        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-KA-00199-COA

WILLIAM A. PENTON A/K/A WILLIAM                                             APPELLANT
ALFRED PENTON JR. A/K/A WILLIAM
PENTON

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                         12/11/2017
TRIAL JUDGE:                              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
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       CARLTON, P.J., FOR THE COURT:

¶1.    A Pearl 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 represents 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 without 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

Mississippi Code Annotated section 41-29-139(a) (Rev. 2013). In August 2017, the State

moved to amend the indictment to charge Penton as a habitual offender pursuant to

Mississippi Code Annotated section 99-19-81 (Rev. 2015). At a pretrial motion hearing on

December 1, 2017, the trial court granted the State’s motion and entered an order on the same

day amending the indictment to charge Penton as a habitual offender.

¶3.    The State also filed a pretrial motion to allow testimony at trial under Mississippi Rule

of Evidence 404(b)1 that Penton had been the target of a narcotics investigation on December


       1
           Rule 404(b) provides as follows:

       (b) Crimes, Wrongs, or Other Acts.

       (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible

                                              2
29, 2015. Penton was captured on video selling methamphetamine to a confidential

informant. An unidentified black male was also in that video. The State argued that the

evidence was relevant to show intent and to explain the circumstances of the investigatory

stop that took place the next day when Penton and the same unidentified black male who was

in the video were arrested. That motion, as well as defense counsel’s omnibus motion in

limine, were also heard on December 1, 2017.

¶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 prepare 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 that William Penton “was also the target of a narcotics

investigation concerning methamphetamine on December 29, 2015 which continued through

December 30, 2015.” The trial court also granted the defense counsel’s omnibus motion in

limine “for the most part” and noted the specific requests that were not ripe but that may




       to prove a person’s character in order to show that on a particular occasion the
       person acted in accordance with the character.

       (2) Permitted Uses. This evidence may be admissible for another purpose,
       such as proving motive, opportunity, intent, preparation, plan, knowledge,
       identity, absence of mistake, or lack of accident.

M.R.E. 404(b).

                                               3
become so as the trial progressed.

¶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 started 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


       2
           In later testimony Detective Garcia testified, without objection, that
methamphetamine was involved in their investigation on December 29. In compliance with
the trial court’s order on the State’s Rule 404(b) motion the State did not present any
testimony that Penton was selling the methamphetamine, or any testimony about the video
of this transaction. Specifically, Detective Garcia testified:

       [Garcia]:     The investigation began on December 29th of 2015. Mr.
                     Penton and an unknown black male was a target of a narcotics
                     investigation that started on the 29th. On December 30th, this
                     case led over to that date. Myself and my partner, Detective
                     Van Giadrosich . . . observed a silver Honda Accord being
                     driven by an unidentified black male and the passenger was Mr.
                     William Penton.

       [Counsel]:    What was the significance of that Honda Accord?

                                             4
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 conduct a protective search of Johnson for weapons. Detective Giadrosich testified that




       [Garcia]:     It was involved in the case from the day before when the
                     investigation started. . . . Due to the fact that I needed to
                     identify the unidentified black male, and I had first-hand
                     information from investigative techniques used in the case that
                     Mr. William Penton was possibly in possession of
                     methamphetamine with intent to distribute, I conducted an
                     investigative stop at the Buddy Hop [gas station] in Picayune.

Similarly, Detective Giadrosich testified:

       [On] December 29th, myself and Detective Joe Garcia started an . . .
       methamphetamine-related narcotics investigation . . . where William Penton
       and an unidentified black male was the target of this investigation. . . . [The
       investigation] [w]ent over into the next day, which [was] December 30th. We
       were in Picayune, and we recognized the vehicle, that we had saw these two
       subjects in the day before pass by, and we saw them in the vehicle. We
       needed to identify the driver, and we had knowledge that we had gathered
       through the course of this investigation that William Penton was possibly in
       possession of methamphetamine. We conducted a traffic stop on Bruce Street
       in Picayune by the Buddy Hop gas station.

                                              5
while this was happening, he saw Penton “moving his hand around leaning up,” so he asked

Penton to exit the car to pat him down for weapons. Detective Giadrosich testified that as

he began to pat-down Penton, Penton himself pushed off the car, turned around, “and

grabbed me and started fighting with me.” Detective Giadrosich further testified that he saw

that Penton’s face was turning red, and that he saw a plastic bag in Penton’s mouth. Penton

continued to fight, and Detective Giadrosich testified that he took him to the ground and that

“a bagg[ie] popped out of his mouth.” Detective Garcia testified that he saw the struggle and

saw “[P]enton be took to the ground and a baggie popped out of his mouth.” The transcript

reflects that the baggie contained a substance which Detectives Garcia and Giadrosich

believed to be crystal methamphetamine, so Detective Garcia photographed and collected the

baggie.

¶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 Garcia also testified that “[t]his

amount of controlled substance is usually possessed with intent to distribute. It’s a little bit


                                               6
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 was 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.”

Detective 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 Detectives Garcia and Giadrosich confirmed

that other than the amount of methamphetamine in the one baggie that was recovered, no

other physical evidence was found during that search that would suggest an intent to

distribute.    Detective Garcia testified that methamphetamine was involved in the




       3
           Miranda v. Arizona, 384 U.S. 436 (1966).
       4
         The record reflects that Detective Garcia charged both Johnson and Penton for
possession of the same substance with intent to distribute. A day before trial, the State
moved to sever the co-defendant, Johnson, from trial because, among other reasons, Johnson
did not appear at docket call and was at large. After a hearing on the matter, the trial court
granted the State’s motion.

                                              7
investigation that began the day before.5 Both Detectives Garcia and Giadrosich testified that

Penton and Johnson were charged with possession-with-intent-to-distribute based on the

weight of the substance, and what was learned in the two-day investigation.

¶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 existed 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-distribute at least two

grams but less than ten grams of methamphetamine and the lesser-included offense of simple


       5
         As noted above, the trial court had granted the State’s Rule 404(b) motion to refer
to the narcotics investigation that had begun on December 29.
       6
           The jury was instructed on this point as follows:

       As you know, William A. Penton elected not to testify at trial. A Defendant
       in a criminal case has a constitutional right not to testify. No presumption of
       guilt may be raised, and no inference of any kind may be drawn, from the fact
       that the Defendant did not testify. You must not consider for any purpose or
       in any manner in arriving at your verdict the fact that he did not testify. That
       fact should not enter into your deliberations or discussions in any manner, at
       any time.

       William A. Penton is entitled to have the jury consider all evidence presented
       at trial. He is presumed innocent even if he chooses not to testify.

                                               8
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

section 99-19-81 and sentenced him to serve eight years in the custody of MDOC.

                                 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 and 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,

                                                9
       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.

Thomas, 246 So. 3d at 927 (¶12). Upon review, we find that Penton’s appellate counsel fully

complied with Lindsey. Penton 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 [Penton 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 was 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 attempting 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

                                              10
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 the 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, Penton 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


                                               11
a properly filed petition for post-conviction relief. See Miss. Code Ann. § 99-39-7 (Rev.

2015) (providing that when the petitioner’s conviction and sentence have been affirmed on

direct appeal, the petitioner must obtain leave of the Mississippi Supreme Court before filing

a petition for post-conviction relief in the circuit court).

¶19.   AFFIRMED.

    BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.




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