COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67073 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES R. CRABLE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 16, 1993 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CLEVELAND MUNICIPAL COURT CASE NO. 94-TRD-002365-A JUDGMENT: AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CAROLYN W. ALLEN Chief Prosecuting Attorney City of Cleveland EDWARD T. BUELOW (#0022710) Assistant Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: CHARLES R. CRABLE, pro se KOJO O. AGYEMAN (#0034406) 601 Rockwell Avenue, Suite 409 Cleveland, OH 44114-1602 - 2 - SPELLACY, P.J.: Defendant-appellant Charles R. Crable ("appellant") appeals his conviction for failure to stop after an accident in violation of Cleveland Codified Ordinance 435.16. Appellant raises the following assignments of error on appeal: I. THE TRIAL COURT ABUSED ITS DISCRE- TION IN DENYING DEFENDANT'S MOTION FOR NEW TRIAL. II. THE TRIAL COURT COMMITTED PREJUDI- CIAL ERROR BY FAILING TO PRESERVE DEFENDANT'S CONSTITUTIONAL RIGHT TO COUNSEL. I. On December 30, 1993, appellant and Anthony Gilliard engaged in fisticuffs behind appellant's van at the Dairy Mart parking lot. At that time, Gilliard did not notice any damage to the rear of appellant's van. Later that evening, Gilliard, along with his wife Linnette and sister-in-law Annette George, went to the Fourth District Police Station to report the incident. While at the police station, Gilliard noticed what he identified as appellant's van drive down Kinsman Road and into the police station's parking lot. The van immediately left the parking lot. A short while later, Gilliard observed appellant's van return to the lot. Gilliard asked his sister-in-law, Annette George, to see where appellant went. George walked out to the parking lot and saw the van parked between their car and an unmarked police vehicle. Appellant entered the police station approximately ten to fifteen minutes later. - 3 - Appellant was intoxicated and somewhat belligerent. Appel- lant was carrying a bottle of beer and a utility knife. He and Gilliard exchanged words before appellant was taken to a different room. Appellant told Officer Michelle Witherspoon he had gotten a ride to the station. She then walked appellant outside after he reported the assault but did not see anyone pick appellant up. When Gilliard and his family left the station, they could not drive out of the lot because a car was blocking the exit. Cleve- land Police Officer Edward Futchko determined after investigating the scene and interviewing the witnesses that the right rear bumper of appellant's van had hooked onto the left front bumper of the unmarked police vehicle parked next to the van. The police vehicle was pulled from its parking place by the van. The two vehicles became disengaged when contact was made with a curb. The police vehicle then slid on the slush and snow covered pavement until it struck the private car of Officer Witherspoon. The accident was not reported to the owners of the cars. Later that night, appellant appeared at Gilliard's place of employment where he struck the rear of Gilliard's car with his van. The two began fighting again. The police were called and after they arrived they noticed the bumper on appellant's van was pulled out. The damage was fresh as the bumper was shiny with no build up of debris. The damage to appellant's vehicle coincided with that of the unmarked police vehicle. - 4 - Appellant represented himself at trial. Marika Banks testi- fied appellant called her to inquire if she could arrange a ride from East 93rd Street in Cleveland. She spoke to the man down- stairs, and thought he went and picked appellant up. Jothaniel Dean testified he picked appellant up and drove him to East 153rd Street and Kinsman. Appellant told Dean he had been dropped off at the police station but needed a ride from that location. Appellant was found guilty of failure to stop after an accident. Sentencing was continued at appellant's request. Appellant filed a motion for a new trial based upon the discovery of new evidence. Affidavits were attached to the motion. In one affidavit, Annette George stated she saw a van pull into the police station that night but did not see the person driving the van. She assumed the van belonged to appellant but could not state affirm- atively the van was his. George recanted her testimony that she saw appellant in the van. Norman Fleming's affidavit stated he drove appellant to the police station that night but was unable to appear at the trial due to illness. Kenneth Jackson stated in his affidavit he observed damage to the bumper on appellant's van on December 28, two days before the incident. A hearing was held on the motion, which the court then denied. Appellant was sentenced to sixty days in jail, the days were suspended, fined two hundred fifty dollars, had his license suspended for ninety days, and put on one year inactive probation. - 5 - II. In his first assignment of error, appellant contends the trial court abused its discretion in denying his motion for a new trial. Appellant states the trial court failed to hold a hearing on his motion. Appellant argues the evidence presented in the affidavits was not cumulative and that there was a strong probability the evidence would change the result of a new trial. Crim.R. 33(A)(6) provides a new trial may be granted: When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and pro- duced at the trial. When a motion for a new trial is made upon the ground of newly dis- covered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses. The court in State v. Petro (1947), 148 Ohio St. 505 held: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. - 6 - Id., syllabus. Crim.R. 33(A)(6) requires an appellant to have used reasonable diligence in trying to find the evidence, must present affidavits to the trial court informing it of the substance of the evidence, and the evidence must be of such weight that a different result would be reached at a second trial. State v. Shepard (1983), 13 Ohio App.3d 117, 118. A clear showing of an abuse of the trial court's discretion is required to overturn that court's determination of a motion for a new trial on the grounds of newly discovered evidence. Toledo v. Easterling (1985), 26 Ohio App.3d 59, 61. Witness Arnette George testified at trial that she saw appellant's van parked in the lot of the police station. George also stated she saw appellant in the van later when they were all leaving the station. In her affidavit attached to appellant's motion for a new trial, George averred she could not see the person driving the van that night due to darkness. Where a new trial is sought upon the ground that a witness subsequently stated that he gave perjured testimony, the question is, when did the witness tell the truth? Recantation by an important witness of his or her testimony at the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. The determination of such matters rests in the sound discretion of the trial court, whose action will not be set aside except for clear and manifest abuse. State v. Curnutt (1948), 84 Ohio App. 101, paragraph three of the syllabus. - 7 - Contrary to appellant's assertion, the trial court held a hearing on his motion the day it was filed. The trial court stated George did not exactly recant but only said she was not sure she saw appellant behind the wheel. There was other evidence presented at trial indicating appellant was in the van that night aside from George's testimony. The case was tried to the bench. The trial court was the fact finder and, therefore, in the best position to determine whether the newly discovered evidence would affect its decision regarding the defendant's guilt. See Dayton v. Martin (1987), 43 Ohio App.3d 87. The trial court also pointed out the identity of the person appellant claims drove him to the station would have been known to appellant at the time of trial. It was not newly discovered evidence. Appellant could have requested a continuance if the witness was unavailable for the trial. Appellant's evidence was not discovered subsequent to trial but was evidence he should have been aware of prior to trial. The trial court stated the evidence presented in appellant's motion for a new trial would not change the result if a second trial was granted. The trial court did not abuse its discretion in denying the motion. Appellant's first assignment of error lacks merit. - 8 - III. In his second assignment of error, appellant argues the trial court erred by failing to preserve his constitutional right to counsel. Appellant asserts the trial court never informed him of the consequences of proceeding pro se. Crim.R. 44 states: (B) Counsel in petty offenses. Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to ob- tain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelli- gently, and voluntarily waives assignment of counsel. (C) Waiver of counsel. Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing. (D) Assignment procedure. The determina- tion of whether a defendant is able or unable to obtain counsel shall be made in a recorded proceeding in open court. Crim.R. 22 requires all waivers of counsel in petty offense cases to be recorded. Proceedings may be recorded in shorthand, or stenotype, or by any other adequate mechanical, electronic or video recording device. These requirements are mandatory; all waivers of counsel must be made in open court and must be recorded. Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216. Without a proper waiver of counsel, an unrepresented petty offender may not be sentenced to a period of confinement. State v. Kleve (1981), 2 Ohio App.3d 407; State v. Haag (1976), 49 Ohio App.2d 268. - 9 - The Sixth Amendment right to counsel applies to misdemeanor cases in which a sentence of imprisonment could be imposed. Arger- singer v. Hamilton (1972), 407 U.S. 25. A criminal defendant has a right to counsel and also a right to act as his own counsel during trial, if he so chooses. Faretta v. California (1975), 422 U.S. 806. But before a defendant may serve as his own counsel, the defendant must knowingly, intelligently and voluntarily waive his right to assistance of counsel. Id. at 835. In order to establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right. State v. Gibson (1976), 48 Ohio St.2d 366, paragraph two of the syllabus. At appellant's arraignment, a referee informed appellant he needed to talk to a lawyer. During the hearing on appellant's motion for a new trial, the trial court mentions the appellant was given his rights to counsel. However, at no point in the record is there any dialogue between the trial court and appellant during which the trial court determined appellant fully understood the consequences of his waiver of counsel and that he intelligently and knowingly waived that right. Further, there is no indication the trial court complied with the mandates of Crim.R. 44. The waiver of counsel was required to be made in open court and recorded. Neither of these requirements is reflected in the record. Because there is no valid waiver of - 10 - counsel, appellant cannot be sentenced to a term of imprisonment. That portion of appellant's sentence is vacated. Appellant's second assignment of error is well taken. Judgment affirmed; the sentence is modified as the sixty-day period of imprisonment suspended is vacated. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DONALD C. NUGENT, J. and TERRENCE O'DONNELL, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .