ELYRIA — Prosecutors on Monday asked a state appeals court to send Nancy Smith and Joseph Allen back to prison and to overturn a county judge’s order that acquitted them of the controversial child molestation charges they were convicted of 15 years ago.

Lorain County Common Pleas Judge James Burge didn’t have the authority to acquit Allen and Smith or to even consider doing so, Assistant County Prosecutor Billie Jo Belcher wrote in court documents filed Monday with the 9th District Court of Appeals.

But attorneys for Smith and Allen argue that because Burge has acquitted their clients, they can’t be returned to prison. An acquittal, the attorneys argue, is final.

Belcher wrote that isn’t true in the Head Start case because Burge didn’t follow the law.

“The state cannot challenge validly entered acquittals,” she wrote. “However, (the state) appeals the unlawful procedure used in this case — not the facts of the verdict or acquittal. This case has no validly entered acquittal.”

Smith was accused during the trial of taking 4- and 5-year-old children on her Head Start bus route to Allen’s Lorain home, where they said they were sexually abused. Smith and Allen have always maintained their innocence and insist they didn’t know each other before they were charged.

Burge agreed to hold new sentencing hearings for the pair because of a technical flaw in the sentencing entries completed by his predecessor, retired Judge Lynett McGough.

McGough, Burge found, failed to mention in the entries that Allen and Smith had been convicted by a jury, something required by Ohio law. Without that language, Burge contended, the entry was void.

Belcher wrote that the problem could have been corrected with new sentencing entries. There was no need — and Burge didn’t have the authority — to hold new sentencing hearings.

Smith was serving a 30-to-90-year prison sentence, while Allen was serving five consecutive life prison terms when Burge ordered them brought back to Lorain County and freed them on bond.

Burge later acquitted the pair — saying he had no confidence in the guilty verdicts — after reviewing the evidence in the case, including taped interviews of the child victims that he called highly suggestive.

Prosecutors were given permission to appeal Burge’s decision, “except to the extent (prosecutors) challenges the ‘final verdict.’ ”

Burge and Smith’s and Allen’s attorneys contend that means that even if the appeals court rules that Burge made an error, Smith and Allen would remain free. Prosecutors argue that if Burge’s decision is overturned, Smith and Allen should be locked up again.

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

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