State ex rel. DeWine v. Burge

2011 Ohio 235, 128 Ohio St. 3d 236
CourtOhio Supreme Court
DecidedJanuary 27, 2011
Docket2010-1216
StatusPublished
Cited by82 cases

This text of 2011 Ohio 235 (State ex rel. DeWine v. Burge) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. DeWine v. Burge, 2011 Ohio 235, 128 Ohio St. 3d 236 (Ohio 2011).

Opinions

Per Curiam.

{¶ 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 jurisdiction to remedy a Crim.R. 32(C) defect by granting a judgment of acquittal, we reverse the judgment of the court of appeals and grant the writ.

Facts

Criminal Proceedings

{¶ 2} In 1994, a jury convicted Nancy Smith and Joseph Allen of numerous sex offenses involving children enrolled 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 the 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 Appeals 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.

[237]*237{¶ 3} In 2008, Smith filed a motion for reconsideration of her sentence. In 2009, Allen filed a motion for resentencing. The defendants claimed that their August 1994 sentencing entries did not comply with Crim.R. 32(C) and thus did not constitute final, appealable orders. Appellee, Lorain County Court of Common Pleas Judge James M. Burge, who succeeded the judge who had sentenced the defendants to prison, granted the motions and vacated the convictions and sentences. Judge Burge ruled that the court’s jurisdiction included “the preparation of a corrected sentencing entry or, in the court’s discretion, a resentencing.” On June 24, 2009, Judge Burge entered judgments of acquittal pursuant to Crim.R. 29(C) for both Smith and Allen, discharged them, and ordered the Lorain County Sheriffs Department to remove them from the sex-offender registration and notification system.

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 Appeals 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-Ohio-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 Crim.R. 29(C) motion for acquittal. Id. The court of appeals did, however, issue a writ of prohibition vacating Judge Burge’s acquittal of Allen because, unlike Smith, Allen had not filed a timely motion for acquittal pursuant to Crim.R. 29(C). Id. at ¶ 30, 34, 36.

{¶ 6} This cause is now before 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 to the requested writ of prohibition vacating Smith’s acquittal, the appellants were required to show that Judge Burge patently and [238]*238unambiguously lacked jurisdiction to enter the judgment of acquittal. State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12.

Crim.R. 32(C)

{¶ 8} Crim.R. 32(C) provides that a “judgment of conviction shall set forth the plea, the verdict, or findings upon which each conviction is based, and the sentence.” In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus, we explained this requirement by holding that a “judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court.”

{¶ 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 Crim.R. 32(C).

{¶ 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, ¶ 7, 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 Crim.R. 32(C) and Baker. Webber at ¶ 7.

{¶ 13} Finally, Smith’s sentencing entry did not comply with Crim.R. 32(C). In Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, at ¶ 14, we found that under Crim.R. 32(C), “a trial court is required to sign and journalize a document memorializing the sentence and the manner of the 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.” (Emphasis added.) Smith’s sentencing entry recited only that she had been found guilty of the various offenses and did not disclose that she had been found guilty by a jury.

[239]*239{¶ 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 Crim.R.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ohio 235, 128 Ohio St. 3d 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dewine-v-burge-ohio-2011.