Lorain County Prosecutor Dennis Will’s office on Thursday asked the 9th District Court of Appeals to stay county Common Pleas Judge James Burge’s order that set a new sentencing hearing for the former Head Start bus driver.
That same order also set Smith’s bond at $100,000, which allowed two of Smith’s friends to put up $200,000 worth of property they own to set her free while she awaits the hearing.
Will’s office also wants to appeal Burge’s decision to hold a new sentencing hearing to correct a technical flaw in the original sentencing entry that sent Smith to prison for 30 to 90 years after her 1994 conviction.
But before prosecutors can file an appeal, they must obtain the permission of the appeals court.
Will has argued that the problem can be fixed with a new sentencing entry and that there is no need to hold a new sentencing hearing, which could give Smith a chance to appeal her conviction again.
“It’s simply a scrivener’s error,” Will said.
Assistant County Prosecutor Billie Jo Belcher wrote that asking Burge to keep Smith behind bars would have been pointless.
“It was fruitless for (prosecutors) to request a stay of the judgment from the trial court as the trial court clearly evidenced an intent to release (Smith) by ordering a $100,000 bond for a convicted inmate who has been incarcerated for the past 15 years,” Belcher wrote.
Belcher also wrote that Smith is a flight risk if she’s left free on bond because, even if Burge were to impose the minimum sentence in the case, five to 25 years, Smith would still have to return to prison.
Although Smith, 51, has served nearly 15 years in prison, under the laws in effect at the time of her sentencing, she can only be released if she’s served the maximum amount of time on her sentence or if the Ohio Parole Board sets her free.
The Parole Board rejected her 2007 request, saying she was in “denial” because she has refused to admit to any wrongdoing in the case.
In an interview with The Chronicle-Telegram after her release from custody last week, Smith maintained her innocence and said she would never confess to a crime she didn’t commit just to get out of prison.
Smith was accused of taking several 4- and 5-year-olds who rode her bus to the Lorain home of Joseph Allen, where the children said they were molested.
Smith’s family and her attorney, Jack Bradley, did not return calls seeking comment Thursday.
Bradley has said he plans to file a motion asking Burge for a new trial, based in part on newly discovered evidence he believes will exonerate Smith of the controversial charges against her.
But Belcher wrote that the conviction against Smith still stands, even if she ultimately gets a new sentencing hearing.
“The trial court’s decision does not vacate the multiple guilty verdicts returned by the jury,” she wrote.
Allen, who isn’t eligible for parole until 2056, also is planning to ask Burge to examine the order that sentenced him to five consecutive life terms in prison, according to his attorney.