Former Athens County Sheriff Pat Kelly has been behind bars for almost exactly 10 months since his conviction on Feb. 12.
While he still has a total of six years and three months left to serve in Allen Correctional Institution in Lima, Ohio, he and attorney Scott Wood hope to change that.
After Kelly’s sentencing hearing in March, Wood indicated that his client would soon be seeking an appeal, according to previous Post reports. On Wednesday, Wood filed a brief outlining the basis for Kelly’s appeal, according to Athens County Court of Common Pleas documents.
The brief, filed with Ohio’s Fourth Appellate District Court, said the trial court erred in finding Kelly guilty of criminal contempt and did not answer a question posed by the jury during the more than 16-hour deliberation. Additionally, the documents stated that the state, represented by Assistant Ohio Attorney General Melissa A. Schiffel, did not present sufficient evidence to convict Kelly of theft, failure to maintain a cashbook, perjury or engaging in a pattern of corrupt activity.
Most arguments made by Wood center on the idea that charges against Kelly were not proven beyond a reasonable doubt, which is required in all criminal proceedings.
Kelly was previously found guilty in 18 of the 25 charges he was indicted on, including 12 counts of theft in office, one count of perjury, one count of failure to keep a cashbook, three counts of theft and one count of engaging in a pattern of corrupt activity.
Wood’s brief also brought forward a few issues in question, including whether the gag order placed on Kelly before the trial violated Kelly’s right to due process.
Kelly was found in contempt of court in January after violating his gag order by speaking to a member of the media during the nearly three-week trial. He was subsequently fined $500, according to court documents.
The violation of the gag order occurred outside of Visiting Judge Patricia Cosgrove’s presence, and therefore must be proven “beyond a reasonable doubt,” according to the brief. The document argued that Kelly didn’t willfully or intentionally violate his court-ordered gag and that Kelly had the right to a criminal trial to determine whether he was guilty of speaking to the media. Additionally, the brief argued Kelly was not read his Miranda rights.
As for the argument that the state presented insufficient evidence to convict Kelly of theft, Wood argued in the brief that all of the money made by Kelly by selling “lawfully forfeited vehicles” was used for “law enforcement purposes.” None of the transactions were properly documented, according to the brief.
The brief called the evidence submitted by Schiffel, which is outlined as the lack of documentation, “insubstantial and insufficient, and of such slight probative value,” adding that the state could not prove Kelly used the cash for personal gain.
Wood also argued that any money used on meals by Kelly was spent for a law enforcement-related purpose, and the state had presented no evidence to the contrary.
Dollars stolen by Kelly amounted to up to $6,800, according to a statement made by Cosgrove during the sentencing hearing.
On the conviction of engaging in a pattern of corrupt activity, the brief stated “merely committing successive or related crimes is not sufficient” to prove guilt. Additionally, Wood argued in the brief that in order to commit that crime, Kelly would have had to conspire with a group of people.
In the trial, Schiffel argued that group consisted of Kelly, Pearl Graham — a supporter of Kelly who helped transfer objects to the scrapyard — and McKee’s Scrapping.
The brief argued that the three had not conspired together, but simply worked together.
Kelly asked to be released from prison in May for his appeal, according to previous Post reports. That came after his initial request to Cosgrove was denied. Cosgrove said Kelly was a flight risk.
The convicted ex-sheriff then sought the opinion of the Fourth District Court of Appeals, which upheld Cosgrove’s decision in a 2-1 vote, stating Kelly’s violation of his gag order, his flight risk and his failure to turn over county property — including his badge — as reason for Kelly’s continued incarceration.