Medina County Courthouse

Wednesday, February 02, 2011

Supreme Court Overturns Acquittal Order, Directs Judge to Resentence Lorain Sex Offender

State ex rel. DeWine v. Burge, Slip Opinion No. 2011-Ohio-235.
Lorain App. Nos. 09CA009723 and 09CA009724, 2010-Ohio-3009. Judgment of the court of appeals reversed, and writ of prohibition granted.
O'Connor, C.J., and Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., concurs in judgment only.
Lanzinger, J., concurs separately.

(Jan. 27, 2011) The Supreme Court of Ohio held today that a Lorain County common pleas court judge acted without jurisdiction when he reopened a 15 year old criminal case based on an error in the court’s original sentencing entry, issued a judgment of acquittal, and released from custody a woman who was serving a prison term for multiple sex offenses.

In a unanimous decision, the Court issued a writ of prohibition ordering Judge James Burge to vacate a 2009 judgment in which he overturned the 1994 convictions of Nancy Smith for multiple sex offenses involving children enrolled in the Lorain Head Start Program. In addition to reinstating Smith’s convictions and prison sentence, today’s order directed Judge Burge to correct the error in Smith’s original sentencing order by making an entry in the court’s journal to reflect that Smith was found guilty by a jury.

In 1994, Smith and co-defendant Joseph Allen were convicted of sex-related crimes involving multiple children who were attending Head Start programs. Both defendants were sentenced to lengthy prison terms. In its sentencing entries, the trial court noted that Smith and Allen had appeared in court for sentencing “after having been found guilty” of the various charges for which they were convicted. Smith filed a timely motion asking the trial court judge to vacate the jury verdict finding her guilty and enter a judgment of acquittal under Crim. R. 29(C). That rule permits a trial judge to vacate a jury verdict of conviction if the judge finds that the evidence presented by the state was not sufficient to support a conviction. The trial court denied Smith’s motion. Both Smith and Allen appealed their convictions and sentences, which were affirmed by the 9th District Court of Appeals.

In 2008, Smith filed a motion in the trial court seeking reconsideration of her sentence. In that motion, she argued that the sentencing entry made by the trial court in her case did not comply with Crim.R. 32(C) because the entry did not state the manner of her conviction (i.e. whether she was convicted after entering guilty pleas, was found guilty by a judge following a bench trial or was found guilty by a jury.) Allen filed a similar petition for resentencing.

Judge Burge, who succeeded the judge who sentenced Allen and Smith to prison, granted the defendants’ motions. Holding that the sentencing entries in the defendants’ cases were defective under Crim.R. 32(C), and therefore the trial court had never entered a final order in those cases, Judge Burge reconsidered and granted Smith’s previously denied motion for a judgment of acquittal under Crim. R. 29(C). Based on that ruling, Judge Burge vacated Smith’s and Allen’s convictions, ordered that they be released from prison, and instructed the Lorain County sheriff to remove them from the county’s list of registered sex offenders.

The Ohio attorney general’s office and Lorain County prosecutor filed an action in the 9th District Court of Appeals asking that court to issue a writ of prohibition vacating Judge Burge’s judgment of acquittal and ordering that the defendants be returned to prison. The court of appeals issued the requested writ reinstating Allen’s convictions, but held that because Smith had filed a timely motion for acquittal under Crim.R. 29(C) following the jury verdict in her case, and there had been no valid final judgment order entered in the trial court’s journal, Judge Burge had acted within his discretion in reconsidering and granting Smith’s Crim.R. 29(C) motion for acquittal. The state appealed to the Supreme Court, challenging the 9th District’s denial of a writ reinstating Smith’s convictions.

In today’s per curiam opinion, the Court wrote that although the original sentencing entry in Smith’s case was defective because it failed to state the manner of her conviction, Judge Burge’s jurisdiction to remedy that error was limited to issuing a “nunc pro tunc” (now for then) entry inserting the omitted information into the court’s journal.

The Court wrote: “Pursuant to Crim.R. 36, ‘[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time.’ ... A nunc pro tunc entry is often used to correct a sentencing entry that, because of a mere oversight or omission, does not comply with Crim.R. 32(C). ... Consistent with the treatment of Crim.R. 32(C) errors as clerical mistakes that can be remedied by a nunc pro tunc entry, we have expressly held that ‘the remedy for a failure to comply with Crim.R. 32(C) is a revised sentencing entry rather than a new hearing.’”

“Any failure to comply with Crim.R. 32(C) was a mere oversight that vested the trial court with specific, limited jurisdiction to issue a new sentencing entry to reflect what the court had previously ruled and not to issue a new sentencing order reflecting what, in a successive judge’s opinion, the court should have ruled. These circumstances are thus distinguishable from egregious defects, such as an entry that is not journalized, that permit a court to vacate its previous orders. ... Moreover, the technical failure to comply with Crim.R. 32(C) by not including the manner of conviction in Smith’s sentence is not a violation of a statutorily mandated term, so it does not render the judgment a nullity.”

“(B)y granting judgments of acquittal that the previous trial court judge had not, Judge Burge did far more than simply ‘resentence’ Smith and Allen. Based on the foregoing, Judge Burge patently and unambiguously lacked jurisdiction to vacate Smith’s convictions and sentence when his authority was limited to issuing a corrected sentencing entry that complies with Crim.R. 32(C). ... The court of appeals erred in dismissing appellants’ prohibition claim against Judge Burge concerning Smith’s criminal case. We reverse the judgment of the court of appeals and grant the writ of prohibition to compel Judge Burge to vacate his acquittal of Smith and to issue a corrected sentencing entry that complies with Crim.R. 32(C).”

The opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.

Justice Judith Ann Lanzinger entered a separate concurring opinion in which she noted that today’s decision leaves open the question of whether the entry of an amended sentencing order to correct a Crim.R. 32(C) defect triggers a new right of appeal by the defendant. She wrote: “We have held that a sentencing entry that violates Crim.R. 32(C) renders that entry nonappealable. State ex rel. Culgan v. Medina Cty. Court of Common Pleas ...(2008). In light of the facts of the present case, we eventually will need to determine what effect an appellate decision has when the appellate court’s jurisdiction was premised upon a sentencing entry that violated Crim.R. 32(C) and was thus nonappealable.”

Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Michael DeWine.

Judge James M. Burge, pro se, 440.329.5416.

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