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Hohn v. State

Supreme Court of Delaware

August 14, 2014

ROBERT HOHN, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee

Submitted May 29, 2014

Case Closed September 2, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below--Superior Court of the State of Delaware in and for New Castle County. Cr. ID No. 1211021787.

Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.

ORDER

Henry duPont Ridgely, Justice

This 14th day of August 2014, upon consideration of the appellant's brief filed under Supreme Court Rule 26(c) (" Rule 26(c)" ), his attorney's motion to withdraw, and the State's response, it appears to the Court that:

(1) On November 28, 2012, the appellant, Robert Hohn, and his fiancé e were arrested in connection with the abuse of Hohn's child. A grand jury indicted Hohn on charges of Child Abuse in the First Degree, Assault in the Second Degree, Conspiracy in the Second Degree, Felony Endangering the Welfare of a Child, Unlawful Imprisonment in the Second Degree, and eight counts of Misdemeanor Endangering the Welfare of a Child.

(2) On September 16, 2013, Hohn pled guilty to Assault in the Second Degree and Misdemeanor Endangering the Welfare of a Child. Following a presentence investigation, the Superior Court sentenced Hohn to a total of nine years at Level V, suspended after six years and one month for two years at Level IV suspended after six months for two years and eleven months at Level III probation. This is Hohn's direct appeal.

(3) On appeal, Hohn's appellate counsel (" Counsel" )[1] has filed a brief and a motion to withdraw under Supreme Court Rule 26(c) (" Rule 26(c)" ). Counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Hohn responded to Counsel's presentation with a written submission that raises two points challenging the sentence imposed by the Superior Court. The State has responded to the position taken by Counsel as well as the issues raised by Hohn and has moved to affirm the Superior Court's judgment.

(4) When reviewing a motion to withdraw and an accompanying brief under Rule 26(c), the Court must be satisfied that the appellant's counsel has made a conscientious examination of the record and the law for arguable claims.[2] The Court must also conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.[3]

(5) In the first of two points, Hohn contends that the length of his sentence exceeds the statutory maximum by six months. Hohn is mistaken. By statute, when the Superior Court imposes a sentence of incarceration that totals one year or more, the court must include a period of at least six months at Levels IV, III or II " to facilitate the transition of the individual back into society." [4] The six-month transition period " may, at the discretion of the court, be in addition to the maximum sentence of imprisonment established by the statute." [5]

(6) In his second point on appeal, Hohn contends that the judge's " repeated references" to an unrelated criminal case that was prosecuted during the judge's tenure as Attorney General, indicated that the judge was biased and had a closed mind when imposing sentence. A sentencing judge exhibits a " closed mind" when the sentence imposed " is based on a 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 " ...


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