IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-CP-00375-COA ERIC DANIEL LACKAYE A/K/A ERIC LACKAY A/K/A ERIC LACKAYE A/K/A ERIC LACAYE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/05/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ERIC DANIEL LACKAYE (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: REVERSED AND REMANDED - 06/09/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND FAIR, JJ. CARLTON, J., FOR THE COURT: ¶1. Eric Daniel Lackay e pled guilty to two c ounts of sale of m arijuana and o ne count of possession of m arijuana w ith intent to d istribute. Lackay e f iled a m otion f

or post-conviction relief ( PCR), alleging t hat his guilty pleas were involuntar i ly entered, a nd that h e received inef f ective assistance of counsel. The Madison County Circuit Court sum m arily dism issed Lackay e’s PCR m otion without an evidentiary h earing. Lackay e now a p peals this dism issal, asserting: (1) he received inef f e ctive a s s i stance of counsel; (2) his guilty pleas were notknowingly , intelligently , and voluntarily entered; and (3) the trial court e rred i n dism issing his PCR m otion.
FACTS ¶2. On July 7, 2 0 11, a Madison County grand jury indicted L ackay e o n f our charges: (1) sale o f less than thirty gram s of m arijuana; (2) sale of less than thirty gram s of m arijuana; (3)
p o s s e s s i o n o f m ore than thirty gram s but less than a kilogram of m arijuana with intent to distribute; and (4) p ossession of one-tenth gram but less than two gram s of

m etham phetam ine. A ll f

our of the c h arges were enhanced, c harging Lackay e p ursuant to Mississippi Code Annotated section 4 1-29-147 ( Supp. 2014) as a subsequent drug of f ender and Mississippi Code Annotated section 99-19-81 (Supp. 2014) as a habitual of f ender. ¶3. On Novem

ber 2 8 , 2 0 1 1 , L a c k a y e entered a guilty plea t o two charges of sale of

m arijuana as a subsequent drug of f ender, and one c o unt o f possession of m ar i j u a n a w i th intent to distribute as a subsequent drug of f ender, pursuant to section 4 1

- 2 9

- 1 4 7

. In exchange f

or his guilty plea, the State m oved to nolle prosequi t he charge f or possession of

m etham phetam i n e w ith intent to distribute, and agreed to allow Lackay e to p lead as a nonhabitual o f

f e n der on the three rem aining charges. The trial c ourt f ollowed the State’s

recom m endation and sentenced Lackay e to s ix y ears on each count of sale of m arijuana. The

t r i a l court sentenced Lackay e to f orty y ears f

or p ossession of m arijuana with intent t o distribute, with Lackay e to be r eleased af ter serving seventeen y ears. The trial court ordered that all three sentences run concurrently

.

2¶4. On February 13, 2014, Lackay e f iled a PCR m otion, seeking to have his g uilty pleas

set aside b e c a u s e he r eceived inef f ective assistance of counsel and his pleas were not knowingly , v oluntarily , and i n t e l l i g e n t l y m ade. Lackay e specif ically claim ed that his def

ense counsel incorrectly a dvised h im that if he pled guilty and acted as a m odel prisoner, he would be eligible f

or parole a f

ter serving f

our to f ive y ears, or t wenty -f

ive percent, of h is sentence. On March 5, 2014, the trial court sum m arily dism issed the PCR m otion. Lackay e f iled the instant appeal, asserting t hat he was denied ef f ective assistance of counsel and that the trial court erroneously

dism issed his PCR m otion.

STANDARD OF REVIEW ¶5. W h en r e v i e w ing a trial court’s denial or dism issal of a PCR m otion, we will only disturb the trial court’s f

actual f indings if t hey are clearly erroneous; h owever, we r eview the trial court’s legal c onclusions under a de novo standard of review. Hughes v. State , 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012).
DISCUSSION ¶6. Lackay e a s s e r t s t h a t h i s c o u n s e l g a v e h i m erroneous advice and inf orm ation; specif ically , that if Lackay e pled g uilty and acted a s a m odel prisoner, he would be eligible
f or parole af

ter serving f

our t o f ive y ears, or twenty -f

ive percent, of his sentence. Mississippi Code Annotated section 47-7-3(1)(f ) (Supp. 2014) prohibits prisoners convicted of a f elony with e n hanc e d penalties f r om receiving parole. L ackay e pled guilty as a subsequent drug of f ender under section 41-29-147 and received enhanced sentences of twice t he term , and

3theref

ore lacked eligibility f

or parole. L a c k a y e c l aim s that his counsel advised him that because his crim e was “nonviolent,” he would b e eligible f or parole. Lackay e alleges that af ter his transf

er to M ississippi D e p a r t me n t of Corrections custody , h e learned “that the

nature of his c harges did not qualif y him f or p a r o l e e l i g i b i l ity nor ‘30 f or 30 trustee good tim e’ eligibility .” Lackay e claim s that had his def ense c o unsel g iven correct i nf orm ation and advice as to his parole eligibility , then he would have gone to trial and not pleaded guilty

. ¶7. In r e v i e w i n g L a c k a y e’s appeal, we f irst exam i ne i f the allegedly erroneous advice would h a ve rendered L ackay e’s plea involuntary

. W e then review whether Lackay e m et his burden to present suf

f icient evidence in support of h is claim of error to w arrant an

e v i dentiary hearing. “A guilty plea is binding if e n tered voluntarily , knowingly , a n d intelligently .” W

oods v. S tate , 71 S o . 3 d 1 241, 1244 (¶8) (Miss. Ct. App. 2 011). This standard is m et i f “the def endant is advised c oncerning the nature of the c harge against h im and the consequences o f the plea.” Mason v. State , 42 So. 3d 629, 6 32 (¶7) (Miss. Ct. App. 2010) (quoting Alexa n d

e r v. State , 605 So. 2d 1170, 1172 (Miss. 1992)). The petitioner bears t h e b u r d e n of proving by a preponderance o f the evidence that h is plea was involuntarily entered. W

oods , 71 So. 3d at 1244 (¶8) ( citing Sayles v. State , 35 So. 3d 567, 569 (¶7) (Miss. Ct. App. 2010)). ¶8. Lackay e ’s claim of error, if proven, “underm ines the inf orm ed consent required f or

a voluntary and intelligent p lea of g uilty .” Jackson v. S tate , 2013-CP-00494-COA, 2014 W L
2 5 7 9617, at *4 (¶18) (Miss. Ct. App. June 10, 2 014). Rule 8.04(A)(4)(b) of t h e U n i f o r m

4Rules of C ircuit and C ounty Court provides that in a ccepting a guilty plea, the trial court has

the duty t o ensure “[ t]hat the accused understands the nature and consequences o f the plea, and the m axim

um a nd m inim

u m penalties provided by l a w [

. ] ” This Court h as recognized that it is n ot a p rerequisite to a voluntary plea t hat the d e f e ndant understand the nature of parole, his e ligibility f or parole, and the circum s tances under which i t ma y be granted. On the other hand, a plea is involuntary if a def endant i s af f irm a tively m isinf

orm ed regarding the p ossibility of parole and pleads guilty in reliance on the m isinf

orm ation.• Mosley v. State , 150 So. 3d 127, 136-37 (¶29) (Miss. Ct. App. 2014) (citing Thomas v. State , 881 So. 2d 9 12, 916 (¶10) (Miss. C t. App. 2004)). A def endant i s entitled to an evidentiary hearing if he alleges that his p lea is involuntary because he relied on h is attorney ’s erroneous advice regarding the possibility of p a r o l e , a nd his allegations are uncontradicted by the record. Thomas , 881 So. 2d at 917 (¶14). ¶9. In Sylvester v. State , 1 13 S o. 3d 6 18, 623 (¶19) (Miss. Ct. App. 2013), this Court held that
if a def

endant alleges he was g iven erroneous advice by his attorney as to his eligibility f or trusty earned tim e and that erroneous advice goes uncorrected, and he provides evidence other than h is own s tatem ent (such as a sworn af f idavit f r om a third party ), he is entitled to an evidentiary hearing.
In S y l vester , the plea-hearing transcript revealed that Sy lvester was inf orm ed of the

m axim u m and m inim

um s entences. Id

. at (¶20 ). However, Sy l vester provided his own af f idavit, as well as an af

f idavit f rom his sister, alleging that he was m isinf o rm e d as to his eligibility f

or trusty earned tim e. Id

. at 623-24 (¶20). The i ssue of parole was not addressed
5during his plea colloquy , and thus the alleged m isinf orm ation went uncorrected. Id

. at 624 (¶20). This C ourt held t hat S y lvester provided suf f icient evidence showing that he was entitled to a n evidentiary hearing on whether his plea w a s k n o w ingly , intelligently , and voluntarily

entered. Id

. ¶10. In the sim i lar c ase o f Thomas , 881 So. 2d a t 9 17 ( ¶13), Thom a s alleged that his plea

was involuntary because he entered it based on h is counsel' s erroneous advice that he would be eligible f

or parole. Upon review, t his Court also discovered that the i ssue of parole was

never addressed in the plea hearing

. I d

. a t 918 (¶16). Recognizing that “a def endant who alleges that his plea is not voluntary b ecause of his reliance o n h is attorney ’s f a ulty advice regarding the possibility of parole[ ] is entit l e d t o a n evidentiary hearing,” t his Court determ ined Thom as was entitled to an evidentiary hearing “on the issues of (1) whether or
not Thom as’[ s ] plea w as involuntary due to his reliance on incorrect inf orm ation about his parole eligibility a nd (2) whether Thom as received inef f ective assistance of c ounsel due to incorrect advice about parole eligibility .” I d . at 917-18 (¶¶14, 20). ¶11. In the m ore recent c ase of Jackson , we held that the plea-hearing transcript f ailed to ref lect that Jackson receive d correct advice about his e l igibility f or earned tim e. Jackson , 2014 W L 2579617, at *5 (¶22). Jackson provided his own af f idavit in support of

his PCR

m otion, as well a s an af

f i davit f rom his wif

e, stating t hat Jackson’s attorney told him that the enhanced sentence would not prevent him f rom b eing eligible f

or parole. Id

. As a result, we held t h a t J a c k son “m et the evidentiary burden required in o rder to obtain an evidentiary

6hearing.” Id

.

¶12. “The trial court m ay s u mma r i l y d i s m iss a m otion f or p ost-conviction relief ‘if it plainly a ppears f rom the f ace of the m otion, any a nnexed exhibits and the prior proceedings
in t h e c a s e that the m ovant is not entitled to any r elief .’” Burrough v. S

tate , 9 So. 3d 368,
371 ( ¶6) (Miss. 2009) (quoting Miss. C ode Ann. § 99-39-11(2) (Rev. 2007)). W hen the only support the m ovant o f

f ers i s his own af

f idavit, and it is co ntradicted by unim peachable docum ents in t he record, a n evidentiary hearing is not required. G a ble v
. State , 748 So. 2d 703, 706 (¶12) (Miss. 1999). “However, when the m ovant attaches an af f idavit of another

w h o s upports the a llegation, the trial court m ay b e required to conduct a n e videnti a r y hearing.” Sylvester , 113 So. 3d at 621 (¶10). ¶13. In the present case, Lackay e provided his own af f idavit in support o f his PCR m otion, af f idavits f r om his f ather and a n o t h e r inm ate, and also a letter a llegedly f r om def ense counsel , a l l o f w hich bolster Lackay e’s c laim that def ense counsel inf

orm e d Lackey he would be eligible f

or parole af

ter serving f

our or f i ve y ears, o r twenty -f

ive percent 1 of his sentence. The State agrees that the r ecord ref lects that L a ckay e p resented suf f icient evidence in support of his m otion, entitling Lackay e to an evidentiary h earing to explore the m erits of his claim

t h a t h i s d e f

ense counsel gave him erroneous inf orm ation a

bout his parole eligibility

. Se e Garner v. State , 944 So. 2d 934, 938 (¶12) (Miss. Ct. App. 2006).

1 In th e letter to L ack ay e’s f ath er, d ef en se co u n sel stated th at L a ck ay e “ m ay q u alif y f o r release af

ter serv in g eith er 2 5 % o r 5 0 % ” o f h is sen ten c e. . . . [ H e] w ill p r o b ab ly en d u p o n ly serv in g 2 5 % .” 7¶14. The record ref lects that Lackay e signed his plea petition, which conf irm ed:
I understand that n o one can assure m e of parole or early release f rom prison.

. . . I rec o g n i z e t h a t if I have been told by m y a ttorney that I m ight r eceive probation o r a light sentence, this representation is m erely his opinion and t hat it is not binding on the court or district attorney

. Lackay e also conf

irm ed d uring the plea hearing that h e understood his possible sentence and af f irm ed his satisf

action with his attorney

. However, the r ecord ref lects that the trial court provided no advice to Lackay e regarding parole eligibility during the p l ea hearing. See Jackson , 2 014 WL 2 579617, a t *5. W e f urther f ind that Lackay e provided suf f icient evidence in support of his P CR c laim that his def ense counsel provided h im with erroneous advice as t o his parole e ligibility

. Accordingly , Lackay e is entitled to an evidentiary hearing

to determ ine whether his guilty pleas were knowingly , intelligently , and v oluntarily entered. ¶15. Lackay e also contends t hat the his counsel’s allegedly erroneous advice resulted in the deprivation of his S ixth Am endm en t r i g h t t o ef f ective assistance o f counsel. To prove inef f ective assistance of counsel, Lackay e b ears the burden of proof to d em onstrate: (1) his counsel' s perf

orm ance was def

i cient, and ( 2) this def

ic i e n c y prejudiced the def ense. S t r i c k land v. W

ashington , 466 U.S. 668, 687 ( 1984). As stated, Lackay e alleges that hi s attorney e rroneously and incorrectly advised him that he would be eligible f or parol e i f he entered a guilty plea. Lackay e claim s that if he had been given the correct advice as to his parole eligibility , he would not have entered a guilty plea. ¶16. To overcom e t he presum ption t hat his counsel’s representation f alls within the range of reasonable prof

essional assistance, Lackay e m ust show that but f

or his attorney ' s errors,
8he would not have entered his guilty plea. See Deloach v
. State , 937 So. 2d 1010, 1011 (¶5)

(Miss. Ct. App. 2006). L ackay e conf irm ed d uring the plea heari n g t hat he understood his possible s e n t ences and af

f i rm ed his satisf

action with his attorney ; however, the af f idavits and alleged letter subm itted by Lackay e are s uf f icient e vidence in support of his m otion to
warrant a n ev i d e n t i a r y hearing in order to e xplore t he m e r its of his claim of inef f ective assistance of counsel. S ince Lackay e “has successf ully alleged that he received inef f ective assistance of counsel due t o his attorney ’ s incor r e c t a dvice about parole eligibility ,” he is entitled to an evidentiary hearing to explore the m erits of this claim

. Thomas , 8 81 So. 2d at 918 (¶16). ¶17. Lackay e also claim s h is a ttorney f ailed to f i le discovery and, a s a result, he received inef f ective a ssistance of c ounsel; however, the record contains a Novem ber 21, 2011 letter
f rom the State acknowledging receipt of counsel’s w r i t ten request and/or m otion f or discovery with discovery

enclosed. ¶18. Af ter our review, we f

ind that Lackay e has presented suf f icient evidence i n support of h is PCR m otion t o warrant an evidentiary hearing to explore the m e rits o f his claim s. W e theref ore reverse and rem a nd f

o r the trial court to conduct an evidentiary hearing. ¶19. T H E J U D G M E N T O F T H E M A D I S O N C O U N T Y C I R C U I T C O U R T DISMISSING THE MOTION FOR POST-CONVICTION RELIEF I S REVERSED, AND THIS CASE IS REMANDED F OR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF T HIS APPEAL ARE ASSESSED TO MADISON COUNTY. LEE, C.J., IRVING AN D G R I F F IS, P.JJ., BARNES, ISHEE, ROBERTS, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.
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