ELYRIA - Former Head Start bus driver Nancy Smith will get her resentencing hearing, an appeals court ruled Monday.

In a 2-1 ruling, the 9th District Court of Appeals found that prosecutors cannot appeal Lorain County Common Pleas Judge James Burge`s decision to hold a new sentencing hearing for Smith to correct a technical flaw in the 1994 sentencing entry that sent her to prison for 30 to 90 years.

Because Burge hasn`t resentenced Smith, his decision cannot yet be appealed, the appeals court said.

Prosecutors had argued to Burge that the mistake in the original sentencing entry could have been fixed with a new entry and no new hearing was necessary.

Burge freed Smith on bond after his February decision. In April he ruled that he would resentence Joseph Allen, Smith`s co-defendant in the Head Start child molestation case. Allen, who was serving five consecutive life sentences, is also free on bond.

The conviction of Smith, who is accused of taking several 4- and 5-year-old children on her bus route to Allen`s Lorain home, where they were molested, has long been controversial. Both Smith and Allen maintain their innocence.

Jack Bradley, Smith`s attorney, said he had mixed feelings about the appeals court decision.

Burge can now rule on whether Smith is required to register as a sex offender, which she did after Allen was required to do so in April, but it also means that Burge can hold the sentencing hearing, Bradley said.

Even if Burge gives Smith the minimum of five to 25 years in prison, she would still have to return to prison. Smith would then have to serve the full 25 years or convince the Ohio Parole Board to release her.

In 2007, the Parole Board rejected her parole request, saying Smith was in denial because she refused to admit her guilt.

Bradley said the appeals court decision will force him to speed up his efforts to convince Ohio Gov. Ted Strickland to commute Smith`s sentence and allow her to keep her freedom.

“I hope he thinks from the prison ministry side of his brain and not the political side,” he said.

But Bradley also said that he likely won`t ask Burge for a new trial for Smith because the evidence he hoped would vindicate Smith isn`t as strong as he would have liked.

“I was hoping I would get information that was going to be a home run, and I don`t have a home run,” he said.

K. Ronald Bailey, Allen`s attorney, said he still plans to ask Burge for a new trial and bring up some constitutional issues on behalf of Allen.

Bailey said he believes that the appeals court will have the same finding in the appeal filed against his client by prosecutors.

Lorain County Prosecutor Dennis Will said Monday he doesn`t know yet whether his office will be able to take the appeals court decision to the Ohio Supreme Court or if he would do so even if it is possible.

He said he believed Burge`s order could be appealed.

“I would not have appealed it had I not believed it was a final appealable order,” he said.

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

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