THE STATE EX REL. DEWINE, ATTY. GEN., ET AL., APPELLANTS, v. BURGE, JUDGE, APPELLEE.
No. 2010-1216
Supreme Court of Ohio
Submitted January 4, 2011—Decided January 27, 2011
128 Ohio St.3d 236, 2011-Ohio-235
{¶ 1} This is an appeal from a judgment of the court of appeals dismissing a claim for a writ of prohibition to compel a common pleas court judge to vacate a judgment of acquittal in a criminal case and to issue a corrected sentencing entry pursuant to applicable precedent and return the defendant to prison. Because the judge patently and unambiguously lacked jurisdictiоn to remedy a
Facts
Criminal Proceedings
{¶ 2} In 1994, a jury convicted Nancy Smith and Joseph Allen of numerous sex offenses involving children еnrolled in the Lorain Head Start Program. In the Lorain County Court of Common Pleas’ sentencing entries for Smith and Allen, the court noted that they had appeared in court for sentencing “after having been found guilty” of thе various offenses. The sentencing entries did not specify the manner of the convictions—that Smith and Allen had been found guilty by a jury. Smith and Allen were both sentenced to lengthy prison terms. On appeal, the Court of Apрeals for Lorain County affirmed the convictions and sentences. See State v. Smith (Jan. 24, 1996), Lorain App. No. 95CA006070, 1996 WL 27908, and State v. Allen (Feb. 7, 1996), Lorain App. No. 94CA005944, 1996 WL 48550.
{¶ 3} In 2008, Smith filed a motion for reconsideration of her sentence. In 2009, Allen filed a motion for resentencing. The defendants claimed that thеir August 1994 sentencing entries did not comply with
Prohibition Cases
{¶ 4} In December 2009, appellants, Richard Cordray, who was the Ohio Attorney General at the time,1 and Lorain County Prosecuting Attorney Dennis Will, filed complaints in the Court of Apрeals for Lorain County for writs of prohibition to compel Judge Burge to vacate his orders acquitting the defendants and to order their return to prison. Judge Burge filed motions for judgment on the pleadings and for leave to file answers instanter.
{¶ 5} The court of appeals dismissed the prohibition claim concerning Smith‘s acquittal for failure to state a claim upon which relief can be granted. State ex rel. Cordray v. Burge, Lorain App. Nos. 09CA009723 and 09CA009724, 2010-Ohiо-3009, 2010 WL 2622506, ¶ 29, 36. The court of appeals determined that Judge Burge did not patently and unambiguously lack jurisdiction to reconsider the court‘s earlier denial of Smith‘s timely
{¶ 6} This cause is now before the court upon the appeal as of right by the attоrney general and the prosecuting attorney regarding the court of appeals’ refusal to issue a writ in relation to Smith.
Legal Analysis
Prohibition
{¶ 7} To be entitled to the requested writ of prohibition vacating Smith‘s acquittal, the apрellants were required to show that Judge Burge patently and
Crim.R. 32(C)
{¶ 8}
{¶ 9} Appellants initially assert that Judge Burge patently and unambiguously lacked jurisdiction to vacate Smith‘s convictions and sentence because the original sentencing entry complied with
{¶ 10} For the following reasons, appellants’ assertion lacks merit.
{¶ 11} First, according to the court of appeals’ opinion, the state agreed that Smith‘s sentencing entry did not constitute a final, appealable order. See State v. Smith, Lorain App. Nos. 09CA009634 and 09CA009635, 2010-Ohio-3007, 2010 WL 2622932, ¶ 3 (“the parties briefed the question and the State conceded that the 1994 judgment of conviction was not final“). A “‘party is not permitted to take advantage of an error that he himself invited or induced the court to make.‘” Webber v. Kelly, 120 Ohio St.3d 440, 2008-Ohio-6695, 900 N.E.2d 175, ¶ 17, quoting Davis v. Wolfe (2001), 92 Ohio St.3d 549, 552, 751 N.E.2d 1051.
{¶ 12} Second, appellants themselves, in their complaint for extraordinary relief in prohibition, requested that Judge Burge “issue a corrected sentence pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330 [893 N.E.2d 163].” Again, appellants thus invited any error by the court of appeals in holding that Smith‘s sentencing entry did not comply with
{¶ 13} Finally, Smith‘s sentencing entry did not comply with
{¶ 14} Contrary to appellants’ assertion, our holding in State ex rel. Barr v. Sutula, 126 Ohio St.3d 193, 2010-Ohio-3213, 931 N.E.2d 1078, does not require a different result. In that case, we held that a sentencing entry in a criminal case in which the defendant had been found guilty by the court after a bench trial complied with
{¶ 15} Therefore, appellants’ first contention lacks merit.
Remedy for Correcting a Sentencing Entry that Does Not Comply with Crim.R. 32(C)
{¶ 16} Appellants next claim that Judge Burge‘s jurisdiction to correct the
{¶ 17} Pursuant to
{¶ 18} Consistent with the treatment of
{¶ 19} This result is logical. The trial court and the parties all proceeded under the presumption that the sentencing entry for Smith constituted a final, appealable order. Any failure to comply with
{¶ 20} Contrary to Judge Burge‘s assertion, McAllister v. Smith, 119 Ohio St.3d 163, 2008-Ohio-3881, 892 N.E.2d 914, ¶ 9, and Mitchell v. Smith, 120 Ohio St.3d 278, 2008-Ohio-6108, 898 N.E.2d 47, ¶ 1, do not warrant a different result. In those cases, we observed that the appropriate remedy for a violation of
{¶ 21} Based on the foregoing, Judge Burge patently and unambiguously lacked jurisdiction to vacate Smith‘s cоnvictions and sentence when his authority was limited to issuing a corrected sentencing entry that complies with
Judge Burge‘s Claim
{¶ 22} Judge Burge, in his appellate brief, asserts that the court of appeals erred in granting a writ of prohibition vacating his acquittal of Allen. The judge, however, did not appeal from this judgment, and his argument is thus not properly before us.
Conclusion
{¶ 23} The court of appeals erred in dismissing appellants’ prohibition claim agаinst 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
Judgment reversed and writ 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.
Lanzinger, J., concurring.
{¶ 24} I concur in the court‘s opinion, but write separately to note that our decision today leaves open the question whether new aрpellate rights arise from a new sentencing entry issued in order to comply with
Michael DeWine, Attorney General, Benjamin C. Mizer, Solicitor General, David M. Lieberman, Deputy Solicitоr, 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.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Proseсuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.