[Cite as State v. Ellis,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

THE STATE OF OHIO, : JUDGES: : : Hon. W. Scott Gwin, P.J. Appellee, : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. v. : : Case No. 11-COA-015 ZACHARY L. ELLIS, : : : Appellant. : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court Case No. 10 CRB 1364AB

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: October 31, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

W. DAVID MONTAGUE THOMAS L. MASON Assistant Director of Law Mason, Mason & Kearns 1213 East Main Street 153 W. Main Street Ashland, Ohio 44805 Ashland, Ohio 44805 [Cite as State v. Ellis,

.]

Delaney, J.

{¶ 1} Defendant-Appellant Zachary L. Ellis was convicted and sentenced on

March 21, 2011 in the Ashland Municipal Court on misdemeanor charges. He timely

appeals and raises one assignment of error:

{¶ 2} “I. THE TRIAL COURT ERRED BY DISMISSING THE APPELLANT’S

MOTION TO SUPPRESS WITHOUT A HEARING. THIS ERROR MAY NOT BE

REFLECTED IN THE RECORD.

{¶ 3} On December 18, 2010, Appellant was charged with Obstruction of Official

Business, in violation of R.C. 2921.31(A), and Possession of Marijuana, in violation of

Ashland City Ordinance 513.03(C)(2). He timely filed a Motion to Suppress on January

28, 2011. Handwritten docket entries reflect the motion was set for hearing on four

occasions: February 1; February 17; February 23 and March 11, 2011. The hearing

was reset for various reasons including a death in Appellant’s family, a conflict with a

visiting judge and Appellant’s incarceration in another county.

{¶ 4} On March 11, 2011, a journal entry reflects the motion was dismissed. The

record does not reflect any reason for the dismissal or if any party had requested a

continuance of the hearing date. Thereafter, Appellant pled no contest to the charges.

He was found guilty and sentenced to 90 days in jail.

{¶ 5} On appeal, Appellant argues the trial court erred in dismissing the Motion

to Suppress without a hearing. He contends the trial court could have rescheduled the

last scheduled hearing; issued a warrant for the Appellant’s arrest for failure to appear

at the hearing or could have conducted the hearing without the presence of the

Appellant. Ashland County Case No. 11-COA-015 3

{¶ 6} Plaintiff-Appellee State of Ohio asserts that since Appellant acknowledges

in his brief that he failed to appear for the March 11, 2011, it was appropriate for the trial

court to dismiss the motion for want of prosecution. The State also contends a

transcript of the March 11, 2011 hearing is necessary for this Court to decided

Appellant’s assignment of error and the Appellant’s failure to provide the transcript

warrants an affirmance.

{¶ 7} In reviewing assigned error on appeal we are confined to the record that

was before the trial court as defined in App.R. 9(A). This rule provides that the record

on appeal consists of “[t]he original papers and exhibits thereto filed in the trial court, the

transcript of proceedings, if any, including exhibits, and a certified copy of the docket

and journal entries prepared by the clerk of the trial court.”

{¶ 8} App.R. 9(B) also provides, in part, that “ * * * When portions of the

transcript necessary for resolution of assigned errors are omitted from the record, the

reviewing court has nothing to pass upon and thus, as to those assigned errors, the

court has no choice but to presume the validity of the lower court’s proceedings, and

affirm.”

{¶ 9} In Knapp v. Edwards Laboratories (1980),

, the

Ohio Supreme Court stated: “The duty to provide a transcript for appellate review falls

upon the appellant. This is necessarily so because an appellant bears the burden of

showing error by reference to matters in the record.”

{¶ 10} Appellant has not provided a transcript of the March 11th hearing on

Appellant’s motion to suppress. Without a transcript, we must presume the regularity of

the trial court’s proceeding on the motion. The record only reflects the motion was Ashland County Case No. 11-COA-015 4

dismissed, no reasoning for the dismissal is revealed by the record nor have the parties

submitted an App.R. 9 (C) statement if the transcript was not available. The reasoning

for the trial court’s dismissal is unknown to this Court and we cannot speculate or make

assumptions as to the trial court’s actions. The parties have not cited, and this Court

has not found, legal authority which would require the trial court to take any of the steps

suggested by Appellant. Additionally, we would note a trial court has a right to control

its own docket, and may dismiss actions and motions for lack of prosecution if

warranted under the proper circumstances.

{¶ 11} For the foregoing reasons, the judgment of the Ashland Municipal Court is

affirmed.

Gwin, P.J. and Edwards, J. concur.

PATRICIA A. DELANEY

W. SCOTT GWIN

JULIE A. EDWARDS [Cite as State v. Ellis,

.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

THE STATE OF OHIO, : : Appellee, : : : v. : JUDGMENT ENTRY : ELLIS, : : Appellant. : Case No. 11-COA-015 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Ashland Municipal Court is affirmed. Costs assessed to Appellant.

_________________________________ PATRICIA A. DELANEY

_________________________________ W. SCOTT GWIN

_________________________________ JULIE A. EDWARDS