ELYRIA — An appeals court has thrown out the challenge prosecutors had mounted to Lorain County Common Pleas Judge James Burge’s decision to resentence convicted child molester Joseph Allen.
Burge freed Allen, who was serving five consecutive life sentences, in April because of a technical flaw in Allen’s 1994 sentencing entry.
Burge has also freed former Head Start bus driver Nancy Smith, who was convicted along with Allen and sentenced to 30 to 90 years in prison.
The 9th District Court of Appeals also rejected the efforts of prosecutors to appeal Burge’s decision in Smith’s case, saying that because the judge hasn’t resentenced her his decision cannot yet be appealed. The appeals court gave the same explanation in its decision in Allen’s case Wednesday.
K. Ronald Bailey, Allen’s attorney, said he had expected the appeals court to make the decision it did because of how it handled Smith’s case.
The decision also frees him to ask Burge to grant Allen a new trial based in part on newly discovered evidence, including a videotaped police interview of Allen that his trial attorneys were never shown.
Jack Bradley, Smith’s attorney, has said he too plans to ask Burge to grant Smith a new trial. Bradley also plans to ask Ohio Gov. Ted Strickland to commute Smith’s sentence.
Even if Burge were to resentence Smith to the minimum sentence of five to 25 years, she would still have to be locked up again until the Ohio Parole Board released her or she’d served 25 years. Two years ago the parole board refused to grant Smith parole because, like Allen, she maintains her innocence.
Bailey said he plans to see what happens with Smith’s clemency request before he files something on Allen’s behalf.
The two cases are linked, and, if one of them is cleared, the other should be as well, he said.
Smith had been accused of taking 4- and 5-year-olds who rode her bus to Allen’s Lorain home, where they were molested. The pair insists they never met before their trial.
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