IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-KA-00963-SCT RONALD SHINSTOCK a/k/a RONALD JOSEPH SHINSTOCK a/k/a RONALD J. SHINSTOCK

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 02/01/2016 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN, III TRIAL COURT ATTORNEYS: JEANINE M. CARAFELLO BRAD MARSHALL HUTTO JOEY W AYNE MAYES M. JUDITH BARNETT MICHAEL GUEST COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/29/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, P.J., COLEMAN AND MAX W ELL, JJ. MAX WELL, JUSTICE, FOR THE COURT: ¶1. Ronald Shinstock appeals his s ale-of -m etham phetam ine conviction. H e argues the trial court should have excluded s om e of the State’s evidence b ased o n an alleged FourthA m e n d

m e n t violation. B ut Shinstock concedes he never asserted a Fourth Am endm ent cla i m in t he trial court. So he f orf eited this issue. And t h e r e c o r d d o e s not support a f inding of plain error. The record also does not suf f iciently support Shinsto c k ’ s o n l y other appellate claim —inef f ective assistance of counsel. S o we decline to address thi s issue on direct appeal. ¶2. W e theref

ore af f irm Shinstock’s conviction and sentence.
B ackground Facts and Procedural History ¶3. W h en Rankin County s herif f ’s deputies f

ound W illiam V a l e n t ine i n possession of

m etham phetam ine, they o f

f ered Valentine the option to work o f f h is charges b y participating in a controlled buy f

rom his supplier. Valentine agreed a nd called his dealer, Shinstock, to
set up a buy

. Deputies then outf itted Valentine w ith a hidden cam e ra and $260 in cash to buy an “eight ball” of

m etham p hetam ine. ¶4. Valentine and Investiga t o r B r e t t M c A l p i n d r o v e t o S hinstock’s neighborhood. McAlpin waited i n a wooded area near Shinstock’s house while Valentine w ent inside the house and exchanged the cash f or drugs. Af

t er the deal, Valentine d

rove to a nearby school where he m et another of

f icer, Deputy Ty son. Valentine turned over the drugs to Ty son, who then drove to Shinstock’s house to m eet McAlpin. ¶5. The two o f

f icers entered Shinstock’s house to arrest him

. Following the arrest, they searched Shinstock’s person and f ound $260 in bills m atching the serial num bers of the buy

m oney g iven to Valentine. They also recovered a s e t o f digital scales f rom the m aster bedroom

. The Mississippi Crim e Laboratory later conf

irm ed t he substance S hinstock sold

2Valentine was 2.8 gram s of m etham phetam ine, a Schedule II controlled substance. And the county tax assessor established the sale occurred within 1,500 f eet of a c h urch. ¶6. At trial, the State introduced the drugs and scales, without objection. McAlpin also testif i ed a b out f inding t he $ 260 i n m arked bills o n Shinstock when he arrested him af ter the deal. T he jury f

ound S hinstock guilty of selling m ore than t wo gram s but less than ten gram s of m etham

phetam ine near a church. Because Shinstock was a habi t ual of f ender, he was sentenced to the m andatory m axim um , which was f

orty y ears, based on Section 41-29-142’s sentencing enhancem ent. 1 ¶7. Shinstock has tim ely appealed. He raises two issues: (1) His Fourth Am endm ent ri g h t t o b e f r e e f r o m a n i llegal arrest was violated when police of

f icers e ntered h is hom e w i t h o u t a w a r rant to arrest him and conf

iscate evidence. (2) H i s t r i a l c o u n sel was constitutionally inef f ective in f

ailing to f

ile a m o tion to suppress the evidence gathered during his illegal arrest. Discussion
I. Warrantless Arrest ¶8. The F ourth Am endm ent to the United S tates C onstituti o n a n d Article 3, Section 23 of the Mississippi Constitution protect individuals f rom unreasonable searches and seizures.

1 M ississip p i C o d e S ectio n 4 1 -2 9 -1 3 9 (b ) (1 ) (B ) ( S u p p . 2 0 1 6 ) im p o ses a m ax im

u m tw en ty -y ear sen ten c e f

o r t h e k n o w in g sale o f m o re t h a n t w o b u t less th an ten g r am s o f a S ch ed u le II su b stan ce. M i ssissip p i C o d e S ectio n 4 1 -2 9 -1 4 2 (R ev . 2 0 1 3 ) en h an ces S ectio n 4 1 -2 9 -1 3 9 ’s p en a lty u p to tw ice th e am o u n t

— o r f o rty y ears’ im

p r iso n m en t— f

o r v io latio n s o ccu rrin g w ith in 1 , 5 0 0 f

eet o f a ch u rch

. A n d th e h ab itu al-o f f en d er p r o v i sio n o f M ississip p i C o d e S ectio n 9 9 -1 9 -8 1 (R ev . 2 0 1 5 ) m an d ates p erso n s w h o h av e b e en co n v icted o f f elo n ies tw ice p rev io u sly an d sen ten ced sep arately t o o n e y ear o r m o re in p riso n b e sen ten ced to th e m ax im u m term o f im p riso n m e n t, in th is case f o r ty y ears. 3U

. S

. Const. am end. IV; M iss. Const. art. 3, § 23. A warrantless search or seizure in a

person’s hom e is “presum ptively unreasonable.” Payton v. New Y ork , 445 U.S. 573, 586, 100 S. Ct. 1 3 7 1 , 1 3 80, 63 L. Ed. 2d 639 (1980)). To overcom e this presum ption, the
governm ent has the burden to dem onstrate “exig e n t c ircum stances” n ecessitated the warrantless entry

. Welsh v . Wisconsin , 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732 (1984). ¶9. Shin s t o c k c l aim s the entry into his hom e to arrest him and subsequent search were warrantless and t hus unreasonable. He also suggests there were no “ e xigent c ircum stances”
to j ustif y the i ntrus i o n . Based on this a lleged Fourth Am endm ent violation, he argues the evidence seized f

ollowing his arrest should have been excluded as inadm issible “f ruit of the poisonous tree.” See Marshall v. State , 584 So. 2d 437, 438 (Miss. 1991) (citing Murray v. United States , 487 U

. S

. 5 3 3 , 5 3 6, 108 S

. Ct. 2529, 2533, 101 L. Ed. 2d 472 (1988)) (explaining the “f

ruit of the poisonous tree” d octrine—also known a s the exclusionary rule— deem s inadm i s sible any evidence obtained i ncident to a n unlawf ul search or seizure). But Shinstock did not m a ke this argum ent bef ore or d u r i ng trial. H e readily adm its he never

m oved to suppress a n y o f the State’s evidence or o therwise raised a Fourth Am endm ent challenge in the trial court. S o he clearly f orf eited this issue and cannot raise i t f or the f irst tim e on appeal. See United States v. Olano , 507 U.S. 725, 113 S

. Ct. 1770, 1 23 L. Ed. 2d 508 (1993). ¶10. “ T he rule that f

a ilure to object” at trial b ars r aising the issue on appeal “ a p p l i e s t o Fourth Am endm ent claim s a s w ell.” Walk e r v . State , 913 So. 2 d 198, 224 (Miss. 2005)

4(citing Stevens v. S tate , 458 So. 2d 726, 730 (Miss. 1984)). In Walker , a death-penalty case, the d ef endant a rgued the evidence f ound in his car was inadm issible because t he traf f ic stop leading to the search was i llegal. But “[ a ]t no t i m e a t t rial did W alker claim that the stop itself was pretextual, thereby r endering inadm issible t he

. . . item s discovered.” I d. at 225. So we f ound “this assignm ent of

error . . . procedurally

barred f r om review by

this Court.” Id. See also Thornton v. State , 724 So. 2d 1 003, 1005 ( Miss. 1998)) (holding the def endant

was barred f

rom raising a Fourth Am endm ent c hallenge on appeal because h e “did n ot object nor f ile a m otion to suppress to the adm ission of the contraband at trial”). ¶11. Still, S hinstock asks this Court to f ind the judge com m itted plain error i n adm itting

e v idence seized f

ollowing his arrest—evidence he did not attem pt to suppress at trial

. “Under the plain-error doctrine,” this C o u r t “ c an recognize obvious error which was not properly raised b y the def endant and which af

f ects a def endant’s ‘f

undam ental, s u

bstantive right.’” Conners v. State , 92 So. 3d 676, 682 ( Miss. 2012) (quoting Sm ith v. S tate , 986 So. 2d 290, 294 (Miss. 2008)). But in this case, the record reveals no obvious error. ¶12. “That w hich is n ot visible c annot be ‘plain.’” Sykes v. United S tates , 373 F.2d 607, 613 (5th Cir. 1966). And f rom this record, w e see nothing to support Shinstock’s c laim

. The record neither shows the search was legal o r illegal. See id. at 6 12 (“There is nothing conclusive in the e v i d e n c e establishing either t he legality or illegality of the arrest.”).
B e c a u s e Shinstock never challenged the search, the record was not developed. So we ar e without evidence to carry out the c ase-by -case, f act-intensive inquiry of whether the search was legal. There is sim

ply nothing f or our appellate review.

5¶13. “ The burden o f showing that the error was com m itted, a nd is not m ere speculation,

is o n the appellant.” Id. at 6 1 2-13. But here, speculation is all Shinstock of f ers. He asks us
to assum e the search was illegal because there is no record proof of a warrant or a warrant exception. To accept S hinstock’s reasoning would p e n a l i z e the State f or not introducing evidence to justif

y the search, when he f

ailed to challenge the legality of it. See id . at 613. And it is not our role to speculate what the State “would or could have proved”—or rather would or could not have proved—“by way of explanation and justif

ication.” Id. ¶14. For this reason, we f ind no plain error.
II. Ineffective Assistance of Counsel ¶15. Alternatively , S h i n s t o c k a r g u e s h i s t r i al counsel was constitutionally inef f ective because she did not f

ile a m otion t o suppress. S ee U.S. C onst. am end VI (providing “[ i]n all crim inal prosecutions, t he accused shall enjoy t he right

. . . to have t he A ssistance of Counsel f or his def ence”). But “ [ i]t is unusual f or this [ C ]ourt to c onsider a claim of inef f ective assistance of couns e l w hen the claim is m ade on direct appeal,” because “ t here is usually insuf f icient evidence within the record to evaluate the c l aim .” W ilcher v. State , 863 So. 2d 776, 825 (Miss. 2003) ( quoting Aguilar v. State , 847 S o. 2d 871, 878 ( Miss. Ct. A pp. 2002)). ¶16. Such is the case here. The record is not s uf f icient to evaluate Shinstock’s i nef fectiveassistance-of

- counsel claim

. “[ T]he f

ailure to f ile a suppression m otion does not c onstitute
per se inef

f ective assistance of counsel[ .]” Kim m elm an v. Morrison , 477 U.S. 365, 384, 106 S. Ct. 2574, 2587, 91 L

. E d

. 2 d 3 0 5 ( 1986). And Shinstock p oints to nothing e lse in the record to support his inef f ective-assistance claim

.

6¶17. In other words, the m ere f ailure to f ile a m o tion to suppress, in and of itself , cannot support Shinstock’s claim his counsel was constitutionally inef f ective. A nd “wh ere the record ca n n o t s upport an inef f ective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief , preserving the def

e n dant’s right to argue the sam e issue through a petition f

or post-conviction relief

.” Wilcher , 863 So. 2d at 825. ¶18. F o r t h i s reason, w e deny Shinstock r elief on his i nef f ective-assistance c l a i m b u t
preserve his right to raise this issue in a m otio n f or post-conviction r elief

. W e a f f irm the judgm ent of

conviction and sentence of the Rankin County

Circuit Court. ¶19. AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.

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