Kelly defense seeks to dismiss charges in 2011 murder case

By Randa Wagner

February 11, 2014

Defense attorney Earl Desmond has filed a motion to drop all charges against Cory Kelly, Galion, regarding the death of Joseph Rosella on July 4, 2011. Desmond maintains the 180 day limit under the ‘speedy trial’ statute has expired and the case should be dismissed on those grounds.

A year ago, Kelly and attorneys Earl Desmond and Don Wick filed a Motion for Notice of Availability, indicating Kelly ‘wished to have his case tried as soon as possible.’

Kelly faces charges of aggravated murder and tampering with evidence. In Desmond’s January 27, 2014 motion to dismiss, he said a Motion for Notice of Availability was received by the court Nov. 27, 2012. A series of motions and requests delayed setting a trial date up to the February 8, 2013 hearing, which involved a motion to suppress evidence over the matter of custodial interrogation.

In the May 3, 2013 journal entry, Hickson rendered his decision on the motion to suppress and stated, ‘the court took under advisement the defendant’s Motion for Notice of Availability, or in some manner Request for Immediate Court Proceedings and therefore the proceedings will be set for trial expeditiously.’

He also noted, however, that some of the many motions filed in the case were not yet decided and some reports were still incomplete. Hickson said a number of factors have contributed to the length of the case, and found there was a justifiable delay to allow argument for the motion and postponing the setting of a trial date. No trial date was set at the time of his decision in May.

The defense is holding the date of the May 3 decision as the point of time to be tolled from, which puts the upcoming trial date of March 3, 2014 out of the 180 day ‘speedy trial’ statute. That time period expired October 30, 2013 and, as the defense’s motion states, ‘the matter has not begun to be adjudicated (resolved).’

“The State of Ohio doesn’t control the docket, only the judge does,” said Prosecutor Charles Howland on Monday. He said it is the court’s responsibility to set hearing and trial dates. Kelly was arraigned in July of 2011, and motions to suppress evidence are supposed to be filed 35 days after arraignment. Kelly’s motion was filed 381 days after that time, which was a point of contention with the prosecution.

The request from the defense is for the case to be dismissed with prejudice (not subject to further action).

Kelly is being held in the Ross County Correctional Facility in Chillicothe, Ohio.