A little over four months after he was sentenced to a two-year jail term following a probation violation case, Kremmling man Robert Mark Smith is appealing the decision to a higher court.
Smith’s attorney, Leslie Goldstein, filed an opening brief in mid-April seeking to appeal the decision of Grand County Court Judge Nicholas Catanzarite, who found Smith in violation of his probation last year and sentenced him to two years in jail. Smith is asking the Grand County District Court, with Judge Mary Hoak presiding, to overturn the ruling, arguing that the court “abused its discretion” in revoking and terminating probation and resentencing Smith to the maximum two-year jail sentence.
The 20-page opening brief, filed with Grand County District Court on April 17, cites 10 separate Colorado court cases that, according to Smith’s defense counsel, provides precedent for his legal position.
The crimes that eventually led to Smith’s sentence occurred late July 2016. At that time Smith was charged with one count of felony menacing. His case moved through the court system until October 2017 when Smith entered into a plea agreement for a deferred judgment on an amended count of misdemeanor third-degree assault.
File photo / Emma Trainor
As part of his plea agreement, Smith was sentenced to 15 months of probation during which he was required to comply with the standard terms and conditions of probation. Among those terms included that the person cannot possess or have access to firearms or explosives, destructive devices, dangerous instruments or weapons.
Shortly after he received his probation sentence, Smith filed a motion with the court contending that being prohibited from possessing a firearm was not part of the disposition. In early January 2018, the court found that those terms were, in fact, part of the standard terms of probation to which Smith was required to comply.
In early October 2018, Smith approached his probation officer and notified the officer that he had ammunition in his possession and asked if that was allowed.
“The officer deferred giving an immediate answer and stated that she would speak with a supervisor,” stated the brief. “The following day, Ms. Silvernale (Smith’s probation officer) telephoned Mr. Smith and informed him that possession of ammunition was prohibited.”
Smith then told Silvernale he would remove the ammunition from his property, but was arrested the following day for violating probation, according to the brief.
“Mr. Smith was never given an opportunity to comply with his probation officer’s directive,” says the brief.
The decision to then sentence Smith to jail was, according to the appeal, an abuse of discretion.
The Grand County District Attorney’s Office, which will be defending the county court’s ruling, has not yet filed a response to the appeal brief. They have until May 29 to do so, according to court officials, unless a motion is filed and granted for a time extension.
Smith remains in custody in the Grand County Jail during his appeal period.
His legal counsel previously filed a motion to stay the jail sentence, which was granted, making Smith eligible to bond out of jail. To do so, however, Smith would be required to pay a $75,000 cash-only bond and could not use a bail bondsman.
File photo
Smith has received significant news coverage over the past several years in both local and state media.
In October 2017, shortly before he pleaded no contest to the misdemeanor assault charges that resulted in him being placed on probation, Smith won a case in federal court against the town of Kremmling and members of the Kremmling Police Department. The jury in that case found the Kremmling Police violated Smiths rights and awarded him $775,000 in compensation.