State v. Smithberger
2017 Ohio 8015
| Ohio Ct. App. | 2017Background
- Katrina Smithberger pleaded guilty to one count of fifth-degree felony theft (theft of six checks totaling $5,400) and was sentenced to 12 months, suspended to five years of community control with 30 days jail (12 days credit) and restitution.
- She was later accused of new thefts on March 22–24, 2016, and failed to pay restitution or costs; a motion to revoke community control was filed May 11, 2016.
- Smithberger failed to appear at the initial revocation hearing (warrant issued) but appeared in custody for a June revocation hearing and admitted the violations.
- At the June 16, 2016 sentencing, she declined to speak; the trial court revoked community control and ordered her to serve the remaining balance of the original 12‑month term, reduced to seven months after credit and a 91‑day suspension.
- Court‑appointed appellate counsel filed a no‑merit (Toney) brief; no pro se brief was filed by Smithberger. The appellate court conducted an independent review and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in revoking community control | State: Evidence and defendant's admission supported revocation | Smithberger: (no pro se brief filed; counsel found appeal frivolous) | No abuse of discretion; revocation upheld |
| Whether the sentence is contrary to law or unsupported by the record | State: Reimposition of remaining prison term was within statutory range and based on consideration of sentencing statutes | Smithberger: (no argument presented) | Sentence (seven months) is within range and the record shows statutory factors were considered; affirmed |
Key Cases Cited
- Toney v. State, 23 Ohio App.2d 203 (7th Dist. 1970) (procedure when appointed counsel finds an appeal frivolous)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (due process requires preliminary and final revocation hearings)
- State v. Adams, 62 Ohio St.2d 151 (Ohio 1980) (definition of abuse of discretion)
- State v. Scott, 6 Ohio App.3d 39 (Ohio Ct. App. 2d Dist. 1982) (standard of review for probation revocation)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard for appellate review of felony sentences)