Moore v. State

• Decision Date: 05 December 2017
• Docket Number: NO. 2016–CA–01032–COA,2016–CA–01032–COA
• Citation: 248 So.3d 845
• Parties: Gregory Tyler MOORE a/k/a Gregory Moore, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

248 So.3d 845

Gregory Tyler MOORE a/k/a Gregory Moore, Appellant

v.STATE of Mississippi, Appellee

NO. 2016–CA–01032–COA

Court of Appeals of Mississippi.

December 5, 2017

Rehearing Denied April 10, 2018

Certiorari Denied July 19, 2018

ATTORNEYS FOR APPELLANT: THOMAS M. FORTNERVALERIE LAUREL MOSS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

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 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 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 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–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 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 , 354 Ark. 666, 128 S.W.3d 430, 437–38 (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 , 280 Va. 480, 699 S.E.2d 519, 520 (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 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...