282 So.3d 621
Miss. Ct. App.2019Background
- Penton was indicted for possession with intent to distribute 2.44 grams of methamphetamine; State moved to charge him as a habitual offender.
- A two-day narcotics investigation placed Penton and an unidentified black male as targets; investigators observed them in the same vehicle the day after the initial investigation.
- During an investigatory traffic stop, officers conducted a pat-down of Penton; a small baggie fell from his mouth during a struggle and was tested as 2.44 grams of methamphetamine.
- The State charged possession-with-intent-to-distribute; the trial court also allowed a lesser-included instruction for simple possession; the jury convicted Penton of simple possession.
- At sentencing the trial court found Penton a habitual offender and imposed an eight-year MDOC sentence.
- Appellate counsel filed a Lindsey brief saying no arguable issues existed; Penton filed a pro se supplemental brief asserting unsupported claims about the stop and Miranda/ search; the Court reviewed the record and affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Penton) | Held |
|---|---|---|---|
| Sufficiency of evidence to show intent to distribute | Evidence (weight of drug, investigative context) supported intent; jury could find otherwise and convict of lesser offense | Penton argued (pro se) that the stop/search were improper and he was not read Miranda; record lacked this testimony | Court found a fact question existed so trial denial of directed verdict was proper; jury convicted of simple possession; conviction affirmed |
| Admissibility of prior investigation evidence under Rule 404(b) | State sought to show the prior two-day investigation to explain the investigatory stop and intent/motive | Penton argued facts (pro se) not in record; objected at trial only to certain evidence; no reversible error shown | Trial court limited Rule 404(b) evidence (no video or sale testimony); admission of limited investigatory evidence was appropriate |
| Appellate counsel compliance with Lindsey procedure | N/A | N/A (issue raised by court review) | Court found appellate counsel complied with Lindsey and properly certified no arguable issues |
| Pro se allegations / ineffective assistance / record reliance | N/A | Penton asserted stop without cause, no consent to search, not Mirandized, and ineffective assistance of counsel | Court held pro se assertions are unsupported by the record; issues unsupported or unbriefed are waived; no arguable issue for appeal |
Key Cases Cited
- Lindsey v. State, 939 So. 2d 743 (Miss. 2005) (procedure when appellate counsel finds no arguable issues)
- Thomas v. State, 247 So. 3d 1252 (Miss. 2018) (explaining Lindsey requirements)
- Pulphus v. State, 782 So. 2d 1220 (Miss. 2001) (appellate review confined to the record)
- Robinson v. State, 662 So. 2d 1100 (Miss. 1995) (issues must be proven by the record)
- Randolph v. State, 852 So. 2d 547 (Miss. 2002) (issues not meaningfully argued are waived)
- Doss v. State, 956 So. 2d 1100 (Miss. Ct. App. 2007) (failure to provide meaningful argument waives appellate issues)