           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-01772-COA

GREGORY A. THINNES A/K/A GREGORY                                             APPELLANT
THINNES

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           12/05/2014
TRIAL JUDGE:                                HON. C.E. MORGAN III
COURT FROM WHICH APPEALED:                  WEBSTER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     THOMAS M. FORTNER
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LISA L. BLOUNT
NATURE OF THE CASE:                         CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DENIED APPELLANT’S AMENDED
                                            MOTION FOR POSTCONVICTION
                                            COLLATERAL RELIEF
DISPOSITION:                                REVERSED AND REMANDED - 07/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Gregory Thinnes appeals the Webster County Circuit Court’s denial of his amended

motion for postconviction collateral relief (PCR).1 On appeal, Thinnes raises the following

issues: (1) whether incorrect advice from his attorneys about his parole eligibility rendered

his guilty plea unknowing, unintelligent, and involuntary; (2) whether his attorneys’ incorrect



       1
         Thinnes filed an initial PCR motion and an amended PCR motion. Although the
circuit court denied both motions, Thinnes only appeals the denial of his amended PCR
motion.
advice about parole eligibility amounted to ineffective assistance of counsel; and (3) whether

the circuit court erred by denying his request for an evidentiary hearing on the issues raised

in his amended PCR motion.

¶2.    Upon review, we find that Thinnes is entitled to an evidentiary hearing on the issues

raised in his amended PCR motion.2 We therefore reverse the circuit court’s judgment and

remand this case for further proceedings consistent with this opinion.3

                                           FACTS

¶3.    On May 24, 2011, Thinnes, his son, Joshua, and a family friend, Jerrold Myers, were

all indicted pursuant to a multi-count indictment. On January 17, 2012, Thinnes pled guilty

to Count I of the indictment for the manufacture of one kilogram or more of marijuana. See

Miss. Code Ann. § 41-29-139(a)(1) & (b)(1) (Supp. 2011). Following a motion by the State,

the circuit court dismissed Count II of the indictment against Thinnes for possession of five

kilograms or more of marijuana. See Miss. Code Ann. § 41-29-139(c)(2)(G) (Supp. 2011).

¶4.    After conducting a plea colloquy, the circuit court found that Thinnes understood the

consequences of pleading guilty to Count I of the indictment and that Thinnes voluntarily

waived his constitutional rights. The circuit court also found that Thinnes freely, voluntarily,



       2
           See Miss. Code Ann. § 99-39-19 (Rev. 2015).
       3
         At the time Thinnes pled guilty to the manufacture of one kilogram or more of
marijuana, that crime was ineligible for parole pursuant to Mississippi Code Annotated
section 47-7-3(1)(h) (Rev. 2011). However, on May 13, 2016, the governor signed into law
House Bill 107, which amended that statutory provision and changed the offense to which
Thinnes pled guilty from parole ineligible to parole eligible after completion of one-fourth
of the sentence imposed by the trial court. Upon remand, the circuit court should address
the statutory change as it applies to Thinnes’s PCR claims.

                                               2
and intelligently entered his guilty plea. As a result of these findings, the circuit court

accepted Thinnes’s guilty plea and sentenced Thinnes to fifteen years in the custody of the

Mississippi Department of Corrections (MDOC), with twelve years to serve, three years

suspended, and three years of supervised probation.

¶5.    On June 18, 2014, Thinnes filed a motion to vacate or correct his sentence pursuant

to the Uniform Postconviction Collateral Relief Act. In his PCR motion, Thinnes offered

previously undisclosed evidence about a medical condition he possessed. Thinnes argued

that, had the evidence been disclosed to the State and the circuit court at the time of his

sentencing, the information would have materially affected the sentence recommended by

the State and imposed by the circuit court. On August 25, 2014, the circuit court held a

hearing on Thinnes’s PCR motion. Ruling from the bench, the circuit court denied Thinnes’s

requested relief.

¶6.    On November 17, 2014, prior to the entry of a final order denying Thinnes’s PCR

motion, Thinnes filed an amended PCR motion. In his amended PCR motion, Thinnes

asserted that his trial attorneys had advised him that, if he pled guilty to Count I of his

indictment for possession of one kilogram or more of marijuana, he would be eligible for

parole after serving one-fourth, or three years, of his twelve-year sentence. Thinnes further

stated, however, that he had since learned that his attorneys had incorrectly advised him and

that his crime was not in fact eligible for parole. See Miss. Code Ann. § 47-7-3(1)(h) (Rev.

2011).4 Arguing that he pled guilty in reliance on his attorneys’ incorrect advice, Thinnes

       4
        Although the Mississippi Legislature has amended the subsections of section 47-7-3
since Thinnes’s indictment in 2011, we note that this version of the statute was in effect at

                                             3
asserted that his guilty plea was involuntary and that he received ineffective assistance of

counsel. Based on these alleged assignments of error, Thinnes requested that the circuit court

grant him an evidentiary hearing.

¶7.    To support the claims raised in his amended PCR motion, Thinnes attached inmate

time sheets from MDOC, which indicated that Thinnes would become eligible for parole on

January 16, 2015, after serving three years, or exactly one-fourth, of his twelve-year

sentence. Thinnes also attached eight affidavits to support his claims. In addition to his own

affidavit, Thinnes provided an affidavit from each of the following: his wife, Roseanne; his

daughter, Candace; his son, Jarrod; his son and co-indictee, Joshua; Joshua’s wife, Mattie;

another co-indictee, Myers; and Myers’s wife, Allison. Each affidavit stated the affiant was

present during a meeting when Thinnes’s attorneys informed Thinnes that he would be

eligible for parole after serving three years. The affidavits also stated that Thinnes’s

attorneys called the district attorney’s office during the meeting to confirm that Thinnes

would be eligible for parole if he pled guilty to Count I of the indictment.

¶8.    On December 5, 2014, the circuit court entered an order finding that both Thinnes’s

initial PCR motion and his amended PCR motion lacked merit. In denying Thinnes’s

requested relief, the circuit court addressed the merits of both Thinnes’s initial and amended

PCR motions. With regard to the issues raised in Thinnes’s amended PCR motion, the circuit

court noted that, during the plea colloquy, the court asked Thinnes, “Do you understand

nobody can guarantee you any early release, probation[,] or parole? If you are sentenced to



the time that Thinnes was indicted and pled guilty to Count I of his indictment.

                                              4
a term of incarceration, you might have to serve the whole thing.” In response, Thinnes

answered, “Yes, sir, Your Honor.” The circuit court concluded that this part of the plea

colloquy refuted Thinnes’s claims that he involuntarily entered his guilty plea due to his

attorneys’ allegedly incorrect advice as to his parole eligibility. As a result, the circuit court

denied Thinnes’s requested relief without granting Thinnes an evidentiary hearing.

¶9.    Aggrieved by the denial of his amended PCR motion, Thinnes appeals.

                                 STANDARD OF REVIEW

¶10.   “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.” Carson v. State, 161 So. 3d 153, 155

(¶2) (Miss. Ct. App. 2014) (citing Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App.

2012)).

                                         DISCUSSION

¶11.   On appeal, Thinnes contends that the circuit court erred by not granting an evidentiary

hearing on the claims he raised in his amended PCR motion. As previously discussed,

Thinnes alleges that his attorneys misinformed him about his parole eligibility and provided

him with ineffective assistance of counsel. In addition, Thinnes asserts that his guilty plea

was entered involuntarily due to his reliance on his attorneys’ incorrect advice about his

parole eligibility.

¶12.   This Court addressed a similar situation in Sylvester v. State, 113 So. 3d 618 (Miss.

Ct. App. 2013). Like Thinnes, Sylvester argued that the circuit court erroneously failed to



                                                5
grant an evidentiary hearing on his claim that his attorney misinformed him of the

consequences of his sentence. Id. at 621 (¶9). Also like Thinnes, Sylvester attached

affidavits to his PCR motion to support his claim that his attorney misinformed him. Id. at

(¶¶5-6). In addition to his own affidavit, Sylvester attached the supporting affidavit of his

sister. Id.

¶13.   Addressing Sylvester’s argument on appeal, this Court stated:

       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. at 621-22 (¶¶9-10) (internal citations and quotation marks omitted).

¶14.   In Sylvester, we concluded that the critical inquiry before this Court was “whether [the

defendant’s] motion and [the attached supporting] affidavit[s] were sufficient evidence such

that [the defendant’s] allegations were not overwhelmingly belied by the plea-hearing

transcript.” Id. at 622 (¶11). Applying our precedent to the present case, we now turn to a

discussion of whether Thinnes provided sufficient proof to warrant an evidentiary hearing

on his claims that his guilty plea was involuntary and his attorneys provided ineffective

assistance of counsel.

       I.     Involuntary Plea

¶15.   “A voluntary guilty plea emanates from the defendant’s informed consent. An



                                              6
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.” Readus v. State, 837 So. 2d 209, 212 (¶9) (Miss. Ct. App. 2003)

(citation and internal quotation marks omitted). “The petitioner bears the burden of proving

by a preponderance of the evidence that his plea was involuntarily entered.” Lackaye v.

State, 166 So. 3d 560, 562 (¶7) (Miss. Ct. App. 2015) (citation omitted).

¶16.   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.

Thomas v. State, 881 So. 2d 912, 916 (¶9) (Miss. Ct. App. 2004) (internal citations and

quotation marks omitted).

¶17.   We have further stated:

       [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. 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.

Mosley v. State, 150 So. 3d 127, 136-37 (¶29) (Miss. Ct. App. 2014) (internal citations and

quotation marks omitted).5

       5
        See also Fairley v. State, 834 So. 2d 704, 707 (¶8) (Miss. 2003) (“The rule arising
from these cases is that failure to mention something concerning parole eligibility may be
no problem, but erroneous information concerning parole and sentencing at least entitles the

                                              7
¶18.   In Sylvester, this Court found that the defendant’s eligibility for trusty earned time was

analogous to eligibility for parole. Sylvester, 113 So. 3d at 623 (¶19). The 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.” Id.

¶19.   In the present case, Thinnes asserts that his attorneys incorrectly advised him that, if

he pled guilty to Count I of his indictment, he would be eligible for parole after serving three

years of his sentence. The seven third-party affidavits Thinnes attached to his amended PCR

motion all corroborated Thinnes’s own affidavit and claims. According to the supporting

third-party affidavits, each affiant was present during a meeting between Thinnes and his

attorneys when the attorneys informed Thinnes that he would be eligible for parole after

serving three years. In addition, the affidavits all stated that Thinnes’s attorneys called the

district attorney’s office during the meeting to confirm Thinnes’s parole eligibility.

¶20.   Thinnes also alleges that, during the plea hearing, the circuit court failed to correct the

erroneous advice he received from his attorneys. Although the circuit court asked whether

Thinnes understood that no one could guarantee him parole, probation, or early release,

Thinnes contends this question was not the same as asking whether Thinnes understood that

he would be ineligible for parole. Arguing that he would not have pled guilty but for his

attorneys’ incorrect advice, Thinnes asserts that his guilty plea was not knowingly,



petitioner to an evidentiary hearing on whether he relied on the erroneous information.”).

                                               8
intelligently, and voluntarily entered.

¶21.     Upon review, we find that the transcript of Thinnes’s plea hearing reflects that

Thinnes understood the minimum and maximum sentences for the charge against him.

However, the circuit court’s warning that no one could guarantee 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 supporting affidavits allege

his attorneys provided him as to parole eligibility.

¶22.     We find the record reflects that Thinnes is entitled to an evidentiary hearing on his

PCR claim since he met his evidentiary burden and presented sufficient evidence to support

his claim that his attorneys gave him erroneous advice about his parole eligibility. As a

result, we find the circuit court erred by denying Thinnes’s request for an evidentiary hearing

on whether he knowingly, intelligently, and voluntarily entered his guilty plea. We therefore

reverse the circuit court’s judgment and remand this case for an evidentiary hearing on this

issue.

         II.    Ineffective Assistance of Counsel

¶23.     In considering the second assignment of error addressing whether Thinnes is entitled

to an evidentiary hearing on his ineffective-assistance-of-counsel claim, we acknowledge that

the determination of the first assignment of error is dispositive. Since Thinnes met his

burden of proof to warrant an evidentiary hearing, we remand for a determination as to



                                               9
whether his plea was involuntary and whether he received ineffective assistance.

¶24.     To prevail on his ineffective-assistance-of-counsel claim, Thinnes 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 (1984). As we have

previously recognized:

                 Under this analysis, it 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).

¶25.     The record shows that, during his plea hearing, Thinnes informed the circuit court that

he was satisfied with his attorneys’ representation. Furthermore, Thinnes stated that no one

had threatened him, coerced him, or promised him anything to obtain his guilty plea. We

recognize the strong presumption that exists that in-court declarations are truthful. Id. at 624

(¶24).

¶26.     Despite his in-court declarations, Thinnes asserts on appeal from the denial of his

amended PCR petition that his attorneys incorrectly advised him that he would be eligible

for parole if he pled guilty. Thinnes stated in his amended PCR motion that he relied on his

attorneys’ erroneous information in pleading guilty to Count I of his indictment. Thinnes

further asserted that, but for his attorneys’ erroneous advice, he would not have pled guilty.

According to Thinnes, his attorneys erroneously advised him that he would be eligible for

parole after serving three years of his twelve-year sentence. As explained in our discussion



                                               10
of Thinnes’s first assignment of error, Thinnes presented sufficient corroborating evidence

to warrant an evidentiary hearing on whether he received incorrect legal advice about his

parole eligibility. We also find that Thinnes presented sufficient corroborating evidence to

warrant an evidentiary hearing on whether he received ineffective assistance of counsel as

a result of his asserted reliance upon such advice.

¶27.   Upon review, we find that Thinnes is entitled to an evidentiary hearing on the merits

of the claims raised in his amended PCR motion. As discussed, Thinnes presented sufficient

corroborating evidence to warrant an evidentiary hearing on whether his guilty plea was

voluntary and to warrant an evidentiary hearing on whether he received ineffective assistance

of counsel. We therefore reverse the circuit court’s judgment and remand this case for an

evidentiary hearing on these assignments of error.

¶28. THE JUDGMENT OF THE WEBSTER COUNTY CIRCUIT COURT
DENYING THE PETITION FOR POSTCONVICTION COLLATERAL RELIEF IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO WEBSTER COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION.




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