COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73558 CITY OF GARFIELD HEIGHTS : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION VINCENT C. REDA : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court Case No. 97 TRD 6877 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JAMES J. McGRATH Prosecuting Attorney City of Garfield Heights 5407 Turney Road Garfield Heights, Ohio 44125 For Defendant-Appellant: SCOTT A. FIERMAN 6181 Mayfield Road Suite 104 Mayfield Heights, Ohio 44124 -2- JUDGE TERRENCE O'DONNELL: Vincent C. Reda appeals from a judgment of the Garfield Heights Municipal Court entered pursuant to a bench trial finding him guilty of failing to maintain an assured clear distance in connection with a rear-end motor vehicle accident with Lisa Studer, alleging the court violated his due process rights by failing to advise him of his constitutional rights at his initial appearance, and by proceeding to trial without properly advising him about his right to assistance of counsel or obtaining a proper waiver thereof. After a thorough review of the record and the arguments presented, we reverse the judgment and remand this case for a new trial. The record reveals that around 5:00 P.M on September 20, 1997, Reda operated his 1987 Mazda truck eastbound on Antennuci Boulevard in Garfield Heights, and struck the rear portion of Lisa Studer's 1992 BMW as she stopped at a red light at Turney Road. After examining their vehicles and observing only slight damage, Reda and Studer drove to the Garfield Heights Police Department, reported the accident, and Officer David Stare ticketed Reda for failure to maintain an assured clear distance and scheduled his appearance in court on September 30, 1997. When Reda failed to appear on that day, the court issued a bench warrant for his arrest. On October 7, 1997, Reda appeared and at that time, the court informed him together with all other defendants that if any of them had not received a copy of the complaint in their case, the court would provide one upon request and continue the matter. In Reda's -3- case, although he denied involvement in the accident, the court entered the following journal entry on October 8, 1997 which the judge and Reda both signed: Whereupon the defendant's constitutional rights were explained and a signed Written Statement of Rights and Waiver of Counsel was executed by the defendant acknowledging that he/she understands said rights, including his/her right to counsel, a continuance to secure counsel and/or the appointment of counsel should he/she be unable to afford said counsel, and is entering a plea of not guilty. Defendant is hereby ordered and notified to be in Court on the 21 day of October, 1997, at 9:00 A.M. for trial before the Court. Subpoenas shall be issued forthwith if any are required/requested by defendant. Defendant is ordered to retain an attorney within 24 hours. Said attorney shall forthwith advise the Court in writing of his/her retention by the defendant and that he/she is ready for trial on said date. Should defendant's attorney be unable or unavailable for trial on said date, the attorney for the defendant shall file a written motion as required by the Rule of Superintendence M.C. Sup. Rule #16. Said motion for a continuance shall be filed within 48 hours after this arraignment date. The Court will not accept letters or telephone conversationsin lieu of said required written motion. Defendant is hereby ordered to deliver a copy of this Journal Entry to his/her attorney within 24 hours who shall be bound by this Order. Jury demands shall be in writing and timely filed as required by law. Further, I the defendant, understand and acknowledge that if I fail to comply with any part of this judgment, I will be in contempt of this judgment order, subject to be jailed, fined, or both, for contempt. -4- On October 21, 1997, Reda appeared pro se and the court conducted a bench trial. Studer identified him as the person who struck her BMW, and Officer Stare identified him as the person to whom he gave the citation. Reda, however, reiterated his claim that he had neither been involved in the accident nor received a ticket, and suggested that his brother, Frank, may have been the party involved. The court nonetheless found him guilty, fined him $150, and suspended his driver's license for one year. Thereafter, Reda filed a motion for a new trial, but the court denied it. Reda now appeals raising two assignments of error for our consideration. The first states: I. THE TRIAL COURT ERRED IN DENYING APPELLANT A FAIR TRIAL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION BY FAILING TO SERVE OR FURNISH APPELLANT NOTICE OF THE CHARGES OR A COPY OF THE COMPLAINT PURSUANT TO CRIMINAL RULE 5, OR A REASONABLE OPPORTUNITY FOR DISCOVERY UNDER CRIMINAL RULE 16. Reda contends the court denied him due process at his initial appearance, arguing that it did not comply with Crim.R. 5 when it failed to serve him with a copy of the citation or inform him of the charge against him, and failed to inform him of his right to a jury trial or advise him regarding his need to secure counsel and to conduct discovery. The city urges that the court complied with Crim.R. 5 and argues that defects in the service of an indictment must be raised prior to trial. -5- The issue then presented for our consideration concerns whether the trial court denied Reda due process at his initial appearance. Crim.R. 5(A) mandates the procedure at a preliminary hearing and states in relevant part: When a defendant first appears before a judge or magistrate, the judge or magistrate shall permit the accused or his counsel to read the complaint or a copy thereof, and shall inform the defendant: (1) Of the nature of the charge against him; (2) That he has a right to counsel and the right to a reasonable continuance in the proceedings to secure counsel, and, pursuant to Crim.R. 44, the right to have counsel assigned without cost to himself if he is unable to employ counsel; (3) That he need make no statement and any statement made may be used against him; (4) * * *; (5) Of his right, where appropriate, to jury trial and the necessity to make demand therefor in petty offense cases. * * * Here, the only record of the court's discharge of its obligation appears in two journal entries, one the court's journal entry of February 4, 1997 [1998] [sic], which denied Reda's motion for new trial, recites that the court in its opening statement to the array, advised defendants if they have not received a copy of the complaint, the court would serve a copy; the other, the court's journal entry of October 8, 1997, supra, which contains a recitation that the defendant's constitutional rights were -6- explained and Reda signed a Written Statement of Rights and Waiver of Counsel, though that document is not part of the record before us. Further, reference is made in that entry to a jury trial. Accordingly, from the court's recitations in its journal entries, we conclude the trial judge complied with Crim.R. 5 and therefore did not deny Reda due process at his preliminary hearing. This assignment of error is therefore overruled. The second assignment of error states: II. THE TRIAL COURT ERRED BY PROCEEDING TO TRIAL OF THE APPELLANT WITHOUT ADVISING HIM OF THE RIGHT TO ASSISTANCE OF COUNSEL AND WITHOUT APPELLANT'S KNOWING WAIVER OF SUCH RIGHT PURSUANT TO CRIMINAL RULES 11, 22 AND 44. Reda contends the trial court erred by not advising him of his Sixth Amendment right to assistance of counsel, arguing further that he did not knowingly, intelligently and voluntarily waive that right. The city urges the court did not violate his right to assistance of counsel, arguing that Reda signed a statement indicating that he waived that right. The issue then presented for our consideration concerns whether the court violated Reda's Sixth Amendment right to assistance of counsel. Crim.R. 44(C) provides the procedure for waiving the right to assistance of counsel and states in pertinent part: Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. * * *. -7- Crim.R. 22 states in relevant part that * * * Proceedings may be recorded in shorthand, or stenotype, or by any other adequate mechanical, electronic or video recording device. Further, in Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216, a case involving a similar situation in which the record contained a signed statement of waiver but not an oral recorded waiver in open court affirmatively appearing on the record, we stated, Generally, the proceedings of the lower court are deemed to be correct. If there is no transcript of the proceedings and the error cannot be shown in the record, an appellant will not prevail. However, when confronted with the waiver of a constitutional, statutory or other substantial or fundamental right, such waiver must affirmatively appear in the record. See State v. Haag (1976), 49 Ohio App.2d 268, 271, 360 N.E.2d 756 [3 O.O.3d 301]. Similarly, in this case, while the record before us contains the October 8, 1997 journal entry of the court signed by Reda which recites that his constitutional rights had been explained to him and that he signed a Written Statement of Rights and Waiver of Counsel, that journal entry does not constitute an oral waiver in open court affirmatively appearing on the record, and the city has failed in its burden to demonstrate compliance with the rules for waiver of assistance of the right to counsel. Accordingly, this assignment of error is well taken and we are constrained to reverse the judgment of conviction and remand this matter for further proceedings. Judgment accordingly. -8- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. PATRICIA A. BLACKMON, A.J., and JOSEPH J. NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .