State ex rel. Cordray v. BurgeState ex rel. Cordray v. Burge
{¶1} Relators, Ohio Attorney General Richard Cordray and Lorain County Prosecutor Dennis Will, petitioned this Court for a writ of prohibition to vacate acquittals ordered by Respondent, Judge James M. Burge. Judge Burge answered, and moved to dismiss for failure to state a claim upon which relief can be granted.
Background
{¶2} Although the questions before this Court involve decisions made by Judge Burge in 2009, the underlying cases stretch back to the early 1990s. A brief review of that history is necessary to analyze these cases.
{¶3} In 1993, Nancy Smith was indicted by thе Lorain County Grand Jury for numerous sex offenses involving children. The following year, Joseph Allen was indicted for numerous sex offenses involving the same child victims. The two were tried together in 1994. In August 1994, the jury returned guilty verdicts on the charges. The trial court sentenced both Allen and Smith on August 4, 1994; Allen was sentenced
{¶4} Both Allen and Smith appealed their convictions to this Court. This Court affirmed their convictions in 1996, and the Supreme Court declined review in both cases.
{¶5} Many years passed and, in 2008, Smith filed a motion for resentencing in the trial court. She argued that her 1994 judgment of conviction was not final because it did not comply with
{¶6} At the June 2009 status conference, Judge Burge orally granted
{¶7} Judge Burge filed answers in both cases along with motions to file the answers instanter, which we now grant. In his answers, Judge Burge asked this Court to dismiss the complaints for failure to state a claim upon which relief can be granted. Judge Burge also moved for judgment on the pleadings, prompting competing responses from the parties. For his part, Judge Burge argued that he inadvertently labeled his motions as motions for judgment on the pleadings rather than
{¶8} To dismiss a complaint pursuant to
Writ of Prohibition
{¶9} For this Court to issue a writ of prohibition, Relators must establish that: (1) the judge is about to exercise judicial power, (2) the exercise of that power is unauthorized by law, and (3) the denial of the writ will result in injury for which no other adequate remedy exists. State ex rel Jones v. Garfield Hts. Mun. Court (1997), 77 Ohio St. 3d 447, 448.
{¶10} Judge Burge has exercised judicial power – he has ordered acquittals for both Allen and Smith. Relators have recognized this, and rely on State ex rel. Cordray v. Marshall, 123 Ohio St.3d 229, 2009-Ohio-4986, to support their claims for a writ of prohibition. Because this case is critical to Relators’ claims, we begin our analysis with Marshall.
State ex rel. Cordray v. Marshall
{¶11} In Marshall, the Ohio Supreme Court considered an issue similar to the one before us. In the underlying case, the defendant, Rawlins, shot and killed a man who was having an affair with his wife. Id. at ¶ 2. Rawlins was charged with aggravated murder and convicted of murder with a gun specification; he was sentenced to 15 years to life. Id. The court of appeals affirmed. Id. at ¶ 3. It specifically rejected Rawlins’ claim that the trial court erred by failing to instruct the jury on a lesser included offense. Id.
{¶12} Several years later, Rawlins moved for relief from judgment. Id. at ¶ 4. His motion raised the same jury instruction claims that had been rejected in his direct appeal. Id. Judge Marshall, who had not presided over Rawlins’ trial, held a hearing on the motion. Id. at ¶ 5. During the hearing, Judge Marshall orally granted the motion vacating the conviction, accepted Rawlins’ plea to the lesser offense of voluntary manslaughter, sentenced him to ten years in prison, and granted him judicial release. Id. Judge Marshall also said at the hearing that he would make a finding that the jury‘s verdict was against the weight of the evidence and that the jury should have been
{¶13} Shortly after Judge Marshall‘s entries were filed, the Ohio Attorney General petitioned the court of appeals for a writ of prohibition to compel Judge Marshall to vacate his entries that vacated the original conviction and convicted Rawlins of the lesser offense. Id. at ¶ 7. The court of appeals granted the petition, concluding that Judge Mаrshall lacked jurisdiction to grant the
{¶14} The Court began its analysis by setting out the same test we noted above. Id. at ¶ 25. It noted that it was “uncontroverted that Judge Marshall exercised judicial power in the underlying criminal case by vacating Rawlins‘s murder conviction and releasing him from prison.” Id. The Court continued that, for “the remaining requirements, ‘[i]f a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibitiоn * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.’ The dispositive issue is whether Judge Marshall patently and unambiguously lacked jurisdiction to vacate Rawlins‘s murder conviction and release him from prison.” Id. at ¶ 26 (citation omitted).
{¶15} The Supreme Court then considered the law of the case doctrine. Id. at ¶ 27. The Court recognized that, absent extraordinary circumstances, such as an
{¶16} Relators rely solely on Marshall to support their claim for a writ of prohibition. But the underlying facts of these cases differ in one significant respect.
Crim.R. 32(C) and Final Orders
{¶17} The trial court sentenced Allen and Smith in 1994. Both sentencing orders failed to comply with
{¶18} Because the trial court had not entered final, appealable orders for either Allen or Smith, these cases fall outside the analysis and holding in Marshall. If the trial court‘s 1994 judgments of conviction had been final, then these case would fall squarely within the reasoning of Marshall – the trial court could neither reconsider its final orders nor disregard the court of appeals’ mandate. Clearly, Judge Burge‘s orders disregarded this Court‘s mandates in Allen and Smith‘s direct appeals. Marshall suggests that Judge Burge could not disregard this Court‘s mandate. We сonclude, based on the facts of these cases, a different answer is compelled by State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609.
{¶19} In Culgan, the Ohio Supreme Court granted Culgan‘s petitions for writs of mandamus and procedendo to order Judge Collier to issue a sentencing order in compliance with
{¶20} In Allen and Smith‘s cases, the judgments of conviction did not comply with
Crim.R. 29(C) Motion for Acquittal
{¶21} Judge Burge entered orders in both Allen and Smith‘s cases granting
{¶22}
{¶23} Ross is critical to our analysis. The question in Ross was whether the trial court “can reconsider its initial denial of a timely postmistrial motion for acquittal.” Id. In Ross, this Court reviewed Carlisle v. United States (1996), 517 U.S. 416.
{¶24} Carlisle analyzed Federal Criminal Rule 29(c), which is identical to
{¶25} After reviewing Carlisle, this Court in Ross recognized that a trial court may reconsider an interlocutory order at any time before final judgment. Ross at ¶ 24. Ross made a timely motion pursuant to
{¶26} Having reviewed these key decisions, we now consider Allen and Smith‘s cases separately, beginning with Smith‘s case.
Nancy Smith
{¶27} Allen and Smith were tried together, but represented by different counsel. After the jury returned its verdicts, the trial court sentenced both Allen and Smith. There is no dispute that the trial court‘s sentencing orders did not comply with
{¶28} Smith filed a timely
{¶29} Judge Burge recognized, and the State agreed, that the 1994 judgment of conviction was not final. He initially considered two options – issue a corrected еntry, or resentence Smith. He ultimately chose a third option – to reconsider the earlier denial of Smith‘s timely
Joseph Allen
{¶30} There is one significant difference between the cases of Smith and Allen that requires a different result as it relates to Judge Burge‘s order in Allen‘s case. It is undisputed that the trial court‘s 1994 sentence was not final and that Allen did not file a motion for acquittal pursuant to
{¶31} Because the trial court failed to enter a final order in Allen‘s case, Judge Burge had jurisdiction to reconsider interlocutory orders and to enter a final order. But Judge Burge did not have jurisdiction to grant motions that were not before the court. Allen did not file a
{¶32} Allen did not invoke the trial court‘s jurisdiction by filing a postverdict
{¶33} Relators have established that Judge Burge exercised judicial power and that the exercise of that power was unauthorized by law. To grant the writ of prohibition, Relators must also show that the denial of the writ will result in injury for which no other adequate remedy exists. State ex rel Jones v. Garfield Hts. Mun. Court, 77 Ohio St. 3d at 448. They have satisfied this burden by demonstrating that there is no other adequate remedy. Although the State has appealed Judge Burge‘s decision in the underlying criminal case, that appeal is limited to the substantive law ruling and cannot undo the acquittal that Judge Burge entered. The writ of prohibition is the only remedy available that can correct Judge Burge‘s unauthorized exercise of authority. See, e.g., Marshall.
{¶34} Accordingly, we reach the same result the Ohio Supreme Court did in Marshall. We grant the Relatоrs’ petition as it relates to Allen and order Judge Burge to vacate the June 24, 2009, order that granted Allen an acquittal.
{¶35} After Judge Burge vacates the acquittal, he may elect how to proceed to enter a final, appealable order. In McAllister v. Smith, 119 Ohio St.3d 163, 2008-Ohio-
Conclusion
{¶36} Judge Burge had jurisdiction to reconsider and grant Smith’s
{¶37} Costs of this action are taxed equally to the Relators and Respondent Allen.
{¶38} The clerk of courts is hereby directed to serve upon all parties not in default notice of this judgment and its date of entry upon the journal. See
Judge
Concurs: Belfance, J.
Carr, J., dissents saying
{¶39} I rеspectfully dissent. Although I dissent from the relief ordered for both Joseph Allen and Nancy Smith, for clarity‘s sake, I will focus my comments on Smith‘s case but my analysis applies equally to both.
Background
{¶40} Nancy Smith was indicted in 1994. After months of pretrial proceedings, she received a nine-day jury trial. The jury found her guilty, the trial court sentenced her, and entered judgment. She moved for a new trial and acquittal; the trial court denied both motions. Smith appealed her conviction and this Court affirmed in 1996. Later that year, she filed a petition for postconviction relief. The State responded. The trial court denied relief in 1997. This Court affirmed the trial court‘s decision the following year. In 2003, Smith moved to reopen her direct appeal; this Court denied the motion.
{¶41} Five years later, Smith moved to be resentenced. Her motion argued that the trial court never entered a final, appealable order because the August 4, 1994,
Final appealable orders in criminal cases
{¶42} Baker concludes that “[s]imply stated, a defendant is entitled to appeal an order that sets forth the manner of conviction and the sentence.” Baker at ¶ 18. The “manner of conviction” language comes from
{¶43} I encourage the Supreme Court to revisit this use of
{¶44} One last thought – if the trial court had not crossed out the words on the form journal entry, so that it stated “having entеred a plea of guilty,” the order would have been final under Baker and
{¶45} In Culgan, the Ohio Supreme Court had an opportunity to limit the impact of Baker in cases like this. Culgan had pleaded guilty and had already appealed his conviction by the time Baker was decided. His sentencing entry failed to reflect that he entered a guilty plea. In resolving his original action, this Court concluded that, because Culgan had exhausted his appellate remedies from his conviction and sentence in 2003, his conviction was final. This Court‘s conclusion relied on State v. Greene, 6th Dist. No. S-03-045, 2004-Ohio-3456, ¶ 10, where the Sixth District held that “once a conviction has become ‘final’ because the defendant can no longer pursue any appellate remedy, any new case law cannot be applied retroactively even if it would be relevant to the facts of his case.” The Culgan Court adopted a different approach, but it is not too late to recognize a “prаctical finality” approach to avoid reopening cases long thought final.
State ex rel. Cordray v. Marshall
{¶46} Turning away from what I would hope the Supreme Court might do in the future, Marshall requires the conclusion that the trial court lacked jurisdiction to enter acquittals in Smith‘s case.
{¶47} I disagree with the majority‘s application of Marshall. I would apply the precise language used by the Supreme Court in its decision – that “the Ohio Constitution does not grant to a court of common pleas jurisdiction to review a prior
{¶48} This Court issued its mandate in 1996. There is nothing in the record to show that this Court‘s mandate has been vacated or modified. Neither Baker nor Culgan held that a court of appeals’ mandate is void or a nullity if the trial court‘s judgment does not comply with
{¶49} To be clear, that is precisely what the trial court did. On her direct appeal, this Court reviewed Smith‘s assignments of error, including an argument that her convictions were not supported by sufficient evidence. This Court, after a review of the trial court record, concluded that the jury‘s verdict was supported by sufficient evidence. Smith at 19-27. By granting Smith’s
Finality in criminal cases
{¶50} The acts that formed the basis for Smith‘s convictions took place as late as 1993. A jury convicted her in 1994. Almost two decades later, the litigation continues. The Ohio Supreme Court eloquently addressed the effect of continued litigation, albeit in the capital punishment context:
The constitutions and courts of our country have established procedural safeguards reflecting our society‘s concern for the rights of citizens accused of committing crimes. When those safeguards are used to thwart judgments rendered pursuant to the procedures, it is predictable that citizens will lose confidence in the ability of the criminal justice system to enforce its judgments.
State v. Steffen (1994), 70 Ohio St.3d 399, 406. I would add to this passage that citizens will also lose confidence in the criminal justice system when they see defendants who have been convicted, received appellate review, and pursued postconviction relief, released with a judgment of acquittal because the original judgment of conviction failed to include the word “jury.”
{¶51} As this Court has recognized, the application of new rules to cases long thought final can lead to the reоpening of cases with absurd results. If Judge Burge resentences Allen, the victims of his offenses will have a right to be present. In fact, the Ohio Constitution now requires that they receive notice of the sentencing hearing. Fifteen years after they testified at his trial, they will again confront Allen, reopening old wounds in the process. As other courts have done, I ask the Supreme Court to
Conclusion
{¶52} I believe the trial court acted without jurisdiction when it entered acquittals for Allen and Smith. Accordingly, I would grant the petitions for writ of prohibition and order the trial court to vacate its orders granting acquittals.