Osburn v. State, 224 A.2d 52 (Del. 1966). · Go Syfert
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Osburn v. State, 224 A.2d 52 (Del. 1966). Cases Citing This Book View Copy Cite
18 citation events (8 in the last 25 years) across 2 distinct courts.
Strongest positive: Gingerich v. State (del, 2025-06-30)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Gingerich v. State
Del. · 2025 · confidence medium
It considered the underlying facts, the victim-impact statements of S.G. and Gingerich’s wife, the relevant mitigating and aggravating factors, and the presentence investigation report. 13 App. to Opening Br. at A86. 14 Ferguson, 283 A.3d at 79 (quoting Weston, 832 A.2d at 746 ). 15 Osburn v. State, 224 A.2d 52, 53 (Del. 1966). 16 Weston, 832 A.2d at 746 (citing Shelton v. State, 744 A.2d 465, 513 (Del. 1999)). 6 The court acknowledged that “somehow” Gingerich had no prior convictions and that was a mitigating factor to consider.17 In the court’s own words, however, “there [are] nume…
discussed Cited as authority (rule) State v. Smith
Del. Super. Ct. · 2022 · confidence medium
Mitigating Factors 17 Davenport v. State, 150 A.3d 274 (Table) (Del. 2016). 18 Id. 19 Id. 20 Id. 9 Movant also asserts that I sentenced him with a closed mind, in violation of Superior Court Criminal Rule 32(a), in that I did not consider mitigating factors, primarily those detailed in the Bell Report, including the following: Nondevelopmental Factors Parenting and Family Factors Community Factors Disturbed Trajectory Factors Protective Factors The Delaware Supreme Court has held that Rule 32(a) "requires, by necessary implication, that before finally reaching a decision as to sentence, the se…
discussed Cited as authority (rule) Miller v. State
Del. · 2019 · confidence medium
That case involved the distinct context of an increased sentence of someone convicted on retrial after a successful appellate attack on his original conviction.13 In that situation, United States Supreme Court precedent imposes a presumption of vindictiveness. 14 10 224 A.2d 52, 53 (Del. 1966). 11 Mayes, 604 A.2d at 846 (quoting Gaines v. State, 571 A.2d 765, 767 (Del. 1990)). 12 425 A.2d 142, 145-46 (Del. 1980). 13 Id. at 145 . 14 E.g., North Carolina v. Pearce, 395 U.S. 711, 725-26 (1969), overruled on other grounds by 7 Because Miller’s sentence was not imposed in that context, there is n…
discussed Cited as authority (rule) Parker v. State
Del. · 2016 · confidence medium
In particular, Parker suggests that the sentencing judge would only 13 Osburn v. State, 224 A.2d 52, 53 (Del. 1966) (citing Green, 365 U.S. 301 ). 14 Weston v. State, 832 A.2d 742, 746 (Del. 2003) (citation omitted). 15 See Dabney v. State, 12 A.3d 1101, 1103 (Del. 2009) (concluding that a judge “clearly did not sentence with a closed mind” where she permitted the defendant to express remorse, heard arguments from both attorneys, and invited the victim to make a statement); McQuay v. State, 2004 WL 2743527 , at *1 (Del.
discussed Cited as authority (rule) Hohn v. State
Del. · 2014 · confidence medium
C. § 4204(l). 5 Id. 3 preconceived bias without consideration of the nature of the offense or the character of the defendant.”6 When deciding on a fair and appropriate sentence in a given case, a judge must have an “open mind at least to the extent of receiving all information bearing on the question of mitigation.”7 (7) At Hohn’s sentencing, the judge made two brief references to the 1998 prosecution and conviction of Carol Albanese for the murder by abuse or neglect of Bryan Martin, her boyfriend’s child.8 The judge’s first remark, stating that “in the Br[y]an Martin case, the…
cited Cited as authority (rule) Jenkins v. State
Del. · 2010 · confidence medium
Osburn v. State, 224 A.2d 52, 53 (Del.1966). 39 .
cited Cited as authority (rule) Dabney v. State
Del. · 2009 · confidence medium
Osburn v. State, 224 A.2d 52, 53 (Del.1966). 7 . 832 A.2d at 746 . 8 . 358 A.2d 725 (Del.1976). 9 .
examined Cited as authority (rule) Shelton v. State (4×)
Del. · 2000 · confidence medium
A person cannot be penalized for exercising his Fifth Amendment privilege.") (citations omitted), cert. denied, 513 U.S. 1136 , 115 S.Ct. 956 , 130 L.Ed.2d 898 (1995); Osburn v. State, Del.Supr., 224 A.2d 52, 53 (1966) (recognizing that due process requires that a judge have an open mind as to the sentence to be imposed, at least to the extent of receiving all information bearing on the question of mitigation). [238] See Dawson, 503 U.S. at 167 , 112 S.Ct. 1093 . [239] See State v. Barrow, Del.Super., 1998 WL 733212 (1998); State v. Zebroski, Del.Super., 1997 WL 528287 (1997); State v. Ferguso…
discussed Cited as authority (rule) Siple v. State (2×)
Del. · 1997 · confidence medium
See Morales v. State, Del.Supr., 696 A.2d 390, 394 (1997); Mayes v. State, Del.Supr., 604 A.2d 839, 842-43 (1992); Hall v. State, Del.Supr., 473 A.2d 352, 357 (1984); Bailey v. State, Del.Supr., 450 A.2d 400, 406 (1982) (quoting Osburn v. State, Del.Supr., 224 A.2d 52, 53 (1966)); Tramill v. State, Del.Supr., 425 A.2d 142, 145 (1980); Jacobs v. State, Del.Supr., 358 A.2d 725, 729-30 (1976).
Retrieving the full opinion text from the archive…
Irvin L. OSBURN, Appellant,
v.
STATE of Delaware, Appellee
Supreme Court of Delaware.
Oct 27, 1966.
224 A.2d 52
1966 Del. LEXIS 149
Michael F. Tucker, Asst. Public Defender, Wilmington, for appellant., F. L. Peter Stone, Deputy Atty. Gen., Wilmington, for the State.
Wolcott, Carey, Herrmann.
Cited by 13 opinions  |  Published
WOLCOTT, Chief Justice.

The prisoner seeks review of a sentence of 25 years for armed robbery. He plead guilty to the indictment; the sentencing judge ordered a presentence investigation and, subsequently, imposed the maximum sentence allowed by the statute, 11 Del.C. § 811.

This Court has no power on appeal to reduce a sentence which is within the maximum penalty allowed by the statute. Seeney v. State, Del., 211 A.2d 908; Cannon v. State, Del., 196 A.2d 399; Hinckle v. State, Del., 189 A.2d 432. The prisoner does not contest this rule, but seeks to have his sentence struck and his cause remanded for sentencing because he says the[*53] sentence was imposed upon him in violation of Criminal Rule 32(a) of the Superior Court, Del.C.Ann. and of 11 Del.C. § 4331(a).

Criminal Rule 32(a) provides in part as follows:

“ * * * Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.”

11 Del.C. § 4331(a) provides in part as follows:

“No offender shall be sentenced to 6 months or more, * * * before a written report of presentence investigation is presented to and considered by the Court. * * * ”

From the transcript of the proceedings at the imposition of sentence, the following appears:

At the outset, the sentencing judge stated to the Public Defender, appearing for the prisoner, that he had a pretty hard case on his hands, to which the reply was that he had. The judge then announced that he considered the case to be a “perfect case” for the imposition of the maximum sentence. He then asked the prisoner if he had anything to say. The prisoner stated that he had been unable to get a job.

The judge then referred to the prisoner’s bad record; stated that because of the prisoner’s age he would not impose lashes, and that there was nothing that could be said for him. The judge then added that if the Public Defender had tried to say something good in his behalf, “I was going to stop him.”

We think the summarized version of what took place at the time of sentencing clearly indicates that the sentencing judge had a “closed mind” on the subject before the proceedings started. This fact alone was a violation of the intent, purpose and spirit of Criminal Rule 32(a) which requires, by necessary implication, that before finally reaching a decision as to sentence, the sentencing judge have an open mind at least to the extent of receiving all information bearing on the question of mitigation. Cf. Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670.

We think it not improper for a sentencing judge to mount the bench with some preconceived notion about the proper sentence to be imposed, but we think it quite improper for him at that point to have closed his mind upon the subject. When such is the case, due process is lacking and the sentence must be struck and the cause remanded for the imposition of sentence in the proper fashion.

The prisoner argues, in addition, that the failure to have the record show affirmatively that the presentence report was considered by the judge, is a violation of § 4331(a). We think to the contrary, however. It would probably be better practice to do so, but there is no requirement of law to that effect. As a matter of fact, we think it apparent that the sentencing judge must have considered the report since it contained the prisoner’s prior record.

The cause is remanded with instructions to strike the sentence imposed upon the prisoner, and with further instructions for the imposition by a different judge of sentence upon the prisoner.