ELYRIA — Lorain County Common Pleas Judge James Burge didn’t have the power to acquit Joseph Allen of child molestation charges last year, Assistant County Prosecutor Billie Jo Belcher told a panel of three appeals court judges Tuesday.

Burge cleared Allen and Nancy Smith of charges they had molested 4- and 5-year-old children on Smith’s Head Start bus route in the 1990s. The pair was in prison until early last year when Burge ordered each of them freed while he prepared for a new sentencing hearing because of technical problems with the sentencing entries prepared by his predecessor following Smith’s and Allen’s 1994 convictions.

But Belcher argued Tuesday that Burge could have corrected the problem through a new sentencing entry. She said there was no need for Burge to hold a new sentencing hearing, which never even took place because Burge acquitted the pair.

“ ‘By a jury’ were the three words that were missing from Mr. Allen’s entry,” Belcher said during Tuesday’s hearing, which focused solely on Burge’s decision to acquit Allen.

K. Ronald Bailey, Allen’s attorney, argued that Burge had the authority to revisit any motion made during the trial, including one to acquit Allen after prosecutors rested their case, because the sentencing entry contained an error. A trial judge can change his mind on a motion anytime before a proper sentencing entry is filed, he said.

“The reality is if it’s not a final appealable order, it’s not a final appealable order,” he said.

Without such an order, Bailey said, it was as if nothing that happened after a jury found Allen guilty — including a decision by the 9th District Court of Appeals upholding the conviction — actually happened.

But Belcher argued that Burge had to live with the decisions made during the trial by then-County Common Pleas Judge Lynett McGough.

“We believe the trial court was stuck with these rulings,” she said.

Belcher said that there was plenty in the case file, including another document stapled to the sentencing entry, that gave notice to Allen that he had been convicted by a jury.

After the hearing, Bailey said that even if the appeals court rules that Burge overstepped his authority, Allen won’t be returned to prison. Once someone is acquitted, he said, the charges can’t be brought back.

Prosecutors disagree and, along with Ohio Attorney General Richard Cordray, have sued Burge, arguing that Smith and Allen should be returned to prison. Burge has asked for those cases to be dismissed.

Although they were tried together, Allen and Smith — who have always maintained their innocence — insist they don’t know each other. The appeals in their cases are also being handled separately, and Smith’s appeals case has not yet been scheduled for oral arguments.

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

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