                                 IN THE COURT OF APPEALS
                                           OF THE
                                    STATE OF MISSISSIPPI
                                     NO. 95-KA-01334 COA
EDWARD REYNOLDS                                                                    APPELLANT
v.
STATE OF MISSISSIPPI                                                                 APPELLEE
                 PER CURIAM AFFIRMANCE MEMORANDUM OPINION
  THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                          PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT:                                 08/31/95
TRIAL JUDGE:                                      HON. JOHN LESLIE HATCHER
COURT FROM WHICH APPEALED:                        BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           RABUN JONES
ATTORNEY FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                  BY: OFFICE OF THE ATTORNEY GENERAL
                                                  BY: DEWITT ALLRED III
DISTRICT ATTORNEY:                                LAURENCE MELLEN
NATURE OF THE CASE:                               CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                          DEFENDANT SENTENCED TO TWENTY
                                                  YEARS IN THE CUSTODY OF THE
                                                  MISSISSIPPI DEPARTMENT OF
                                                  CORRECTIONS
DISPOSITION:                                      AFFIRMED - 11/4/97
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:                                   11/25/97



BEFORE McMILLIN, P.J., KING, AND PAYNE, JJ.

PER CURIAM.

This is the second appeal of this case. Edward Reynolds was convicted of sale of a controlled
substance and sentenced to twenty years imprisonment. The Mississippi Supreme Court affirmed the
conviction but reversed and remanded the case for a new sentencing hearing. Reynolds v. State, 658
So. 2d 852 (Miss. 1992). The supreme court found that the prosecution had introduced damaging
evidence at the sentencing hearing which had not been disclosed to the defense before the sentencing
hearing. Id. at 857-58. On remand, Reynolds was again sentenced to twenty years imprisonment.
Reynolds now contends that his sentence violates the due process clause of the Fourteenth
Amendment as well as Article 3, Section 14 of the Mississippi Constitution. He argues that a trial
court may not, consistent with the due process clauses of the state and federal constitutions, impose a
harsher penalty in whole or in part upon a defendant who chooses not to plead guilty and who
insisted on his right to trial.

In this case, the trial judge, during the sentencing hearing, announced what his usual practice was in
drug cases. In response to questions by defense counsel, the trial judge stated:

     Oh, well, I think I can clarify that now. I think you will look at my record throughout all four
     counties -- all five courthouses of this district -- is that when a person is convicted by a jury and
     that person denies his guilt and shows no remorse, no apology, or anything and then it is my
     policy, even for a first offense, to sentence someone to 20 years. And I think all of the other
     officers of this Court, including the District Attorney's office will know that I have done that in
     Tunica, in Rosedale, Cleveland, Clarksdale, and in Quitman County without exception.

     Now if a person, however, appears before me admitting that he did wrong and is sorry for it and
     shows remorse to the Court, then I normally do sentence him in those cases to 12 years of
     which I suspend six and require him to serve six. And, again, I think most everyone will tell you
     that I do that. Now, of course, what I have just said does not take into account that there are
     other aggravating and mitigating circumstances that may cause me to go higher or lower from
     what I just said. So I am not shutting you out. I'm just saying to anyone that is what you are
     going to get, and if you show me mitigating circumstances, I will depart from what I have just
     said, or, if the DA shows aggravating circumstances, I may go more than what I have just said.

Reynolds contends that the judge's statement indicates that Reynolds's due process rights were
violated and that he should be sentenced to twelve years with six years suspended. We disagree and
affirm the sentence of the lower court.

                                            DISCUSSION

In Fermo v. State, 370 So. 2d 930, 932 (Miss. 1979), the supreme court stated:

     [A] criminal defendant may not receive a harsher sentence solely, or even partially, because he
     refuses to plead guilty and proceeds to require the prosecution to prove his guilt. The rationale
     behind the principle is that the coercion or the inducement casts a chill over the exercise of
     guaranteed fundamental constitutional rights. The sentencing court may consider only legitimate
     factors and cannot base the sentence, either in whole or in part, upon the defendant's exercise of
     his constitutional rights to a jury trial.

The supreme court in Fermo upheld a fifteen year sentence with three years suspended, where the
defendant had been offered a seven year sentence if he would enter a plea of guilty. In the other cases
where the supreme court has considered this issue, the court has also upheld the imposition of a
greater sentence after trial than that offered in exchange for a guilty plea. See Bush v. State, 667 So.
2d 26, 28-30 (Miss. 1996); Gillum v. State, 468 So. 2d 856, 863-64 (Miss. 1985); Pearson v. State,
428 So. 2d 1361, 1364-65 (Miss. 1983); Williamson v. State, 388 So. 2d 168, 170 (Miss. 1980).
In Gillum v. State, the appellant referred to several statements made by the trial judge as supporting
his claim that the sentence was enhanced because of the demand for a jury trial. The trial judge had
stated that "if you gave them all the same bargain if the Jury convicted as you did when they pled
guilty, you know, there's got to be some incentive for coming on in and pleading, so they don't get
the same bargain when the jury convicts them as they do when they plead." Gillum, 468 So. 2d at
864. The supreme court termed these "intemperate remarks" but affirmed the sentence where the
record showed that the sentence was based on the defendant's prior convictions and the
presentencing report. Id.

In the present case, the trial judge based his review of the sentence previously imposed on the
updated presentencing report. In particular, the judge considered that the mitigating circumstances
had not changed substantially in the four years while the sentence was on appeal but that the
aggravating circumstances were more firmly established. Reynolds had been convicted on aggravated
assault charges which had been only pending charges at that time. "[W]here, as here, the record
reveals without a doubt that the sentence imposed was based solely upon the defendant's prior
convictions, or, as here, the presentencing report, we will not disturb the trial court's discretion in
sentencing." Id.

THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION
OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF TWENTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.


BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING,
HINKEBEIN, KING, PAYNE, AND SOUTHWICK, JJ., CONCUR.
