                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00463-SCT
LENZY LOUIS HODGIN
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                              04/23/96
TRIAL JUDGE:                                   HON. RICHARD WAYNE McKENZIE
COURT FROM WHICH APPEALED:                     FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:                             E. LINDSAY CARTER
NATURE OF THE CASE:                            CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 11/6/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                12/1/97




     BEFORE PRATHER, P.J., BANKS AND McRAE, JJ.


     PRATHER, PRESIDING JUSTICE, FOR THE COURT:




                                        I. INTRODUCTION

¶1. This case arises from the alleged sexual molestation of several young boys on a flag football team
coached by the appellant, Lenzy Louis Hodgin. Hodgin was indicted on five counts of child fondling
and one count of sexual battery. Hodgin agreed to plead guilty to one charge of fondling a seven-
year-old boy. The State agreed to recommend the maximum sentence of ten years on this charge, and
to pass the other charges to the files. Upon the entry of Hodgin's guilty plea, and, in accordance with
the State's recommendation, the trial court sentenced Hodgin to ten years on one count of fondling.

¶2. Hodgin's subsequent motion for post-conviction relief was denied, giving rise to the appeal sub
judice. Hodgin raises the following issues for consideration by this Court.
A. Whether the trial court erred in accepting Hodgin's guilty plea?

B. Whether Hodgin received effective assistance of counsel?

¶3. Hodgin's assertions (that his plea was not voluntarily and intelligently given and that he received
ineffective assistance of counsel) are not supported by and are contradicted by the record. Therefore,
the trial court's denial of post-conviction relief is affirmed.

¶4. However, this case raises the question of whether it is appropriate for several guilty pleas to be
entered simultaneously. Although the record in this case does not require reversal, the better practice
would be for pleas to be entered individually. Therefore, in the future, the practice of hearing more
than one guilty plea at the same time should be avoided, except in cases where charges against more
than one defendant arise from the same set of facts. Furthermore, where the pleas of more than one
defendant are entered in the same proceeding, it is incumbent on the court reporter to record the
entire proceeding.

                                II. STATEMENT OF THE FACTS

¶5. The record reflects that, on September 15, 1994, "several defendants were before the [Forrest
County Circuit C]ourt to enter pleas of guilty." The trial judge called Hodgin forward and stated the
charges against Hodgin, which included five indictments for fondling and one indictment for sexual
battery. The prosecutor and defense counsel indicated that they had agreed that Hodgin should plead
guilty on one charge of fondling and that the State would recommend the maximum sentence on that
count; in exchange, the State would pass the other indictments to the files.

¶6. The Circuit Clerk administered the oath to all the defendants, after which, the trial judge
individually questioned Hodgin. In response to the judge's questioning, Hodgin, age 24, testified that
he had twelve years of education and had been employed as a truck driver.

¶7. Thereafter, the trial judge questioned the entire group of defendants. The record does not include
the responses of the other defendants before the trial court. However, it appears that each defendant
answered each question individually, because the record indicates that "[a]ll answers [transcribed]
will be those of Mr. Hodgin unless otherwise indicated." Hodgin stated that he was not under the
influence of drugs or intoxicants, and that he understood the nature and the consequences of the
charges against him.

¶8. The trial judge then addressed Hodgin individually as follows: "Lenzy Hodgin, did you commit
the crime of Fondling?" To which Hodgin replied, "Yes, sir."

¶9. The trial judge resumed his questions to the group, and Hodgin responded that no one had led
him to believe that he would receive a sentence less than the one recommended by the State, and he
understood that the trial judge was not obligated to accept the recommendation of the State. Hodgin
also stated that he understood the minimum and the maximum sentences that could be imposed in his
case. He understood that, by entering a guilty plea, he waived his right to appeal; his right against
self-incrimination; his right to a jury trial; his right to have the State prove the case against him
beyond a reasonable doubt; his right to confront the witnesses against him; and his rights to testify or
not testify.
¶10. Hodgin admitted that he committed the crime and testified that his plea was not the result of
threats or promises. Hodgin's attorney testified that Hodgin had been advised of and fully understood
his constitutional and statutory rights. Hodgin testified that he was satisfied with the services of his
attorney; that his attorney made no threats or promises to get him to plead guilty; and, that he had
been properly represented by his attorney.

¶11. Hodgin further stated that his testimony was true and that he was pleading guilty because he
was, in fact, guilty, and for no other reason. Hodgin knew of no reason why the trial judge should
reject his plea.

¶12. The record indicates that, thereafter, the "defendants were before the court individually with
their attorneys." Hodgin, once again, admitted his guilt. The State recommended a sentence of ten
years in prison. The trial judge noted that ten years was the maximum sentence, and the following
exchange took place:

     BY THE COURT: We should note for the record that, I presume, that was done, and I'm sure
     [defense counsel] must have worked out a situation, because there were other cases pending.

     BY [THE PROSECUTOR]: Yes, sir.

     BY THE COURT: I want to make absolutely certain, since it is the maximum sentence, the
     reasoning behind giving a maximum sentence on a plea arrangement.

     BY [THE PROSECUTOR]: Yes, sir. I believe [defense counsel] and his client understand that
     in exchange for receiving the maximum sentence on the one count, that we will not proceed on
     the other counts.

     BY THE COURT: Is that correct?

     [BY HODGIN]: Yes, sir.

     ***

     BY [DEFENSE COUNSEL]: And all pending charges will be merged and passed to the files.

     BY [THE PROSECUTOR]: That's correct.

                                      III. LEGAL ANALYSIS

¶13. The trial court denied Hodgin's PCR motion without an evidentiary hearing. This type of ruling
is allowed under Miss. Code Ann. § 99-39-11(2), which provides that:

     [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, the judge may make an
     order for its dismissal and cause the prisoner to be notified.

Miss. Code Ann. § 99-39-11(2) (Supp. 1995); see also Hubbard v. State, 628 So. 2d 1386, 1387
(Miss. 1993). In reviewing this case,

     [o]ur procedural posture is analogous to that when a defendant in a civil action moves to
     dismiss for failure to state a claim. We examine the application, exhibits, and appellate record
     for the purpose of determining whether they suffice to warrant an evidentiary hearing on the
     issues presented.

Horton v. State, 584 So. 2d 764, 767 (Miss. 1991) (citations omitted).

A. Whether the trial court erred in accepting Hodgin's guilty plea?

¶14. Hodgin first argues that his plea was neither voluntarily nor intelligently given. He contends that
25-30 criminal defendants were presented to the trial court at the same time to enter guilty pleas, and
that the trial judge did not address him "personally" to ascertain whether his plea was voluntarily
given. Hodgin alleges that he could not tell whether the trial judge was speaking to him or one of the
other defendants. Hodgin also fears that his individual responses were not heard by the trial judge.

¶15. The record reflects that Hodgin's plea and those of "several" others were entered during the
same proceeding. However, the trial judge individually addressed Hodgin regarding the fondling
charge. Furthermore, although the trial judge advised the defendants of their constitutional rights as a
group, the trial judge questioned each defendant's comprehension of these rights, and Hodgin's
individual responses were recorded. Therefore, Hodgin's assertions that he could not understand the
trial judge and the trial judge could not hear his responses are belied by the record.

¶16. In support of his argument, Hodgin cites Boykin v. Alabama, 395 U.S. 238 (1969), and Rule
3.03 (3) of the Mississippi Uniform Criminal Rules of Circuit Court Practice.

     Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), admonishes us
     that a defendant must be informed of his constitutional right to trial by jury, to the right of
     confrontation, and to protection against self-incrimination prior to court adjudication that a
     guilty plea was intelligent and voluntary.

Horton, 584 So. 2d at 767.

¶17. The constitutional rights discussed in Boykin were firmly inserted in Unif. Crim. R. Cir. Ct. P.
Rule 3.03(3)(1) which provided in part:

     (3) Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the
     offense charged, it is the duty of the trial court to address the defendant personally and to
     inquire and determine:

     (b.) That the accused understands that by pleading guilty he waives his constitutional rights of
     trial by jury, the right to confront and cross-examine adverse witnesses, the right against self-
     incrimination.

Horton 584 So. 2d at 767-68 (emphasis added).

     Rule 3.03 does not contain specific requirements as such, but the Mississippi Supreme Court
     did note in Gilliard v. State, 462 So. 2d 710, 712 (Miss. 1985), that, in order for a guilty plea
     to meet constitutional standards,:

     It is essential that an accused have knowledge of the critical elements of the charge against him,
     that he fully understand the charge, how it affects him, the effects of a guilty plea to the charge,
     and what might happen to him in the sentencing phase as a result of having entered a plea of
     guilty. (citing Henderson v. Morgan, 426 U.S. 637, 96 S.Ct.2253, 49 L.Ed.2d 108 (1976)).

Gaskin v. State, 618 So. 2d 103, 107 (Miss. 1993).

¶18. The record indicates that the circumstances of Hodgin's plea met these constitutional standards.
Although Hodgin's plea was entered along with the pleas of several other criminal defendants, the
trial judge addressed Hodgin individually and explained the charges against Hodgin. The trial judge
explained the accuseds' constitutional rights to the entire group. However, Hodgin's individual
responses, which indicated his comprehension of each of these rights, were elicited and recorded.

¶19. This Court has held that "[t]he [trial] court must . . . determine in a face-to-face exchange in
open court that the accused knows and understands the rights to which he is entitled." Nelson v.
State, 626 So. 2d 121, 126 (Miss. 1993). The plea discourse in this case met this minimum
requirement. See generally Horton, 584 So. 2d at 768 ("[a] mere technical violation of Rule 3.03
does not invalidate a guilty plea."); Banana v. State, 635 So. 2d 851, 854-855 (Miss. 1994);
Womble v. State, 466 So. 2d 910 (Miss. 1985).

¶20. In addition, Hodgin claims that he was not advised that the maximum sentence for fondling was
ten years. Had he known, Hodgin asserts that he would never have pled guilty and agreed to the
State's recommendation of ten years (the maximum possible sentence for his crime). This assertion is
totally contradicted by the record, in which the trial judge personally addressed Hodgin and discussed
the fact that the State had recommended the maximum, ten-year sentence in this case. The record
clearly shows that Hodgin received the maximum sentence in exchange for the passing to the files of
all the other charges against him. The record also clearly indicates that Hodgin understood the
reasoning behind the maximum sentence on this one count. Therefore, his argument to the contrary is
without merit.

B. Whether Hodgin received effective assistance of counsel?

¶21. Hodgin also contends that his trial counsel was ineffective, because he allowed Hodgin to "be
subjected to entering [the] guilty plea with twenty-five (25) or thirty (30) other defendants all with
different charges in an open court room." Hodgin claims that his attorney "did not properly see that
[Hodgin received] a proper plea hearing."

¶22. The standard for reviewing claims of ineffective assistance of counsel was set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984), and is well-settled:

     Our inquiry under Strickland is twofold:

     (1) Was defense counsel's performance deficient when measured by the objective standard of
     reasonable professional competence, and if so

     (2) Was [the appellant] prejudiced by such failure to meet that standard?

Hansen v. State, 649 So. 2d 1256, 1259 (Miss. 1994).
¶23. This test applies to guilty pleas. Mowdy v. State, 638 So. 2d 738, 742 (Miss. 1994) (citing Hill
v. Lockhart 474 U.S. 52, 58 (1985)). The "defense counsel is presumed competent and the burden of
proving otherwise rests on [the appellant]." Hansen, 649 So. 2d at 1258; McQuarter v. State, 574
So. 2d 685, 687 (Miss. 1990) (holding that defendant must prove both prongs of the Strickland test).

¶24. "[T]his Court bases its decisions as to whether counsel's efforts were effective on the totality of
the circumstances surrounding each case." McQuarter, 574 So. 2d at 687. This Court's scrutiny of
defense counsel's performance is highly deferential. See Hansen, 649 So. 2d at 1259.

¶25. In order to prevail on this issue, the appellant must "allege that the asserted errors of his
attorney proximately resulted in his guilty plea and, but for these errors, he would not have entered
the plea." Harveston v. State, 597 So. 2d 641, 642 (Miss. 1992) (citing Reynolds v. State, 521 So.
2d 914, 918 (Miss. 1988); Odom v. State, 498 So. 2d 331, 333-34 (Miss. 1986); Coleman v. State,
483 So. 2d 680, 682-83 (Miss. 1986)). See also Alexander v. State, 605 So. 2d 1170, 1173 (Miss.
1992).

¶26. Furthermore, where the defendant raises questions of fact regarding either deficiency of
counsel's conduct or prejudice to the defense, he is entitled to an evidentiary hearing. Alexander, 605
So. 2d at 1173. However, Hodgin's PCR filings raise no such questions. The record reflects that,
although several defendants were before the trial judge at Hodgin's plea hearing, Hodgin was
individually addressed with regard to his plea. Hodgin indicated that he understood that he would
receive the maximum sentence in exchange for the non-prosecution of five other charges against him.

¶27. There is nothing in the record to indicate that Hodgin's attorney provided deficient
representation. There is also no indication that the attorney's performance prejudiced Hodgin.
Moreover, Hodgin testified at the plea hearing that he was satisfied with the services of his attorney,
and, that he had been properly represented by his attorney. For these reasons, Hodgin's claim that he
received ineffective assistance of counsel is without merit.

                                         IV. CONCLUSION

¶28. Hodgin's claims that his plea was involuntarily entered and that he received ineffective assistance
of counsel are contradicted by the record in this case. Therefore, the trial judge's denial of Hodgin's
PCR motion is affirmed.

¶29. Moreover, although the facts in this case do not require reversal, this Court notes with
disapproval the practice of simultaneously hearing more than one guilty plea. In the future, the better
practice would be to hear each plea individually, except in cases where several defendants are
charged under the same set of facts. Furthermore, in cases where more than one guilty plea is
entered, it is incumbent on the court reporter to record the entire proceeding, including the responses
of all defendants before the trial court. This procedure will help ensure that all those who enter guilty
pleas receive the "face-to-face exchange in open court" to which they are entitled. See Nelson 626
So. 2d at 126.

¶30. DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., SULLIVAN, P.J., BANKS, McRAE, ROBERTS, SMITH AND MILLS, JJ.,
CONCUR. PITTMAN, J., NOT PARTICIPATING.




1. This provision is now Rule 8.04 (4) (C) of the Mississippi Uniform Rules of Circuit and County
Court Practice.
