State v. Ellis , 2011 Ohio 5646 ( 2011 )

[Cite as State v. Ellis, 2011-Ohio-5646.]
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, 2011-Ohio-5646.]
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), 61 Ohio St.2d 197, 199, 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, 2011-Ohio-5646.]
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