, 1996-Ohio-103, 659 N.E.2d 292; State v.

Biros, 78 Ohio St.3d 426, 1997-Ohio-204, 678 N.E.2d

891 (defendant’s personality disorder, lifelong alcohol

dependence, and depression collectively entitled to

some, but very little, weight in mitigation).

The panel heard evidence of defendant’s depression

from several witnesses and Dr. Fabian. Defendant told

Dr. Fabian that he had attempted suicide three times,

once in 1998, another time approximately 12 years

earlier, and during the standoff in which he held a gun

to his head to keep the police at bay. The first two

times involved his drinking heavily and giving his son

up for adoption when his ex-wife remarried. The

defendant suggested the loss of his brother to suicide,

App. 32

and his mother to cancer contributed to his depression

at the time and he used those facts in his letters after

he committed the murders.

Defendant offered evidence of Post-Traumatic

Stress Disorder (“PTSD”) from experiencing abuse at

the hands of his alcoholic father, witnessing his mother

physically and emotionally abused, and being

threatened with a firearm. Testimony established that

defendant’s father was often not home as an over the

road trucker and his mother left his father when

defendant was ten years old. Dr. Fabian also opined

defendant suffered a Borderline Personality Disorder.

It was suggested that the depression, the PTSD, and

the personality disorder contributed to his decisionmaking when he “snapped” after comments made by

Suzanne. Dr. Fabian also suggested a diagnoses of

Alcohol Use Disorder,·and Opioid Use Disorder. The

panel finds that the evidence does not support that

these conditions affected defendant’s actions in these

crimes. There is no evidence defendant was under the

influence of any drug or alcohol at the time of the

murders. Defendant denied drinking or using drugs for

the past twenty years – up to the stand-off with police

when he consumed sugar and alcohol in an obvious

attempt to cause a diabetic event. In fact, the panel

finds that the evidence does not support the claims that

defendant “snapped” in his prior calculation and design

of these murders.

Likewise, there is little evidence to suggest

defendant’s Type I diabetes significantly contributed to

the commission of these crimes. See State v. Allard, 75

Ohio St.3d 482, 1996-Ohio-208, 663 N.E.2d 1277. Dr.

App. 33

Pritchard’s report offered by defendant concluded that

he could not conclude with reasonable medical

certainty that medical and psychosocial living

conditions contributed to defendant’s actions, but could

have. Rather, defendant attempted to use his diabetic

condition in the stand-off and his correspondence after

the murders to his advantage.

Therefore, the panel finds that none of these mental

disease or defects, if properly considered such, had a

significant impact on defendant’s ability to fail to

appreciate the criminality of his actions, or control his

conduct to conform to the law. See State v. Stojetz, 84

Ohio St.3d 452, 705 N.E.2d 329 (1999); State v.

Lawrence, 44 Ohio St.3d 24, 541 N.E.2d 451 (1989).

However, the panel has considered this evidence under

RC 2929.04(B)(7) “Any other factors that are relevant

to the issue of whether the offender should be

sentenced to death”.

Lack of Significant Criminal History

Defendant was convicted of two counts of receiving

stolen property and one count of unauthorized use of a

computer, all felonies, in two separate cases in

Cuyahoga County in 1998. He was granted community

control sanctions, violated the terms of his probation

and was sentenced to one year in prison. In 2000,

defendant plead guilty to six felonies: two counts of

receiving stolen property, two counts of theft, and two

counts of forgery. He received an 11 months prison

sentence consecutive to the year sentence in the earlier

cases. Defendant served 19 months incarceration and

was released in 2001. This panel has considered this

and given it some weight in mitigation pursuant to RC

App. 34

2929.04(B)(5). See also, State v. Simko, 71 Ohio St.3d

483, 1994-Ohio-350, 644 N.E.2d 345 (with respect to

the statutory mitigating factors, appellant’s lack of a

significant criminal history is entitled to some weight).

Any Other Factors

The panel has considered all the psychosocial and

medical factors proffered by defendant and discussed

above and finds these are most properly considered

under the mitigation factors contemplated in RC

2929.04(B)(7). However, considering the lack of any

connection with these factors to his conduct, and the

positive relationships he presented to the panel with

Debbie Stenger, Peggy Berry, Jimmie Leon, Carol

Bialoskurski, and Jack Holt, these counterbalance and

indicate his conformity to societal rules despite a

chaotic abusive early childhood, some depression and

the loss of his mother and brother. Therefore, the panel

has assigned little weight to these factors.

In addition, also considered in this category

defendant produced evidence as to his lack of future

dangerousness, his confession, guilty plea, employment

military history, and remorse.

The panel has assigned some weight to defendant’s

good behavior pre-trial and during his former

incarceration, the fact that he has entered guilty pleas

to the allegations, and his history of employment. His

military history was negligible, he was injured the

second day of basic training and was discharged soon

thereafter.

Defendant has also expressed remorse in his

videotaped confession and during his unsworn

App. 35

statement before the panel. However, when scrutinized

as mitigation these do not carry much weight in light

of the nature and circumstances of the confession.

This defendant staged an eight-hour stand-off with

the FBI and local police brandishing a firearm. He

vehemently denied for hours his involvement with the

homicides. He misled investigators as to the location of

the murder weapon and bloody shirt. He cast Suzanne

in a light that it was her actions that provoked a deadly

reaction beyond his understanding. His version of what

occurred is belied by other evidence. Defendant did not

disclose his planning, he denied the knives he

purchased were used, he denied bringing zip ties, and

duct tape. He claimed he left $1,600 for the girls, but

did not. This raises an inference of another motive for

another type of suspect. How he forced two healthy

athletic young women and their healthy vibrant mother

onto a bed and bound them as defendant described it

strains credulity. His version of events never

adequately accounted for the post mortem

manipulation of the girls’ bodies. The claim he was

provoked, the brutal nature of the crimes, the abuse of

Suzanne’s corpse, and his prior calculation and design

outweigh any weight to be given his confession.

Defendant’s Statement in Allocution

During defendant’s unsworn statement he

expressed retrospective remorse. He stated he did not

deserve to live but requested mercy from the panel.

This expression was received and given the weight

appropriate pursuant to law. See State v. Trimble, 122

Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242

(apologies and expressions of remorse in an unsworn

App. 36

statement are given some mitigating weight); State v.

O’Neal, 87 Ohio St.3d 402, 2000-Ohio-449, 721 N.E.2d

73; State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio1966, 15 N.E.3d 818 (it is well-established that mercy

is not a mitigating factor).

Sentence Evaluation

Nothing in the nature and circumstances of the

offenses are mitigating. Defendant manipulated by

deception his presence in Suzanne’s home, which

allowed him to assault, and restrain her liberty. He

used force and threats to restrain Taylor and Kylie and

in the course of these crimes caused their deaths.

Defendant brutally and with prior calculation and

design caused the death of these three woman. He

silenced Suzanne by slitting her throat in the presence

of her children. This course of conduct then continued

and he silenced the girls by asphyxiating their ability

to breathe for a period of at least four minutes, one at

a time, to cause their death. Defendant cleaned up,

concealed his crimes, planned an escape and plausible

explanation for his disappearance and for suggested

other suspects and motives. He felt no remorse such as

to turn himself into police and confess, rather used a

firearm to hold police at bay, lied and denied

knowledge of the crimes.

The statutory mitigating factors argued by

defendant pursuant to R.C. 2929.04 (B)(2) duress, and

(3) mental disease or defect are unpersuasive. The

evidence of defendant’s mental health, his psychosocial

behavior and upbringing are more correctly considered

under RC 29292.04(B)(7) any other relevant factors.

The panel has considered this evidence and given some

App. 37

weight to each of these factors as proffered by

defendant. However, this panel after carefully

considering the law, the evidence, the arguments of

counsel finds the aggravating circumstances plead to

by defendant and proved beyond a reasonable doubt

outweigh the mitigating factors established by

defendant. See State v. Myers, 2018-Ohio-1903

(mitigating factors presented by defendant deserved, at

most, modest weight and were outweighed by the

aggravating circumstances pursuant to R.C. 2929.05

beyond a reasonable doubt for imposition of the death

penalty). Therefore, this panel finds death as the

appropriate penalty for the aggravated murders.

Proportionality

A death sentence is not disproportionate when

viewed against recent cases in which a death sentence

was affirmed for aggravated murder convictions with

specifications of a course-of-conduct and at least one

felony-murder specification:

• State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio493, 108 N.E.3d 1028 (defendant murdered three men

and attempted to murder a fourth over a four-month

period after luring them to a remote area with a

fictitious job opportunity)

• State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio9423, 108 N.E.3d 1 (defendant murdered a woman and

her two young children by strangling all three victims

inside their home)

• State v. Martin, 151 Ohio St.3d 470, 2017-Ohio7556, 90 N.E.3d 857 (defendant tied the victim up and

App. 38

shot him execution style, then shot a second victim who

survived)

• State v. Sowell, 148 Ohio St.3d 554, 2016-0hio8025, 71 N.E.3d 1034 (defendant strangled 11 women

to death and buried their bodies in and around his

home)

• State v. Dean, 146 Ohio St. 3d 106,2015-Ohio4347,54 N.E.3d 80 (defendant shot at two people at a

Mini Mart, shot at additional victims at a house, and

then directed his 16- year old accomplice to execute a

victim during a robbery);

• State v. Jackson, 141 Ohio St 3d 171, 2014-0hio3707, 23 N.E.3d 1023 (defendant shot and killed a

woman during the aggravated robbery of a laundromat

and shot at a second employee as part of a crime spree

that included robberies in three counties and the

attempted murder of a third man).

Sentencing as to the Capital Counts

The parties agree that counts one and two relating

to the aggravated murder of Suzanne Taylor are allied

offenses. The state has elected to have the panel

sentence as to count one pursuant to R.C. 2903.01(A).

They have agreed that counts three and four relating

to the aggravated murder of Taylor Pifer are allied and

the state elects sentence on count three pursuant to RC

2903.01(A). It is also agreed that counts five and six

relating to the aggravated murder of Kylie Pifer are

allied offenses and the state elects sentence on count

five pursuant to RC 2903.01(A). Therefore, the panel

does not enter convictions on counts two, four, and six.

App. 39

Having considered all of the above, the principles

and purposes of felony sentencing, seriousness and

recidivism factors, the aggravating circumstances and

mitigating factors, and having found beyond a

reasonable doubt the aggravating circumstances

outweigh mitigating factors, and that defendant was

beyond a reasonable doubt the principal offender and

committed the aggravated murders with prior

calculation and design of Suzanne Taylor, Kylie Pifer,

and Taylor Pifer while committing an aggravated

burglary and kidnapping offense, and therefore, the

panel hereby imposes the death penalty as to counts

one, three and five.

Sentencing as to the Non-Capital Counts

The parties agree that count seven, aggravated

burglary in violation of R.C. 2911.11(A)(1), is not allied

with any other count. The parties have agreed that

counts eight and eleven relating to Suzanne Taylor’s

kidnapping and abuse of her corpse pursuant to R.C.

2905.01(A)(3) and R.C. 2927.01(B) respectively are not

allied offenses. The parties agree that counts nine and

twelve relating to Taylor Pifer’s kidnapping and abuse

of corpse pursuant to R.C. 2905.01(A)(3) and R.C.

2927.01(B) respectively are not allied offenses. The

parties agree that counts ten and thirteen relating to

Kylie Pifer’s kidnapping and abuse of corpse pursuant

to R.C. 2905.01(A)(3) and R.C. 2927.01(B) respectively

are not allied offenses.

Therefore, having considered all statutory

provisions, the principles and purposes of felony

sentencing, the appropriate recidivism and seriousness

factors, the following sentences are hereby imposed: a

App. 40

term of incarceration in the Lorain Correctional

Institution for 11 years on each of counts seven, eight,

nine and ten each a felony of the first degree; a term of

incarceration in the Lorain Correctional Institution for

twelve months on each of counts eleven, twelve, and

thirteen each a felony of the fifth degree. The court

finds that consecutive sentences are necessary to

protect the public from future crime and to punish this

offender. Further, that consecutive sentences are not

disproportionate to the seriousness of defendant’s

conduct as outlined above nor to the danger defendant

poses to the public, and that at least two of the

multiple offenses were committed as part of one or

more courses of conduct, and that the harm caused by

said multiple offenses of burglary, kidnapping and

abusing corpses was so great or unusual that no single

prison term would adequately reflect defendant’s

conduct. For these reasons and all the facts and

analysis above counts seven, eight, nine, ten, eleven

and twelve shall be served prior to and consecutive to

each other for a total of 47 years’ incarceration.

Post release control is a mandatory part of the

sentences in counts seven, eight, nine and ten for five

years. A discretionary term of post release control for

up to three years is part of the sentences imposed in

counts eleven, twelve and thirteen. Defendant was

advised in person and on the record that if post release

control is imposed if he is ever released from prison and

that if he violates that supervision or conditions of post

release control under R.C. 2967.131(B), the parole

board may impose a prison term as part of the sentence

of up to one-half of the stated prison terms originally

imposed on offender.

App. 41

Defendant was advised of his appellate rights and

by separate entry the court will order appellate counsel

appointed, and a transcript ordered at state’s expense.

The defendant is remanded to custody to be

transported by the county sheriff in compliance with

these findings and sentence. SO ORDERED.

DATE 1/18/19

/s/ Peter J. Corrigan

JUDGE PETER J. CORRIGAN

DATE 1/18/19

/s/ Timothy McCormick

JUDGE

TIMOTHY

MCCORMICK

DATE 1/18/19

/s/ Michael Shaughnessy

JUDGE

MICHAEL

SHAUGHNESSY

App. 42

APPENDIX C

IN THE COURT OF COMMON PLEAS

Case No: CR-17-618342-A

[Filed: January 14 2019]

__________________________________________

)

THE STATE OF OHIO

)

Plaintiff

)

GEORGE C BRINKMAN

)

Defendant

)

__________________________________________)

Judge:

PETER J CORRIGAN

INDICT: 2903.01 AGGRAVATED

MURDER /FMS /CCS

2903.01 AGGRAVATED

MURDER /FMS /CCS

2903.01 AGGRAVATED

MURDER /FMS /CCS

ADDITIONAL COUNTS...

JOURNAL ENTRY

THREE JUDGE PANEL ASSEMBLED, TO WIT:

JUDGE TIMOTHY MCCORMICK, JUDGE MICHAEL

P SHAUGHNESSY, AND PRESIDING JUDGE

PETER J CORRIGAN.

App. 43

DEFENDANT IN COURT WITH COUNSEL THOMAS

E CONWAY & FERNANDO MACK. PROSECUTING

ATTORNEY(S) SAL AWADALLAH & CHRIS

SCHROEDER PRESENT.

COURT REPORTER PRESENT.

DEFENDANT ENTERS A PLEA OF GUILTY TO

EACH OF COUNTS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,

13 AS CHARGED IN THE INDICTMENT.