THE STATE EX REL. DEWINE, ATTY. GEN., ET AL., APPELLANTS, v. BURGE, JUDGE, APPELLEE.
No. 2010-1216
Supreme Court of Ohio
Submitted March 1, 2011—Decided April 19, 2011.
128 Ohio St.3d 1230, 2011-Ohio-1755
{¶ 2} Appellee has filed a motion for reconsideration. Nancy Smith has filed a motion for leave to intervene as a party respondent-appellee and a motion for reconsideration.
{¶ 3} Smith‘s motion for leave to intervene is granted. The motions for reconsideration are denied.
O‘CONNOR, C.J., and LUNDBERG STRATTON, CUPP, and MCGEE BROWN, JJ., concur.
O‘DONNELL, J., dissents in part and would vacate the court‘s opinion and issue a writ of prohibition only compelling the trial court to vacate the judgment of acquittal.
PFEIFER and LANZINGER, JJ., dissent in part and would grant the motions for reconsideration.
O‘DONNELL, J., dissenting.
{¶ 4} I respectfully dissent and would grant the motions for reconsideration filed in this case to clarify our decision in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, in which we declared that a judgment of
{¶ 5} Accordingly, it is now my view that the original judgment of conviction entered in 1994 complied with
{¶ 6} In 1994, a jury convicted Nancy Smith and Joseph Allen of multiple sex offenses and the court sentenced them to terms of incarceration pursuant to those convictions. Following our decision in Baker, Smith and Allen moved the trial court to resentence them because the sentencing entries did not include the manner of conviction. In considering their motions, the trial court found that the judgments of conviction did not comply with
{¶ 7} Both the Ohio attorney general and the Lorain County prosecuting attorney filed complaints in the Ninth District Court of Appeals seeking writs of prohibition to compel the court to vacate its acquittal, issue new sentencing entries correcting any errors, and return Smith and Allen to prison. The court of appeals dismissed the complaint as to Smith, holding that the trial court did not patently and unambiguously lack jurisdiction to acquit her, but it granted the writ as to Allen because Allen had not timely moved for acquittal pursuant to
{¶ 8} The state appealed the appellate court‘s dismissal of the prohibition claim as to Smith to this court. We reversed, granted the writ, and held that although the judgment of conviction entered in Smith‘s case did not comply with
Crim.R. 32(C)
{¶ 10} Prior to the adoption of
{¶ 11} The court adopted
{¶ 12} In cases decided after the adoption of this rule, we have recognized that a judgment of conviction is composed of two essential elements: the adjudication of guilt and the sentence. See, e.g., State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568 (” ‘conviction’ includes both the guilt determination and the penalty imposition” [emphasis sic]); State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (“a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty” [emphasis sic]). Cf. State v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-6239, 818 N.E.2d 272, ¶ 14-15 (explaining that no judgment of conviction is entered when a defendant is found not guilty by reason of insanity).
{¶ 13} The
{¶ 14} In State v. Baker, we declared that “[a] judgment of conviction is a final appealable order under
{¶ 15} Explaining that language in Baker, we further stated that “a trial court is required to sign and journalize a document memorializing the sentence and the manner of conviction: a guilty plea, a no contest plea upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a guilty verdict resulting from a jury trial.” (Emphases added.) Id. at ¶ 14.
{¶ 16} In an attempt to guide trial judges in their efforts to comply with
{¶ 17} Significantly,
{¶ 18} We should clarify Baker to explain that the reference to the manner of conviction is not an additional
Conclusion
{¶ 19}
{¶ 21} The 1994 judgment of conviction met the directives of
{¶ 22} Nonetheless, here I would grant reconsideration of our earlier decision because the 1994 judgment of conviction complied with
LANZINGER, J., dissenting.
{¶ 23} I respectfully dissent from the court‘s decision to deny the motions for reconsideration in this case. The factual background and procedural posture of this case are undeniably exceptional. Based on the unique circumstances here, I no longer agree that Judge Burge patently and unambiguously lacked jurisdiction to proceed. Furthermore, our precedent recognizes that double jeopardy prevents this acquittal from being reviewed.
I. Motion to Reconsider
{¶ 24} Although I concurred in the January 27 opinion granting the writ, after reconsideration, I have concluded that the proper course of action in this case is to affirm the judgment of the court of appeals and deny the writ of prohibition. I am not convinced that Judge Burge patently and unambiguously lacked jurisdic
A. Judge Burge Did Not Patently and Unambiguously Lack Jurisdiction to Grant the Acquittal
{¶ 25} This court‘s recent statements on how to remedy
{¶ 26} Under some of our decisions, Judge Burge proceeded properly when he vacated Smith‘s and Joseph Allen‘s defective judgment entries, ordered a presentence investigation report for Smith and Allen, and conducted a review of the trial transcript and the evidence admitted in support of Smith‘s
{¶ 27} Soon after McAllister, we denied a petitioner‘s writ of habeas corpus and held that a failure to comply with
{¶ 28} Less than two years after Dunn, we held that “the remedy for a failure to comply with
{¶ 29} The foregoing cases thus offer contradictory approaches to correcting a
{¶ 30} Our January 27 opinion in this case purports to limit McAllister and Mitchell by stating that in those cases “we did not suggest that [the term ‘resentencing‘] encompassed anything more than issuing a corrected sentencing entry that complies with
{¶ 31} The inconsistency becomes especially troubling when one more closely examines Alicea. Alicea‘s sentencing entry fully complied with
{¶ 32} The fact remains that McAllister and Mitchell have not been overruled, and in the January 27 opinion in this case we purported only to limit those decisions. Because Judge Burge‘s granting the acquittal was based upon a reasonable interpretation of McAllister and Mitchell, he did not patently and unambiguously lack jurisdiction, and I would accordingly grant the motion to reconsider, affirm the court of appeals, and deny the writ of prohibition.
B. Double-Jeopardy Concerns
{¶ 33} The January 27 opinion in this case does not address our recent decision in State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992. In Ross, we addressed the issue whether a trial court may reconsider a ruling denying a timely filed
{¶ 34} While Ross involved an appeal pursuant to
{¶ 35} Indeed, in a case similar to the one before us, the Supreme Court of the United States reversed a court of appeals’ judgment granting a writ of mandamus ordering that an acquittal be vacated. Fong Foo v. United States (1962), 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629. In Fong Foo, the government argued, and the Court of Appeals for the First Circuit had agreed, that a writ of mandamus ordering a trial judge to vacate his judgment of acquittal was warranted because the trial court had been without power to direct the judgment of acquittal. Id. at 142. While noting that the First Circuit did have some basis for concluding that the acquittal was based upon an “egregiously erroneous foundation,” the Supreme Court held that the acquittal could not be reviewed without violating the Double Jeopardy Clause. Id. at 143.
{¶ 36} These federal decisions support my conclusion that the principles of double jeopardy preclude disturbing the acquittal issued in the underlying case.
II. Conclusion
{¶ 37} By granting the acquittal in the underlying case, Judge Burge was attempting to correct what he believed was a miscarriage of justice. More than 14 years after the convictions were entered in the underlying case, Judge Burge, after fully reviewing the record, determined that the evidence presented at trial against Smith and her codefendant Allen was insufficient to sustain the separate verdicts and that he had “absolutely no confidence that these verdicts [were] correct.” As a result of this conclusion, he granted an acquittal.
{¶ 38} Because I would hold that Judge Burge did not patently and unambiguously lack jurisdiction to act, I respectfully dissent and would grant the motions
PFEIFER, J., concurs in the foregoing opinion.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor General, David M. Lieberman, Deputy Solicitor, and M. Scott Criss, Assistant Attorney General; and Dennis P. Will, Lorain County Prosecuting Attorney, and Billie Jo Belcher, Assistant Prosecuting Attorney, for appellants.
James M. Burge, pro se.
Jack W. Bradley, Brian J. Darling, and Michael E. Stepanik, for intervening respondent-appellee.
Timothy Young, Ohio Public Defender, and E. Kelly Mihocik, Assistant Public Defender, in support of intervening respondent-appellee on behalf of amicus curiae, Ohio Public Defender.