OF JUDGMENT: 03/24/2016
COUNTY CIRCUIT COURT TRIAL HON. JOHN HUEY EMFINGER, JUDGE
ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER VALERIE LAUREL
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH
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). 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 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.
AND PROCEDURAL HISTORY
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.
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. 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 being eligible. He also
discovered he would not be eligible for placement in a
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.
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).
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 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.
"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.
Whether Moore's PCR motion is a successive
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- 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. 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." 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
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.
¶10. While there is no Mississippi caselaw addressing
the validity of a motion filed by a 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).
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
"[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 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.
Whether the advice by Moore's attorney
constituted ineffective assistance of
counsel and rendered his guilty plea involuntary.
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. 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, meritorious earned time could be
used to reduce time served for parole
eligibility. 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.
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.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."
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
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).
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
[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
affidavits allege his attorneys provided him as to parole
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).
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.");with Walden v. State,
201 So.3d 1042, 1046 (¶15) (Miss. 2016) (reversing trial
court's decision to ...