Tuesday, October 24, 2017 Elyria 54°


New ruling may affect Head Start outcome


ELYRIA — A decision by the Ohio Supreme Court in a Mahoning County rape case could impact the fight over whether Lorain County Common Pleas Judge James Burge’s decision to acquit Nancy Smith and Joseph Allen in the controversial Head Start child molestation case will stand.

The decision, handed down by the Supreme Court on Wednesday, said the proper way to handle a technical flaw in a sentencing entry is to correct the mistake in a new entry, not through a new hearing.

Burge said he relied on other case law when he determined that the best way to correct a flaw in the sentencing entries for Allen and Smith, as the original entries failed to note the pair had been convicted by a jury. Burge had planned to hold new sentencing hearings last year, but before those hearings took place, he instead acquitted Smith and Allen of the charges against them.

County Prosecutor Dennis Will said Wednesday’s Ohio Supreme Court decision is exactly what his office has been arguing — that Burge had only to prepare new sentencing entries for Smith and Allen. A new sentencing hearing isn’t necessary, he said.

“All you’re entitled to is a correction to the entry,” Will said.

And although Will said the Mahoning County case doesn’t immediately change what’s going on in the Head Start case, it does give prosecutors more ammunition to use if the case does land on the Supreme Court’s docket.

“Clearly, this would be something that will have an impact going forward,” he said. The latest decision in the Head Start case, handed down last month by the 9th District Court of Appeals, appears to have split the fates of Smith and Allen, who, although tried together, have long denied knowing each other and maintained they hadn’t molested 4- and 5-year-old children on Smith’s Head Start bus route in the 1990s.

The appeals court held that Burge’s decision to acquit Smith should stand because her trial lawyer asked Burge’s predecessor to throw out the jury’s decision to convict his client after the trial was over. When Burge agreed to hold a new sentencing hearing for Smith, it gave him the power to revisit the motion to acquit Smith, the appeals court ruled.

But the appeals court ruled against Allen, saying that all Burge had the power to do was resentence Allen because his trial attorney didn’t file a motion after the jury verdict came down asking then-Common Pleas Judge Lynett McGough to acquit him.

Burge is working on his appeal of the Allen decision, and Will has said his office is reviewing whether to appeal the portion of the decision affecting Smith.

Burge said he doesn’t believe that the Mahoning County case, which centered on convicted rapist Clemente Alicea’s efforts to win a new sentencing hearing, changes anything in the Head Start case.

“It’s saying he’s not entitled to a resentencing hearing, but it does not prevent a trial court from conducting a resentencing hearing,” the judge said.

Jack Bradley, Smith’s attorney, agreed with Burge, saying it might be a moot point in his client’s case.

“We don’t have any sentencing entry to correct because the judge acquitted Nancy,” he said.

Alicea’s case also is different because although he argued that there were problems with the 1999 sentencing entry that sent him to prison for life, the Supreme Court ruled that the entry was properly prepared.

Both prosecutors and defense attorneys have said the original entries in the Head Start case failed to note that Smith and Allen were convicted by a jury.

Will said other cases pending throughout the state also focus on how technically flawed sentencing entries should be handled by the courts. Those too could have an impact on the future arguments of both sides, he said.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

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