Response filed in Robert Mark Smith appeal
The legal saga surrounding a Kremmling man continues to move through the local court system with the recent filing of a brief from the district attorney’s office in response to the man’s efforts to appeal his case.
Robert Mark Smith’s case has worked its through the legal system over the past three years after he was charged with assaulting a tenant at his mobile home park in Kremmling in 2016.
In October 2017, Smith pleaded no contest to misdemeanor third-degree assault as part of a plea agreement and entered probation. He initially refused to sign a probation document that prohibited him from possessing any firearms, explosives and weapons but eventually signed the paperwork after a January 2018 hearing confirmed it was a requirement of probation.
In October 2018, Smith approached his probation officer and informed her he had ammunition in his possession and asked if he would be allowed to keep it. The conversation came over three months after Smith’s probation officer initially filed a motion to revoke his probation by alleging that Smith had committed a new crime, failed to provide proof he had relinquished any weapons he possessed, and that Smith had traveled outside Colorado without permission.
A few days after Smith approached his probation officer, he was arrested by local law enforcement for probation violation. A subsequent search of his Kremmling home turned up roughly 1,700 rounds of ammunition.
In mid-November, Smith was found in violation of his probation in Grand County Court. He was sentenced to two-years in jail in December. In January, Smith’s legal counsel filed notice that they plan to appeal those two court decisions. An opening appeal brief was filed by Smith’s legal counsel in April.
On May 29, officials from the 14th Judicial District Attorney’s Office filed a brief in Grand County District Court responding to an opening appeal brief filed by Smith’s legal counsel, Leslie Goldstein, in mid-April. The answer brief spans 11 pages and lays out the argument against Smith’s appeal.
The response from the DA’s office notes Smith’s appeal is predicated on two specific claims — the court erred when it found Smith in violation of his probationary sentence and the court abused its discretion when it sentenced him to a two-year jail term.
The brief from the DA spends several pages laying out the history and details of the Smith’s case and the events that led to his 2018 assault conviction and subsequent jail sentence.
“The record is abundantly clear that there was sufficient evidence for the Trial Court to find by a preponderance of the evidence that Mr. Smith violated his probation,” reads the answer brief.
Attorney’s from the DA’s office note in the brief that Smith signed his plea agreement and documents listing the specific conditions of his probationary sentence. The brief notes that Smith “balked” at complying with one of the conditions of his probation that prohibited him from possessing or having access to firearms or explosives, destructive devices, dangerous instruments or weapons.
According to the brief, Smith initially argued his plea agreement did not include a prohibition against him possessing any firearms, explosives or weapons. A hearing was subsequently held on the issue, and the court ruled prohibitions on possession of firearms, explosives and weapons are standard conditions of probation and that Smith was required to comply with the condition.
“The language forbidding Mr. Smith from possessing any ‘explosive or other destructive device’ is not ambiguous,” reads the DA’s brief. “The trial court clearly found that ammunition is certainly a destructive device.”
The brief also rebuts the allegation that Smith was not aware ammunition constituted an explosive or destructive device by calling Smith’s argument “unpersuasive and not credible.”
In regards to the court’s alleged abuse of discretion when it sentenced Smith to a two-year jail term, the brief notes Smith was given the option to serve out his time in an in-patient mental health facility.
“The option to serve his sentence in an in-patient mental health facility clearly takes into account the case law factors cited by Mr. Smith,” states the DA’s brief. “Therefore, the Trial Court did not abuse its discretion when it imposed a two year jail sentence but also stated that Mr. Smith would receive day-for-day credit if he enrolled and participated in an in-patient mental health facility.”
A LONG HISTORY
The incident at the core of Smith’s legal battle occurred on July 29, 2016, when he threatened a tenant at his Kremmling mobile home park with a two-by-four with nails sticking out. Smith went on to plead no contest to a charge of third-degree assault, a misdemeanor, as part of his plea agreement in October 2017.
Under the plea agreement, Smith was required to enter supervised probation for 15 months and offered a deferred judgment, meaning that his case would be dismissed if he completed his probation without violating its conditions or committing any additional crimes.
Smith initially contested one of the conditions of his probation — that he not possess any firearms or explosives, destructive devices, dangerous instruments or weapons.
In January 2018, the court ruled Smith must comply with all conditions of his probation, including those prohibiting him from having firearms, explosives and weapons. In October 2018, Smith was arrested and charged with a probation violation after he informed his probation officer that he had ammunition in his possession and asked if he was allowed to continue possessing it.
A search of Smith’s Kremmling home shortly after his October arrest turned up 1,700 rounds of ammunition. Investigators also found a receipt for $57,000 worth of ammunition, firearms, swords, pocket knives and jewelry. Also, a package containing approximately 2,000 rounds of ammunition was shipped to Smith via the US Postal Service in early October 2018.
In November 2018, Grand County Court Judge Nicholas Catanzarite found Smith in violation of his probation. A little less than one month later, the judge sentenced Smith to two years in jail and gave him the option of receiving day-for-day credit on his sentence for every day he spends in an inpatient mental health treatment facility.
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