Fermo v. State

• Decision Date: 09 May 1979
• Docket Number: No. 51091,51091
• Parties: James FERMO v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 930

370 So.2d 930

James FERMO v. STATE of Mississippi.

No. 51091.

Supreme Court of Mississippi.

May 9, 1979.

Rehearing Denied May 30, 1979.

Moore, Epps & Selph, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

LEE, Justice, for the Court:

James Fermo was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, for the sale of three(3) pounds of marijuana. He was sentenced to a term of fifteen (15) years in the Mississippi Department of Corrections, three (3) years being suspended on probation, and he was required to serve twelve (12) years. On March 20, 1978, Judge William F. Coleman heard a motion for a new trial which was overruled, and Fermo has appealed here.

On July 19, 1976, Hugh E. Dickey, II, an agent working undercover for the Mississippi Bureau of Narcotics, purchased three pounds of marijuana from appellant while sitting in his automobile on the parking lot of Olde English Village shopping center in Jackson. Dickey paid three hundred ninety dollars ($390.00) for the marijuana. The unlawful sale was observed by James R. Kelly, who was also an agent of the Bureau of Narcotics, from his automobile which was parked a short distance away from Dickey in the same parking lot.

James Fermo and Barry Trest were together on the evening of July 19, 1976, in said parking lot, and Fermo contends that Trest, not he, sold the marijuana to agent Dickey. Dickey positively testified that Fermo was the individual who sold him the marijuana. Barry Trest was not present at the trial. Apparently, both the State and appellant had difficulty in locating Trest.

After the jury's verdict of guilty and the imposition of sentence, a hearing was held on motion for new trial, wherein appellant's attorney testified that he approached the trial judge (Honorable Russell D. Moore, III) concerning a possible guilty plea after negotiations with the district attorney's office had proved unsatisfactory. The attorney testified that, when ascertaining the maximum sentence for the sale of marijuana to be twenty (20) years in the state penitentiary, the judge offered to sentence Fermo to ten (10) years imprisonment in return for a guilty plea, stating that, "He'd better take it." The attorney also testified that, when the petit jury was impaneled and prior to the commencement of trial, the judge offered a sentence of seven (7) years to Fermo in return for a plea of guilty. At the hearing it was shown to be the practice of the Circuit Court for the First Judicial District of Hinds County to impose a heavier sentence on a person who had declined to enter into plea bargaining in the event that such person was found guilty at the trial.

I.

Did the trial court err in increasing appellant's sentence in violation of the Fourteenth Amendment because appellant exercised his constitutional rights to a trial, to not incriminate himself, to not plead guilty, and to testify in his own behalf?

A majority of the jurisdictions in the United States have upheld the principle that 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 part, upon the defendant's exercising his constitutional rights to a jury trial. United States v. Stockwell, 472 F.2d 1186 (9th Cir. 1973); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Johnson v. State, 274 Md. 536, 336 A.2d 113 (Md.App.1975). The Maryland Court held that any doubt, as to whether or not the exercise of such constitutional rights was considered by the lower court in determining the sentence, must be resolved in favor of the defendant.

In the present case, the assistant district attorney was contacted by appellant's attorney and he expressed no interest in making an offer of sentence acceptable to that attorney and appellant. The attorney then, on his own volition, went directly to the trial judge and attempted to get him to impose a three-year sentence in exchange for a guilty plea, which was declined by the judge. The next day, according to the attorney, the judge told him that he would sentence the defendant to ten years, if he entered a plea of guilty. The attorney replied that he didn't think his client would accept such a sentence and then the judge said (according to the attorney), "Well, he'd better take it." The attorney stated that, after the jury was impaneled, the judge told him seven years was the best he could do for the defendant, and the defendant should take that offer. During the first conversation between the judge and the defendant's attorney, the judge inquired as to the maximum penalty and was informed that it was twenty (20) years in the penitentiary. In the last conversation the attorney said the judge stated, "You know what he can get."

Appellant's attorney initiated the conversations with the judge on the guilty plea in an effort to obtain the lightest sentence possible for his client. There is no indication in the record, and it is assumed, that, but for the attorney's action in approaching the trial judge, there would have been no involvement by him in that matter. The appellant cannot take advantage of a situation or an error which he invited or induced the trial court to commit. Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 532 (1942). We hold, therefore, that, under the facts of this case, the action of the trial judge did not constitute reversible error.

While a trial judge must control the sentencing phase of a criminal trial and has the responsibility and duty of approving or disapproving a recommendation by the prosecutor, he should never become involved, or participate, in the plea bargaining process. He must remain aloof from such negotiations. The trial judge always must be circumspect and unbiased, at all times displaying neutrality and fairness in the trial, and consideration for the constitutional rights of the accused.

II.

Did the trial court err in denying the sworn applications for continuance in which appellant requested a postponement in order to obtain the testimony of an eye witness?

The trial court has a broad discretion in granting or denying a motion for continuance, and, unless the court abuses its discretion to the prejudice of the appellant, its action will not be held error. McClendon v. State,335 So.2d 887 (Miss.1976); Ladnier v. State, 273 So.2d 169 (Miss.1973); Lee v. State, 220 Miss. 298, 70 So.2d 609 (Miss.1954).

Appellant was indicted at the November 1976 Term of the Hinds County Circuit Court. The cause was continued at that term, again at the January 1977 Term, the March 1977 Term, the May 1977 Term, the November 1977 Term and the January 1978 Term. All such continuances were at the request of the appellant, who sought the presence of the witness Barry Trest. The appellant failed to appear at the March and May Terms, 1977, and the cases were continued for that reason.

Mississippi Code Annotated Section 11-7-123 (1972) dealing with continuances, provides:

"On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence...