SIDNEY — The decision to allow former Shelby County Sheriff Dean Kimpel to withdraw his guilty plea to a charge of his improper use of a computer in 2012 could be made within the next 60 days. If granted, Kimpel would place himself in position to be criminally prosecuted on original charges.
Following a daylong hearing Friday in Shelby County Common Pleas Court, Judge James Brogan, a retired judge of the Second District Court of Appeals who has been appointed by the Ohio Supreme Court to hear this case, said a vital piece of evidence in a sexual battery case linked to the computer offense must be provided to the court.
The charge of unauthorized use of computer, cable, or telecommunications property is a felony of the fifth degree. Kimpel was accused in 2012 of using the Ohio Law Enforcement Gateway (OHLEG) to illegally look up individuals for personal purposes. In April 2012, Kimpel entered a guilty plea to one count of unauthorized use of computer, cable, or telecommunications property.
Later that year he resigned as sheriff and was fined and sentenced to two years of community control for the offense. A charge of sexual battery against him in Auglaize County was dismissed at that time, as part of a plea agreement.
In August of 2016, defense attorney Jeremy Tomb, with Klein, Tomb and Eberly, of Troy, filed a motion to file the transcript of Kimpel’s interview with Licking County detectives, given pursuant to a Garrity Warning, under seal.
The motion said, “Given the nature of a Garrity Warning, these statements cannot be used against Mr. Kimpel in criminal proceedings and are provided solely for the consideration of the court with regard to the motion to withdraw guilty plea.”
According to garrityrights.org, Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. Since Kimpel was an elected official, there was a question whether the warning he was given before speaking to detectives was appropriate.
The Licking County investigation involved the sexual battery case that was dismissed.
The motion to withdraw the guilty plea says, “the only evidence in either of the cases against Mr. Kimpel was the statements of a thoroughly discredited former employee who had recently been fired by (the sheriff’s office).”
It claims the prosecutor’s office was only willing to dismiss the sexual battery case if Kimpel took a plea in the Shelby County case.
In the court filing, Tomb stated, “The evidence did not show that Mr. Kimpel sexually assaulted or harassed (the alleged victim), misused OHLEG or committed an unauthorized use of computer violation. The evidence is favorable to Mr. Kimpel. It was either willfully or inadvertently suppressed by the government, and prejudice ensued. Without this information, Mr. Kimpel cannot be said to have knowingly and intelligently entered a guilty plea. He could not properly defend against these accusations and could not properly weigh the merits of the plea deal he entered into.”
With Kimpel on the stand Friday, Brogan asked the former lawman if he understood that granting the withdrawal of his plea could open the door for his prosecution on the original charges. Kimpel indicated he was fully aware.
Throughout the day, attorneys, and witnesses debated the existence and availability of a video interview with an alleged victim regarding her credibility in the sexual battery case. Brogan said since the point was well discussed, if Tomb, of Troy, filed a motion requesting the video, he would compel the sheriff’s office in Wapakoneta to come forth with the evidence.
Tomb has 30 days to file his motion. Once granted, the judge said he would give state-appointed prosecutor Aaron Lowe, of Sidney, 30 days to respond. Brogan said he would request three copies of the video for review by himself and attorneys.
Also, Brogan indicated that testimony given by Kimpel to Licking County investigators should have been protected by the Garrity warning and not used in pursuing the plea agreement in the cases.
On the stand, Kimpel said he pleaded no contest to one count of unauthorized use of a computer in 2012. Kimpel claimed evidence withheld from him and his then-attorney, Michael Rumer of Lima, led to a plea agreement he said he normally would not have made.
Prosecution witnesses called Friday were Capt. Chris Barbuto of the Licking County Sheriff’s Office, and Jim Frye of the Shelby County Sheriff’s Office. Defense witnesses included Kimpel; Rumer; Miami County Prosecutor Tony Kendall; Todd Brown, a retired agent of the Bureau of Criminal Investigation; and Deputy James Holtzapple, of the Auglaize County Sheriff’s Office.
The writer is a regular contributor to the Sidney Daily News.