author: BARNES, J., FOR THE COURT: CARLTON, J., DISSENTING:

text:
    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). 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. 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. 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 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.

¶ 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.

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. 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.

¶ 14. An ineffective-assistance-of-counsel claim requires a showing that (1) counsel's performance was deficient, and (2) this deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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."

¶ 15. A defendant's claims of ineffective assistance of counsel must be pled "with specificity, and the claim must be supported by affidavits other than his own." Shavers v. State , 215 So.3d 502, 507 (¶ 14) (Miss. Ct. App. 2016) (quoting Avery v. State , 179 So.3d 1182, 1188-89 (¶ 13) (Miss. Ct. App. 2015) ). "When a movant fails to attach any supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance claim must fail." Id. (quoting Avery , 179 So.3d at 1189 (¶ 13) ). As there is a presumption of truthfulness "attached to a defendant's solemn declarations in open court ... a collateral attack on a facially correct plea must include supporting affidavits of other persons." Readus , 837 So.2d at 213 (¶ 11).

¶ 16. In Readus , Antonio Readus claimed he entered his guilty plea because his attorney "promised 'six months' and 'that he would be sent to the [Regimented Inmate Discipline program] and ten years on paper.' " Id. at 214 (¶ 14). His mother's supporting affidavit stated the attorney also told her "six years and [then] said something about papers after that" the morning of the sentencing hearing. Id. at 211 (¶ 5). Since "[b]oth affidavits aver[red] that Readus's lawyer instilled an expectation of a far more lenient sentence than Readus actually received," we remanded for an evidentiary hearing. Id. In Sylvester v. State , 113 So.3d 618, 621 (¶ 5) (Miss. Ct. App. 2013), the movant and his sister submitted affidavits, with the sister corroborating Sylvester's claim the attorney told them Sylvester would earn trusty time and be released on post-release supervision after serving five years. Id. at 622 (¶ 13).

[H]is affidavit and his sister's affidavit assert he was misinformed as to his eligibility for trusty earned time. Thus, the plea colloquy did not correct the alleged misinformation.... For these reasons, ... Sylvester is entitled to an evidentiary hearing on whether his plea was knowingly, intelligently, and voluntarily entered[.]

Id. at 623-24 (¶ 20).

¶ 17. In a similar case, Thinnes v. State , 196 So.3d 204, 210-11 (¶¶ 26-27) (Miss. Ct. App. 2016), we remanded for an evidentiary hearing as the defendant "presented sufficient corroborating evidence" that his attorneys "erroneously advised him that he would be eligible for parole after serving three years of his twelve-year sentence."

[T]he circuit court's warning that no one could guarantee [Gregory ] Thinnes parole failed to directly address Thinnes 's parole ineligibility . While the circuit court's question reflected that no guarantee of parole, probation, or early release existed, the question also appeared to indicate that the possibility for such treatment existed. The transcript therefore fails to show that the circuit court corrected the misinformation that Thinnes's [seven] supporting affidavits allege his attorneys provided him as to parole eligibility.

Id. at 209-10 (¶ 21) (emphasis added). "[B]ecause parole is a matter of legislative grace, parole eligibility or noneligibility is not considered a 'consequence' of a guilty plea." Mosley v. State , 150 So.3d 127, 136-37 (¶ 29) (Miss. Ct. App. 2014) (quoting Thomas v. State, 881 So.2d 912, 916 (¶ 10) (Miss. Ct. App. 2004) ). "[I]t is not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted." Id. But "a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation ." Id. (emphasis added).

¶ 18. Beside his own affidavit, Moore has failed to show that, but for counsel's advice, he would not have entered his guilty plea. "When the only support the movant offers is his own affidavit, and it is contradicted by unimpeachable documents in the record, an evidentiary hearing is not required." Lackaye v. State , 166 So.3d 560, 564 (¶ 12) (Miss. Ct. App. 2015) (citing Gable v. State, 748 So.2d 703, 706 (¶ 12) (Miss. 1999) ). Furthermore, Moore has offered no "good cause" for failing to obtain additional affidavits. Compare Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2015) ("The affidavits of other persons and the copies of documents and records may be excused upon a showing, which shall be specifically detailed in the motion, of good cause why they cannot be obtained."); with Walden v. State , 201 So.3d 1042, 1046 (¶ 15) (Miss. 2016) (reversing trial court's decision to dismiss PCR motion because movant "specifically pleaded his counsel's alleged ineffective assistance, and because he asserted potential good cause for his failure to provide additional affidavits").

¶ 19. At the plea hearing, the circuit judge thoroughly covered what rights Moore was giving up by entering his guilty pleas and inquired if Moore understood "the minimum and maximum punishment that could be imposed for each of the crimes[.]" Moore acknowledged that he understood he could be "looking at ... [a] maximum period of incarceration of 70 years." The court asked Moore if he was promised "leniency or anything of that nature in an effort to get [him] to change [his] pleas." Moore replied, "No, sir." The court also asked:

THE COURT: Have you had an opportunity to discuss with your attorney all the facts and circumstances related to each of the crimes you are offering to plead guilty to?
[MOORE:] Yes, sir.
THE COURT: Did your discussions with your attorney include any possible defenses that you may have to these charges?
[MOORE:] Yes, sir.
THE COURT: Did your discussions with your attorney also include the elements of the crimes?
[MOORE:] Yes, sir.
....
THE COURT: You've been represented by Mr. Collette. Are you satisfied with his representation?
[MOORE:] Yes, sir.
THE COURT: Have you got any complaints you wish to make about your attorney?
[MOORE:] No.

The judge questioned Moore several times if he was sure he wanted to plead guilty. The judge was very thorough, explaining: "It's not too late at this point, Mr. Moore, to stop this hearing and proceed to trial, but it will be once I accept your pleas of guilty. So before I do that, I need to make certain that this is what you want to do." Moore replied, "Yes, sir." See Turner v. State , 169 So.3d 945, 947-48 (¶ 10) (Miss. Ct. App. 2014) (finding the record did not support movant's claim that his attorney promised he would be sentenced as a nonhabitual offender and would receive parole, as movant told the judge at plea hearing that "no one had promised him 'any kind of rewards or hopes of leniency' to obtain his guilty plea"). While there was no discussion regarding parole eligibility or trusty time at the plea hearing, the plea petition signed by Moore stated:

My lawyer has counseled and advised me, and has made no threats or promises of any type or kind to induce me to enter this plea of guilty. The decision to seek entry of this plea was my own and mine alone, based on my own reasons and free from any outside influences.
....
I understand that no one can assure me of parole or early release from prison .

(Emphasis added). Moore signed the petition at the time he was told of the State's plea offer. Therefore, we find that Moore's guilty plea was facially correct.

¶ 20. Moreover, the supporting affidavit by Moore's mother did not provide sufficient corroboration to justify an evidentiary hearing. Her affidavit simply states that when she hired John Collette to represent Moore, he had "mentioned something about [her son] having to serve six years" and "something about forty percent (40%), but I didn't understand what he was talking about." Unlike the supporting affidavits in Readus , Sylvester and Thinnes , this vague representation about serving six years made by John Collette to Ms. Moore occurred months before any plea offer, and she was not present when the attorney met with Moore regarding the plea offer. She never spoke with the attorneys again, although she asserts that she did attempt to contact them with no success. Be that as it may, the only information provided in Ms. Moore's affidavit regarding what the attorney said to Moore about his parole eligibility came from Moore himself. Thus, we find no error in the circuit court's determination that Ms. Moore had no "firsthand knowledge of any statements made by [Moore's] counsel concerning the length of time [Moore] would be required to serve." See Kimble v. State, 983 So.2d 1069, 1074 (¶ 12) (Miss. Ct. App. 2008) (noting that since affidavits were "hearsay and contained no first[ ]hand knowledge of any fact," they "carried no weight").

¶ 21. "[T]o survive the UPCCRA's procedural bars, 'there must at least appear to be some basis for the truth of the claim' of a fundamental-constitutional-rights violation." Ducksworth v. State , 134 So.3d 792, 795 (¶ 5) (Miss. Ct. App. 2013) (quoting Stovall v. State, 873 So.2d 1056, 1058 (¶ 7) (Miss. Ct. App. 2004) ). We find no such basis here and affirm the circuit court's dismissal of Moore's PCR motion.

¶ 22. AFFIRMED.

GRIFFIS, P.J., FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND IRVING, P.J.

CARLTON, J., DISSENTING:

¶ 23. I respectfully dissent from the majority's decision to affirm the circuit court's denial of Moore's PCR motion. I find that the record reflects that Moore presented sufficient evidence to warrant an evidentiary hearing on his motion; as a result, I would reverse the circuit court's judgment and remand this case for further proceedings consistent with this separate opinion.

¶ 24. Moore appeals the Rankin County Circuit Court's summary dismissal of his March 8, 2016 PCR motion without an evidentiary hearing. On appeal, Moore asserts the following: (1) the circuit court erroneously found his PCR motion was successive-writ barred; (2) his attorneys' incorrect parole-eligibility advice rendered his guilty pleas involuntary and amounted to ineffective assistance of counsel; and (3) the circuit court erroneously denied his request for an evidentiary hearing.

¶ 25. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if it is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Thinnes v. State , 196 So.3d 204, 207-08 (¶ 10) (Miss. Ct. App. 2016) (quoting Carson v. State , 161 So.3d 153, 155 (¶ 2) (Miss. Ct. App. 2014) ).

I. Whether Moore's March 8, 2016 PCR motion is successive-writ barred.

¶ 26. On appeal, Moore argues the circuit court erroneously dismissed his current PCR motion as successive-writ barred without holding an evidentiary hearing, and Moore claims relief is due because Robert Tubwell, a non-attorney, unlawfully prepared and filed the prior 2014 PCR motions without his permission. In his March 8, 2016 PCR motion, Moore contended the two prior 2014 motions "were not properly prepared or filed pursuant to the requirements of the Mississippi Uniform Postconviction Collateral Relief Act." The face of each 2014 motion also reflected ambiguity and irregularity in stating the motions were filed "by and through counsel" without identifying any attorney or Mississippi bar number. Moore further asserted in his March 8, 2016 PCR motion that Tubwell prepared and filed the 2014 motions and that he (Tubwell) engaged in the crime of the unauthorized practice of law as defined by Mississippi Code Annotated section 73-3-55 (Rev. 2012).

¶ 27. With regard to the unauthorized practice of law, section 73-3-55 provides:

It shall be unlawful for any person to engage in the practice of law in this state who has not been licensed according to law. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished in accordance with the provisions of Section 97-23-43. Any person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instituted in any court in this state, or give any counsel or advice therein ... shall be held to be engaged in the practice of law.

¶ 28. In addition, the Mississippi Supreme Court has stated:

The practice of law includes the drafting or selection of documents, the giving of advice in regard to them, and the using of an informed or trained discretion in the drafting of documents to meet the needs of the person being served. So any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession.

Darby v. Miss. State Bd. of Bar Admissions , 185 So.2d 684, 687 (Miss. 1966) (citation omitted).

¶ 29. In the present case, Moore asserts that Tubwell clearly engaged in the unauthorized practice of law by taking the following actions: (1) accepting a fee from Moore's mother, Lisa; (2) advising Lisa of Moore's legal rights; and (3) writing and filing the two 2014 PCR motions on Moore's behalf without his knowledge or permission. In its judgment dismissing Moore's March 8, 2016 PCR motion, the circuit court issued no findings on Moore's prior PCR claims other than to state the prior motions rendered Moore's current PCR filing successive-writ barred. However, in the affidavit attached to his March 8, 2016 PCR motion, Moore averred that his mother, Lisa, mistakenly believed Tubwell was an attorney and paid Tubwell to file a motion on Moore's behalf. Moore further stated, "My mother later learned that Tubwell was not an attorney and that the Mississippi Bar Association was trying to stop him from trying to practice law." According to Moore, he "never met or spoke to" Tubwell and "did not ask or give permission to Tubwell to file [the two 2014 PCR] motions." Moore further averred in his affidavit that he only learned Tubwell had filed the two 2014 PCR motions after the circuit court dismissed them.

¶ 30. As further support for his claims, Moore attached an exhibit to his appellate brief that shows the DeSoto County Chancery Court enjoined Tubwell in 2014 from engaging in the unauthorized practice of law. Because the chancery court's order is not part of the record before this Court, Moore asks that this Court on appeal take judicial notice of the document. In addition, in his appellate brief, Moore cites a prior opinion where the supreme court recognized Tubwell had engaged in the unauthorized practice of law. See Miss. Bar v. Thompson , 5 So.3d 330, 338 (¶ 40) (Miss. 2008). See also Tubwell v. Anderson , 776 So.2d 654, 656 (¶ 1) (Miss. 2000) (recognizing Tubwell's history as a "writwriter and ... filer of frivolous lawsuits and appeals"). Based on his assertions that Tubwell engaged in the unauthorized practice of law and filed the two prior 2014 PCR motions without his permission, Moore asks this Court to find the 2014 motions are void and therefore pose no bar to his March 8, 2016 PCR motion.

¶ 31. In review of this issue, I acknowledge that section 73-3-55 establishes the practice of law without a license constitutes a crime in Mississippi. The record reflects that Moore presented evidence to support his claims, and the record reflects ambiguity on the face of each of the two motions filed in 2014. Moore's own affidavit avers that his mother hired Tubwell and that Tubwell, without a license to practice law, filed the two 2014 PCR motions without Moore's authorization. The circuit court held no evidentiary hearing and issued no findings as to the credibility of Moore's claims that he never authorized the 2014 PCR motions.

¶ 32. After reviewing the record and applicable caselaw and statutory law, I find that Moore presented sufficient evidence to warrant a hearing on whether Tubwell filed the two prior 2014 PCR motions without Moore's authorization and, if so, whether the motions should pose a procedural bar to Moore's instant March 8, 2016 PCR motion. I would therefore reverse the circuit court's dismissal of Moore's March 8, 2016 PCR motion and remand for an evidentiary hearing to determine whether Moore's current PCR motion is procedurally barred. The record reflects Moore also asserts that his PCR motion is not successive-writ barred because his additional claims of involuntary guilty pleas and ineffective assistance of counsel demonstrate a violation of his fundamental constitutional right to due process. Because I find that the record shows that Moore also presented sufficient proof on these remaining claims to warrant an evidentiary hearing on them as well, I will briefly turn to a discussion of these two issues.

II. Whether Moore's attorneys provided incorrect parole-eligibility advice that rendered his guilty pleas involuntary and amounted to ineffective assistance of counsel.

¶ 33. Moore additionally argues the circuit court erred in summarily dismissing his March 8, 2016 PCR motion as a successive writ because his motion raises a violation of his fundamental constitutional right to due process. Specifically, Moore contends that his attorneys provided incorrect parole-eligibility advice that induced his guilty pleas and amounted to ineffective assistance of counsel. In addressing a similar situation in Sylvester v. State , 113 So.3d 618, 621-22 (¶¶ 9-10) (Miss. Ct. App. 2013), this Court acknowledged:

The trial court may summarily dismiss a motion for postconviction relief if it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief. When the only support the defendant offers is his own affidavit, and it is contradicted by unimpeachable documents in the record, the supreme court has held that an evidentiary hearing is not required.
However, when the movant attaches an affidavit of another who supports the allegation, the trial court may be required to conduct an evidentiary hearing. This Court has held that an attack on a facially correct plea may survive summary dismissal if supporting affidavits of other persons are attached.

Id. (internal citations and quotation marks omitted).

¶ 34. As in both Sylvester and Readus , Moore attached affidavits to his current PCR motion to support his claims. In addition to his own affidavit, Moore attached an affidavit from his mother, Lisa. Thus, in applying precedent to the instant case, this Court on appeal must determine "whether [Moore's] motion and [the supporting] affidavit[s]

were sufficient evidence such that his allegations were not overwhelmingly belied by the plea-hearing transcript." Sylvester , 113 So.3d at 622 (¶ 11). I therefore turn to a review of Moore's claims regarding his guilty pleas and ineffective assistance to discuss whether he provided sufficient evidence to warrant an evidentiary hearing on these issues.

a. Involuntary Guilty Pleas

¶ 35. As previously stated, Moore argues his reliance on his attorneys' incorrect parole-eligibility advice rendered his guilty pleas involuntary. In recently discussing another PCR movant's similar claim, this Court explained:

A voluntary guilty plea emanates from the defendant's informed consent. An allegation that the defendant pled guilty in response to counsel's mistaken advice may vitiate the plea, because it indicates the defendant may not have been fully aware of the consequences of the plea. The petitioner bears the burden of proving by a preponderance of the evidence that his plea was involuntarily entered.
This Court has previously stated:
A guilty plea is binding on a defendant only if it is entered voluntarily and intelligently. A plea is considered voluntary and intelligent only if the defendant is informed of the nature of the charge against him and the consequences of the plea. Before the trial court may accept a guilty plea, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. As part of its voluntariness inquiry, the court must determine whether the accused understands the minimum and maximum sentences for the charge.
We have further stated:
It is not a prerequisite to a voluntary plea that the defendant understand the nature of parole, his eligibility for parole, and the circumstances under which it may be granted. On the other hand, a plea is involuntary if a defendant is affirmatively misinformed regarding the possibility of parole and pleads guilty in reliance on the misinformation.
In Sylvester , this Court found that the defendant's eligibility for trusty earned time was analogous to eligibility for parole. Th[is] Court further found that, if a defendant alleges he was given erroneous advice by his attorney as to his eligibility for trusty earned time (or for parole) and that erroneous advice goes uncorrected, and he provides evidence other than his own statement (such as a sworn affidavit from a third party), he is entitled to an evidentiary hearing.

Thinnes v. State , 196 So.3d 204, 208-09 (¶¶ 15-18) (Miss. Ct. App. 2016) (internal citations and quotation marks omitted).

¶ 36. In his affidavit attached to his PCR motion, Moore said he rejected the State's first plea offer for thirty-five years. Moore's affidavit further provided that he initially rejected a fifty-year plea deal until one of his attorneys informed him that he would be parole eligible after serving about five years. According to Moore's affidavit, his attorney told him he must serve one-fourth of his sentence (about twelve and a half years) but that he could reduce his time until parole eligibility to about five years through trusty time and meritorious earned time.

¶ 37. Significantly, Moore also attached to his PCR motion an affidavit from his mother, Lisa, who stated that one of her son's attorneys "mentioned something [to her] about [Moore] having to serve six (6) years, and he mentioned something about forty percent (40%)[.]" Lisa further stated that, following her son's guilty plea, Moore called her and said his attorneys had explained that, "if he accepted the [fifty-]year plea deal and ple[d] guilty, then [he] would serve [twelve and a half] years minus [six] years for good time minus about one year for meritorious earned time, making [him] eligible for parole in about [five] years." Lisa also stated Moore informed her that he initially refused the fifty-year plea deal until his attorneys advised him that he would only have to serve five years before becoming eligible for parole.

¶ 38. Similarly to the present case, in Readus v. State , 837 So.2d 209, 211 (¶ 4) (Miss. Ct. App. 2003), the movant attached his own affidavit and one from his mother to support his claims that his attorney's incorrect sentencing advice rendered his guilty pleas involuntary and amounted to ineffective assistance of counsel. In his own affidavit, Readus averred "his attorney told him that, if he pled guilty, he would be sentenced to 'six months and ten years on paper' and that he would 'get RID.' " Id. at 212 (¶ 9). "Readus'[s] mother's affidavit averred that she first spoke with the attorney the morning of the sentencing hearing in anticipation of her testimony ... [and] that the attorney told her that Readus 'would get about six years and he said something about papers after that.' " Id. at 211 (¶ 5). Although acknowledging a discrepancy existed in the affidavits as to the exact sentence length the attorney promised Readus, this Court found that the difference failed to invalidate the entirety of the affidavits. Id. at 214 (¶ 14). Instead, the Readus Court concluded that Readus's supporting affidavits corroborated that his attorney provided incorrect advice and "instilled an expectation of a far more lenient sentence than Readus actually received." Id. We further determined in Readus that "[c]ounsel's alleged deficiency was not 'cured' by the plea colloquy because the erroneous advice was not directly contradicted by the [trial] court's questioning." Id. at 214-15 (¶ 18) (citation omitted). As acknowledged, in the present case, the corroboration Moore's mother offered in her affidavit of incorrect legal advice constitutes similar corroboration to that offered by the mother's affidavit in Readus .

¶ 39. Also as in Readus , Moore contends that the circuit court failed during the plea hearing to correct his attorney's erroneous parole-eligibility advice. Indeed, the record reflects that, although the circuit court informed Moore of the rights he waived and the minimum and maximum penalties applicable if he pled guilty, the circuit court never addressed the issue of Moore's parole eligibility. As a result, during the plea colloquy, the circuit court failed to correct the misinformation that Moore's supporting affidavits allege his attorneys provided as to his parole eligibility. In the analogous case of Readus , this Court found that the movant raised sufficient evidence to warrant an evidentiary hearing. Id. at 210 (¶ 2). Accordingly, I likewise find Moore is entitled to an evidentiary hearing on this issue and that the circuit court abused its discretion by summarily dismissing his PCR motion without granting the hearing.

b. Ineffective Assistance of Counsel

¶ 40. During his plea hearing, Moore swore under oath he was satisfied with his attorneys' representation. "[A] strong presumption ... exists that in-court declarations are truthful." Thinnes , 196 So.3d at 210 (¶ 25) (citing Sylvester , 113 So.3d at (¶ 24) ). On appeal, however, Moore argues his attorney provided ineffective assistance of counsel. To prevail on his ineffective-assistance claim, Moore must prove: (1) his attorneys' performance was deficient; and (2) he suffered prejudice as a result of the deficient performance. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With regard to a Strickland analysis, this Court has explained, "[I]t is presumed that counsel's representation falls within the range of reasonable professional assistance. However, the defendant may overcome the presumption. To do so, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Sylvester , 113 So.3d at 624 (¶ 22) (internal citation and quotation marks omitted).

¶ 41. The affidavits Moore attached to his March 8, 2016 PCR motion support his assertions that (1) his attorneys misinformed him about his parole eligibility; (2) he detrimentally relied on this erroneous information in pleading guilty; and (3) but for his attorneys' erroneous parole-eligibility advice, he would not have decided to accept the State's fifty-year plea offer and plead guilty. Thus, if Moore's instant PCR motion is not found to be procedurally barred as a successive writ due to the unauthorized and illegal actions of an unlicensed writ writer, then Moore's affidavits provide sufficient corroborating evidence to warrant an evidentiary hearing as to his ineffective-assistance-of-counsel claim. Compare Readus , 837 So.2d at 214-15 (¶ 18).

¶ 42. I would therefore reverse the circuit court's summary dismissal of Moore's March 8, 2016 PCR motion and remand this case for an evidentiary hearing on the claims raised by Moore's PCR motion. As a result, I respectfully dissent from the majority's decision.

LEE, C.J., AND IRVING, P.J., JOIN THIS OPINION.

      He was sentenced to five consecutive seven-year sentences for each automobile-burglary conviction and twenty-five years for burglary of a dwelling, with ten years suspended, and five years of supervised probation.

      In exchange for this plea, the State agreed to nolle pros the statutory-rape charge, one count of auto burglary, four counts of house burglary, and an unindicted count of attempted escape.

      The circuit court made no findings on this issue, except to conclude that Moore's PCR motion was procedurally barred.

      Moore attached an exhibit to his appeal showing Tubwell was enjoined by the DeSoto County Chancery Court from engaging in the practice of law, but this was not part of the record before the trial court. He requests that this Court take judicial notice of the order. Based on our analysis, we find the exhibit not relevant in this instance.

      We also note that the notary was from Lauderdale County, where Moore is in custody.

      Notwithstanding this finding, this Court does not condone Tubwell's history of acting as some type of freelance writ writer after his release from prison. See Miss. Bar v. Thompson , 5 So.3d 330, 333-38 (¶¶ 3-10, 35) (Miss. 2008) (Tubwell, a paralegal, independently communicated with an inmate and mailed him a pro se PCR petition to file without an attorney's representation, causing the attorney to be in violation of the Mississippi Rules of Professional Conduct.) The court, however, is concerned that adopting Moore's argument could encourage prisoners to file a first PCR motion drafted by a person unauthorized to practice law, knowing that if he were unsuccessful, he could later claim the motion was void and file a second motion, circumventing the successive-motion procedural bar.

      Although Moore asserted in his PCR motion that counsel failed to investigate his case and properly prepare for trial, he has abandoned this argument on appeal.

      Mississippi Code Annotated section 47-7-3(2) (Rev. 2010) stated:
      Notwithstanding any other provision of law, an inmate shall not be eligible to receive earned time, good time or any other administrative reduction of time which shall reduce the time necessary to be served for parole eligibility as provided in subsection (1) of this section; however, this subsection shall not apply to the advancement of parole eligibility dates pursuant to the Prison Overcrowding Emergency Powers Act. Moreover, meritorious earned time allowances may be used to reduce the time necessary to be served for parole eligibility as provided in paragraph (c) of subsection (1) of this section .
      (Emphasis added). In 2014, section 47-7-3 was amended and the above italicized language was deleted. Neither party has quantified how much meritorious time would have reduced Moore's time for parole eligibility.

      While the Mississippi Supreme Court recently declared subsection (2) of this statute unconstitutional, see Ashwell v. State , 226 So.3d 69, 72 (¶ 9) (Miss. 2017) (finding our Constitution "grants the Legislature no power to limit the number of claims a litigant may plead in a particular hearing"), the ruling did not affect the requirements of subsection (1)(e).

      See Readus v. State , 837 So.2d 209, 210 (¶ 2) (Miss. Ct App. 2003) (reversing the circuit court's summary dismissal of the movant's PCR motion and remanding for an evidentiary hearing on his allegations of an involuntary plea and ineffective assistance of counsel).

      The circuit court dismissed Moore's March 8, 2016 PCR motion without an evidentiary hearing after finding that the motion was procedurally barred and that the face of the motion reflected Moore was not entitled to any relief.

      See Miss. Const. art. 3, § 26 (discussing the right to self-representation); Miss. Code Ann. § 99-39-23(6) (discussing the successive-writ bar).

      To warrant an evidentiary hearing, Moore must support his claims with at least a preponderance of the evidence. See James v. State , 220 So.3d 989, 991 (¶ 5) (Miss. Ct. App. 2016).

      See also Fairley v. State , 834 So.2d 704, 707 (¶ 8) (Miss. 2003) ("The rule arising ... is that failure to mention something concerning parole eligibility may be no problem, but erroneous information concerning parole and sentencing at least entitles the petitioner to an evidentiary hearing on whether he relied on the erroneous information.").

      See also James v. State , 220 So.3d 989, 991 (¶ 5) (Miss. Ct. App. 2016) ("At an evidentiary hearing on [a PCR motion], the burden of proof is on the petitioner to 'prove by a preponderance of the evidence that he is entitled to the relief' " (quoting Miss. Code Ann. § 99-39-23(7) (Rev. 2015))).


source: Caselaw Access Project

author: LEE, C.J., FOR THE COURT:

license: Public Domain

text:
    Christopher CARBIN a/k/a Chris Carbin a/k/a Chris J. Carbin a/k/a Christopher James Carbin a/k/a Christopher J. Carbin, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01646-COA
    Court of Appeals of Mississippi.
    December 5, 2017 Rehearing Denied April 3, 2018 Certiorari Denied July 19, 2018
    CHRISTOPHER CARBIN (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In 1988, Christopher Carbin pleaded guilty to three counts of kidnapping, and one count each of armed robbery, jail escape, conspiracy to commit jail escape, aggravated assault on a law-enforcement officer, and grand larceny. He was sentenced as a habitual offender to serve a total of forty-five years in the custody of the Mississippi Department of Corrections. Over the years, Carbin has filed nine separate motions for postconviction relief (PCR). Several of the motions were dismissed due to Carbin's failure to pay filing fees. Others were dismissed as time-barred and successive-writ barred. See Carbin v. State , 942 So.2d 231, 232 (¶ 1) (Miss. Ct. App. 2006) (affirming the trial court's dismissal of Carbin's third PCR motion as a successive writ).

¶ 2. This appeal concerns Carbin's ninth PCR motion. He originally filed several documents, including one titled "Brief of Habeas Corpus," in which he argued that the evidence was insufficient to support his habitual-offender status and his conviction and sentence for jail escape. The trial court treated Carbin's filings as a PCR motion. The trial court determined Carbin's motion was time-barred and successive-writ barred. Although Carbin claimed his fundamental constitutional rights were affected, the trial court found that Carbin failed to overcome the procedural bar.

¶ 3. Carbin now appeals, arguing that he was improperly sentenced as a habitual offender and that his guilty plea was not entered into voluntarily. As Carbin raises the guilty-plea issue for the first time on appeal, we decline to review it. See Marshall v. State , 136 So.3d 443, 445 (¶ 3) (Miss. Ct. App. 2013).

STANDARD OF REVIEW

¶ 4. When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if the trial court abused its discretion and the decision is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

¶ 5. Carbin argues that the evidence was insufficient to prove he was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Carbin's PCR motion is procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Rev. 2015). But "errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Postconviction Collateral Relief Act]." Rowland v. State , 42 So.3d 503, 506 (¶ 9) (Miss. 2010). The right to be free from an illegal sentence is a fundamental right that survives the procedural bar. Boyd v. State , 155 So.3d 914, 918 (¶ 13) (Miss. Ct. App. 2014). However, "the mere assertion of a constitutional right violation does not trigger the exception"; rather, the claim must at least appear to have some basis of truth. Evans v. State , 115 So.3d 879, 881 (¶ 3) (Miss. Ct. App. 2013) (citations and internal quotation marks omitted).

¶ 6. The trial court noted that certified judgments of conviction and sentence evidencing Carbin's prior convictions were admitted without objection by Carbin. Noting that certified copies of judgments of conviction are sufficient to support habitual-offender status, the trial court found Carbin failed to overcome the procedural bar. See Short v. State , 929 So.2d 420, 426 (¶ 16) (Miss. Ct. App. 2006) ("The best evidence of a conviction is a certified copy of the judgment of conviction."). We agree with the trial court that Carbin has failed to overcome the procedural bar.

¶ 7. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


author: BARNES, J., FOR THE COURT: TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Allen L. CRONIER and Wife, Janice Stork Cronier, and Victoria Lynn Cronier, a Minor by and through Her Parent and Next Friend, Derrick Cronier, Appellants v. ALR PARTNERS L.P., an Alabama Limited Partnership, and MKAZ Partnership L.P., an Alabama Limited Partnership, Appellees
    NO. 2016-CA-00521-COA
    Court of Appeals of Mississippi.
    December 12, 2017 Rehearing Denied April 10, 2018 Certiorari Denied July 19, 2018
    ATTORNEY FOR APPELLANTS: SCOTT CORLEW, PASCAGOULA
    ATTORNEY FOR APPELLEES: E. FOLEY RANSON, OCEAN SPRINGS
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Allen Cronier appeals the judgment of the Chancery Court of Jackson County, which found, after a bench trial, that the Rainwaterses proved adverse possession of approximately 9.57 acres in Jackson County, Mississippi, which Allen claimed he owned. Allen was ordered to pay the Rainwaterses' court costs and attorney fees of $10,790.05, and to remove fencing at his own cost. We affirm the chancellor's finding that the Rainwaterses had adversely possessed the property to the west and north of the Croniers' property. However, we reverse and remand the award of attorney fees to the Rainwaterses.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 3, 2012, Allen and his wife, Janice, purchased eighty acres of rural wooded property in Jackson County from Herbert Bang and his wife Earlene Dobbs for approximately $225,000. The property is located in an area locals refer to as "Roberts' Neck," near the Alabama border between the Big Creek and Escatawpa Rivers. The Croniers paid cash for the property. Neither the warranty deed nor the closing was handled by an attorney. On July 11, 2012, the warranty deed was recorded in the Jackson County land records. The property description in the warranty deed states the parcel is "approximately 80 acres, more or less."

¶ 3. Prior to the purchase, Allen, Janice, Bang, and his wife explored the property on a golf cart for several hours. Allen did not survey the property, nor did he obtain a title opinion. Allen testified that some old fence posts still stood on the southern border. After the purchase, on July 26, 2012, Allen emailed Gerald Moody Sr. (Moody) about surveying the eighty acres to identify the property's corners and stake it every 100 feet for cattle fencing. Gerald Moody Jr. (Moody Jr.) and a crew were to do the preliminary field work.

¶ 4. The Rainwaters family had owned several thousand acres of the property surrounding the Croniers' parcel for many years, and it is currently held by ALR and MKAZ partnerships. Austin Rainwaters testified that Allen had called him before buying the property to see if "there was anything [he] needed to know." Austin informed Allen that the property corners in the area were not consistent with the theoretical section corners, but former owners of the parcel (Bang, Dobbs, and Roberts) had honored the established corners. Austin told Allen two things were important to the Rainwaterses: they needed help maintaining the road allowing access to their other property; and they wanted Allen to honor the old property lines and corners. Austin recalled that Allen stated it would not be a problem. Austin recommended Moody as a surveyor to Allen.

¶ 5. During preliminary field work, Moody discovered that the Croniers' parcel was seventy and not eighty acres. The preliminary survey revealed a boundary issue with the adjoining property owned by MKAZ and ALR on the north, west, and south sides. The survey map noted the northwest-corner markings and monuments included a three-fourths-inch pipe in the ground and a yellow paint blaze on a tree. The southwest corner was marked by an old fence-corner post. There were old yellow painted blazes meandering along Allen's north and west property lines. There was an old firebreak running along the western boundary of the tract. The survey stated that the northeast and southeast corners, which are not disputed, were marked by a one-and-one-half-inch pipe and a "pine knot g/w PVC pipe," respectively.

¶ 6. In August 2012, Moody arranged a meeting between Allen and the Rainwaterses to discuss the issue. Allen claimed this was the first time he learned of a boundary dispute. Marshall Rainwaters testified that Allen stated that he had paid for eighty acres and said, "by God I'm going to get eighty acres .... I know what I've got to do." He left the meeting angry, and fired Moody's survey company.

¶ 7. Shortly after the meeting, the Rainwaterses went to inspect the property. Marshall testified that the yellow mark and old fence were still at the northwest corner, but the three-fourths-inch pipe marker was missing, leaving a hole. Photographs and a video were taken of the boundary and corner markers, especially of the northwest and southwest corners.

¶ 8. In March 2013, in an attempt to resolve the dispute, the Rainwaterses' attorney wrote a letter to Allen stating that the Rainwaterses' property had been in the family since 1947. He explained: "[h]istorically, the property boundaries of Section 19 and the other sections in this part of Jackson County do not exactly follow the quarter section lines" as seen on Moody's preliminary survey. In July 2013, the Croniers responded by letter, quoting the Bible, denying that the Rainwaterses owned the ten acres, and stating that Bang, one of the prior owners, knew "nothing about this." The letter also informed the Rainwaterses that Allen had conveyed the western ten acres of the property in dispute to the Croniers' granddaughter, who was twelve years old, reserving to Allen and his wife a life estate.

¶ 9. In September 2013, the Moodys finalized their survey of Allen's property. In October 2013, the Rainwaterses visited the property and noted that the corner markers had been moved or obliterated. Further, the yellow paint blaze on the pine-tree bark of the northwest corner had been scraped off. Also, the old fence and post had been removed, as had the yellow paint on the trees along the northern and western boundaries. Additional photographs and a video were taken of the alterations, and later entered into evidence and shown at trial. In November 2013, Allen hired his own surveyor, Donald Rowe, who completed his survey in December 2013.

¶ 10. On December 23, 2013, ALR and MKAZ filed suit to quiet and confirm title against the Croniers and their granddaughter, asserting their claim to the disputed ten acres by adverse possession. They requested the court establish the property's boundary lines as set forth in the Moody survey, which was attached to their complaint.

¶ 11. In July 2014, the Rainwaterses again visited the property and claimed the Croniers or their agents had erected new gates and barbed-wire fencing around the eighty acres, using the legal description in the warranty deed for the boundaries, not the old markers on the western side. Accordingly, the Rainwaterses amended their complaint against the Croniers to include trespass, compensatory and punitive damages, and attorney fees. The compensatory damages were for the cost of removing the new gates and fencing.

¶ 12. Before trial, the court and counsel viewed the property firsthand. A two-day bench trial began in September 2015, and continued in January 2016. Surveyors Rowe and Moody provided expert testimony at trial.

¶ 13. Austin, in his seventies, testified that the property lines in the area were already determined by the Rainwaterses' family fifty or more years ago, and stated that, generally, none of the property sections in Roberts' Neck were exactly 640 acres. His family started buying property in this area of Jackson County in the 1940s. Sixty years ago there was a fence on the western boundary (the eastern boundary of the disputed area) of the Croniers' current property to keep cattle in that parcel. Portions of the fence, although dilapidated, still exist. Austin stated his father dug a firebreak that meandered along the western side of this fence, which had long been considered the eastern boundary of the Rainwaterses' property. Austin also testified that he helped his father harvest turpentine on the disputed area about sixty years ago. His father began performing controlled burns on the property approximately sixty-five years ago. In his youth, Austin always mistakenly assumed the area was his father's property. The road traversing the disputed area is the only access to the Rainwaterses' property lying south of the Croniers' property. Austin explained the Rainwaterses have leased the property to a hunting club for many years, but the Rainwaterses have never lived on the property.

¶ 14. Austin testified that in 1987 his family hired "Mr. Dennis" to mark the boundaries of their property. He used yellow paint to blaze the trees along the boundaries, and kept a map showing the area of the blazes, which was entered into evidence. These blazes were found by both Moody and Moody Jr. along the northern property line. Austin claimed that he showed the old corner markings to Allen prior to Allen's purchase of the property. Further, Moody Jr. testified that Bang pointed out these old corner markers to Allen at the time of the purchase. Allen, however, denied these statements.

¶ 15. Marshall testified that his family had continuously utilized the property since at least 1947. He and his family visited the property at least a couple times a year. He testified the western firebreak was plowed sometime in the 1990s by his father. He corroborated Austin's testimony about the former yellow paint blazes on the trees, the corner markers that had been removed, and the old fence. Moody also testified to the markers' removal. He contended that Allen could have avoided this dispute by having a survey completed before he bought the property.

¶ 16. Rowe testified he saw no evidence of an old fence line, yellow painted blaze marks, or old corner monuments when he performed his survey in December 2013, over a year after the Moody survey. He described the property as "overgrown," and noted that the firebreaks did not correspond to property lines claimed by the parties. After Rowe marked the property boundaries described by legal description, Allen built a fence and gates around the perimeter, which included the disputed parcel.

¶ 17. Allen testified he initially heard about the property being for sale through hunting-club members. He and his wife went to examine the property with Bang and his wife in a golf cart. Bang showed him the corner boundaries, but Allen denied seeing a yellow-blazed tree, pipe, or corner markers on the western boundary. He did see old fence posts, but no fence.

¶ 18. Allen testified he felt "ambushed" during the August 2012 meeting when told by Moody the parcel he bought was not eighty acres. Allen denied he ever saw Moody's preliminary or final survey. Allen also denied any knowledge of the old corner markings, even though Moody Jr. testified that when his company was originally hired by Allen for a survey, Allen had pointed out the old monuments and markings in the corners, as shown to Allen by Bang. Finally, Allen denied removing any boundary markings.

¶ 19. In March 2016, the chancellor entered her findings of fact and conclusions of law. The chancellor ruled in favor of the Rainwaterses on their claim of adverse possession on the west and north boundary of the Croniers' parcel, but against the Rainwaterses on its adverse-possession claim to a sliver of property along the southern boundary of the Croniers' parcel. The Croniers were ordered to remove all fencing and gates they had installed along the boundaries of the disputed parcel. The Croniers were also ordered to pay attorney fees for the Rainwaterses and court costs. In April 2016, a final judgment was entered, and Allen appealed.

STANDARD OF REVIEW

¶ 20. This Court's review of a chancellor's decision is limited. "The chancellor's findings of fact will be accepted as long as the record reasonably supports those findings." Rester v. Greenleaf Res. Inc. , 198 So.3d 472, 474 (¶ 5) (Miss. Ct. App. 2016) (citation and quotation marks omitted). This Court will not disturb the chancellor's findings "unless those findings are clearly erroneous or an erroneous legal standard was applied." Cook v. Robinson , 924 So.2d 592, 594 (¶ 9) (Miss. Ct. App. 2006) (citation omitted). "The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of witnesses and the weight of their testimony." Id.

ANALYSIS

¶ 21. Allen argues that the chancellor erred in finding the Rainwaterses proved adverse possession of the disputed 9.57 acres. He claims they failed to prove continuous use and activities on the property, or notification. He also argues the award of attorney fees is improper.

I. Adverse Possession

¶ 22. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) provides:

Ten (10) years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title ....

In other words, adverse possession of real property for ten years perfects title in the possessor. Lynn v. Soterra Inc. , 802 So.2d 162, 166 (¶ 10) (Miss. Ct. App. 2001) (citing Miss. Code Ann. § 15-1-13 ). For a successful claim of adverse possession, the plaintiff must prove by clear and convincing evidence that the possession was: "(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful." Wicker v. Harvey , 937 So.2d 983, 993 (¶ 32) (Miss. Ct. App. 2006) (quoting Blackburn v. Wong , 904 So.2d 134, 136 (¶ 15) (Miss. 2004) ). Ultimately, the question is whether the possessory acts of the claimant are sufficient to put the record title holder on notice that the property is "held under an adverse claim of ownership." Rester , 198 So.3d at 475 (¶ 7) (citation omitted).

A. Under Claim of Ownership

¶ 23. The adverse possessor must possess the subject property under a claim of ownership for a ten-year period. Miss. Code Ann. § 15-1-13. Allen argues that there was no testimony about a claim of ownership to the disputed area. We disagree.

¶ 24. The chancellor found several claims of ownership by the Rainwaterses were visible for over ten years. The Rainwaterses testified that their family had used the property for approximately sixty years prior to the Croniers' purchase of the property. In 1987, Mr. Dennis, employed by the Rainwaterses, marked the boundaries of the family land with yellow blazes on trees along the western property line. Moody's survey corroborated these markings. Allen's argument is without merit.

B. Actual and Hostile

¶ 25. Actual possession is "effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses." Wicker , 937 So.2d at 993-94 (¶ 34) (quoting Blankinship v. Payton , 605 So.2d 817, 819-20 (Miss. 1992) ). "Adverse use is defined as such a use of the property as the owner ... would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right." Peagler v. Measells , 743 So.2d 389, 391 (¶ 9) (Miss. Ct. App. 1999) (quoting Cummins v. Dumas , 147 Miss. 215, 113 So. 332, 334 (1927) ). In other words, the Rainwaterses must prove that the Croniers, or their predecessors, were aware of their occupation and took no action to prevent it. See Double J Farmlands Inc. v. Paradise Baptist Church , 999 So.2d 826, 829 (¶ 15) (Miss. 2008).

¶ 26. Allen contends that the only testimony about visible use of the property is the Rainwaterses' harvesting turpentine decades ago and Mr. Dennis's flagging the property in 1987, which Allen claims are too "remote in time." The chancellor found, as in the first element, that the boundary markings were clear. Also, Allen had been told of them personally by Austin. Moreover, when Allen hired the Moodys to survey the land, Allen took Moody Jr. to the northwest and southwest corners of the property in dispute, where there were alternate boundary markers visible. This fact contradicts the dissent's allegation that the only evidence that established notice to Allen was Austin's testimony of the boundaries. Finally, Allen did not need to be aware of the occupation for the ten years; title ripened in the Rainwaterses when they completed ten years of adverse possession. Thus, the Rainwaterses' flagging of the property was not "too remote" in time. Allen's predecessors took no action to prevent the Rainwaterses' occupation. The evidence establishes this element.

C. Open, Notorious, and Visible

¶ 27. Mere possession of the property is not sufficient; the possession must be open, notorious, and visible. Wicker , 937 So.2d at 994 (¶ 35) (citing Craft v. Thompson , 405 So.2d 128, 130 (Miss. 1981) ). "[A]n adverse possessor 'must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.' " Blankinship , 605 So.2d at 820 (citation omitted). "[A]n important question is whether the claimant exercises the 'same character of control' that he would apply toward property that was actually his, and which he would not apply toward property that he did not own." Wicker , 937 So.2d at 994 (¶ 37) (citations omitted).

¶ 28. Allen claims that there was no evidence of open, notorious, and visible possession of the property such that he or the predecessors-in-title would know of it. However, the chancellor found several instances of such possession. Photographs, survey plats, and testimony show the painted blazes existed on timber on the northern and western boundaries of the Croniers' property, until they were removed. Moody Jr. testified that Allen took him to the corners claimed by the Rainwaterses; Allen thought they were the corners of his property, until he learned of a discrepancy in the deed. Further, the Croniers' predecessors had honored these boundaries.

¶ 29. Other possessive acts by the Rainwaterses over the years included marking corners, creating firebreaks, fencing borders, harvesting turpentine, leasing the property for hunting, and using the area's road to access other property. Additionally, the property was flagged by Mr. Dennis, controlled burns were performed, and cows grazed on the disputed property. We cannot accept the dissent's characterization of these activities as a few isolated events. The record shows that there was testimony, apparently accepted by the chancellor, that clearly established decades of open, obvious control of the disputed property. It was not the fact that there were remnants of "meandering" paint markings on trees or an old firebreak, but that this evidence supported the testimony of the Rainwaterses that this property had been in their family's possession for decades. The evidence is sufficient to establish this element.

D. Continuous and Uninterrupted for Ten Years

¶ 30. Allen argues that the Rainwaterses failed to prove continual possession of the property for ten or more years, instead providing only "instances of intrusion" on the property. Additionally, Allen claims this element was not met because many of the Rainwaterses' possessory acts occurred fifty to sixty years ago, which were again too "remote in time." However, the Rainwaterses do not need to prove continuous uninterrupted possession for more than ten years. Instead, title ripened after ten years of continuous uninterrupted possession, after which the former property owner would have to prove adverse possession in his own favor to regain title. See Lynn , 802 So.2d at 166 (¶ 10).

¶ 31. The chancellor found clear and convincing evidence the Rainwaterses possessed the disputed ten-acre parcel for a continuous period in excess of ten years, and we agree. The last time the painted boundary blazes on the trees were maintained was 1987, well over ten years ago. As stated above, the Rainwaterses have continuously used the western portion of the property to access other property they have owned since the 1940s, visiting the property a couple of times a year. Furthermore, there is no limit regarding remoteness of time; the continuous and uninterrupted use of the property over a period of ten or more years meets the statutory requirements.

E. Exclusive

¶ 32. Exclusive possession is "an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant's conduct must afford an unequivocal indication that he is exercising dominion of a sole owner." Wicker , 937 So.2d at 995 (¶ 40) (quoting Rawls v. Parker , 602 So.2d 1164, 1169 (Miss. 1992) ). Allen argues the Rainwaterses did not offer evidence as to the actual property lines at issue. He claims the rural property was overgrown;

thus, the actual corners were difficult, if not impossible, to ascertain.

¶ 33. The chancellor found the Rainwaterses had exhibited actions showing dominion and control over the property at issue for decades, and we cannot say she erred. Testimony showed the Rainwaterses had maintained and marked the boundaries of the property since the 1940s by fences, yellow blazes, and firebreaks. Additionally, Austin testified that before Allen bought the property, he told Allen about the corner markers and boundaries. These markers were still visible when Moody performed the first survey, and were, in fact, pointed out by Allen, according to Moody. Allen's argument is without merit.

F. Peaceful

¶ 34. Allen states the record is silent concerning peaceful use of the land before his ownership, but since then, he claims it has not been peaceful as he has built a fence on the property-description lines, which includes the disputed property, and added a gate to obstruct the road that leads to the Rainwaterses' other property. However, the chancellor found the testimony showed that the Rainwaterses peacefully used and possessed the disputed property for decades. Further, the Rainwaterses and Bang were peaceful neighbors for over ten years. It was only when Allen purchased the property that a boundary dispute ensued. We find the chancellor's findings proper.

II. Attorney Fees

¶ 35. The chancellor ordered the Croniers to pay the Rainwaterses' attorney fees and court costs because the "actions of Allen in erecting a fence around the property were in clear disregard of the Rainwaterses' rights." Additionally, the chancellor stated that Allen "knew at the time he built the fence and conveyed the property to his minor granddaughter that there was a serious claim" to the disputed parcel.

¶ 36. At trial, the Rainwaterses submitted a statement for attorney fees of $9,790.05, not including ten hours spent at trial. The chancellor added ten hours of fees to this figure, but deducted five hours, because she did not find in favor of the Rainwaterses' adverse-possession claim for the southern portion of the property. Therefore, a total of $10,790.05 in attorney fees was awarded to the Rainwaterses.

¶ 37. Allen argues that attorney fees are not allowed in the absence of contractual provisions, statutory authority, or an award of punitive damages.

¶ 38. Mississippi follows the American rule for awards of attorney fees. "[A]bsent some statutory authority or contractual provision, attorneys' fees cannot be awarded unless punitive damages are also proper." Fulton v. Miss. Farm Bureau Cas. Ins. , 105 So.3d 284, 287-88 (¶ 16) (Miss. 2012). Punitive damages are only proper when the plaintiff shows by clear and convincing evidence the defendant acted with actual malice. Miss. Code Ann. § 11-1-65 (Rev. 2014). "[T]he plaintiff must demonstrate a willful or malicious wrong, or the gross, reckless disregard for the rights of others." Wise v. Valley Bank , 861 So.2d 1029, 1034 (¶ 15) (Miss. 2003).

¶ 39. Here, while there is no contractual provision, statutory authority, or specific award of punitive damages, the chancellor awarded attorney fees for the same reason the Rainwaterses requested punitive damages in their amended complaint (for the "Defendants' reckless disregard of the Plaintiffs' rights in this case"). The Mississippi Supreme Court has held that attorney fees may be awarded instead of punitive damages. Pursue Energy Corp. v. Abernathy , 77 So.3d 1094, 1102 (¶ 26) (Miss. 2011) (citing Aqua-Culture Tech. Ltd. v. Holly , 677 So.2d 171, 184 (Miss. 1996)

). Here, the chancellor did not specify in her order that she was awarding attorney fees in lieu of punitive damages. However, as the trier of fact she could have found Allen acted with actual malice in removing boundary markers, and constructing gates and a fence. Accordingly, we reverse and remand for clarification of whether punitive damages were awarded in the form of attorney fees.

¶ 40. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 41. While I concur with the majority opinion as it pertains to the award of attorney fees, on the issue of adverse possession, I must respectfully dissent. "Clear and convincing" is a high order of proof that requires even more proof than "overwhelming weight of the evidence." Bailey v. Woodcock (In re C.B.) , 574 So.2d 1369, 1375 (Miss. 1990). To prevail upon an adverse-possession claim, one must prove each of its six required elements by this extraordinarily high standard of proof. West v. Brewer , 579 So.2d 1261, 1262 (Miss. 1991). Here, the record lacks the indispensable, clear and convincing proof necessary for the Rainwaterses to prevail on their adverse-possession claim of the disputed property. To find otherwise, in my opinion, is manifestly wrong.

¶ 42. "The ultimate question is whether the possessory acts relied upon by the would[-]be adverse possessor are sufficient enough to place the record title holder on notice that the lands are under an adverse claim of ownership." Stringer v. Robinson , 760 So.2d 6, 10 (¶ 13) (Miss. Ct. App. 1999). The Rainwaterses' possessory acts, as testified to by Austin, consisted of his father harvesting turpentine on the disputed parcel in the 1950s, hiring someone to mark their boundaries with yellow paint in 1987, and leasing the disputed land to a hunting club. However, there was no evidence as to exactly how many years the turpentine was harvested, if the record title holder was ever made aware of the yellow blaze (and even if he was aware of the yellow blaze, did he know it was there to identify a boundary), and if the hunting club ever actually hunted on the disputed property. The only evidence that establishes notice to the record title holder is Austin's testimony that he told Allen about the purported boundary lines within the last ten years. These acts simply are not enough to meet the clear and convincing standard required to establish actual and hostile possession by the Rainwaterses of the disputed property.

¶ 43. An adverse possessor must "fly his flag over the lands" of the documented owner. O'Neal v. Blalock , 220 So.3d 234, 240 (¶ 14) (Miss. Ct. App. 2017) ; Hill v. Johnson, 27 So.3d 426, 431 (¶ 19) (Miss. Ct. App. 2009). Mississippi caselaw has repeatedly recognized that the mere presence of a fence, without more, has never been sufficient to sustain a claim of adverse possession. See Double J Farmlands Inc. v. Paradise Baptist Church , 999 So.2d 826, 829 (¶ 15) (Miss. 2008) ; Davis v. Clement , 468 So.2d 58, 63 (Miss. 1985)

; Harmon v. Buckwalter , 233 Miss. 761, 763-66, 102 So.2d 895, 896-98 (1958) ; Snowden & McSweeny Co. v. Hanley , 195 Miss. 682, 686-88, 16 So.2d 24, 25-26 (1943). Here, the Rainwaterses do not even have a fence. Instead, they assert the boundaries were established by the following: a single tree blazed with some yellow paint and three-fourth-inch pipe at one purported corner; some painted markings "meandering" along the ground in an overgrown section of the property that purported to be the property line; a single fence post in another purported corner; and an old fire lane meandering through another overgrown area along the other purported property line. To give weight to the aforementioned evidence over the clear wording of a deed's legal description would be a giant step away from the "clear and convincing" standard and the "open, notorious, and visible" element required in adverse-possession caselaw.

¶ 44. To illustrate the evidence needed, an adequate showing of adverse possession was made in Scott v. Anderson-Tully Co. , 154 So.3d 910, 916 (¶ 16) (Miss. Ct. App. 2015), where the would-be adverse possessor "distinctly" painted the borders and wire fence of a disputed property. The supporting evidence in Scott was stronger than in this case and included the following: the fence line was repeatedly painted and was done in such a manner that it was easily recognizable; testimony was presented that the community itself recognized the property line; the timber (not just sap from the tree) had been harvested on at least three occasions; and hunting leases were issued five separate times on the disputed property (and the record contained written copies of the contracts with plats attached that included the disputed property). Id. Further, the evidence in Scott showed the would-be adverse possessor constantly worked and maintained the land. By contrast, the Rainwaterses admitted the area in dispute here had become overgrown and that they only visited the property a couple times a year. Clearly, Scott is distinguishable from this case.

¶ 45. I am keenly aware that "[t]he credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts." Polk v. Polk , 559 So.2d 1048, 1049 (Miss. 1990) (quoting Rainey v. Rainey , 205 So.2d 514, 515 (Miss. 1967) ). Furthermore, it is of the utmost import that this Court be bound by the "severely limited substantial[-]evidence/manifest[-]error standard of review." Stallings v. Bailey , 558 So.2d 858, 861 (Miss. 1990) (citing Savage v. Parrish , 488 So.2d 1342, 1342 (Miss. 1986) ; Johnson v. Black , 469 So.2d 88, 90 (Miss. 1985) ). However, I believe we are equally required to not erode the extraordinarily high "clear and convincing" standard of proof necessary to take the property of another through adverse possession. If the chancellor's decision is affirmed, I believe such an erosion will occur. I therefore must respectfully dissent from that portion of the majority's opinion that affirms the chancellor's finding of adverse possession.

      Brothers Marshall and Austin Rainwaters are the principals/owners of ALR Partners L.P. and MKAZ Partnership L.P., which own property surrounding Allen's parcel of property.

      The property is located in Section 19, Township 5 South, Range 4 West. The area in dispute is the northern one-half of the southeast quarter.

      Bang and Dobbs had purchased the property in 1994 from W.J. Roberts.

      MKAZ owns the property on the north, west, and southwest border of the Croniers' parcel. ALR owns the property on the southeast border of the disputed parcel.

      This conveyance made it necessary for the Rainwaterses later to name the Croniers' granddaughter as a defendant in their lawsuit. Allen admitted at trial that the warranty deed, executed in October 2012, was prepared in part to get the Rainwaterses to give up their claim on the disputed ten acres. The deed was not recorded until July 2013. Allen testified the delay was to see if "things changed."

      Allen obstructed this road by building a gate after the litigation ensued.

      Excepted are claims by minors or the mentally incompetent. Miss. Code Ann. § 15-1-13.

      Austin testified that they routinely used a road on the disputed property to access the adjoining property. Even if this Court were to reverse the chancellor's finding of adverse possession, the Rainwaterses could pursue a claim for a prescriptive easement as to the road.

      Austin also testified that his father had done some controlled burns on the disputed property and that cows had grazed there. If the area was unfenced, as Austin testified, it is to be expected that such activities would spread across the legal property boundaries.


author: FAIR, J., FOR THE COURT:

text:
    Henry GIBBS, Jr. a/k/a Henry Gibbs, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00007-COA
    Court of Appeals of Mississippi.
    January 9, 2018 Rehearing Denied April 24, 2018 Certiorari Denied July 19, 2018
    ATTORNEY FOR APPELLANT: HENRY GIBBS JR. (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Henry Gibbs pled guilty to armed robbery. The court sentenced him to thirteen years in the custody of the Mississippi Department of Corrections, with eight years to serve followed by five years' post-release supervision. Gibbs filed a petition for post-conviction relief, which the court dismissed. Because Gibbs's claims are not within the purview of the Mississippi Uniform Post-Conviction Collateral Relief Act, we affirm the circuit court's dismissal.

STANDARD OF REVIEW

¶ 2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f 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." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State , 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

DISCUSSION

¶ 4. Mississippi Code Annotated section 99-39-5(1) (Rev. 2015) provides the grounds for available relief under a PCR motion:

(1) Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period, may file a motion to vacate, set aside or correct the judgment or sentence, a motion to request forensic DNA testing of biological evidence, or a motion for an out-of-time appeal if the person claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That there exists biological evidence secured in relation to the investigation or prosecution attendant to the petitioner's conviction not tested, or, if previously tested, that can be subjected to additional DNA testing, that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(i) That he is entitled to an out-of-time appeal; or
(j) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.

¶ 5. In his PCR motion, Gibbs claimed that (1) he did not match the description given by the victim; (2) the photo lineup used was suggestive; (3) he was forced to either go to trial or enter a guilty plea; (4) the State took too long to get an extradition warrant; and (5) his conviction was predetermined. None of Gibbs's claims are grounds for relief under section 99-39-5, and therefore his motion should be dismissed. Accordingly, we affirm the circuit court's judgment.

¶ 6. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


text:
    Victor Daren FROEMEL, Appellant v. ESTATE OF Mary Lou FROEMEL, Deceased, Danny Williams, Executor, Karen Cole, Disabled Veterans of America, and Charlie McNeal, Appellees
    NO. 2017-CA-00488-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: DAVID MARK SLOCUM JR.
    ATTORNEYS FOR APPELLEES: TAYLOR D. BUNTIN III, Southaven, JOHN THOMAS LAMAR JR., Senatobia, TAYLOR ALLISON HECK, DISABLED VETERANS OF AMERICA (PRO SE)
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this will-contest case, we must decide whether the chancery court properly granted summary judgment in favor of the beneficiaries. Finding no error, we affirm.

FACTS

¶ 2. On June 10, 2014, Mary Lou Froemel, a resident of DeSoto County, Mississippi, executed her last will and testament. She was seventy-five-years old, widowed, and had one adult son, Victor "Daren" Froemel, who lived in Illinois. According to affidavit testimony from John T. Lamar Jr., the attorney who drafted the will, Mary Lou did not get along with Daren, and they had numerous disagreements during the time leading up to the execution of her will. Lamar's affidavit stated that Mary Lou had told him that Daren attempted to "have her committed on a couple of occasions" and that "she was extremely mad at her son to the point that she came in and met with me and made the will."

¶ 3. When she executed the will, Mary Lou initialed each page and signed it. The will contained an attestation clause with the signatures of two witnesses: Lamar and his secretary, Judy W. Payne. Lamar and Payne also executed an affidavit which stated that Mary Lou had signed the will in their presence, and that they had signed the will in the presence of each other and Mary Lou. The attestation clause and affidavit also stated that Mary Lou declared the will to be her last will and testament, and the affidavit stated that Mary Lou was "then of sound, disposing mind and memory."

¶ 4. On December 29, 2015, Mary Lou died, and her will was admitted to probate in the DeSoto County Chancery Court on January 5, 2016. In her will, Mary Lou left $20,000 to her friend Karen Cole; $20,000 to the Disabled Veterans of America; and the residue of her estate in trust for the benefit of Charlie McNeal, for the remainder of his natural life. McNeal had performed some house-repair and yard work for Mary Lou and drove her on a few occasions when she had broken her ankle. Upon McNeal's death, any remaining assets in trust were to go to Mary Lou's grandson, Maxwell Lee Froemel-Daren's son.

¶ 5. On February 19, 2016, Daren filed a will contest, alleging that Mary Lou lacked testamentary capacity at the time she executed the will. On September 13, 2016, Daren's counsel propounded discovery to counsel for Mary Lou's estate and received answers on January 11, 2017. Then, on January 24, 2017, Cole and McNeal (the beneficiaries) filed a motion for summary judgment, which was joined by the Estate through its executor, Danny Williams, arguing that Mary Lou possessed testamentary capacity at the time she executed the will at issue, that there was no genuine issue of material fact, and that summary judgment should be granted. Attached to the beneficiaries' motion for summary judgment were affidavits from four individuals: Cole, McNeal, Lamar, and Payne, testifying as to Mary Lou's strong mental capacity at the time she executed the will.

¶ 6. Daren responded to the motion, stating that discovery revealed Mary Lou had been hospitalized from May 21, 2014 through May 25, 2014 for altered mental status, and on June 10, 2014-the day she executed her will-she held prescriptions for twenty-two medications, including morphine. Daren argues that because of the recent hospitalization for altered mental status and the possession of multiple prescriptions, there was a genuine issue of fact regarding whether Mary Lou possessed testamentary capacity. Apart from this response, Daren did not submit any affidavits or other evidence in support of his opposition to summary judgment.

¶ 7. Following a hearing on the motion, the chancellor granted the beneficiaries' motion for summary judgment. Daren now appeals.

STANDARD OF REVIEW

¶ 8. This Court reviews the grant of summary judgment under a de novo standard. Donovan v. Burwell , 199 So.3d 725, 729 (¶ 10) (Miss. Ct. App. 2016) (citing Evans v. Howell , 121 So.3d 919, 922 (¶ 14) (Miss. Ct. App. 2013) ). Under Mississippi Rule of Civil Procedure 56(c), summary judgment should be granted to the party seeking it, "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We review the evidence in the light most favorable to the nonmoving party. Donovan , 199 So.3d at 729 (¶ 10). However, the party opposing summary judgment "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). "If he does not so respond, summary judgment, if appropriate, shall be entered against him." Id.

DISCUSSION

I. Testamentary Capacity

¶ 9. Daren argues that the trial court erred when it granted the beneficiaries' motion for summary judgment on his will-contest claim. He claims that because Mary Lou had been hospitalized for altered mental status a few weeks prior to executing the will and held prescriptions for twenty-two medications, "[c]learly a genuine issue of material fact exists as to [Mary Lou's] testamentary capacity at the time of the execution of her will ...."

¶ 10. "The question of 'devisavit vel non' ('will or no will') is the primary issue in a will contest, and under [ Mississippi Code Annotated section] 91-7-19 (1972), either party to a will contest has an automatic right to a jury trial, unless no genuine issues of material fact have been presented in the pleading stage and a motion for summary judgment is properly granted." In re Estate of High , 19 So.3d 1282, 1290 (¶ 34) (Miss. Ct. App. 2009) (quoting Power v. Scott , 837 So.2d 202, 205 (¶ 7) (Miss. Ct. App. 2002) ). Accordingly, summary judgment may be granted in a will-contest case where there are no genuine issues of material fact presented at the pleading stage. Id. On a summary judgment motion, "[t]he movant and non-movant bear the burdens of production corresponding to the burdens of proof they would bear at trial." Collier v. Trustmark Nat'l. Bank , 678 So.2d 693, 696 (Miss. 1996) (quoting Skelton v. Twin County Rural Elec. Ass'n , 611 So.2d 931, 935 (Miss. 1992) ).

¶ 11. "For a will to be valid, the testator must possess testamentary capacity." In re Estate of Gardner v. Gardner , 228 So.3d 921, 926 (¶ 21) (Miss. Ct. App. 2017) (quoting Noblin v. Burgess , 54 So.3d 282, 291 (¶ 32) (Miss. Ct. App. 2010) ). To possess testamentary capacity, the individual must be of "sound and disposing mind." Id. (quoting Miss. Code Ann. § 91-5-1 (Rev. 2013) ). "Testamentary capacity is determined based on three factors: (1) whether the testator had the ability at the time of the will to understand and appreciate the effects of his act; (2) whether the testator had the ability at the time of the will to understand the natural objects or persons to receive his bounty and their relation to him; and (3) whether the testator was capable of determining at the time of the will what disposition he desired to make of his property." Id. (quoting In re Estate of Laughter , 23 So.3d 1055, 1061 (¶ 20) (Miss. 2009) ). "The key to testamentary capacity is mental competency at the time the will is made." Id. (quoting Lee v. Lee , 337 So.2d 713, 715 (Miss. 1976) ).

¶ 12. The supreme court has explained the burden of proof regarding testamentary capacity as follows:

At trial, the will's proponents carry the burden of proof, which they meet by the offering and receipt into evidence of the will and the record of probate. A prima facie case is made by the proponent solely by this proof. Afterwards, although the burden of proof remains on the proponents, the burden of going forward with proof of testamentary incapacity shifts to the contestants, who must overcome the prima facie case. The proponents may then present rebuttal proof if necessary.

In re Estate of Phelps v. Phelps , 180 So.3d 835, 839 (¶ 16) (Miss. Ct. App. 2015) (quoting In re Estate of Rutland v. Rutland , 24 So.3d 347, 351 (¶ 10) (Miss. Ct. App. 2009) ).

¶ 13. Here, the beneficiaries offered the will, and it was admitted to probate. Thus, they established a prima facie case regarding Mary Lou's testamentary capacity. Additionally, when the beneficiaries moved for summary judgment in response to Daren's contest, they attached four affidavits of individuals that testified as to Mary Lou's mental capacity. At this point, Daren was required to respond to the summary judgment motion with some evidence to rebut the beneficiaries' prima facie case to show a genuine issue for trial. Daren, however, filed an answer in response-and nothing more-in which he reiterated that Mary Lou had been hospitalized for altered mental status and had prescriptions for twenty-two medications. Following the reiteration of these two facts, Daren stated in his response, "Clearly, a genuine issue of material fact exists in regards to the decedent's mental state."

¶ 14. It is well settled that "[t]he existence of a genuine issue of material fact will preclude summary judgment." Calvert v. Griggs , 992 So.2d 627, 632 (¶ 11) (Miss. 2008). However, we note that "[a] fact is neither material nor genuinely contested ... merely because one party proclaims it so." Suddith v. Univ. of S. Miss. , 977 So.2d 1158, 1167 (¶ 10) (Miss. Ct. App. 2007). "The mere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment." Kaigler v. City of Bay St. Louis , 12 So.3d 577, 583 (¶ 27) (Miss. Ct. App. 2009) (internal quotation marks omitted) (quoting Palmer v. Biloxi Reg'l Med. Ctr. Inc. , 564 So.2d 1346, 1356 (Miss. 1990) ). "More specifically, the plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda." Id.

¶ 15. In the instant case, Daren rested upon the mere allegations in his pleadings and summarily concluded there was a genuine issue of material fact. While Mary Lou's hospitalization and prescriptions the month prior to the execution of her will may have been important facts in this case, there was no evidence of a genuine issue of material fact-namely, that Mary Lou lacked testamentary capacity as determined by the three relevant factors at the time she executed her will. Daren offered no testimony by affidavit, deposition, or otherwise regarding Mary Lou's testamentary capacity. Our supreme court has offered the following in response to a nonmovant's failure to appropriately respond to a summary judgment motion:

[W]e wish to make it clear that this Court intends to enforce Rule 56(e), which requires affidavits or other evidence establishing "a genuine issue for trial." Miss. R. Civ. P. 56(e). Those who practice before our trial courts are well advised to respond to summary judgment motions with affidavits, deposition testimony, responses to discovery, and other evidence approved by Rule 56, allowing our trial judges a fair look at whether triable issues of material fact exist. As the rule specifically provides, parties may not simply rely on their pleadings ....

Franklin Collection Serv. Inc. v. Kyle , 955 So.2d 284, 291 (¶ 24) (Miss. 2007).

¶ 16. Because the beneficiaries established a prima facie case that the will was valid-and specifically that Mary Lou possessed testamentary capacity at the time of its execution-and Daren failed to rebut the prima facie case with any summary-judgment evidence that there was a genuine issue for trial, the trial court did not err in granting summary judgment.

II. Remaining Issues

¶ 17. Daren also briefly states that his Fifth and Fourteenth Due Process rights were violated because he was "denied the opportunity to cross examine the individuals presenting affidavits to the court." However, he cites no authority to support this assertion and does not reference the rule which he presumably now seeks the benefit of: Mississippi Rule of Civil Procedure 56(f). "[F]ailure to cite relevant authority obviates the appellate court's obligation to review such issues." Martin v. State , 214 So.3d 217, 223 (¶ 15) (Miss. 2017). Moreover, Daren did not present this as an issue before the chancery court, and appellate courts "do not sit to determine matters which were not presented to the lower court," including "the haven of [ Rule 56(f) ]." MST Inc. v. Miss. Chem. Corp. , 610 So.2d 299, 305 (Miss. 1992).

¶ 18. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.