IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01032-COA GREGORY TYLER MOORE A/K/A GREGORY MOORE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/24/2016 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH 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 AINSW ORTH 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, G regory Ty ler M oore pleaded g u i l t y t o f i v e counts of

auto burglary and one count of burglary of a dwelling and was sentenced by the Rankin County Circuit Court to f

if ty y ears in t he custody of t he Mississippi De p a r t me n t o f Corrections (MDOC). 1 Moore f

i led two m otion s f

o r post-conviction relief ( PCR) i n 2 014 (one f or his auto-burglary convictions a n d one f or the burglary -of

-a-dwelling conviction), w hich the

1 H e w a s sen ten ced to f

iv e co n secu tiv e sev en -y ear sen ten ces f o r each au to m o b ile

b u rg lary co n v ictio n an d tw en t y -f iv e y ears f

o r b u rg lary o f a d w e l l i n g , w i th t en y ears su sp en d ed , an d f

iv e y ears o f

su p e rv ised p ro b a tio n .circuit court dism issed. In 2016, Moore f i led the instan t P C R mo t i o n . The circuit court determ ined the m otion was p rocedurally barred, and M oore was not entitled to any relief f or his claim s. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Twenty -one-y ear old Moore was charged with six counts of auto burglary , f ive counts of burglary of a dwelling, and o ne count of statutory rape. A f t e r d i sm i ssing h is original lawy er, Moore’s p a rents h ired attorney s John and Sherwood Collette i n March 2013 to represent Moore

. I n July 2013, John Collette i nf orm ed Moore that t he S tate would

r e c om m end a thirty -f

i ve-y ear sentence if Moore e ntered a g uilty plea. Moore ref used, f eeling the plea of

f e r was excessively punitive since he had never b ef ore been guilty of any f

elony

. ¶3. On August 2, 2013, a second plea of f er was s ubm itted f

o r M o o r e t o p lead guilty

to f ive counts of auto b urglary and one c ount of burglary of a dwelling f or a cum ulative

sentence of f

if t y y e ars in the custody of the M DOC. According to Moore, Sherwood Collette said that although Moore w ould have to serve one-quarter o f h is s entence (twelve and onehalf y ears), he could reduce his tim e f or parole e ligibility f

rom twelve a nd one-half y ears to approxim a tely six y ears b y receiving “trusty tim e” and “m e ritorious earned t im e.” Moore claim s that he entered guilty pleas to the six counts b ased on the attorney ’s advice. 2 Moore later discovered that trusty e arned tim e and m eritorious earned tim e could not reduce the t im e served to be parole eligible, and h e w o u l d h ave to serve twelve a nd one-half y ears bef ore

2 In ex ch an g e f

o r th is p l ea, th e S tate ag reed to n o lle p ro s th e s tatu to ry -rap e ch a rg e, o n e co u n t o f au to b u rg lary , f o u r co u n ts o f h o u se b u rg lary , an d an u n in d icted co u n t o f attem p ted escap e. 2being eligible. He also discovered he would not be eligible f or placem e nt in a work-center
f acility

. ¶4. O n F e b ruary 7, 2014, a PCR m otion was f iled regarding Moore’s convi c t i o n f o r burglar y o f a d w e lling, w hich alleged his guilty plea w as not voluntary

. A second PCR

m otion was f

iled on March 6, 2 014, regarding M oore’s convictions f or a utom obile burglary

. This m otion asserted several errors, including inef f ective assistance of c ounsel and raising

m ental-com

petency issues. Although both m otions stated that they were subm i tted “by and through counsel,” only Moore’s nota r i z e d s i g nature was present on each. T here was no attorney l isted as representing Moore. The c i rcuit court dism issed both m otions on June 17, 2014, f i n d i n g t h a t M oore was not entitled to any relief

. Moore did not appeal t he court’s judgm ent. ¶5. Moore f

iled another PCR m otion on March 8, 2016, arguing his guilty pleas to the six

counts were involuntary , as they were based on the m isr e p r e s e n t ations b y his trial counsel regarding his p arole eligibility (inef f ective-assistance-of

-counsel claim ). He a lso c ontended that he did not authorize the f iling of the two p rior PCR petitions, w hich were “prepared and
f iled” by Robert Tubwell, a non-attorney e n gaged in t he unauthorized practice of law; so his

current P CR m o tion should be n o t be procedurally barred a s successive. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015). ¶6. T h e c i r c u i t c o u r t c o n c l u d e d M oore’s claim s did n ot except t he m otion f r o m procedural bars and dism issed the PCR m otion as s uccessive. The court also f o u nd that
Moore was not entitled to any r elief f or his claim s of involuntary plea a n d i n e f f ective

3assistance of counsel. Moore f i l e d a motion f

or reconsideration or, in the alternative, to clarif y the judgm ent, reasserting h is c laim s that his involuntary plea w a s a violation of his
f undam ental constitutional right to due process and t hat his prior PCR m o tions were prepared and f iled by a “ person e ngaged i n t h e u n authorized practice of l aw” and should not be considered “valid.” The circuit court denied the m otion, and Moore now appeals.
STANDARD OF REVIEW ¶7. “If it plainly appears f rom the f ace of the m otion, any annexed e xhibits and the prior
p r o c e e d i n g s i n the case that the m ovant is not entitled to any relief ,” the trial court m a y

sum m arily dism iss a PCR petition. Miss. Code Ann. § 99-39-11(2) (Rev

. 2 0 1 5 )

. T h e

sum m a r y dism issal of a def endant’s PCR m otion w ill b e af f irm ed “if [ h e] f

ails to dem onstrate a claim procedurally alive substantially showing the denial of a s t ate or f ederal right.” Salter v. State , 184 So. 3d 944, 948 (¶10) ( Miss. Ct. App. 2015) (citing W hite v. State,
59 So. 3d 633, 635 (¶4) (Miss. Ct. App. 2011)). “A trial court’s dism issal of a P CR petition will not be reversed absent a f inding that the trial court’s decision wa s c l e a r l y erroneous.” Id

. (citing W

ilson v
. State, 76 S o. 3d 733, 735 (¶9) ( Miss. C t. App. 2011)). Issues of law are reviewed de novo. Id.
DISCUSSION
I. Whether Moore’s PCR m otion is a successive w rit. ¶8. Moore contends that t he c ircuit court s h ould not have dism i ssed his latest PCR m otion

as successi v e. In his PCR m otion, Moore argued his two prior PCR m otions “were not properly prepared o r f

iled pursuant to the requirem ents o f the Mississippi Unif or m Post4Conviction Collateral Relief Act [ (UPCCRA)],” and the person w ho f iled and prepared the
f irst two PCR m otions, Tubwell, was engaged in the unauthorized practice o f law. 3 Moore

avers i n his af

f idavit that he “never m et or spoke with Robert Tubwell” and that h e “did not ask or give perm ission to T ubwell to f ile those m o tions.” H owever, Moore d oes not allege that h is signature o n the m o tions was f orged; he m erely asserts that the b urden is o n the State

to prove t he signatures were his, and Tubwell’s authorship and f iling of the m otions rendered the prior m otions “ null and void.” 4 The State argues that the record does not support Moore’s claim t hat the p rior m otions were not authorized by him as h is signature is on the two prior
PCR m otions. ¶9. First, we f

ind t hat Moore’s notarized signatures constitute prim a f acie e v idence that he indeed signed the previous PCR m oti o n s . S e e M ack Fin. Corp. v
. Decker , 461 S.W .2d 228, 230 (Tex. C iv. App. 1970) (An inst r u m ent acknowledged by the def endant “bef

o re a

n o t a r y public

. . . is prim a f

acie evidence of the execution o f the docum e n t

. ” ) H e h a s subm itted no evidence to the contrary

. Theref ore, we f ind t hat State has m e t its b u rden of proof that the signatures were Moore’s. 5 ¶10. W h ile there is no Mississippi caselaw addressing the validity o f a m otion f iled by a

3 T h e circu it co u rt m a d e n o f in d in g s o n th is issu e, ex cep t t o co n clu d e th at M o o re’s P C R m o t io n w as p ro ced u rally b arred

. 4 M o o r e attach e d an ex h ib it to h i s a p p eal sh o w in g T u b w e l l w a s e n j o in ed b y th e D e S o to C o u n ty C h an cery C o u rt f ro m en g ag in g in th e p ractice o f law , b u t th is w as n o t p art o f th e reco rd b ef

o re th e trial co u r

t. H e req u ests th a t t h i s C o u r t t ak e j u d icial n o tice o f th e o rd er. B ased o n o u r an aly sis, w e f in d th e ex h ib it n o t relev an t in t h i s in stan ce.

5 W e also n o te th at th e n o tary w as f ro m L au d erd ale C o u n ty , w h e r e M o o re is in cu sto d y . 5person u nauthorized t o practice law, Moore cites cases f rom other j urisdictions t

hat have held

court f ilings by a p erson not authorized to practice law are a nullity

. I n Preston v. University of Arkansas , 128 S.W .3d 430, 437-38 (Ark. 2003), the Arkansas Suprem e Court h eld that a

com plaint f iled b y Oklahom a attorney s in Arkansas constituted unauthorized practice of law, and t he com

plaint was “a nullity .” See also Shipe v. Hunter , 6 99 S .E.2d 519, 520 (Va. 2010) (“[ A ] p l e a d i n g, signed o n ly by a person acting in a representative capacity who is not licensed to practice law in Virginia, is a nullity .”); Carlson v. W orkforce Safety & Ins. ,765
N

. W

. 2 d 6 9 1, 704 ( N.D. 2009) (concluding the f iling of a request f

or reconsideration b y nonresident attorney s f

rom Ohio, not adm itted to practice in North Dakota, was void). ¶11. These cases are d istinguishable f rom the p resent case f

or one s im ple reason – Tubwell did not sign either PCR m otion; nor is his nam e l isted on either m otion as Moore’s attorney

. Although the PCR m o tions both c ontain f orm language t hat Moore w as f iling the petition “by and through counsel,” the o nly signature on the m otions is M oor e ’ s , a n d his signature is attested by a notary

. Compare Preston , 1 28 S.W .3d a t 437 (f inding no m erit to the Prestons’ claim their com

plaint was f

iled “pro se . . . because they h ired attorney s to handle their case, and those attorneys signed the complaint ” (Em p hasis added)). ¶12. “[ T]o be entitled t o an evidentiary hearing, ‘a [ m ovant] m ust dem onstrate, by af

f idavit

or otherwise, that there are unresolved issues of f act that, if concluded f

a v o r a b ly to the [ m o vant], 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, 1 085 (¶9) (Miss. Ct. App. 2000)). “This m ay not b e accom plished through [ the

6m ovant’s] own u n s u p ported allegations.” Id

. (quoting McCuiston, 7 58 So. 2d at 1085-86

(¶9)). T he r e i s n o e vidence of any representation by Tubwell in the record except f or Moore’s a ssertion in h is af f idavit. W hile M oore claim s h is m other hired T ubwell, her

a f f i d a vit is oddly silent on this issue. She m akes n o m ention of Tubwell o r the two prior
PCR m otions. Theref

ore, Moore’s “unsupported allegations” do n ot w arrant an evidentiary hearing on this i ssue, and w e a f f irm the court’s f

inding that Moore’s m otion is procedurally barred as successive. 6
II. Whether the advice by Moore’s attorney constituted ineffective assistance of counsel and rendered his guilty p lea involuntary . ¶13. Moore argues that h is trial attorney ’s “incorrect advice” – that he could d ecrease his tim e f or parole eligibility through “trusty tim e” and “m e ritorious earned tim e” – induced h im

to e nter a guilty plea, constituting inef f ective assistance of counsel a nd renderin g his plea involuntary

. 7 Moore’s appellate counsel has acknowledged that the l anguage of the statute

c o n cerning parole eligibility shows that, at the tim e Moore entered h is guilty pl e a s ,

6 N o t w ith stan d in g t h i s f

in d in g , th is C o u rt d o es n o t co n d o n e T u b w ell’s h isto r y o f actin g a s so m e ty

p e o f f r eelan ce w rit w riter af

ter h is release f

ro m p riso n . S

e e M iss. B a r v. T h o m p so n , 5 S o . 3 d 3 3 0 , 3 3 3

- 3 8 (¶¶3 -1 0 , 3 5 ) (M iss. 2 0 0 8 ) (T u b w ell, a p araleg al, in d ep en d e n tly co m m

u n icated w ith an in m ate an d m ailed h im a p ro se P C R p etitio n to f

ile w i th o u t an atto rn ey ’s r ep resen t atio n , cau sin g t h e atto rn ey t o b e in v io latio n o f th e M ississip p i R u l es o f P ro f

essio n al C o n d u ct.) T h e co u rt, h o w e v e r, is co n c ern e d th at ad o p tin g M o o re’s arg u m en t co u ld en co u rag e p riso n ers t o f ile a f irst P C R m o tio n d raf

t ed b y a p erso n u n au th o rized to p ractice law , k n o w in g th a t if h e w ere u n su ccessf u l, h e co u ld l ater claim th e m o tio n w as v o id an d f

ile a seco n d m o tio n , circu m v en tin g th e s u ccessiv e-m o tio n p r o ced u ral b ar.

7 A lth o u g h M o o re asserted in h is P C R m o tio n th at co u n sel f ailed to in v e stig ate h is case an d p ro p erly

p rep are f o r trial, h e h as ab an d o n ed t h is arg u m e n t o n ap p eal.

7m eritorious earned tim e could be used to reduce tim e serv e d f o r p arole eligibility

. 8 But
M o o r e still m aintains that, because the attorney told him that he could cut h is p a r o l e eligibility tim e i n half (to s i x y e a r s ), and he entered his plea based on this a dvice, he “was prejudiced by

counsel’s def

i cient perf

orm ance” and is entitled to an evidentiary hearing. ¶14. An inef

f ective-assistance-of

-counsel claim requires a show i ng t hat (1) counsel’s perf orm ance w as def

i cient, and (2) this def

icient perf

orm ance r esulted i n prejudice to the def endant. S trickland v. W

ashington, 466 U.S. 668, 6 87 (1984). “ I n the context of a guilty plea, ‘one m

ust show c ounsel’s erro r s proxim ately resulted in the guilty plea and, but f or counsel’s error, the def

endant w ould 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. 2 012)). However, while “errors af f ecting f undam ental constitutional r ights are e xcepted f rom the p rocedural bars of the U PCCRA,

. . . the suprem e
court h a s n o t held that inef f ective-assistance-of

-counsel claim s in noncapital cases invoke

a f undam ental right that eludes t he UPCCRA’s procedural bars.” Sanders v. S tate , 179 So.

8 M ississip p i C o d e A n n o tated sectio n 4 7 -7 -3 (2 ) (R ev . 2 0 1 0 ) stated : N o tw ith stan d in g an y o th er p ro v isio n o f law , an in m ate sh all n o t b e elig ib le to receiv e earn e d tim e, g o o d tim e o r an y o th er ad m in istrativ e red u ctio n o f tim e w h ich s h all r ed u c e t h e t i m e n e cessary to b e serv ed f o r p aro le elig ib i lity as p ro v id ed i n s u b s ectio n (1 ) o f th i s sectio n ; h o w ever, th is su b sectio n sh a ll n o t a p p ly to t h e a d v a n cem en t o

f p a ro le elig ib ility d

a te s p u r s u a n t t o th e P riso n O v ercro w d i n g E m erg en cy P o w ers A ct. M o r e o ver, m erito rio u s ea rn ed tim e a llo w a n ces m a

y b e u s ed to red

u c e th e tim e n ecessa ry to b e served fo r p a ro le elig ib ility a s p ro vid

ed in p a ra g ra

p h ( c) o f su b sectio n (

1 ) o f th is sectio n . (E m p h asis ad d ed ). In 2 0 1 4 , sectio n 4 7 -7 -3 w as am e n d ed an d th e ab o v e italicized lan g u ag e w a s d eleted

. N eith er p arty h as q u an tif ied h o w m

u ch m erito rio u s tim e w o u ld h a v e red u ced M o o re’s tim e f

o r p aro le elig ib ility

. 83d 1190, 1192 (¶9) (Miss. Ct. App. 2015).

Though “it is c onceivable that under the f acts of a particular case, a l awy e r’s perf orm ance was so def

icient, and s o prejudicial to the def enda n t that the d e f e ndant’s f

undam ental constitutional r ights were violated,” our supre me court “has never held t hat m erely raising a claim of inef f e c t i v e assistance of counsel is suf

f icient to surm ount the procedural bar.”
W illiams 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 b y Moore to support his claim of an i nvoluntary plea – Sylvester v. State , 1 13 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. 1 983) – involve claim s s ubjec t t o a p r o c edural b ar. I n order t o elim inate the procedural bar, Moore would have to establish that counsel’s inef f ective assistance caused
h i m t o e n ter h is plea, and he w ould not have entered the plea but f o r counsel’s “in c o r r e c t advice.” ¶15. A def

e ndant’s c laim s of inef

f ective assista n c e o f c o u n s e l mu s t b e p l e d “ w i t h

s p e c if i city , and the claim m

u st be supported by af

f idavits other than his o wn.” S h a v e r s v
. State , 215 So. 3d 502, 507 (¶14) (Miss. Ct. A p p. 2 016) (quoting Avery v. State , 179 So. 3d 1182, 1 188-89 (¶13) (Miss. C t. A pp. 2015)). “W hen a m ovant f ails t o attach a ny s u

pporting af f idavits and relies solely

on his own sworn m otion, his inef f ective-assistance claim

m ust f ail.” Id

. ( quoting Avery , 179 S o. 3d at 1 189 (¶13)). As there is a presum ption of truthf ulness “attached t o a def endant’s solem n declarations in o pen court

. . . a collateral attack on a f

acially correct p lea m

ust i nclude supporting af f idavits of other p ersons.” Readus , 837 So. 2d at 213 (¶11).

9¶16. In Readus , Antonio Readus claim ed he entered his guilty p lea because his a t t o r n e y

“prom ised ‘ six m onths’ and ‘that he would be sent t o the [ Regim ented Inm ate D iscipline
program ] a nd ten y ears o n paper.’” Id

. at 214 (¶14). His m other’s s upporting af f idavit stated the attorney also t old her “six y ears and [ then ] said som ething about papers af ter that” the

m orning of the s entencing hearing. I d

. at 211 (¶5). Since “[ b]oth af f idavits aver[ red] that Readus’s lawy er instilled an expectation of a f ar m ore lenient sentence than Readus actually received,” we rem anded f or an evidentiary hearing. Id

. In Sylvester v. S tate , 1 13 So. 3d 618,
621 ( ¶5) (Miss. Ct. A pp. 2 013), the m ovant and h is sister subm itted af f idavits, with the sister corroborating Sy lvester’s claim the attorney t old them Sy lvester would earn trusty tim e and be released on post-release supervision af ter serving f

ive y ears. Id . at 622 (¶13). [ H]is af f idavit and his sister’s af

f idavit assert h e w as m isinf orm ed as to his eligibility f

or trusty earned tim e. Thus, the plea c o l loquy did not correct the a lleged m isinf

orm a tion.

. . . For these reasons, . . . Sy lvester is entit l e d t o a n evidentiary hearing o n w h e ther his plea was k nowingly , intelligently , and voluntarily

entered[ .] Id . at 623-24 (¶20). ¶17. In a s im ilar case, Thinnes v
. State , 196 S o. 3d 2 04, 210-11 (¶¶26-27) (Miss. Ct. App. 2016), we rem a nded f

o r a n evidentiary hearing as t he def endant “presented suf

f icient

corro b o r a ting evidence” that his attorney s “erroneously advised him that he would be eligible
f or parole af

ter serving three y ears of

his twelve-y e ar sentence.” [ T]he c ircuit c ourt’s w arning that no one could g uarantee [ Gregory ] Thinnes parole failed t o d

irectly a ddress Thinnes ’ s p arole ineligibility

. W hile the circuit court’s question r ef lected that no guarantee of parole, probation, or early release existed, the question also appeared to indicate that the possibility f or such treatm e nt existed. The tr a n s c r i pt theref ore f a ils to show that the circuit cou r t corrected the m isinf orm ation that Thinnes’s [ seven] s u pporting

1 0af

f idavits allege his attorney s provided him as to parole eligibility

. Id

. at 209-10 (¶21) (em

phasis a d d e d )

. “[ B]ecause parole is a m atter of legislative grace, parole eligibility or n o neligibility 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 9 12, 916 (¶10) (Miss. Ct. App. 2 004)). “ [ I]t is not a prerequisite t o a voluntary plea that the def

endant understand the nature of parole, his elig i b i l i t y f or parole, and the circum stances under w hich it m ay be granted.” Id. But “a plea is involuntary if a def endant is af f irm atively m isinf

orm e d regarding the possibility o f parole and pleads guilty in reliance on the misinformation .” Id. (em phasis added). ¶18. Beside his own a f

f idavit, Moore has f

a iled to s how that, but f

or counsel’s advice, he would n o t have entered his guilty p lea. “W hen the only support t he m ovant of f ers is his own af f idavit, and it is contradicted by unim peachable docum ents in the r e c o r d , 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

. 1 9 9 9 ) )

. F urtherm ore, M oore has of f ered no “good cause” f

or f ailing to obtain a d d i t i o n a l af f idavits. Compare Miss. Code
Ann. § 99-39-9(1)(e ) ( R e v . 2 0 15) ( “The a f f idavits of other persons and the copies of docum ents and r ecords m ay be e xcused upon a showing, which shall be specif ically detailed
in t he m o tion, of good cause why they cannot b e obtained.”); 9 with W alden v. State , 201 So. 3d 1042, 1046 ( ¶15) (Miss. 2016) (reversing trial court’s d ecision to dism i ss PCR m otion

9 Wh ile th e M ississip p i S u p rem e C o u r t recen tly d eclared su b sectio n ( 2 ) o f th is statu te u n co n stitu tio n al, s e e A sh w ell v. S ta t e , 2 2 6 S o . 3 d 6 9 , 7 2 ( ¶ 9 ) (M iss. 2 0 1 7 ) (f in d in g o u r C o n stitu tio n “g ran t s th e L eg islatu re n o p o w er to lim it th e n u m b er o f claim s a litig an t m ay p lead in a p articu lar h earin g ”), th e ru lin g d id n o t af f ect th e req u i rem en t s o f su b s ectio n (1 )(e). 1 1because m ovan t “ s p e cif ically pleaded his counsel’s a l leged inef f ective assistance, and because he asserted potential good cause f or his f ailure to provide additional af f idavits”). ¶19. A t t h e p l ea hearing, the c ircuit judge thoroughly covered what rights Moore w a s giving up by entering his guilty pleas and inquired if Moore understood “the m inim um and

m axim u m p unishm ent that could be i mp o s ed f or e ach of the crim es[ .]” Moore acknowledg e d t h a t h e u nderstood he could be “looking at

. . . [ a] m axim um period of incarceration o f 70 y ears.” The court a sked Moore if he was prom ised “leniency or any thing of t hat nature in an ef

f ort to g et [ him ] to change [ his] pleas.” Moore replied, “No, sir.” The court also asked:
THE COURT: Have y o u h a d a n o p p o r t u n i t y t o d i s c u s s w i t h y o ur

attorney all the f

acts and circum stances related t o e ach of the crim es y ou are of

f ering to plead guilty t o? [ MOORE:] Yes, sir.
THE COURT: D i d y o u r d i s c u s s ions with y our a ttorney i n c l u d e a n y

possible def

enses that y ou m a y have to these charges? [ MOORE:] Yes, sir.
THE COURT: Did y our d iscussions with y our a t torney a l so include the

elem e nts of

the crim es? [ MOORE:] Yes, sir.

. . . . THE COURT: Y o u ’ v e b e e n r epresented by Mr. C o l l e t t e . A r e y o u

satisf ied with his representation? [ MOORE:] Yes, sir.
THE COURT: H a v e y o u g o t a ny com plaints y ou wish to m ake about

1 2y our attorney ?

[ MOORE:] No. The judge questioned M o o re several tim e s if he was sure he wanted t o plead g u i l t y . The judge w as very thorough, explaining: “It’s not t oo late at this p oint, Mr. Moore, to stop this hearing and proceed to trial, but it will be once I accept y our pleas of guilty

. So bef ore I do that, I need to m ake certain that t his is what y o u want t o do.” Moore replied, “Yes, sir.” See
Turner v. State , 1 6 9 So. 3d 945, 947-48 (¶10) (Miss. Ct. App. 2014) (f i nding t he record did

not support m ovant’s claim that his attorney prom ised h e w o uld be sentenced as a nonhabitual of

f e nder and would receive parole, as m ovant told the judge at plea hearing that

“ n o o n e had prom ised him ‘ any kind of r ewards or hopes of leniency ’ t o obtain his guilt y plea”). W hile there was no discussion regarding parole eligibility o r trusty t im e at the plea hearing, the plea petition signed by Moore stated: My lawy er has counseled and advised m e, and has m ade no threats or prom i ses of any ty pe or kind to induce m e to enter this plea o f guilty

. The d ecision to seek entry of this plea was m y own and m ine alone, based on m y o wn reasons and f ree f rom any outside inf

luences.

. . . . I understand that no one can assure me of parole or early release from prison

. (Em phasis added). Moore signed the petition at the tim e he w as told of the State’s plea of f er. Theref ore, we f i nd that Moore’s guilty plea was f acially correct. ¶20. Moreover, the supporting af f idavit b y M o o r e ’ s mo t her did not provide suf f icient corroboration to justif

y a n evidentiary h earing. Her af f idavit s im ply states that when she hired John Collette to represent Moore, he had “m entioned som ething about [ her son] having

1 3to serve six y ears” and “som ething about f o rty p ercent (40%), but I didn’t understand what he was t alking about.” Unlik e t h e s u pporting af f idavits in R eadus , Sylvester and Thinnes , this vague r epresentation about serving six y ears ma d e b y J o h n Collette to Ms. Moore occurred m onths bef

o re a ny plea of

f er, and she was not present w hen the attorney m et with
Moore regarding the plea of f er. She never spoke with the attorne y s again, a l though she

asserts that she did attem p t to contact them w ith no success. B e t h a t as it m ay , the only
inf orm ation provided in Ms. Moore’s af f idavit regarding w h a t t h e a ttorney said to Moore about his parole eligibility cam e f rom Moore him self

. T h us, we f

ind no error in t he circuit
court’s determ ination that Ms. Moore had no “f irsthand knowledge of any statem ents m ade by [ Moore’s] counsel concerning the leng t h o f t im e [ Moore] would b e required to serve.”
See Kimble v. State, 983 So. 2d 1069 , 1 0 7 4 ( ¶ 12) (Miss. Ct. A p p. 2008) (noting that since af f idavits were “hearsay and contained no f irst[ ]hand knowledge of any f act,” they “carried no weight”). ¶21. “[ T]o survive the UPCCRA’s procedural bars, ‘there m ust at least appear to be som e basis f o r the t r u t h o f t he claim ’ o f a f undam ental-constitutional-rights violation.” Ducksworth v
. State , 134 So. 3d 792, 795 (¶5) ( Miss. Ct. App. 2 013) ( quoting Stovall v. State, 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004)). W e f ind no such basis here and af f irm the circuit court’s dism issal of Moore’s PCR m otion. ¶22. AFFIRMED. GRIFFIS, P .J., FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. C ARLT O N , J . , D I S S E N T S W I T H S E PARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND IRVING, P.J.

1 4CARLTON, J., DISSENTING:

¶23. I respectf

ully dissent f

rom the m ajority ’s decision to af f irm t he circuit court’s denial of Moore’s PCR m otion. I f ind that the record ref

lects that Moore presen ted suf f icient

e v i dence to warrant a n e videntiary hearing on his m otion; as a result, I would reverse th e circuit court’s judgm ent and rem and this case f or f urther p roceedings consistent with this separate opinion. 10 ¶24. Moore appeals the R ankin Coun ty Circuit Court’s sum m ary d ism issal of his March 8, 2016 PCR m otion without an evidentiary hearing. 11 On ap p eal, Moore asserts the
f o l lowing: (1) the circuit court erroneously f ound his PCR m o tion was successive

- w r i t b a r r e d ; ( 2) his attorney s’ incorrect parole-eligibility advice rendered his guilty pl e a s involuntary and am ounted t o inef f ective assistance of counsel; and (3) t he ci rcuit court erroneously

denied his request f

or an evidentiary

hearing. ¶25. “ Wh e n r e v i ewing a trial court’s denial o r dism issal of a P CR m o tion, we will onl y disturb the trial court’s d e cision 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 S o . 3d 204,
207-08 (¶10) ( Miss. Ct. App. 2016) (quoting Carson v
. State , 161 So. 3d 153, 1 55 (¶2) (Miss. Ct. App. 2014)).

10 S ee R ea d u s v. S ta te , 8 3 7 S o . 2 d 2 0 9 , 2 1 0 ( ¶2 ) (M iss. C t A p p . 2 0 0 3 ) (rev ersin g th e c ircu it co u rt’s su m m ary d ism issal o f th e m o v an t’s P C R m o tio n an d rem an d in g f o r a n ev id e n t iary h earin g o n h i s al l e g a t io n s o f a n in v o lu n tary p lea a n d in ef f ectiv e assistan ce o f co u n sel).

11 T h e circu it co u rt d ism is sed M o o re’s M arch 8 , 2 0 1 6 P C R m o tio n w ith o u t an ev id e n t iary h earin g a f

ter f in d in g t h at th e m o tio n w as p ro ced u rally b arred an d th a t th e f ace o f th e m o tio n ref

lected M o o re w as n o t en t itled to an y relief

. 1 5I. Whether M oore’s March 8, 2016 PCR m otion is successive-w rit barred. ¶26. On appeal, Moore argues th e c i r c u i t c o u rt erroneously dism issed his c urrent PCR

m otion as successive-writ barred without holding a n evidentiary hearing, and Moore claim s relief is due because Robert Tubwell, a non-attorney , u nlawf ully prepared and f

iled the prior
2014 PCR m otions w ithout his perm ission. In his Marc h 8 , 2 0 1 6 P CR m otion, Moore contended the two prior 2014 m otions “were not properly prepared or f iled pursuant to the requirem ents of the Mississippi U nif orm Postconviction Collateral Relief Act.” T he f ace of each 2014 m otion also ref lected am biguity and irregularity in stating the m otions were f iled “by and through cou

nsel” without identif

y ing any attorney or Mississippi bar num ber. Moore f urther asserted i n his March 8, 2016 PCR m otion that Tubwell prepared a nd f iled the 2014

m otions and t hat he (Tubwell) e ngaged in t he crim e of the unauthorized practice of law as def ined by Mississippi Code Annotated section 73-3-55 (Rev. 2012). ¶27. W i th regard to the unauthorized practice of law, section 73-3-55 provides:
It shall be unlawf

u l f o r any person to e ngage in t he practice of l aw i n this state who has no t b e e n licensed according to law. Any person violating the provisions of this section shall be deem ed guilty of a m isdem eanor, a n d, upon conviction, s hall be punished in accord a nce with the provisions of Section 97-23-43. Any person w h o shall f or f ee or reward or prom ise, directly or indirectly , write or d ictate a ny paper or instrum ent of writing, to b e f iled in any cause or p r oceeding pending, or to b e instituted in any co u r t i n this s tate, or give any counsel or a dvice therein

. . . shall be held to b e engaged in the practice of

law. ¶28. In addition, the Mississippi Suprem e Court has stated: The practice of law includes the draf ting or s election of docum ents, the giving of a dvice in regard t o them , and the using of an inf orm e d or trained discretion in t he draf

ting of docum ents to m eet the needs of the person being served. So

1 6any e xercise of intelligent choice in advis i n g a n other of his legal rights and

duties brings the activity

within the practice of

the legal prof

ession. Darby v. Miss. S

t ate Bd. of Bar Admissions , 185 So. 2 d 684, 687 (Miss. 1966) (citation

om itted). ¶29. In the present case, Moore asserts that Tubwell clearly engaged in the unauthorized practice of law by taking the f ollowing actions: (1) accepting a f ee f rom Moore’s m other, Lisa; (2) advising Lisa of Moore’s legal rights; and (3) writing and f iling the two 2014 PCR

m otions on Moore’s behalf without his knowledge o r perm ission. In its judgm ent dism issing Moore’s March 8, 2 016 P CR m otion, the circuit court issued no f indings on Moore’s prior
PCR claim s other t han to state the prior m otions rendered Moore’s current PCR f iling successive-writ b arred. However, in the af f idavit attached to his March 8 , 2 016 PCR m otion,
Moore averred that his m other, Lisa, m istakenly believed T ubwell was an attorney and paid Tubwell to f

ile a m otion o n Moore’s behalf

. Moore f urther stated, “My m other later learned that Tubwell was not an attorney a nd that the Mississippi Bar Association was try ing to stop him f rom try ing to p ractice law.” According to Moore, he “never m et or spoke to” Tubwell and “did not ask or g ive perm ission to Tubwell to f ile [ the t wo 2014 PCR] m o tions.” Moore f urther averred in h is af

f idavit that he only l earned Tubwell had f iled the two 2 0 1 4 P CR

m otions af

ter the circuit court dism issed them

. ¶30. As f

urther support f

or his claim s, Moore attached an exhibit to h is appellate brief that shows the DeSoto County Chancery

Court enjoined Tubwell in 2014 f rom engaging in the unauthorized pra c tice of law. Because the chancery court’s order is not part o f the record bef ore t his Court, Moore asks that this Court o n appeal take judicial notice of the docum ent.

1 7In addition, in h is a ppellate brief

, Moore cites a prior opinion where t h e s u p rem e court recognized Tubwell had engage d i n the unauthorized practice o f law. See Miss. Bar v. Thompson , 5 So. 3d 330, 338 (¶40) (Miss. 2008). S ee also Tubwell v. Anderson , 776 So. 2d 654, 656 (¶1) (Miss. 2000) (recognizing Tubwell’s history as a “writwriter and

. . . f iler of
f rivo l o u s l a w suits and appeals”). Based on his assertions that Tubwell engaged in the unauthorized p r actice of law and f iled the two prior 2014 PCR m otions w i t hout his
perm ission, Moore asks this Court to f ind the 2014 m o tions a r e void and theref o re pose no bar to his March 8, 2016 PCR m otion. ¶31. In review of this i ssue, I acknowledge that section 73-3-55 e s tablishes the practice of law without a license constitutes a crim e in Mi s s i s sippi. The record ref lects that Moore
p r e s ented evidence to s upport his claim s, and the record ref lects am biguity on the f

a c e o f each of the two m otions f iled in 2014. Moore’s own af f idavit avers that his m other hired Tubwell a nd that Tubwell, without a license t o practice law, f iled t he two 2014 P CR m otions without Moore’s a

uthorization. The circuit c ourt held n o e videntiary hearing and issued no f indings as to the credibility of Moore’s claim s that he never authoriz e d the 2014 PCR

m otions. 12 ¶32. Af ter reviewing the record and applicable c a selaw and statutory law, I f i nd that Moore presented suf

f icient e vidence to warrant a heari n g o n w h e ther Tubwell f iled the two prior
2014 PCR m o tions without Moore’s a uthorization a n d , if s o , w hether the m otions should

12 S ee M iss. C o n st. art. 3 , § 2 6 (d iscu ssin g th e r ig h t to s e l f

- r ep resen tatio n ); M iss. C o d e A n n . § 9 9 -3 9 -2 3 (6 ) (d i scu ssin g th e s u ccessiv e-w r it b ar). 1 8p ose a procedural bar to Moore’s instant March 8, 2016 PCR m otion. 13 I would theref o r e

reverse the circuit court’s dism issal of Moore’s March 8, 2016 PCR m otion and rem and f or

an eviden t iary hearing to determ i ne whether Moore’s current PCR m otion i s procedurally b a r r e d. T he record ref

lects Moore also asserts that his PCR m otion is n ot successive-writ barred because his additional claim s of involuntary guilty p leas and inef f ective assistance of counsel d em onstrate a violation of his f undam e ntal constitut i o n a l r i ght to due process. Because I f

ind that the record shows that Moore a lso presented suf f icient proof on these

rem aining claim s to warrant an evidentiary hearing on them as well, I will brief ly turn to a discussion of

these two issues.
II. Whether Moore’s at t o rney s provided incorrect parole-eligibility advice that rendered h is guilty pleas involuntary and am ounted to ineffective assistance of counsel. ¶33. Moore additionally argues the circuit court erred in s um m arily dism i ssing his March 8, 2 0 1 6 P C R mo t i o n as a s u ccessive writ because his m otion raises a v iolation of his
f undam ental const i t utional right to due process. Specif i cally , Moore c ontends that his attorney s provided incorrect parole-eligibil i t y a d v ice that i nduced h is g uilty pleas and

am ounted to inef

f ective a ssistance of counsel. I n a ddressing a sim ilar situation in Sylvester

v. S tate , 113 So. 3d 618, 621-22 (¶¶9-10) (Miss. Ct. App. 2013), this Court acknowledged: The trial court m ay sum m arily dism iss a m otion f o r postconviction r elief if it p l a inly appears f

rom the f ace of t he m otion, any annexed exhibits[ ,] and the prior proceedings in the case that the m ovant is not entitled to any relief

. W h en the only support t he def endant of f ers is h i s o w n a f

f idavit, and it is

13 T o w arran t an ev id en tiary h earin g , M o o re m

u st su p p o rt h i s claim s w i th at least a p r e p o n d eran ce o f th e ev id en c e. S ee Ja m es v. S ta te , 2 2 0 S o . 3 d 9 8 9 , 9 9 1 (¶5 ) (M is s . C t

. A p p . 2 0 1 6 ). 1 9contrad icted by unim peachable docum ents in the record, the suprem e court h as held that an evidentiary

hearing is not required. However, when the m ovant attaches an af f idavit of another who s upports the allegatio n , t he trial court m ay be required to c onduct an evidentiary hearing. This Court has held that a n attack on a f acially corr e c t p lea m ay survive sum m ary dism issal if

supporting af

f idavits of other persons are attached. Id. (internal citations and quotation m arks om itted). ¶34. As in both Sylvester and R eadus , Moore attached af f idavits to his current PCR m otion

to s upport his c laim s. I n addition to his own af f idavit, M oore attached an af f idavit f rom his

m other, L isa. Thus, in apply ing precedent t o the instant case, this C o u r t on appeal m ust determ ine “whether [ M oore’s] m otion a n d [ t he s upporting] af f idavit[ s ] were suf

f icient evidence such that his allegations we r e n o t overwhelm ingly belied b y the plea-hearing

t r a n s c r ipt.” Sylvester , 113 So. 3d at 622 (¶11). I theref ore turn to a review of M o o r e ’ s claim s regarding his g u ilty pleas and inef f ective assistance to discuss whether he provided suf f i cient evidence to warrant an evidentiary h earing on these issues.

a. Involuntary Guilty Pleas ¶35. As previously stated, Moore a rgues his reliance on his attorney s ’ incor r e c t p a r o leeligibility advice rendered his guilty pleas involuntary

. In r ecently discussing another PCR

m ovant’s sim ilar claim , this Court explained:
A voluntary g uilty plea em anates f rom the def

endant’s inf

orm ed c onsent. An allega t i o n that the def

endant pled guilty in response to counsel’s m istaken advice m ay vitiate t he plea, because it indicates the d e f e n d a n t m ay not have been f ully aware of the consequences o f t he plea. T he petitioner bears the burden of proving by a pr eponderance of the evidence that his plea was involuntarily

entered. This Court has previously stated:

2 0A guilty plea is bindi n g o n a d ef endant o nly if it is entered voluntarily and intelligently

. A plea i s considered voluntary and intelligent only if t he def

endant is i nf

orm ed of t he nature o f the charge against him and the consequences of the plea. B e f ore the t r i a l court m ay accept a guilty plea, the court m u st d etermi n e that the plea is voluntarily and i ntelligently m ade and that there is a f a c t u al basis f

or the plea. As p art of its voluntariness inquiry , the court m

ust determ ine whether t h e accused understands the m inim

um and m a xim

u m sentences f

or the charge.
W e have f

u rther stated:
It is n o t a prerequisite to a voluntary plea that the def endant understand the nature of parole, h is eligibility f or parole, and the c i r cum stances under which it m ay be granted. On the o t h e r h a n d , a plea is involuntary if a d ef endant is af

f irm ative l y m i sinf orm ed regarding the possibility of parole a n d p l e a d s g u i l t

y in reliance on the m isinf

orm ation.
In S ylvester , this Court f

ound that t he def

endant’s e ligibility f

o r trusty earned tim e was analogous to eligibility f or parole. Th[ is] Court f

urther f ound that, if a def endant alleges he was g iven erroneous advice b y his attorney as to his eligibility f

or trusty earned tim e (or f or p arole) a n d that erroneous advice goes uncorrected, and he provides evidence other than his own statem e nt (such as a sworn af

f idavit f rom a third party ), he is entitled to an evidentiary hearing. Thinnes v. State , 196 So. 3d 2 0 4, 2 08-09 (¶¶15-18) (Miss. Ct. App. 2016) (internal citations and quotation m arks om itted). 14 ¶36. I n h i s a f

f i d a vit attached to his PCR m otion, Moore s aid he rejected the S tate’s f irst plea of f er f or thirty -f ive y ears. Moore’s a f

f idavit f urther provided that he initially rejected

a f if ty -y ear plea deal u ntil one of his attorney s inf orm e d h im that he would be parole eligible

14 S ee a lso F a irley v. S t

a te , 8 3 4 S o . 2 d 7 0 4 , 7 0 7 (¶8 ) (M iss. 2 0 0 3 ) (“T h e ru le arisin g

. . . is t h at f

ailu re to m e n tio n so m eth in g c o n cern in g p aro le elig ib ility m ay b e n o p ro b lem , b u t erro n eo u s in f

o rm atio n co n cern in g p aro le an d sen t en cin g at least en titles th e p etitio n er to an ev id e n t iary

h earin g o n w h eth e r h e relied o n th e erro n e o u s in f o rm atio n .”). 2 1af

ter serving about f

ive y ears. According to Moore’s af f idavit, his attorney told him he m ust

serve o ne-f

ourth of his sentence (about twelve a nd a half y ears) b ut that he could reduce his tim e until parole eligibility t o about f ive y e ars through trusty ti me a nd m eritorious earned tim e. ¶37. Signif

i cantly , Moore also attac h e d to his PCR m otion an a f f i davit f rom his m other, Lisa, who stated that one of her son’s attorney s “m entioned som ething [ to h er] about [ Moore] having to s erve six (6) y ears, a nd he m entioned s om ething about f o rty p ercent (40%)[ .]” Lisa
f urther stated t hat, f

ollowing h er son’s guilty plea, Moore called h er and said his attorney s had explained that, “if he accepted the [ f if ty -]y ear plea deal and ple[ d] g uilty , then [ he] would serve [ twelve and a half ] y ears m inus [ six] y ears f or good tim e m inus about one y ear f or m eritorious earned t im e , m a king [ him ] eligible f or parole in about [ f

ive] y ears.” Lisa also stated Moore i nf

orm ed her that he initially ref used the f if ty -y ear plea deal until his attorney s advised him that he would only have to serve f ive y ears bef

o re b ecom ing eligible f

or parole. ¶38. Sim ilarly to the present case, in Readus v. State , 837 So. 2 d 209, 211 (¶4) (Miss. Ct. App. 2003), the m ovant attached his own af f idav i t a n d one f

rom his m other to support his claim s that his attorney ’s incorrect sentencing advice rendered his guilty p leas i nvoluntary and a m ounted to inef

f ective assistance of counsel. In his own af f idavit, Readus averred “his attorney told him that, if he p led guilty , he would be sentenced to ‘six m o nths a nd ten y ears

on p a per’ and that he w ould ‘get RID. ’ ” I d. at 212 (¶9). “ Readus’[ s ] m other’s af f idavit averred that she f

i rst s poke with the attorney the m orning of the sentencing h e a ring in anticipation of her testim ony . . . [ and] that the a t torney told her that Readus ‘would get about

2 2six y ears and h e said som ething about papers af ter that.’” Id. at 211 (¶5). Although acknowledging a discrepancy existed in the af f i d a v i t s a s to the exact sentence length the attorney prom ised Readus, this Court f ound that the dif

f erence f ailed to in v a l i d a t e the entirety of the af

f idav i t s. Id. at 214 (¶14). I nstead, the Readus Court concluded that Readus’s supporting af

f i davits c orroborated that his attorney provided incorrect advice and “instilled an expectation of a f ar m ore lenient sentence than Readus actually r eceived.” Id.
W e f urther determ ined in Readus that “[ c]ounsel’s alleged def iciency was not ‘cured’ by the plea colloquy because the erroneous advice was n ot directly c ontradicted by the [ trial] court’s questioning.” Id. at 214-15 (¶18) (citation om itted). As acknowledged, in the present case,
t h e c o r r o b o r a t ion M oore’s m other of

f ered in her af

f idavit of incorrect l egal advice constitu t e s sim ilar corroboration to that of f ered by the m o ther’s af

f i davit in Readus

. ¶39. Also as in Readus , Moore contends that t he c i rcuit court f ailed during the plea hearing

to correct his attorney ’s e rroneous parole-eligibility advice. Indeed, the record ref lects that, although the circuit court i nf orm ed Moore of the r ights he waived and the m i nim um and

m axim u m penalties applicable if he pled guilty , the circuit court never addressed the issue of Moore’s pa role eligibility

. As a result, during the plea colloquy , the circuit court f ailed

to correct the m isinf

o r m ation that Moore’ s s u

p p o r t i n g a ffi d a vits allege his attorney s provided

as to his parole eligibility

. I n the analogous c ase of Readus , this Court f ound that the m ovant raised suf f icient evidence t o warrant an evidentiary hearing. Id. at 210 (¶2). 15 Accordingly ,

15 S ee a lso Ja m es v. S ta te , 2 2 0 S o . 3 d 9 8 9 , 9 9 1 (¶5 ) (M iss. C t. A p p . 2 0 1 6 ) (“A t an ev id e n t iary h earin g o n [ a P C R m o tio n ] , th e b u r d en o f p ro o f i s o n th e p etitio n er to ‘p ro v e b y a p rep o n d eran ce o f th e ev id en ce th at h e i s en titled to th e r elief ’ ” (q u o tin g M iss. C o d e A n n . § 9 9 -3 9

- 2 3 ( 7 ) (R ev . 2 0 1 5 ))). 2 3I likewise f ind Moore i s entitled to an evidentiary hearing on this issue and that the circuit

c o u rt abused its discretion by sum m arily dism issing his PCR m otion without grant i n g t h e hearing.
b. Ineffective Assistance of Counsel ¶40. During his plea h earing, Moore swore under oath he was s atisf ied with his attorney s’ representation. “ [ A] strong presum ption

. . . e xists that in-court declarations are truthf ul.” Thinnes , 196 So. 3d at 210 (¶25) (citing Sylvester , 113 So. 3d a t (¶24)). On appeal, however,
Moore argues h i s a ttorney p rovided inef f ective assistance of counsel. T o prevail on his inef f ective-assistance claim , M o ore m ust prove: ( 1) his attorney s ’ perf orm ance was def icient; and ( 2) he suf

f ered prejudi c e a s a result of the def icient perf

orm ance. See Strickland v. W

ashington , 466 U.S. 668, 687 (1984). W ith regard to a Strickland analy sis, this Court has explained, “[ I]t is presum e d that counsel’s representation f alls within the range of r easonable prof

essional a s s i s t a n ce. However, the def endant m a y overcom e the
presum ption. T o do so, the def

endant m ust show that there is a r easonable probability that, but f or counsel’s unprof

essional errors, t h e r esult o f the proceeding would have been dif f erent.” Sylvester , 113 So. 3d at 624 ( ¶22) (internal citation a nd quotation m arks om itted). ¶41. The a f

f idavits Moore a t

t a c h e d to his March 8, 2016 PCR m otion s upport his assertions that (1) h is attorney s m isinf orm e d him about his parole eligibility ; (2) he d etrim entally relied

on t his erroneous inf

orm ation i n pleading guilty ; and ( 3) b u t f o r his attorney s ’ erroneous parole-eligibility advice, he would not have decided to accept the State’s f i f ty -y ear plea of

f er and plead guilty

. Thus, if Moore’s instant PCR m otion is not f ound to be procedurally barred

2 4as a successive writ due t o the unauthorized and illegal actions of an unlicensed w rit writer,

then Moore’s af

f idavits provide suf

f icient c orroborating evidence to w arrant an evidentiary hearing as to his inef

f ective-assis tance-of

-counsel claim

. Compare Readus , 837 So. 2 d at 214-15 (¶18). ¶42. I would theref

o r e reverse the circuit court’s sum m ary dism issal of Moore’s March 8,
2016 PCR m o tion a nd rem and t his case f or an e videntiary h ear i n g o n t h e c l a im s raised by
Moore’s PCR m otion. As a result, I respectf ully dissent f rom the m a j ority ’s decision. LEE, C.J., AND IRVING, P.J., JOIN THIS OPINION.

2 5