State ex rel. DeWine v. BurgeState ex rel. DeWine v. Burge
Lead Opinion
{¶ 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 lаcked jurisdiction to remedy a
Facts
Criminal Proceedings
{¶ 2} In 1994, a jury convicted Nancy Smith and Joseph Allen of numerous sex offenses involving children enrolled in the Lorаin 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 the various оffenses. 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 Appеals for Lorain County affirmed the convictions and sentences. See State v. Smith (Jan. 24, 1996), Lorain App. No. 95CA006070,
Prohibition Cases
{¶ 4} In December 2009, appellants, Richard Cordray, who was the Ohio Attorney General at the time,
{¶ 5} The court of appeals dismissed the prohibition claim concerning Smith’s acquittal for failure to state a claim upon which rеlief can be granted. State ex rel. Cordray v. Burge, Lorain App. Nos. 09CA009723 and 09CA009724,
{¶ 6} This cause is now beforе the court upon the appeal as of right by the attorney 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 tо the requested writ of prohibition vacating Smith’s acquittal, the appellants were required to show that Judge Burge patently and
{¶ 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,
{¶ 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,
{¶ 13} Finally, Smith’s sentencing entry did not comply with
{¶ 15} Therefore, appellants’ first contention lacks merit.
Remedy for Correcting a Sentencing Entry that Does Not Comply ivith
{¶ 16} Appellants next claim that Judge Burge’s jurisdiction to cоrrect the
{¶ 17} Pursuant to
{¶ 18} Consistent with the treatment of
{¶ 20} Contrary to Judge Burge’s assertion, McAllister v. Smith,
{¶ 21} Based on the foregoing, Judge Burge patently and unambiguously lаcked jurisdiction to vacate Smith’s convictions 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 appеals 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
Judgment reversed and writ granted.
Notes
. Effective January 10, 2011, Michael DeWinе replaced Richard Cordray as Ohio Attorney General.
Concurrence Opinion
concurring.
{¶ 24} I concur in the court’s opinion, but write separately to note that our decision today leaves open the question whether new аppellate rights arise from a new sentencing entry issued in order to comply with
. The state has raised this issue in its second proposition of law in State v. Allen, ease No.2010-1342,