Tywanda Norton v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-KA-00475-COA

TYWANDA NORTON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/21/2023
TRIAL JUDGE: HON. MARK SHELDON DUNCAN
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY: STEVEN KILGORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/08/2024
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. A Neshoba County Circuit Court jury found Tywanda Norton guilty of possession of

methamphetamine and possession of a firearm by a felon. Norton was sentenced as a

nonviolent habitual offender to serve eight years in the custody of the Mississippi

Department of Corrections for possession of methamphetamine and ten years for possession

of a firearm by a felon, with the sentences set to run concurrently. The trial court used its

discretion to decline imposing the subsequent-drug-offender and firearm enhancements that

were included in Norton’s initial indictment by a grand jury. Norton now appeals on the

basis of ineffective assistance of counsel. We find that the parties did not stipulate to the
record’s adequacy, and we decline to address the issue on appeal. Instead, the issue may be

pursued in a properly filed motion for post-conviction collateral relief. In this direct appeal

from the judgment of conviction and sentencing, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On September 10, 2020, Neshoba County Sheriff Deputies Barry Truhett and Matthew

Winstead were on patrol when they observed a vehicle “r[u]n off the road on the right side

on the shoulder” and then swerve back, “cross[ing] over the yellow line by a good foot or

more.” Upon this observation, Truhett activated his blue lights and stopped the vehicle for

careless driving. The vehicle that he stopped was a Lincoln Town Car being driven by

Norton, who was the only person in the car. Truhett approached the driver’s side of the car

while Winstead approached the passenger side. “Immediately upon walking up to the

window [Truhett] could smell the strong odor of what [he] believed to be marijuana coming

from the vehicle.” Truhett and Winstead also noticed a .22-caliber rifle in plain sight on the

passenger seat with the barrel pointed down toward the floor. Because the rifle was within

arm’s reach of Norton, Truhett asked Norton to get out of the vehicle and handcuffed him

for the officer’s safety.

¶3. At this point, Truhett began searching the driver’s side of the vehicle, and Winstead

began searching the passenger side. Once they began their search, they realized the factory

radio in the vehicle had been replaced with an after-market radio, which left about a “two or

three inch gap” above the radio. On top of the radio, in the open gap, Winstead spotted a

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black bag. Winstead gave the bag to Truhett, and when Truhett opened it, he discovered a

bag inside with a white crystal-like substance that he believed to be methamphetamine and

another bag of a green leafy substance that appeared to be marijuana. The crystal-like

substance was sent off to the Mississippi Forensics Laboratory where it was identified as

methamphetamine and weighed 2.42 grams. Also inside the black bag was a set of scales,

a pack of rolling papers, and a “little scoop that look[ed] like a baby spoon.” As their search

continued, they found a wallet inside the middle console, which did not contain any

identification but did contain $1,042.

¶4. At trial, the court heard testimony from Truhett, Winstead, a narcotics investigator,

and a forensics expert who was employed at the Mississippi Forensics Laboratory. After

each of these witnesses testified, the State rested, and Norton moved for a directed verdict

and renewed previous objections made to the admission of evidence found in the vehicle.

The trial court overruled the objection and denied the directed-verdict motion.

¶5. Norton then presented his only witness, Matthew Moore. Moore stated that Norton

was a “very good family friend” that he has known for approximately seven or eight years.

In July 2020, Moore bought a Lincoln Town Car. Moore only drove the car for about a

month before he sold it to Norton and Norton’s son. Norton paid Moore $850 for the

vehicle, but they signed the title over to Norton’s son because the car was for him.

Allegedly, while Moore was in possession of the car, he put an after-market radio in it, but

once Norton was in possession of the vehicle, he replaced it with a different after-market

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radio.

¶6. Because the car had some damage from Moore wrecking the car twice, Norton and

his son talked about “getting the car fixed up, replacing the front bumper, replac[ing] the

windshield” and “replac[ing] the radiator.” Norton worked on cars for a living, and there

was a shop on the same property where Moore was living at the time that was connected to

the carport of the house. Norton used to live at this same address with Moore but no longer

did. Even though he did not live on the property anymore, he would come “back and forth

every day” to the shop. This same shop is where Norton left the Lincoln Town Car so he

could work on it for his son.

¶7. Moore testified that he had never seen the .22-caliber rifle, the black bag, the rolling

papers, or the scales that were seized from the car at the time of Norton’s arrest. He further

stated that he did not leave the $1,042 in the console. However, Moore also testified that

when Norton was not at the shop, anyone could have accessed the vehicle because it was not

locked, and it was parked in an open shed that anyone could have walked up to. After Moore

testified, the defense rested.

STANDARD OF REVIEW

¶8. The standard of review for claims of ineffective assistance of counsel is de novo.

Latham v. State, 299 So. 3d 768, 772 (¶12) (Miss. 2020). “To prevail on an

ineffective-assistance-of-counsel claim, a defendant must prove that counsel’s performance

was both deficient and prejudicial.” Id.

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DISCUSSION

¶9. “[T]his Court typically preserves ineffective-assistance-of-counsel claims for

post-conviction review.” Id. at 773 (¶16). “It is unusual for this Court to consider a claim

of ineffective assistance of counsel when the claim is made on direct appeal. This is because

we are limited to the trial court record in our review of the claim and there is usually

insufficient evidence within the record to evaluate the claim.” Aguilar v. State, 847 So. 2d

871, 878 (¶17) (Miss. Ct. App. 2002). For this reason, we review ineffective assistance of

counsel claims on direct appeal when “[1] the record affirmatively shows ineffectiveness of

constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court

determines that findings of fact by a trial judge able to consider the demeanor of witnesses,

etc.[,] are not needed.” Bell v. State, 202 So. 3d 1239, 1242 (¶12) (Miss. 2016) (quoting

Read v. State, 430 So. 2d 832, 841 (Miss. 1983)).

¶10. If “neither party stipulates to the record’s adequacy on this point, we must determine

whether the record affirmatively shows ineffectiveness of constitutional dimensions.” Payne

v. State, 282 So. 3d 432, 439 (¶22) (Miss. Ct. App. 2019) (citing Williams v. State, 228 So.

3d 949, 952 (¶12) (Miss. Ct. App. 2017)). We may also resolve ineffective assistance of

counsel claims on direct appeal when the record affirmatively shows that the claims are

without merit. Welch v. State, 361 So. 3d 1278, 1281 (¶13) (Miss. 2023) (quoting Ross v.

State, 288 So. 3d 317, 324 (¶29) (Miss. 2020) (citing Swinney v. State, 241 So. 3d 599, 613

(Miss. 2018); Ashford v. State, 233 So. 3d 765, 779-81 (Miss. 2017); M.R.A.P. 22)). But we

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may only consider “an ineffectiveness claim on direct appeal if the presented issues are based

on facts fully apparent from the record.” Dartez v. State, 177 So. 3d 420, 423 (¶18) (Miss.

2015). If an ineffective assistance of counsel claim is raised on direct appeal and we find the

record is incomplete, “the appropriate procedure is to deny relief, preserving the defendant’s

right to argue the issue through a petition for post-conviction relief (PCR).” Id.

¶11. In this case, after a review of the record, this Court finds that the record does not

affirmatively show ineffectiveness of constitutional dimensions, nor do the parties stipulate

that the record is adequate. The State stated in its brief that the record “affirmatively shows

that Norton’s claim lacks merit”; however, this is not a stipulation that the record is adequate.

We must not misinterpret or apply our own assumptions to what the State intended its

assertion to mean if it was not an explicit stipulation to the adequacy of the record.

Therefore, we decline to address this issue, and the issue is preserved to be raised in a PCR

motion if Norton desires to do so.

CONCLUSION

¶12. After reviewing the record, we decline to address the sole issue of ineffective

assistance of counsel, and instead, it may be pursued in a properly filed PCR motion. We

affirm Norton’s convictions and sentences.

¶13. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE,
McCARTY AND SMITH, JJ., CONCUR. EMFINGER, J., CONCURS IN RESULT
ONLY WITHOUT SEPARATE WRITTEN OPINION.

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