Gregory Tyler Moore v. State of Mississippi , 248 So. 3d 845 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01032-COA
GREGORY TYLER MOORE A/K/A GREGORY APPELLANT
MOORE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/24/2016
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER
VALERIE LAUREL MOSS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 12/05/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
BARNES, J., FOR THE COURT:
¶1. On August 5, 2013, Gregory Tyler Moore pleaded guilty to five counts of auto
burglary and one count of burglary of a dwelling and was sentenced by the Rankin County
Circuit Court to fifty years in the custody of the Mississippi Department of Corrections
(MDOC).1 Moore filed two motions for post-conviction relief (PCR) in 2014 (one for his
auto-burglary convictions and one for the burglary-of-a-dwelling conviction), which the
1
He was sentenced to five consecutive seven-year sentences for each automobile-
burglary conviction and twenty-five years for burglary of a dwelling, with ten years
suspended, and five years of supervised probation.
circuit court dismissed. In 2016, Moore filed the instant PCR motion. The circuit court
determined the motion was procedurally barred, and Moore was not entitled to any relief for
his claims. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Twenty-one-year old Moore was charged with six counts of auto burglary, five counts
of burglary of a dwelling, and one count of statutory rape. After dismissing his original
lawyer, Moore’s parents hired attorneys John and Sherwood Collette in March 2013 to
represent Moore. In July 2013, John Collette informed Moore that the State would
recommend a thirty-five-year sentence if Moore entered a guilty plea. Moore refused, feeling
the plea offer was excessively punitive since he had never before been guilty of any felony.
¶3. On August 2, 2013, a second plea offer was submitted for Moore to plead guilty to
five counts of auto burglary and one count of burglary of a dwelling for a cumulative
sentence of fifty years in the custody of the MDOC. According to Moore, Sherwood Collette
said that although Moore would have to serve one-quarter of his sentence (twelve and one-
half years), he could reduce his time for parole eligibility from twelve and one-half years to
approximately six years by receiving “trusty time” and “meritorious earned time.” Moore
claims that he entered guilty pleas to the six counts based on the attorney’s advice.2 Moore
later discovered that trusty earned time and meritorious earned time could not reduce the time
served to be parole eligible, and he would have to serve twelve and one-half years before
2
In exchange for this plea, the State agreed to nolle pros the statutory-rape charge,
one count of auto burglary, four counts of house burglary, and an unindicted count of
attempted escape.
2
being eligible. He also discovered he would not be eligible for placement in a work-center
facility.
¶4. On February 7, 2014, a PCR motion was filed regarding Moore’s conviction for
burglary of a dwelling, which alleged his guilty plea was not voluntary. A second PCR
motion was filed on March 6, 2014, regarding Moore’s convictions for automobile burglary.
This motion asserted several errors, including ineffective assistance of counsel and raising
mental-competency issues. Although both motions stated that they were submitted “by and
through counsel,” only Moore’s notarized signature was present on each. There was no
attorney listed as representing Moore. The circuit court dismissed both motions on June 17,
2014, finding that Moore was not entitled to any relief. Moore did not appeal the court’s
judgment.
¶5. Moore filed another PCR motion on March 8, 2016, arguing his guilty pleas to the six
counts were involuntary, as they were based on the misrepresentations by his trial counsel
regarding his parole eligibility (ineffective-assistance-of-counsel claim). He also contended
that he did not authorize the filing of the two prior PCR petitions, which were “prepared and
filed” by Robert Tubwell, a non-attorney engaged in the unauthorized practice of law; so his
current PCR motion should be not be procedurally barred as successive. See Miss. Code
Ann. § 99-39-23(6) (Rev. 2015).
¶6. The circuit court concluded Moore’s claims did not except the motion from
procedural bars and dismissed the PCR motion as successive. The court also found that
Moore was not entitled to any relief for his claims of involuntary plea and ineffective
3
assistance of counsel. Moore filed a motion for reconsideration or, in the alternative, to
clarify the judgment, reasserting his claims that his involuntary plea was a violation of his
fundamental constitutional right to due process and that his prior PCR motions were prepared
and filed by a “person engaged in the unauthorized practice of law” and should not be
considered “valid.” The circuit court denied the motion, and Moore now appeals.
STANDARD OF REVIEW
¶7. “If it plainly appears from the face of the motion, any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to any relief,” the trial court may
summarily dismiss a PCR petition. Miss. Code Ann. § 99-39-11(2) (Rev. 2015). The
summary dismissal of a defendant’s PCR motion will be affirmed “if [he] fails to
demonstrate a claim procedurally alive substantially showing the denial of a state or federal
right.” Salter v. State, 184 So. 3d 944, 948 (¶10) (Miss. Ct. App. 2015) (citing White v. State,
59 So. 3d 633, 635 (¶4) (Miss. Ct. App. 2011)). “A trial court’s dismissal of a PCR petition
will not be reversed absent a finding that the trial court’s decision was clearly erroneous.”
Id. (citing Wilson v. State, 76 So. 3d 733, 735 (¶9) (Miss. Ct. App. 2011)). Issues of law are
reviewed de novo. Id.
DISCUSSION
I. Whether Moore’s PCR motion is a successive writ.
¶8. Moore contends that the circuit court should not have dismissed his latest PCR motion
as successive. In his PCR motion, Moore argued his two prior PCR motions “were not
properly prepared or filed pursuant to the requirements of the Mississippi Uniform Post-
4
Conviction Collateral Relief Act [(UPCCRA)],” and the person who filed and prepared the
first two PCR motions, Tubwell, was engaged in the unauthorized practice of law.3 Moore
avers in his affidavit that he “never met or spoke with Robert Tubwell” and that he “did not
ask or give permission to Tubwell to file those motions.” However, Moore does not allege
that his signature on the motions was forged; he merely asserts that the burden is on the State
to prove the signatures were his, and Tubwell’s authorship and filing of the motions rendered
the prior motions “null and void.”4 The State argues that the record does not support Moore’s
claim that the prior motions were not authorized by him as his signature is on the two prior
PCR motions.
¶9. First, we find that Moore’s notarized signatures constitute prima facie evidence that
he indeed signed the previous PCR motions. See Mack Fin. Corp. v. Decker, 461 S.W.2d
228, 230 (Tex. Civ. App. 1970) (An instrument acknowledged by the defendant “before a
notary public . . . is prima facie evidence of the execution of the document.”) He has
submitted no evidence to the contrary. Therefore, we find that State has met its burden of
proof that the signatures were Moore’s.5
¶10. While there is no Mississippi caselaw addressing the validity of a motion filed by a
3
The circuit court made no findings on this issue, except to conclude that Moore’s
PCR motion was procedurally barred.
4
Moore attached an exhibit to his appeal showing Tubwell was enjoined by the
DeSoto County Chancery Court from engaging in the practice of law, but this was not part
of the record before the trial court. He requests that this Court take judicial notice of the
order. Based on our analysis, we find the exhibit not relevant in this instance.
5
We also note that the notary was from Lauderdale County, where Moore is in
custody.
5
person unauthorized to practice law, Moore cites cases from other jurisdictions that have held
court filings by a person not authorized to practice law are a nullity. In Preston v. University
of Arkansas, 128 S.W.3d 430, 437-38 (Ark. 2003), the Arkansas Supreme Court held that a
complaint filed by Oklahoma attorneys in Arkansas constituted unauthorized practice of law,
and the complaint was “a nullity.” See also Shipe v. Hunter, 699 S.E.2d 519, 520 (Va. 2010)
(“[A] pleading, signed only by a person acting in a representative capacity who is not
licensed to practice law in Virginia, is a nullity.”); Carlson v. Workforce Safety & Ins.,765
N.W.2d 691, 704 (N.D. 2009) (concluding the filing of a request for reconsideration by
nonresident attorneys from Ohio, not admitted to practice in North Dakota, was void).
¶11. These cases are distinguishable from the present case for one simple reason – Tubwell
did not sign either PCR motion; nor is his name listed on either motion as Moore’s attorney.
Although the PCR motions both contain form language that Moore was filing the petition “by
and through counsel,” the only signature on the motions is Moore’s, and his signature is
attested by a notary. Compare Preston, 128 S.W.3d at 437 (finding no merit to the Prestons’
claim their complaint was filed “pro se . . . because they hired attorneys to handle their case,
and those attorneys signed the complaint” (Emphasis added)).
¶12. “[T]o be entitled to an evidentiary hearing, ‘a [movant] must demonstrate, by affidavit
or otherwise, that there are unresolved issues of fact that, if concluded favorably to the
[movant], would warrant relief.” Hamilton v. State, 44 So. 3d 1060, 1067 (¶21) (Miss. Ct.
App. 2010) (superseded by statute on other grounds) (quoting McCuiston v. State, 758 So.
2d 1082, 1085 (¶9) (Miss. Ct. App. 2000)). “This may not be accomplished through [the
6
movant’s] own unsupported allegations.” Id. (quoting McCuiston, 758 So. 2d at 1085-86
(¶9)). There is no evidence of any representation by Tubwell in the record except for
Moore’s assertion in his affidavit. While Moore claims his mother hired Tubwell, her
affidavit is oddly silent on this issue. She makes no mention of Tubwell or the two prior
PCR motions. Therefore, Moore’s “unsupported allegations” do not warrant an evidentiary
hearing on this issue, and we affirm the court’s finding that Moore’s motion is procedurally
barred as successive.6
II. Whether the advice by Moore’s attorney constituted ineffective
assistance of counsel and rendered his guilty plea involuntary.
¶13. Moore argues that his trial attorney’s “incorrect advice” – that he could decrease his
time for parole eligibility through “trusty time” and “meritorious earned time” – induced him
to enter a guilty plea, constituting ineffective assistance of counsel and rendering his plea
involuntary.7 Moore’s appellate counsel has acknowledged that the language of the statute
concerning parole eligibility shows that, at the time Moore entered his guilty pleas,
6
Notwithstanding this finding, this Court does not condone Tubwell’s history of
acting as some type of freelance writ writer after his release from prison. See Miss. Bar v.
Thompson, 5 So. 3d 330, 333-38 (¶¶3-10, 35) (Miss. 2008) (Tubwell, a paralegal,
independently communicated with an inmate and mailed him a pro se PCR petition to file
without an attorney’s representation, causing the attorney to be in violation of the
Mississippi Rules of Professional Conduct.) The court, however, is concerned that adopting
Moore’s argument could encourage prisoners to file a first PCR motion drafted by a person
unauthorized to practice law, knowing that if he were unsuccessful, he could later claim the
motion was void and file a second motion, circumventing the successive-motion procedural
bar.
7
Although Moore asserted in his PCR motion that counsel failed to investigate his
case and properly prepare for trial, he has abandoned this argument on appeal.
7
meritorious earned time could be used to reduce time served for parole eligibility.8 But
Moore still maintains that, because the attorney told him that he could cut his parole-
eligibility time in half (to six years), and he entered his plea based on this advice, he “was
prejudiced by counsel’s deficient performance” and is entitled to an evidentiary hearing.
¶14. An ineffective-assistance-of-counsel claim requires a showing that (1) counsel’s
performance was deficient, and (2) this deficient performance resulted in prejudice to the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). “In the context of a guilty
plea, ‘one must show counsel’s errors proximately resulted in the guilty plea and, but for
counsel’s error, the defendant would not have entered the guilty plea.’” Savinell v. State, 214
So. 3d 1061, 1064 (¶9) (Miss. Ct. App. 2016) (quoting McCollum v. State, 81 So. 3d 1191,
1193 (¶8) (Miss. Ct. App. 2012)). However, while “errors affecting fundamental
constitutional rights are excepted from the procedural bars of the UPCCRA, . . . the supreme
court has not held that ineffective-assistance-of-counsel claims in noncapital cases invoke
a fundamental right that eludes the UPCCRA’s procedural bars.” Sanders v. State, 179 So.
8
Mississippi Code Annotated section 47-7-3(2) (Rev. 2010) stated:
Notwithstanding any other provision of law, an inmate shall not be eligible to
receive earned time, good time or any other administrative reduction of time
which shall reduce the time necessary to be served for parole eligibility as
provided in subsection (1) of this section; however, this subsection shall not
apply to the advancement of parole eligibility dates pursuant to the Prison
Overcrowding Emergency Powers Act. Moreover, meritorious earned time
allowances may be used to reduce the time necessary to be served for parole
eligibility as provided in paragraph (c) of subsection (1) of this section.
(Emphasis added). In 2014, section 47-7-3 was amended and the above italicized language
was deleted. Neither party has quantified how much meritorious time would have reduced
Moore’s time for parole eligibility.
8
3d 1190, 1192 (¶9) (Miss. Ct. App. 2015).
Though “it is conceivable that under the facts of a particular case, a lawyer’s
performance was so deficient, and so prejudicial to the defendant that the
defendant’s fundamental constitutional rights were violated,” our supreme
court “has never held that merely raising a claim of ineffective assistance of
counsel is sufficient to surmount the procedural bar.”
Williams v. State, 110 So. 3d 840, 844 (¶21) (Miss. Ct. App. 2013) (quoting Smith v. State,
922 So. 2d 43, 47 (¶9) (Miss. Ct. App. 2006)). None of the cases cited by Moore to support
his claim of an involuntary plea – Sylvester v. State, 113 So. 3d 618 (Miss. Ct. App. 2013),
Readus v. State, 837 So. 2d 209 (Miss. Ct. App. 2003), and Tiller v. State, 440 So. 2d 1001
(Miss. 1983) – involve claims subject to a procedural bar. In order to eliminate the
procedural bar, Moore would have to establish that counsel’s ineffective assistance caused
him to enter his plea, and he would not have entered the plea but for counsel’s “incorrect
advice.”
¶15. A defendant’s claims of ineffective assistance of counsel must be pled “with
specificity, and the claim must be supported by affidavits other than his own.” Shavers v.
State, 215 So. 3d 502, 507 (¶14) (Miss. Ct. App. 2016) (quoting Avery v. State, 179 So. 3d
1182, 1188-89 (¶13) (Miss. Ct. App. 2015)). “When a movant fails to attach any supporting
affidavits and relies solely on his own sworn motion, his ineffective-assistance claim must
fail.” Id. (quoting Avery, 179 So. 3d at 1189 (¶13)). As there is a presumption of
truthfulness “attached to a defendant’s solemn declarations in open court . . . a collateral
attack on a facially correct plea must include supporting affidavits of other persons.”
Readus, 837 So. 2d at 213 (¶11).
9
¶16. In Readus, Antonio Readus claimed he entered his guilty plea because his attorney
“promised ‘six months’ and ‘that he would be sent to the [Regimented Inmate Discipline
program] and ten years on paper.’” Id. at 214 (¶14). His mother’s supporting affidavit stated
the attorney also told her “six years and [then] said something about papers after that” the
morning of the sentencing hearing. Id. at 211 (¶5). Since “[b]oth affidavits aver[red] that
Readus’s lawyer instilled an expectation of a far more lenient sentence than Readus actually
received,” we remanded for an evidentiary hearing. Id. In Sylvester v. State, 113 So. 3d 618,
621 (¶5) (Miss. Ct. App. 2013), the movant and his sister submitted affidavits, with the sister
corroborating Sylvester’s claim the attorney told them Sylvester would earn trusty time and
be released on post-release supervision after serving five years. Id. at 622 (¶13).
[H]is affidavit and his sister’s affidavit assert he was misinformed as to his
eligibility for trusty earned time. Thus, the plea colloquy did not correct the
alleged misinformation. . . . For these reasons, . . . Sylvester is entitled to an
evidentiary hearing on whether his plea was knowingly, intelligently, and
voluntarily entered[.]
Id. at 623-24 (¶20).
¶17. In a similar case, Thinnes v. State, 196 So. 3d 204, 210-11 (¶¶26-27) (Miss. Ct. App.
2016), we remanded for an evidentiary hearing as the defendant “presented sufficient
corroborating evidence” that his attorneys “erroneously advised him that he would be eligible
for parole after serving three years of his twelve-year sentence.”
[T]he circuit court’s warning that no one could guarantee [Gregory] Thinnes
parole failed to directly address Thinnes’s parole ineligibility. While the
circuit court’s question reflected that no guarantee of parole, probation, or
early release existed, the question also appeared to indicate that the possibility
for such treatment existed. The transcript therefore fails to show that the
circuit court corrected the misinformation that Thinnes’s [seven] supporting
10
affidavits allege his attorneys provided him as to parole eligibility.
Id. at 209-10 (¶21) (emphasis added). “[B]ecause parole is a matter of legislative grace,
parole eligibility or noneligibility is not considered a ‘consequence’ of a guilty plea.” Mosley
v. State, 150 So. 3d 127, 136-37 (¶29) (Miss. Ct. App. 2014) (quoting Thomas v. State, 881
So. 2d 912, 916 (¶10) (Miss. Ct. App. 2004)). “[I]t is not a prerequisite to a voluntary plea
that the defendant understand the nature of parole, his eligibility for parole, and the
circumstances under which it may be granted.” Id. But “a plea is involuntary if a defendant
is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance
on the misinformation.” Id. (emphasis added).
¶18. Beside his own affidavit, Moore has failed to show that, but for counsel’s advice, he
would not have entered his guilty plea. “When the only support the movant offers is his own
affidavit, and it is contradicted by unimpeachable documents in the record, an evidentiary
hearing is not required.” Lackaye v. State, 166 So. 3d 560, 564 (¶12) (Miss. Ct. App. 2015)
(citing Gable v. State, 748 So. 2d 703, 706 (¶12) (Miss. 1999)). Furthermore, Moore has
offered no “good cause” for failing to obtain additional affidavits. Compare Miss. Code
Ann. § 99-39-9(1)(e) (Rev. 2015) (“The affidavits of other persons and the copies of
documents and records may be excused upon a showing, which shall be specifically detailed
in the motion, of good cause why they cannot be obtained.”);9 with Walden v. State, 201 So.
3d 1042, 1046 (¶15) (Miss. 2016) (reversing trial court’s decision to dismiss PCR motion
9
While the Mississippi Supreme Court recently declared subsection (2) of this statute
unconstitutional, see Ashwell v. State, 226 So. 3d 69, 72 (¶9) (Miss. 2017) (finding our
Constitution “grants the Legislature no power to limit the number of claims a litigant may
plead in a particular hearing”), the ruling did not affect the requirements of subsection (1)(e).
11
because movant “specifically pleaded his counsel’s alleged ineffective assistance, and
because he asserted potential good cause for his failure to provide additional affidavits”).
¶19. At the plea hearing, the circuit judge thoroughly covered what rights Moore was
giving up by entering his guilty pleas and inquired if Moore understood “the minimum and
maximum punishment that could be imposed for each of the crimes[.]” Moore
acknowledged that he understood he could be “looking at . . . [a] maximum period of
incarceration of 70 years.” The court asked Moore if he was promised “leniency or anything
of that nature in an effort to get [him] to change [his] pleas.” Moore replied, “No, sir.” The
court also asked:
THE COURT: Have you had an opportunity to discuss with your
attorney all the facts and circumstances related to each of
the crimes you are offering to plead guilty to?
[MOORE:] Yes, sir.
THE COURT: Did your discussions with your attorney include any
possible defenses that you may have to these charges?
[MOORE:] Yes, sir.
THE COURT: Did your discussions with your attorney also include the
elements of the crimes?
[MOORE:] Yes, sir.
....
THE COURT: You’ve been represented by Mr. Collette. Are you
satisfied with his representation?
[MOORE:] Yes, sir.
THE COURT: Have you got any complaints you wish to make about
12
your attorney?
[MOORE:] No.
The judge questioned Moore several times if he was sure he wanted to plead guilty. The
judge was very thorough, explaining: “It’s not too late at this point, Mr. Moore, to stop this
hearing and proceed to trial, but it will be once I accept your pleas of guilty. So before I do
that, I need to make certain that this is what you want to do.” Moore replied, “Yes, sir.” See
Turner v. State, 169 So. 3d 945, 947-48 (¶10) (Miss. Ct. App. 2014) (finding the record did
not support movant’s claim that his attorney promised he would be sentenced as a
nonhabitual offender and would receive parole, as movant told the judge at plea hearing that
“no one had promised him ‘any kind of rewards or hopes of leniency’ to obtain his guilty
plea”). While there was no discussion regarding parole eligibility or trusty time at the plea
hearing, the plea petition signed by Moore stated:
My lawyer has counseled and advised me, and has made no threats or promises
of any type or kind to induce me to enter this plea of guilty. The decision to
seek entry of this plea was my own and mine alone, based on my own reasons
and free from any outside influences.
....
I understand that no one can assure me of parole or early release from prison.
(Emphasis added). Moore signed the petition at the time he was told of the State’s plea offer.
Therefore, we find that Moore’s guilty plea was facially correct.
¶20. Moreover, the supporting affidavit by Moore’s mother did not provide sufficient
corroboration to justify an evidentiary hearing. Her affidavit simply states that when she
hired John Collette to represent Moore, he had “mentioned something about [her son] having
13
to serve six years” and “something about forty percent (40%), but I didn’t understand what
he was talking about.” Unlike the supporting affidavits in Readus, Sylvester and Thinnes,
this vague representation about serving six years made by John Collette to Ms. Moore
occurred months before any plea offer, and she was not present when the attorney met with
Moore regarding the plea offer. She never spoke with the attorneys again, although she
asserts that she did attempt to contact them with no success. Be that as it may, the only
information provided in Ms. Moore’s affidavit regarding what the attorney said to Moore
about his parole eligibility came from Moore himself. Thus, we find no error in the circuit
court’s determination that Ms. Moore had no “firsthand knowledge of any statements made
by [Moore’s] counsel concerning the length of time [Moore] would be required to serve.”
See Kimble v. State, 983 So. 2d 1069, 1074 (¶12) (Miss. Ct. App. 2008) (noting that since
affidavits were “hearsay and contained no first[]hand knowledge of any fact,” they “carried
no weight”).
¶21. “[T]o survive the UPCCRA’s procedural bars, ‘there must at least appear to be some
basis for the truth of the claim’ of a fundamental-constitutional-rights violation.”
Ducksworth v. State, 134 So. 3d 792, 795 (¶5) (Miss. Ct. App. 2013) (quoting Stovall v.
State, 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004)). We find no such basis here and
affirm the circuit court’s dismissal of Moore’s PCR motion.
¶22. AFFIRMED.
GRIFFIS, P.J., FAIR, WILSON, GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY LEE, C.J., AND IRVING, P.J.
14
CARLTON, J., DISSENTING:
¶23. I respectfully dissent from the majority’s decision to affirm the circuit court’s denial
of Moore’s PCR motion. I find that the record reflects that Moore presented sufficient
evidence to warrant an evidentiary hearing on his motion; as a result, I would reverse the
circuit court’s judgment and remand this case for further proceedings consistent with this
separate opinion.10
¶24. Moore appeals the Rankin County Circuit Court’s summary dismissal of his March
8, 2016 PCR motion without an evidentiary hearing.11 On appeal, Moore asserts the
following: (1) the circuit court erroneously found his PCR motion was successive-writ
barred; (2) his attorneys’ incorrect parole-eligibility advice rendered his guilty pleas
involuntary and amounted to ineffective assistance of counsel; and (3) the circuit court
erroneously denied his request for an evidentiary hearing.
¶25. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only
disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s
legal conclusions under a de novo standard of review.” Thinnes v. State, 196 So. 3d 204,
207-08 (¶10) (Miss. Ct. App. 2016) (quoting Carson v. State, 161 So. 3d 153, 155 (¶2) (Miss.
Ct. App. 2014)).
10
See Readus v. State, 837 So. 2d 209, 210 (¶2) (Miss. Ct App. 2003) (reversing the
circuit court’s summary dismissal of the movant’s PCR motion and remanding for an
evidentiary hearing on his allegations of an involuntary plea and ineffective assistance of
counsel).
11
The circuit court dismissed Moore’s March 8, 2016 PCR motion without an
evidentiary hearing after finding that the motion was procedurally barred and that the face
of the motion reflected Moore was not entitled to any relief.
15
I. Whether Moore’s March 8, 2016 PCR motion is successive-writ
barred.
¶26. On appeal, Moore argues the circuit court erroneously dismissed his current PCR
motion as successive-writ barred without holding an evidentiary hearing, and Moore claims
relief is due because Robert Tubwell, a non-attorney, unlawfully prepared and filed the prior
2014 PCR motions without his permission. In his March 8, 2016 PCR motion, Moore
contended the two prior 2014 motions “were not properly prepared or filed pursuant to the
requirements of the Mississippi Uniform Postconviction Collateral Relief Act.” The face of
each 2014 motion also reflected ambiguity and irregularity in stating the motions were filed
“by and through counsel” without identifying any attorney or Mississippi bar number. Moore
further asserted in his March 8, 2016 PCR motion that Tubwell prepared and filed the 2014
motions and that he (Tubwell) engaged in the crime of the unauthorized practice of law as
defined by Mississippi Code Annotated section 73-3-55 (Rev. 2012).
¶27. With regard to the unauthorized practice of law, section 73-3-55 provides:
It shall be unlawful for any person to engage in the practice of law in this state
who has not been licensed according to law. Any person violating the
provisions of this section shall be deemed guilty of a misdemeanor, and, upon
conviction, shall be punished in accordance with the provisions of Section
97-23-43. Any person who shall for fee or reward or promise, directly or
indirectly, write or dictate any paper or instrument of writing, to be filed in any
cause or proceeding pending, or to be instituted in any court in this state, or
give any counsel or advice therein . . . shall be held to be engaged in the
practice of law.
¶28. In addition, the Mississippi Supreme Court has stated:
The practice of law includes the drafting or selection of documents, the giving
of advice in regard to them, and the using of an informed or trained discretion
in the drafting of documents to meet the needs of the person being served. So
16
any exercise of intelligent choice in advising another of his legal rights and
duties brings the activity within the practice of the legal profession.
Darby v. Miss. State Bd. of Bar Admissions, 185 So. 2d 684, 687 (Miss. 1966) (citation
omitted).
¶29. In the present case, Moore asserts that Tubwell clearly engaged in the unauthorized
practice of law by taking the following actions: (1) accepting a fee from Moore’s mother,
Lisa; (2) advising Lisa of Moore’s legal rights; and (3) writing and filing the two 2014 PCR
motions on Moore’s behalf without his knowledge or permission. In its judgment dismissing
Moore’s March 8, 2016 PCR motion, the circuit court issued no findings on Moore’s prior
PCR claims other than to state the prior motions rendered Moore’s current PCR filing
successive-writ barred. However, in the affidavit attached to his March 8, 2016 PCR motion,
Moore averred that his mother, Lisa, mistakenly believed Tubwell was an attorney and paid
Tubwell to file a motion on Moore’s behalf. Moore further stated, “My mother later learned
that Tubwell was not an attorney and that the Mississippi Bar Association was trying to stop
him from trying to practice law.” According to Moore, he “never met or spoke to” Tubwell
and “did not ask or give permission to Tubwell to file [the two 2014 PCR] motions.” Moore
further averred in his affidavit that he only learned Tubwell had filed the two 2014 PCR
motions after the circuit court dismissed them.
¶30. As further support for his claims, Moore attached an exhibit to his appellate brief that
shows the DeSoto County Chancery Court enjoined Tubwell in 2014 from engaging in the
unauthorized practice of law. Because the chancery court’s order is not part of the record
before this Court, Moore asks that this Court on appeal take judicial notice of the document.
17
In addition, in his appellate brief, Moore cites a prior opinion where the supreme court
recognized Tubwell had engaged in the unauthorized practice of law. See Miss. Bar v.
Thompson, 5 So. 3d 330, 338 (¶40) (Miss. 2008). See also Tubwell v. Anderson, 776 So. 2d
654, 656 (¶1) (Miss. 2000) (recognizing Tubwell’s history as a “writwriter and . . . filer of
frivolous lawsuits and appeals”). Based on his assertions that Tubwell engaged in the
unauthorized practice of law and filed the two prior 2014 PCR motions without his
permission, Moore asks this Court to find the 2014 motions are void and therefore pose no
bar to his March 8, 2016 PCR motion.
¶31. In review of this issue, I acknowledge that section 73-3-55 establishes the practice of
law without a license constitutes a crime in Mississippi. The record reflects that Moore
presented evidence to support his claims, and the record reflects ambiguity on the face of
each of the two motions filed in 2014. Moore’s own affidavit avers that his mother hired
Tubwell and that Tubwell, without a license to practice law, filed the two 2014 PCR motions
without Moore’s authorization. The circuit court held no evidentiary hearing and issued no
findings as to the credibility of Moore’s claims that he never authorized the 2014 PCR
motions.12
¶32. After reviewing the record and applicable caselaw and statutory law, I find that Moore
presented sufficient evidence to warrant a hearing on whether Tubwell filed the two prior
2014 PCR motions without Moore’s authorization and, if so, whether the motions should
12
See Miss. Const. art. 3, § 26 (discussing the right to self-representation); Miss.
Code Ann. § 99-39-23(6) (discussing the successive-writ bar).
18
pose a procedural bar to Moore’s instant March 8, 2016 PCR motion.13 I would therefore
reverse the circuit court’s dismissal of Moore’s March 8, 2016 PCR motion and remand for
an evidentiary hearing to determine whether Moore’s current PCR motion is procedurally
barred. The record reflects Moore also asserts that his PCR motion is not successive-writ
barred because his additional claims of involuntary guilty pleas and ineffective assistance of
counsel demonstrate a violation of his fundamental constitutional right to due process.
Because I find that the record shows that Moore also presented sufficient proof on these
remaining claims to warrant an evidentiary hearing on them as well, I will briefly turn to a
discussion of these two issues.
II. Whether Moore’s attorneys provided incorrect parole-eligibility
advice that rendered his guilty pleas involuntary and amounted to
ineffective assistance of counsel.
¶33. Moore additionally argues the circuit court erred in summarily dismissing his March
8, 2016 PCR motion as a successive writ because his motion raises a violation of his
fundamental constitutional right to due process. Specifically, Moore contends that his
attorneys provided incorrect parole-eligibility advice that induced his guilty pleas and
amounted to ineffective assistance of counsel. In addressing a similar situation in Sylvester
v. State, 113 So. 3d 618, 621-22 (¶¶9-10) (Miss. Ct. App. 2013), this Court acknowledged:
The trial court may summarily dismiss a motion for postconviction relief if it
plainly appears from the face of the motion, any annexed exhibits[,] and the
prior proceedings in the case that the movant is not entitled to any relief.
When the only support the defendant offers is his own affidavit, and it is
13
To warrant an evidentiary hearing, Moore must support his claims with at least a
preponderance of the evidence. See James v. State, 220 So. 3d 989, 991 (¶5) (Miss. Ct.
App. 2016).
19
contradicted by unimpeachable documents in the record, the supreme court has
held that an evidentiary hearing is not required.
However, when the movant attaches an affidavit of another who supports the
allegation, the trial court may be required to conduct an evidentiary hearing.
This Court has held that an attack on a facially correct plea may survive
summary dismissal if supporting affidavits of other persons are attached.
Id. (internal citations and quotation marks omitted).
¶34. As in both Sylvester and Readus, Moore attached affidavits to his current PCR motion
to support his claims. In addition to his own affidavit, Moore attached an affidavit from his
mother, Lisa. Thus, in applying precedent to the instant case, this Court on appeal must
determine “whether [Moore’s] motion and [the supporting] affidavit[s] were sufficient
evidence such that his allegations were not overwhelmingly belied by the plea-hearing
transcript.” Sylvester, 113 So. 3d at 622 (¶11). I therefore turn to a review of Moore’s
claims regarding his guilty pleas and ineffective assistance to discuss whether he provided
sufficient evidence to warrant an evidentiary hearing on these issues.
a. Involuntary Guilty Pleas
¶35. As previously stated, Moore argues his reliance on his attorneys’ incorrect parole-
eligibility advice rendered his guilty pleas involuntary. In recently discussing another PCR
movant’s similar claim, this Court explained:
A voluntary guilty plea emanates from the defendant’s informed consent. An
allegation that the defendant pled guilty in response to counsel’s mistaken
advice may vitiate the plea, because it indicates the defendant may not have
been fully aware of the consequences of the plea. The petitioner bears the
burden of proving by a preponderance of the evidence that his plea was
involuntarily entered.
This Court has previously stated:
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A guilty plea is binding on a defendant only if it is entered
voluntarily and intelligently. A plea is considered voluntary and
intelligent only if the defendant is informed of the nature of the
charge against him and the consequences of the plea. Before the
trial court may accept a guilty plea, the court must determine
that the plea is voluntarily and intelligently made and that there
is a factual basis for the plea. As part of its voluntariness
inquiry, the court must determine whether the accused
understands the minimum and maximum sentences for the
charge.
We have further stated:
It is not a prerequisite to a voluntary plea that the defendant
understand the nature of parole, his eligibility for parole, and the
circumstances under which it may be granted. On the other
hand, a plea is involuntary if a defendant is affirmatively
misinformed regarding the possibility of parole and pleads guilty
in reliance on the misinformation.
In Sylvester, this Court found that the defendant’s eligibility for trusty earned
time was analogous to eligibility for parole. Th[is] Court further found that,
if a defendant alleges he was given erroneous advice by his attorney as to his
eligibility for trusty earned time (or for parole) and that erroneous advice goes
uncorrected, and he provides evidence other than his own statement (such as
a sworn affidavit from a third party), he is entitled to an evidentiary hearing.
Thinnes v. State, 196 So. 3d 204, 208-09 (¶¶15-18) (Miss. Ct. App. 2016) (internal citations
and quotation marks omitted).14
¶36. In his affidavit attached to his PCR motion, Moore said he rejected the State’s first
plea offer for thirty-five years. Moore’s affidavit further provided that he initially rejected
a fifty-year plea deal until one of his attorneys informed him that he would be parole eligible
14
See also Fairley v. State, 834 So. 2d 704, 707 (¶8) (Miss. 2003) (“The rule arising
. . . is that failure to mention something concerning parole eligibility may be no problem, but
erroneous information concerning parole and sentencing at least entitles the petitioner to an
evidentiary hearing on whether he relied on the erroneous information.”).
21
after serving about five years. According to Moore’s affidavit, his attorney told him he must
serve one-fourth of his sentence (about twelve and a half years) but that he could reduce his
time until parole eligibility to about five years through trusty time and meritorious earned
time.
¶37. Significantly, Moore also attached to his PCR motion an affidavit from his mother,
Lisa, who stated that one of her son’s attorneys “mentioned something [to her] about [Moore]
having to serve six (6) years, and he mentioned something about forty percent (40%)[.]” Lisa
further stated that, following her son’s guilty plea, Moore called her and said his attorneys
had explained that, “if he accepted the [fifty-]year plea deal and ple[d] guilty, then [he]
would serve [twelve and a half] years minus [six] years for good time minus about one year
for meritorious earned time, making [him] eligible for parole in about [five] years.” Lisa also
stated Moore informed her that he initially refused the fifty-year plea deal until his attorneys
advised him that he would only have to serve five years before becoming eligible for parole.
¶38. Similarly to the present case, in Readus v. State, 837 So. 2d 209, 211 (¶4) (Miss. Ct.
App. 2003), the movant attached his own affidavit and one from his mother to support his
claims that his attorney’s incorrect sentencing advice rendered his guilty pleas involuntary
and amounted to ineffective assistance of counsel. In his own affidavit, Readus averred “his
attorney told him that, if he pled guilty, he would be sentenced to ‘six months and ten years
on paper’ and that he would ‘get RID.’” Id. at 212 (¶9). “Readus’[s] mother’s affidavit
averred that she first spoke with the attorney the morning of the sentencing hearing in
anticipation of her testimony . . . [and] that the attorney told her that Readus ‘would get about
22
six years and he said something about papers after that.’” Id. at 211 (¶5). Although
acknowledging a discrepancy existed in the affidavits as to the exact sentence length the
attorney promised Readus, this Court found that the difference failed to invalidate the
entirety of the affidavits. Id. at 214 (¶14). Instead, the Readus Court concluded that
Readus’s supporting affidavits corroborated that his attorney provided incorrect advice and
“instilled an expectation of a far more lenient sentence than Readus actually received.” Id.
We further determined in Readus that “[c]ounsel’s alleged deficiency was not ‘cured’ by the
plea colloquy because the erroneous advice was not directly contradicted by the [trial] court’s
questioning.” Id. at 214-15 (¶18) (citation omitted). As acknowledged, in the present case,
the corroboration Moore’s mother offered in her affidavit of incorrect legal advice constitutes
similar corroboration to that offered by the mother’s affidavit in Readus.
¶39. Also as in Readus, Moore contends that the circuit court failed during the plea hearing
to correct his attorney’s erroneous parole-eligibility advice. Indeed, the record reflects that,
although the circuit court informed Moore of the rights he waived and the minimum and
maximum penalties applicable if he pled guilty, the circuit court never addressed the issue
of Moore’s parole eligibility. As a result, during the plea colloquy, the circuit court failed
to correct the misinformation that Moore’s supporting affidavits allege his attorneys provided
as to his parole eligibility. In the analogous case of Readus, this Court found that the movant
raised sufficient evidence to warrant an evidentiary hearing. Id. at 210 (¶2).15 Accordingly,
15
See also James v. State, 220 So. 3d 989, 991 (¶5) (Miss. Ct. App. 2016) (“At an
evidentiary hearing on [a PCR motion], the burden of proof is on the petitioner to ‘prove by
a preponderance of the evidence that he is entitled to the relief’” (quoting Miss. Code Ann.
§ 99-39-23(7) (Rev. 2015))).
23
I likewise find Moore is entitled to an evidentiary hearing on this issue and that the circuit
court abused its discretion by summarily dismissing his PCR motion without granting the
hearing.
b. Ineffective Assistance of Counsel
¶40. During his plea hearing, Moore swore under oath he was satisfied with his attorneys’
representation. “[A] strong presumption . . . exists that in-court declarations are truthful.”
Thinnes, 196 So. 3d at 210 (¶25) (citing Sylvester, 113 So. 3d at (¶24)). On appeal, however,
Moore argues his attorney provided ineffective assistance of counsel. To prevail on his
ineffective-assistance claim, Moore must prove: (1) his attorneys’ performance was
deficient; and (2) he suffered prejudice as a result of the deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). With regard to a Strickland analysis,
this Court has explained, “[I]t is presumed that counsel’s representation falls within the range
of reasonable professional assistance. However, the defendant may overcome the
presumption. To do so, the defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Sylvester, 113 So. 3d at 624 (¶22) (internal citation and quotation marks omitted).
¶41. The affidavits Moore attached to his March 8, 2016 PCR motion support his assertions
that (1) his attorneys misinformed him about his parole eligibility; (2) he detrimentally relied
on this erroneous information in pleading guilty; and (3) but for his attorneys’ erroneous
parole-eligibility advice, he would not have decided to accept the State’s fifty-year plea offer
and plead guilty. Thus, if Moore’s instant PCR motion is not found to be procedurally barred
24
as a successive writ due to the unauthorized and illegal actions of an unlicensed writ writer,
then Moore’s affidavits provide sufficient corroborating evidence to warrant an evidentiary
hearing as to his ineffective-assistance-of-counsel claim. Compare Readus, 837 So. 2d at
214-15 (¶18).
¶42. I would therefore reverse the circuit court’s summary dismissal of Moore’s March 8,
2016 PCR motion and remand this case for an evidentiary hearing on the claims raised by
Moore’s PCR motion. As a result, I respectfully dissent from the majority’s decision.
LEE, C.J., AND IRVING, P.J., JOIN THIS OPINION.
25