COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68066 CITY OF MAPLE HEIGHTS : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT S. HOUSTON : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING Criminal appeal from Garfield Heights Municipal Court Case No. 94-CRB-1975A/C. JUDGMENT Reversed and Remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: MICHAEL G. CIARAVINO, ESQ. IRL D. RUBIN, ESQ. 4700 Rockside Road JACOBS, RUBIN & BENSING Suite 525 220 Western Reserve Building Independence, Ohio 44131-2155 Cleveland, Ohio 44113 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant Robert Houston appeals from the trial court's denial of his motion for a new trial. Appellant was convicted of fleeing from a police officer in violation of R.C. 2921.331, and of operating a motor vehicle with fictitious license plates in violation of R.C. 4549.08. He was fined a total of $1100 for both offenses, $500.00 of which was suspended; sentenced to a term of incarceration of 180 days, 60 of which were suspended; and placed on inactive probation for three years. Subsequent to his conviction, the appellant filed a motion for a new trial based upon newly discovered evidence. Attached to the motion for a new trial is the affidavit of Jeffrey Houston, the appellant's brother. Jeffrey Houston affirms that he was the driver of the car which failed to respond to the order from the arresting officer; that he attempted to flee; that he hid from the officers in the woods behind his home; that he waited until the officers left and entered the house; that his mother and his brother's girlfriend were in the home; that he was wearing a red and black jacket, blue work pants and white tennis shoes; that he failed to stop because he did not have a driver's license and he - 3 - was on parole; that his personal effects were in the vehicle; that the appellant had never been in the car; that his family requested that he inform the police that he was driving, but that he was afraid; that he informed his family that he would exercise his Fifth Amendment privilege in the event that he was called to testify on the appellant's behalf; and that he did not believe that the appellant would be convicted for a crime he committed. Jeffrey Houston completed his affidavit with a statement that he understands that he may now be charged, and that it may constitute a violation of his parole, but that he could not let his brother be punished for something he did. The appellant asserts one assignment of error: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR NEW TRIAL. The decision to grant or deny a motion for a new trial on the basis of newly discovered evidence is within the discretion of the trial court. Absent such an abuse, the trial court's decision will not be disturbed. State v. Hawkins (1993), 66 Ohio St.3d 339, 350. In Hawkins, the Court cited to the syllabus of State v. Petro (1947), 148 Ohio St. 505, which sets forth the following test for granting a motion for a new trial on the basis of newly discovered evidence: "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 - 4 - 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. ***." (Citation omitted.) See, also, State v. Carte (April 9, 1981), Cuyahoga App. No. 42808, unreported. A motion for a new trial may be granted based upon newly discovered evidence only if the appellant complies with the requirements of Crim.R. 33(A)(6): (A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: * * * (6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered 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 appellee argues that the appellant's motion was properly denied since counsel, the appellant, and the appellant's family knew of the evidence prior to trial. The appellee posits that the appellant failed to exercise diligence as required by Crim.R. 33 when he failed to issue a subpoena to his brother, and asserts that - 5 - the appellant's failure to provide this court with a transcript requires an affirmance. Although the appellant failed to provide this court with a transcript of the trial, this court does have before it a substantial record from the lower court, including the docket. A careful review of the record shows no hearing was set on the motion for new trial on the docket. There is no dispute that the appellant and his counsel knew that Jeffrey Houston had information crucial to the appellant's defense prior to trial. Although the appellant failed to issue a subpoena, Jeffrey Houston was a witness whose testimony could not be compelled under the Fifth Amendment. Hence, the appellant may have had knowledge of the evidence at the time of trial, but would have been unable to produce the evidence as required by Crim.R. 33(A)(6). The appellant's assignment of error is denied in part and sustained in part. The appellant was entitled to a hearing on the motion for a new trial, and this cause is remanded for hearing. Judgment reversed and remanded for hearing. - 6 - It is ordered that appellant recover of appellee his 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 Garfield Heights Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING JUDGE ANN DYKE, JUDGE TERRENCE O'DONNELL, JUDGE, DISSENTS, WITH DISSENTING OPINION ATTACHED. 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68066 : CITY OF MAPLE HEIGHTS : : : DISSENTING Plaintiff-Appellee : : OPINION vs. : : : ROBERT S. HOUSTON : : : Defendant-Appellant : : DATE: SEPTEMBER 21, 1995 O'DONNELL, J., DISSENTING: I respectfully dissent from the majority in this instance. The claim now being advanced by appellant concerns the trial court's denial of a motion for new trial based upon an affidavit supplied by appellant's brother purportedly admitting the crime. There are three reasons why I disagree with the majority's decision. First, as noted in the majority opinion, the decision to grant such a motion is left to the sound discretion of the trial court, and there is no evidence to suggest an abuse of that discretion. Second, a motion for new trial must be based on newly discovered evidence which could not have been discovered with reasonable diligence prior to trial. This "all-in-the-family" - 2 - defense could surely have been known by the defense in the exercise of reasonable diligence well in advance of trial. No justifiable reason exists to cause additional proceedings in the trial court on such an issue. Third, appellant has failed to provide a transcript to this court for review of the matters as required by the appellate rules. Without such a review, we are unable to determine the effect the motion for new trial would have on the concluded trial and whether or not this proceeding would impeach the testimony of identification witnesses which is prohibited by State v. Petro (1947), 148 Ohio St. 505. These are the reasons why matters such as these are left to the discretion of the trial court. For this court to now require a hearing on a matter like this is not only to invite a new appeal post hearing, but also to establish a new avenue of collateral attack on a conviction by a conscience-ridden cohort which will further delay and add additional unnecessary trials and hearings to an already burdened criminal justice system. Moreover, the circumstance presented by this factual pattern is not resolved by the granting or denial of the pending motion for new trial for appellant. Rather, proper procedure would be for an information naming Jeffrey Houston to be prepared and adjudicated, and then the trial court could consider a motion to vacate the case against appellant based upon the newly filed case and conviction. .