WILLIAM A. PENTON A/K/A WILLIAM ALFRED PENTON JR. A/K/A WILLIAM PENTON v. STATE OF MISSISSIPPI
NO. 2018-KA-00199-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
DATE OF JUDGMENT: 12/11/2017
HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS, WILLIAM A. PENTON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY: HALDON J. KITTRELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 07/16/2019
CARLTON, P.J., FOR THE COURT:
¶1. A Pеarl River County jury found William A. Penton guilty of one count of possession of methamphetamine. The trial court sentenced Penton as a habitual offender to serve eight years in the custody of the Mississippi Department of Corrections (MDOC). Penton appeals his conviction and sentence. Penton‘s counsel has filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005). His counsel reрresents that he diligently searched the record for any arguable issues that could be presented on appeal but found none. Penton filed a pro se supplemental brief. In his pro se brief, Penton offers his description of what took place on the day of his arrest, but there is no support in the record for his assertions. Penton also does not set forth any assignments of error in his pro se brief or provide any argument that would support reversal of his conviction and sentence. Based upon our thorough review of Penton‘s supplemental pro se brief and the record, we find no arguable issues for appellate review. We therefore affirm Penton‘s conviction and sentence withоut prejudice to his right to seek post-conviction relief.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. Penton was indicted on October 24, 2016, for possession with the intent to distribute 2.44 grams of methamphetamine, a Schedule II Controlled Substance, in violation of
¶3. The State also filed a pretrial motion to allow testimony at trial under
¶4. Regarding the State‘s Rule 404(b) motion, the trial court held that it would not allow any mention of the video showing Penton selling the methamphetamine but granted the State‘s motion to a limited extent. The prosecutor and defense counsel agreed to prepаre an order delineating the scope of any testimony regarding the narcotics investigation that would be allowed at trial. The trial court‘s order granting this motion allowed the State to introduce evidence and testimony at trial
¶5. Penton was tried on December 7, 2017. Before trial started Penton‘s counsel stated on the record that there was no objection to the State adding a lesser-included offense of simple possession of the same substance and amount as in the possession-with-intent-to-distribute charge (2.44 grams of methamphetamine).
¶6. The trial transcript reflects that on December 29, 2015, narcotics investigators Joe Garcia and Van Giadrosich of the Pearl River County Sheriff‘s office startеd an investigation targeting William Penton. As noted, on that day they captured Penton on video selling methamphetamine, and there was also an unidentified black male in the video. Detectives Garcia and Giadrosich both testified that the next day they saw Penton riding as a passenger with the unidentified black male in the same car (a silver Honda Accord) that they were in the day before when the investigation was started.2 Detectives Garcia and Giadrosich further testified that they pulled the car over and made an investigatory stop in order to identify the driver based on the information they had gathered in the investigation the day before, which led them to believe that Penton was in possession of methamphetamine.
¶7. Both witnesses testified that Detective Giadrosich approached the passenger‘s side of the vehicle, and Detective Garcia approached the driver‘s side of the vehicle. Detective Garcia asked the driver for his identification. The driver said he did not have any written identification, but he identified himself as Drayvious Johnson. The transcript reflects that Detective Garcia then asked Johnson to exit the car to check his identity with dispatch and to
¶8. Detective Garcia testified that he submitted the baggie to Kristen Thibodeaux, the evidence custodian at the sheriff‘s office. Thibodeaux testified that she delivered the substance for testing at the Mississippi Forensics Laboratory. Velveeta Harried, a forensic scientist who was accepted as an expert in the field of drug analysis without objection, testified that she examined the substance and determined that it contained methamphetamine and weighed 2.44 grams.
¶9. Detective Giadrosich testified that it was “not likely” that a person would purchase 2.44 grams of methamphetamine for personal use. Detective Garciа also testified that “[t]his amount of controlled substance is usually possessed with intent to distribute. It‘s a little bit more than personal use.”
¶10. Detective Garcia testified that he advised Penton of his Miranda3 rights at the scene; he asked Penton if he understood his rights; and Penton said that he did. Detective Garcia also testified that based upon his training and experience, Penton wаs not under the influence of any drugs or alcohol when he was advised of his Miranda rights, and Penton did not appear to have any mental deficiencies that would prevent him from understanding them. Detective Garcia testified that Penton did not ask for a lawyer and that “[a]ll Mr. Penton stated was that he and Mr. Johnson were together when they picked up the narcotics.” Dеtective Garcia arrested Penton.4
¶11. The record reflects that Detective Garcia conducted an inventory search of the car. Detective Garcia testified that he found no additional methamphetamine, no additional baggies, and no scales during that search. Both
¶12. Penton‘s counsel moved for a directed verdict at the close of the State‘s case, primarily based upon the lack of evidence to prove intent. The trial court denied this motion, finding that a fact question for the jury еxisted on this issue. The trial court then informed Penton of his right to testify on his own behalf and also informed him that if he chose not to testify, the jury would be instructed that this could not be held against him. After being given time to consult with his attorney in private, Penton did not testify,6 and the defense did not present any other witnesses or evidence.
¶13. The court instructed the jury about possession-with-intent-to-distributе at least two grams but less than ten grams of methamphetamine and the lesser-included offense of simple possession of at least two grams but less than ten grams of methamphetamine. After deliberations, the jury returned a verdict finding Penton guilty of simple possession. At sentencing, the State submitted certified copies of orders of conviction and sentence for Penton‘s prior convictions. The trial court found that Penton was a habitual offender under
STANDARD OF REVIEW
¶14. In Lindsey v. State, 939 So. 2d 743, 748 (¶18) (Miss. 2005), the Mississippi Supreme Court established a procedure “to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client‘s case presents any arguable issues on appeal.” Thomas v. State, 247 So. 3d 1252, 1256 (¶9) (Miss. 2018) (internal quotation mark omitted). In particular, Lindsey requires:
(1) Counsel must file and serve a brief in compliance with
Mississippi Rule of Appellate Procedure 28(a)(1)-(5), (8) ;(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client‘s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest аnd the circumstances surrounding arrest; (b) any possible violations of the client‘s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate
court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require аppellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant‘s success on appeal. (5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.
Thomas, 246 So. 3d at 927 (¶12). Upon review, we find that Penton‘s appellate counsel fully complied with Lindsey. Pentоn has filed a pro se supplemental brief. We address it below.
DISCUSSION
¶15. In his pro se supplemental brief, Penton sets forth his description of what happened when he and Johnson were pulled over on December 30, 2015. Penton asserts that one of the officers told him “that they did not need a reason for pulling us [Penton and Johnson] over,” and “[a]t no time were we [Pеnton or Johnson] asked if [the officers] could search my car.” Penton also asserts that one of the officers “claim[ed] to have found a bag of dope [on the ground and] . . . ask[ed] [Penton] whose bag of dope it was.” According to Penton, he told the officer that he and Johnson “did not have any dope.” Penton also asserts that “[a]t no point wаs I read my rights.” Penton claims that he “told all of this [information] to [his] ‘Public Defender’ but he chose not to do anything with it.” No testimony or evidence in the trial record supported these assertions and Penton did not set forth any assignments of error or state any basis for reversing his conviction and sentence relating to his assertions. To the extent that he may have been аttempting to assert ineffective assistance of counsel, he did not cite any authority whatsoever in support of such a claim.
¶16. “As part of the Lindsey procedure, this Court must determine, based on a review of the record and any pro se brief filed, whether any arguable issue exists.” Thomas, 247 So. 3d at 1258 (¶16). After a thorough review of Penton‘s supplemental pro se brief and the record, including thе indictment, all pretrial and post-trial motions and orders, the jury instructions, the trial transcript, and the trial exhibits, we find that no arguable issues exist warranting appellate review.
¶17. The Mississippi appellate courts “will not consider matters that do not appear in the record, and [they] must confine [their] review to what appears in the record.” Pulphus v. State, 782 So. 2d 1220, 1224 (¶15) (Miss. 2001). As the Mississippi Supreme Court has long-recognized, “we cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record.” Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995). In this case, Penton‘s brief describes events unsupported by the record—the circumstances he describes were never presented in testimony or in any other manner. Even if this were not the case, Pentоn also does not assert any argument supported by authority upon which reversal could be based. Without furnishing any “meaningful argument” on any grounds, Penton has waived any issue he could have raised on direct appeal. Randolph v. State, 852 So. 2d 547, 557-58 (¶¶28-30) (Miss. 2002); see also Doss v. State, 956 So. 2d 1100, 1102 (¶7) (Miss. Ct. App. 2007).
¶18. In short, we find that neither the record nor Penton‘s supplemental pro se brief raises any arguable issues for appeal. We therefore affirm Penton‘s conviction and sentence, Thomas, 247 So. 3d at 1258 (¶¶16-17), without prejudice to Penton‘s right to seek relief in a properly filed petition for post-conviction relief. See
¶19. AFFIRMED.
BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.