ELYRIA — Ohio Attorney General Richard Cordray has joined county prosecutors in trying to get Nancy Smith and Joseph Allen sent back to prison in connection with their 1994 convictions on charges they sexually assaulted children in the Head Start program.

Lorain County Common Pleas Judge James Burge didn’t have the authority to acquit Allen and Smith, Assistant Attorney General M. Scott Criss and Assistant County Prosecutor Billie Jo Belcher wrote in court documents filed 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.

Criss and Belcher wrote that courts “do not possess inherent power to suspend, cancel, or modify a criminal sentence once that sentence has been executed, absent statutory authority to do so.”

The jurisdiction of common pleas court to suspend, cancel or modify a sentence is limited to offenses where probation is a possible sentence, according to the filing from Criss and Belcher.

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.

Prosecutors contend 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.

Contact Cindy Leise at 329-7245 or cleise@chroniclet.com.

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