        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-01535-COA

SPENCER PRESLEY                                                             APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          10/20/2016
TRIAL JUDGE:                               HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:                 TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LISA L. BLOUNT
DISTRICT ATTORNEY:                         BRENDA FAY MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 11/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Spencer Presley was convicted of burglary of an automobile in the Tunica County

Circuit Court and sentenced, as a nonviolent habitual offender, to seven years in the custody

of the Mississippi Department of Corrections (MDOC), without eligibility for parole. The

trial court also ordered Spencer to pay a $5,000 fine. Spencer now appeals his conviction

and sentence. Finding no arguable appellate issues in this case, and finding that the trial

court’s judgment of conviction is supported by the record, we affirm Spencer’s conviction

and sentence. See Lindsey v. State, 939 So. 2d 743, 748 (¶18) (Miss. 2005).

                                          FACTS
¶2.    Spencer and Patricia Presley married in 1998 and later separated in 2010. The record

reflects that on the morning of May 1, 2016, Patricia awakened to a banging sound outside

of her house. Patricia testified that she looked out of a window and saw Spencer standing

beside her 2011 Dodge Caliber “knocking” at the driver’s side backseat window with a tire

iron. After Patricia called the police, she looked out of the window and saw Spencer driving

off in his vehicle. When the police arrived, Patricia went outside and observed a broken

driver’s side backseat window and the driver’s door left open. Patricia testified that the glove

compartment was open, and the owner’s manual and registration documents were missing,

along with several CDs and a cup containing loose change. Patricia also testified that she

purchased the car in 2011, after she and Spencer separated, and the title to the car is in her

name only.

¶3.    At trial, Spencer admitted being in Tunica on May 1, 2016. He also admitted to

driving by Patricia’s home early that morning. Spencer stated that he was going by Patricia’s

house to see her. Spencer testified that as he drove by Patricia’s house, he saw the car door

open and the car window broken. Spencer stated that he kept driving and called Patricia on

his cell phone, but she did not answer. Spencer testified that he called Patricia “because I

figured that they probably would accuse me of doing this. So . . . I kept going.” Spencer

asserted that he never got out of the car. He also testified that he did not break the windows

out of Patricia’s vehicle or take anything from the vehicle.

¶4.    During cross-examination, Spencer claimed that Patricia lied about seeing him hit her

car with a tire iron. Spencer explained “at the time [she called the police], she felt that I had



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did it, and then she had a change of heart, as far as me doing it.” He also claimed that

Patricia was made “by force” to testify against him, and that “she wanted to drop the

charges.”

¶5.    After a trial held on October 17, 2016, the jury found Spencer guilty of burglary of

an automobile and the trial court sentenced him, as a nonviolent habitual offender, to seven

years in the custody of the MDOC, without eligibility for parole. The trial court also ordered

Spencer to pay a $5,000 fine.

¶6.    Spencer now appeals his conviction and sentence. The Office of State Public

Defender, Indigent Appeals Division, represents Spencer, and his attorney filed a Lindsey

brief asserting that he found no error in the trial-court proceedings. See Lindsey, 939 So. 2d

at 748 (¶18).

                                        DISCUSSION

¶7.    In Lindsey, the Mississippi Supreme Court set forth the procedure for appellate courts

to utilize when reviewing cases in which counsel for indigent defendants find no arguable

issues in the record to present on appeal:

       (1) Counsel must file and serve a brief in compliance with Mississippi Rule of
       Appellate Procedure 28(a)(1)-[(5), (8)]; see also Smith v. Robbins, 528 U.S.
       259, 280-81 . . . (2000) (stating that “counsel’s summary of the case’s
       procedural and factual history, with citations of the record, both ensures that
       a trained legal eye has searched the record for arguable issues and assists the
       reviewing court in its own evaluation of the case.”).

       (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 and the circumstances surrounding
       arrest; (b) any possible violations of the client’s right to counsel; (c) the entire


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       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 appellate 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.

Stewart v. State, 130 So. 3d 559, 561-62 (¶13) (Miss. Ct. App. 2014).

¶8.    In examining the record before us, we acknowledge that Spencer’s appellate defense

counsel complied with the procedures implemented in Lindsey. We additionally find that

appellate defense counsel’s brief complied with Rule 28(a)(1)-(5) and (8), including a

statement of the case and a statement of the facts with record citations. Appellate defense

counsel provided his assertion that

       pursuant to Lindsey . . . , he has diligently searched the procedural and factual
       history of this criminal action and scoured the record searching for any
       arguable issues which could be presented to the Court on [Spencer’s] behalf
       in good faith for appellate review, and upon conclusion, found no errors which
       were ultimately prejudicial to [Spencer].

¶9.    Appellate defense counsel also maintained the following:

       The entire record and transcript were scrupulously reviewed and matters
       considered in counsel’s search for error included: (a) the reason for the arrest
       and the circumstances surrounding arrest; (b) any possible violations of the
       defendant’s right to counsel; (c) the sufficiency of the indictment; (d) the
       weight and sufficiency of the evidence; (e) speedy trial issues; (f) all rulings

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       of the trial court; (g) possible issues of ineffective counsel; (h) all jury
       instructions; (i) the admission or exclusion of all exhibits; (j) possible
       prosecutorial misconduct; and (k) possible misapplication of the law in
       sentencing.

¶10.   Appellate defense counsel stated that he “is unable to argue, in good faith, any

prejudicial error.” Appellate defense counsel also confirmed that he advised Spencer that

although he found no arguable issues in the record, Spencer possessed the right to file a pro

se brief. On April 5, 2017, on the Court’s own motion, this Court entered an order providing

Presley with forty-five days to file a pro se supplemental brief, if he chose to do so. The

record shows that Spencer failed to file a pro se brief.

¶11.   Upon our review, we find that the record contains sufficient evidence to support the

jury’s finding that Spencer was guilty of the charged offense of auto burglary. Cf. Allred v.

State, 130 So. 3d 504, 507 (¶8) (Miss. 2014). We also recognize that “the jury is the sole

judge of the credibility of witnesses and the weight and worth of their testimony.” Lenoir

v. State, 222 So. 3d 273, 279 (¶29) (Miss. 2017). Furthermore, after reviewing the record,

we find no arguable appellate issues in this case, and in so doing, we find that Spencer’s

appellate counsel complied with the supreme court’s holding in Lindsey. We therefore affirm

the trial court’s judgment.

¶12.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.         TINDELL, J., NOT
PARTICIPATING.




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