IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-CP-00033-COA MARQUEZ

HICKENBOTTOM APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 12/08/2015 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MARQUEZ HICKENBOTTOM (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POSTCONVICTION RELIEF DISMISSED DISPOSITION: AFFIRMED - 06/27/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. Marquez Hickenbottom pleaded guilty to s trong-arm robbery in the Circuit Court of Scott County

. He was s entenced to f if teen y e a rs in t he custody o f the Mississippi Departm ent of C orrections, f o llowed by f

ive y ears of probati o n . H i c k enbottom was also

o r d e r ed to pay a f

i ne of $1,500. Hickenbottom f iled a m otion f

or p ostconviction r e l i e f (PCR). T he circuit court “denied and d ism issed” his m otion by order. Hickenbottom tim ely appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY¶2. In April 2013, Hickenbottom was indicted on one count of arm ed robbery

. 1 The

circuit court ordere d a n independent m ental evaluation and hearing to determ ine Hickenbottom ’s com

petency to stand trial or plead guilty , af ter Hickenbottom ’s trial counsel alerted the court of h is client’s possible m ental def iciencies. Dr. Mark W e bb, a p sy chiatrist with the State of

Mississippi, perf

orm ed a psy chological evaluation on Hickenbottom

. He concluded that Hickenbottom was com petent to stand trial or plead guilty

. ¶3. In January 2 014, at the com petency hearing, the trial c o urt adopted D r . We b b’s f indings, a nd Hickenbottom ente r e d h i s p lea of guilty of strong-arm robbery

. The circuit
court accepted Hickenbottom ’s guilty plea and sentenced him to f if teen y ears in the custody of the Mississippi Departm ent of Corrections, with f ive y ears of

probation. Hickenbottom

was also ordered to pay a f ine of $1,500. F urther, the court m aintained jurisdiction over the

m atter f or a period of o ne y ear, reserving the right to v acate t he s entence i f H i c k e n b o ttom f ailed to truthf

ully testif y against Anderson if

called to do so. ¶4. In Decem

b er 2015, H ickenbottom f iled a P CR m otion. He alleged he w a s n o t

com petent to plead guilty , and that he r eceived inef f e c tive assistance of counsel. The trial
court entered an order deny ing a nd dism issing Hickenbottom ’ s PCR m otion. Hickenbottom tim ely appeals. STANDARD OF REVIEW

1 O n o r ab o u t D ecem

b er 2 0 1 2 , H ick en b o tto m stated h e w as w ith L ean d re A n d erso n (“D u k e”) w h e n D u k e r o b b ed M ack Wiltch er, E m ily M o rg an D au g h erty , an d C h risty B ell. C e llp h o n e s a n d m o n e y w ere sto len f ro m th e v ictim s. A .4 1 0 sh o tg u n w a s also sto len

. D u k e b ran d ish ed a f

irearm d u rin g th e ro b b ery . 2¶5. “W e review the dism i ssal or denial of a PCR m otion f or abuse of discretion.” Hughes

v. State , 106 So. 3d 836, 8 38-39 (¶4) (Miss. C t. App. 2012). “W e will only r everse if the trial court’s decision is clearly erroneous.” Id

. “ W hen reviewing questions of law, o ur standard is de nov o . ” I

d

. (citations om itted). “This [ C ]ourt will af f i rm the s um m ary dism issal o f a PCR m otion if the m ovant f ails to dem onstrate a claim p r o c e d u rally alive substantially showing the denial of a state or f ederal right.” Id

. at 8 39 (¶4) ( citation and quotation m arks

om itted). DISCUSSION I. Guilty Plea ¶6. H i c k enbottom asserts the t rial court’s determ ination of the f acts was unreasonab l e . He claim s his guilty plea w as not voluntar i l y g i v e n, b ecause he was not com petent to understand the nature of the c h arges against him or t he consequences of his plea. Hickenbottom f

u r t h e r asserts that the trial court overlooked the seriousness of his m ental
state at the tim e the crim e was com m itted, and the State-appointed psy c hiatrist did not review all of his m edical records to m ake a determ ination of com petency

. Further, Hickenbottom
argues that Dr. W ebb f

a iled to support his f

i nding of com

petency with reliable e vidence. W e disagree. ¶7. In the trial court’s o r der deny ing Hic k e n b ottom ’s PCR m otion, it is noted that the
court was m ade aware through d e f e n s e counsel that Hickenbottom m ay have had som e

m ental def

iciencies. As a result, the trial judge ordered that H ickenbottom undergo a m ental

3evaluation. 2 “Under [ Unif o rm Rule of Circuit and County Court] 9.06, the c i rcuit court m ust order a m ental evaluation and conduct a com petency hearing if it has reasonable ground to believe that the def

endant i s incom

petent to stand trial.” W

a tson v. State , 100 So. 3d 1034, 1039 (¶14) (Miss. Ct. App. 2012) (citation a nd quotation m arks om itted). “W hat c onstitutes ‘reasonable ground’ rests largely within the discretion of

the trial judge.” Id . “On review, the pertinent question is w hether the trial j udge rec eived inf orm a tion which, objectively considered, should reasonably have raised a doubt a b o u t the def endant’s com

petence and alerted the judge t o the possibil i t y t h a t t he def endant c ould neither understand the proceedings, appreciate their signif icance, nor rationally a id his attorney in his def ense.” Id

. (quotation m arks om itted). ¶8. The f

ollowing is an excerpt f

rom Hickenbottom ’s guilty

plea: COURT: And y ou’ve just entered a plea of guilty to the crim e that requires that y ou be sentenced to the penitentiary ? Are y ou aware of that? HICKENBOTTOM: Yes, sir. COURT: A nd do y ou understand that t h i s i s a hearing here to accept y o ur plea? HICKENBOTTOM: Yes, sir.

. . . . COURT: Are y ou under the inf luence of drugs or alcohol at this tim e?

2 T h e r eco rd d o es n o t ref lect th at H ick en b o tto m ’s co u n s el f i led a m o t io n f

o r a p sy c h i a t r i c ev alu atio n . H o w ev er, trial co u n sel v erb ally in f o rm ed th e trial co u r

t o f H i ck en b o tto m ’s m e n tal-h e alth h isto ry , an d th e t rial j u d g e o rd ered a p s y ch iatric ev alu atio n . 4HICKENBOTTOM: No, sir.

COURT: Do y ou know what y ou’re doing? HICKENBOTTOM: Yes, sir.

. . . . COURT: Do y ou u n derstand that y ou a re going to be s entenced to the penitentiary ? HICKENBOTTOM: Yes, sir. ¶9. “W hen reviewing the voluntariness of [ a] guilty plea, we will not set aside f indings of a trial court sitting without a jury unless such f indings are clearly erroneous.” Funchess

v. State , 202 So. 3d 1286, 1289 (¶7) (Miss. Ct. A pp. 2016) ( c i t a tions and quotation m arks

om itted). “Additionally , the b u rden of proving that a gu i l t y plea is involuntary is on the def endant and m

ust be proven b y a prep o n d e rance of the evidence.” Id

. (quotation m arks

om itted). “To determ ine whether the plea is voluntarily and i ntelligently given, the trial court

m ust advise the def

endant of his rights, the nature of

the charge against him , as well as the consequences of

the plea.” Id . (citation om itted). ¶10. D r . W e b b , a p sy chiatrist f or the State, exam ined Hickenbottom and determ i ned he w a s

com petent to stand trial or plead guilty and evaluated his c rim inal insanity at the tim e the crim e w as com m itted. At the com p etenc y h e a r i n g , D r. W ebb testif ied he reviewed Hickenbottom ’s of

f ense reports and the inf

orm ation Hickenbottom b rought with him during the exam ination. Dr. W ebb f urther testif

ied t hat Hickenbottom was v ery intelligent, and did

a g reat job of explaining t o him every thing t hat was going on r egarding the c harges he f aced.
5He stated Hickenbottom was a ware that h e had been c h arged with arm ed r obbery , and

c o n c luded that Hickenbottom was com petent to assist h is attorney in h is def ense. Additionally , Hickenbottom ’s trial counsel had the opportunity to cross-exam ine Dr. W ebb during the hearing. The trial court adopted Dr. W ebb’s f indings. ¶11. Hickenbottom represen t e d t o the court that he understood the nature of the charge against h im and the consequences of the plea. Hickenbottom

asserts that his m ental issues dealing w ith depression m ade him incom petent to plead guilty

. “The c o nstitutional right not
to be tried or convicted while i ncom petent is a com

ponent of a def

endant’s due-process right
to a f air trial.” Brasso v. State , 195 So. 3d 856, 859 (¶9) (Miss. Ct. App. 2016). Despite being advised on Hickenbottom ’s past m ental-illness history i ncluding d epression, suicide
att e mp t s , a n d hospitalizations, the trial judge f ound n o evidence at the hearing to support Hickenbottom ’s assertion that he is incom petent to stand trial. The trial c ourt was also ad v i s e d o n Hickenbottom ’s a lcohol and drug use. Moreover, the trial court noted that Hickenbottom did not subm it any af f idavits f rom doctors regarding his m ental-health
treatm ent f

or review. However, the trial court f ound that Hickenbottom presented no evidence that his g uilty plea was involuntarily given. A ccordingly , we f ind t his issue to be without m erit. II. Assistance of Counsel ¶12. Hickenbottom asserts that his trial c o unsel f ailed to p resent an i nsanity def ense bef ore the court, and that his trial c ounsel f ailed to present any evidence or f acts about his extensive

m ental-health history . As a result of this f ailure, Hickenbottom

argues his counsel of

f ered 6inef

f ective assistance. W e disagree. ¶13. “It is well settled t hat in order f or a def endant to prevail on a n inef f ective assistance of counsel c l a i m, h e m

u st show by a preponderance o f the evidence (1) that counsel’s perf orm ance was def

icient, and (2) that but f

o r the def iciencies, the trial c o urt outcom e would have been d if

f erent.” Funchess , 202 So. 3d at 1290 ( ¶ 9 ) ( c i t a t ion and quotation m arks

o mi t t e d). “Additionally , under Strickland v. W ashington , 4 66 U.S. 668, 687 (198 4 ) , a def endant m ust show that counsel’s errors were so serious as to deprive the def endant of a f air t rial.” Funchess , 202 So. 3 d at 1290 (¶9) (quotation m arks om itted). “Finally , a presum ption exists t h a t t h e attorney ’s conduct was adequate.” Id. (citation a nd quotation

m arks om itted). ¶14. The record r ef

lects that Hickenbottom received ef f ective assistance o f counsel, because his trial counsel m ade t he court aware of his p ast history o f m ental i s s u es. Trial counsel c ross-exam ine d D r . W e bb during t he com petency hearing. The f

o llowing is an excerpt f rom Hickenbottom ’s guilty

plea: COURT: Are y ou satisf

i ed with y o ur lawy er? HICKENBOTTOM: Yes, sir. COURT: Do y ou have any com plaints about him ? HICKENBOTTOM: No, sir. Hickenbottom did not object when the court a sked whether he was satisf ied with his attorney

. ¶15. The trial court f

o und t hat Hickenbottom also f a iled to argue the second prong needed

7f

or a n inef f ective-assistance-of

-counsel claim

. As a r esult, t he court f ound Hickenbottom f ailed to establish a prim a f acie case of i n e f

f ective assistance of counsel. W e agree. Accordingly , we f

ind the trial court di d not abuse its discretion by dism issing Hickenbottom ’s PCR m otion, and we af f irm

. ¶16. THE JUDGMENT O F THE CIRCUIT COURT OF S C O T T COUNTY DISMISSING THE M OTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY. L E E , C . J . , I R

V I N G A N D G R I F F I S , P . J J ., BARNES, ISHEE, CARLTO N , F A I R , WILSON AND GREENLEE, JJ., CONCUR.

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