State v. Hough

 (1986), we held
that a court’s failure to hold a competency hearing under R.C. 2945.37 “is harmless
error where the record fails to reveal sufficient indicia of incompetency.”
       {¶ 13} The appellate court then proceeded directly to a harmless-error
analysis. It reviewed two cases in which the harmless-error standard had been
applied, starting with Bock. In that case, while the defendant was in the hospital
after a drug overdose, his counsel requested a competency hearing.

 The trial
court responded by ordering that the defendant’s competency be examined, but a
competency report was never filed and a hearing was never held.

 The court of
appeals in Bock held that the trial court’s failure to hold a hearing was reversible
error, but on appeal, this court reversed in relevant part, concluding that while the
trial court had erred by failing to hold a hearing, the error was harmless. We looked
to the defendant’s testimony at trial, which was extensive.

Id. at 111

. Although
the defendant testified about “his emotional distress and [made] comments about
suicide,” this court stated that that “alone is not sufficient to indicate a lack of
competency.”

Id. at 110

. And in the remainder of his testimony, he exhibited “no
apparent behavior” that suggested incompetency.

Id. at 111

. The defendant’s
counsel also did not raise the issue of his competency again until his case was on
appeal.

 Based on those facts, we concluded that “the record reveals no adequate
indication of any behavior on the part of the defendant which might indicate
incompetency.”

 The trial court’s failure to hold a competency hearing in Bock
was therefore harmless error.

       {¶ 14} In State v. Were,

 (2002), by
contrast, the defendant’s counsel had raised the issue of the defendant’s
competency on numerous occasions—through a motion before trial, after opening
arguments, during trial, and before mitigation.

Id. at 175

.   The defendant’s
exhibiting signs of paranoia and refusing to cooperate led his attorneys to file two




                                         6
                                 January Term, 2022



motions to withdraw as counsel and a motion for a continuance.

Id. at 176

. His
attorneys also informed the trial court that the defendant refused to speak with his
defense team, and they consistently claimed that his “failure to cooperate seriously
hampered their ability to present a defense.”

 The defendant had filed numerous
pro se motions to dismiss his attorneys in which he accused them of threatening his
life and conspiring with the prosecution.

 We found that the record was “replete
with suggestions of [the defendant’s] incompetency.”

Id. at 175

. The trial court’s
failure to hold a competency hearing in Were was therefore not harmless. See

id. at 177

.
          {¶ 15} The appellate court also reviewed two cases involving constitutional
claims based on a defense counsel’s failure to request or a trial court’s failure to
hold a competency hearing. In State v. Braden,

98 Ohio St.3d 354

, 2003-Ohio-
1325,

785 N.E.2d 439

, the defendant argued that his attorneys had provided
ineffective assistance by failing to request a competency hearing. Id. at ¶ 113.
During the trial in Braden, a psychologist testified that the defendant believed that
he would not be tried because God would deliver him and noted that the defendant
was becoming more distrustful and dismissive of his lawyers. Id. We held that the
attorneys’ performance was not deficient, however, because the attorneys “were
alert to the possibility of [the defendant’s] incompetence,” id. at ¶ 115. They had
the psychologist examine the defendant on three occasions in the months leading
up to the trial, and each time, the psychologist found the defendant was competent.
Id. We also observed that the defendant’s diagnosis of paranoid schizophrenia was
“not synonymous with incompetence to stand trial.” Id. at ¶ 116. Finally, we noted
that “the record reflects no behavior by [the defendant] during trial that would
suggest the lack of legal competency.” Id. at ¶ 117. The defendant had “answered
the trial court’s questions about visits from [the psychologist], expressed
satisfaction with his counsel, told the judge he understood his appellate rights, said




                                           7
                             SUPREME COURT OF OHIO




he did not want a presentence investigation and informed the court that he did not
wish to make a statement prior to sentencing.” Id.
       {¶ 16} In State v. Prophet, 10th Dist. Franklin No. 14AP-875, 2015-Ohio-
4997, the Tenth District Court of Appeals considered whether the defendant’s right
to due process was violated when the trial court did not order a competency hearing
sua sponte. Id. at ¶ 10. The court concluded there was no constitutional violation,
based in part on the plea colloquy between the defendant and the trial court in which
the defendant expressly stated, among other things, that he understood the nature
of the charge against him and had discussed the case with counsel, and in part on
the fact that the defendant’s counsel had represented him for a year and had not
raised an issue regarding his competency. Id. at ¶ 19, 26.
       {¶ 17} The appellate court then turned to the record in the present case. It
concluded that Were,

, was distinguishable
because Hough’s counsel did not raise the competency issue repeatedly and Hough
himself did not take actions like the defendant in Were, such as filing pro se motions
to dismiss his counsel, that might lead a court to question his competency. Hough’s
case therefore was “not replete with indicia of incompetency” like the facts in Were.

2021-Ohio-2198 at ¶ 46

.
       {¶ 18} The court of appeals then concluded that Dr. McConnell’s
psychiatric evaluation did not provide sufficient indicia of incompetency.
Although the report shows that Hough suffers from mental illness and has limited
intellectual abilities and cognitive functioning, the court of appeals relied on the
cases discussed above to conclude that suffering from mental illness alone is not
sufficient for a finding of legal incompetency. The court also reasoned that the
evaluation provided some indication that Hough did understand the proceedings
against him. In the end, the appellate court believed Hough was more similar to
the defendants in Bock, Braden, and Prophet, all of whom had a mental illness but,
the evidence showed, were nonetheless competent to stand trial. To the extent the




                                          8
                               January Term, 2022



trial courts in those cases had more interaction with the defendants than the trial
court here had with Hough, the appellate court believed this distinction did not
matter, because R.C. 2945.37(G) requires the court to presume a defendant is
competent unless he is shown to be incompetent.
       {¶ 19} The appellate court concluded by stating that the trial court had erred
by not holding a hearing in response to Hough’s motion for a competency
evaluation. But based on its analysis, it held that that error was harmless because
“the record lacks sufficient indicia of incompetency,”

2021-Ohio-2198 at ¶ 49

.
       {¶ 20} Hough filed a notice of appeal with this court seeking review of three
propositions of law. We accepted jurisdiction over the second proposition. See

164 Ohio St.3d 1456

2021-Ohio-3438

174 N.E.3d 803

. The accepted proposition
is: “The trial court erred to the prejudice of appellant by not conducting a hearing
on his Motion for Competency Evaluation.”
                                   II. Analysis
       {¶ 21} “It has long been recognized that ‘a person [who] lacks the capacity
to understand the nature and object of the proceedings against him, to consult with
counsel, and to assist in preparing his defense may not be subjected to a trial.’ ”
(Brackets added in Smith.) State v. Smith,

89 Ohio St.3d 323, 329

731 N.E.2d 645

(2000), quoting Drope v. Missouri,

420 U.S. 162, 171

 (1975).    “Fundamental principles of due process require that a criminal
defendant who is legally incompetent may not be tried.” State v. Thomas,

97 Ohio St.3d 309

2002-Ohio-6624

779 N.E.2d 1017, ¶ 36

. Whether a defendant is
competent depends on whether he “ ‘has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—and whether he has
a rational as well as factual understanding of the proceedings against him.’ ” State
v. Were,

118 Ohio St.3d 448

2008-Ohio-2762

890 N.E.2d 263

, ¶ 45, quoting
Dusky v. United States,

362 U.S. 402, 402

4 L.Ed.2d 824

 (1960).




                                         9
                             SUPREME COURT OF OHIO




       {¶ 22} R.C. 2945.37 addresses a defendant’s competency to stand trial. “A
defendant is presumed to be competent to stand trial.” R.C. 2945.37(G). It also
sets a standard for competency that matches the constitutional rule set forth in the
caselaw. A court shall find that a defendant is incompetent to stand trial “[i]f, after
a hearing, the court finds by a preponderance of the evidence that, because of the
defendant’s present mental condition, the defendant is incapable of understanding
the nature and objective of the proceedings against the defendant or of assisting in
the defendant’s defense.”

 When a defendant is found incompetent, the court
then proceeds under R.C. 2945.38, which sets out various paths forward based on
factors such as the nature of the crime the defendant is charged with and the
likelihood that the defendant will regain competency within a certain amount of
time. See

id.

       {¶ 23} Relevant here is the provision addressing the initiation of an inquiry
into a defendant’s competency to stand trial. R.C. 2945.37(B) provides as follows:


                In a criminal action in a court of common pleas, a county
       court, or a municipal court, the court, prosecutor, or defense may
       raise the issue of the defendant’s competence to stand trial. If the
       issue is raised before the trial has commenced, the court shall hold
       a hearing on the issue as provided in this section. If the issue is
       raised after the trial has commenced, the court shall hold a hearing
       on the issue only for good cause shown or on the court’s own
       motion.


(Emphasis added.) The hearing is mandatory: “a trial court must hold a competency
hearing if a request is made before trial.” Were,

, at paragraph one of the syllabus; see also State v. Ahmed,

103 Ohio St.3d 27

2004-Ohio-4190

813 N.E.2d 637

, ¶ 64 (stating that “R.C. 2945.37 requires a

10
January Term, 2022

competency hearing if a request is made before trial,” but that if a request is made
after a trial has started, whether to hold a hearing is within the trial court’s
discretion). If the issue of the defendant’s competency is raised, the trial court can
order an evaluation of the defendant by a psychiatrist or a licensed clinical
psychologist, who is required to file a report addressing certain specified topics
with the court under seal. R.C. 2945.37(A)(2); R.C. 2945.371(A), (H).
{¶ 24} The initial question we must answer is whether R.C. 2945.37(B)
required the trial court to hold a hearing in response to Hough’s pretrial motion for
a competency evaluation. We agree with the appellate court that R.C. 2945.37(B)
required a hearing. The statute is clear that a hearing is mandatory when “the issue
is raised before the trial.” Here, Hough’s counsel raised the issue directly through
a motion. The motion also made the trial court aware that it was based on “[f]acts
having come to defense counsel’s attention pertaining to the Defendant’s
psychiatric state.” Revealing in a motion for a competency evaluation the facts
supporting the request may be the better practice, but the statute does not require
that the issue of a defendant’s competency be raised in a particular way or that any
motion include facts rising to a particular degree of proof. It requires only that the
issue be “raised”—so that facts may be gathered and evaluated at a subsequent
hearing. In some cases, revealing the factual basis for competency concerns in a
public filing could require the disclosure of discussions protected by the attorney-
client privilege or information protected by medical-privacy laws. To protect the
defendant’s interests, it may be better not to reveal certain matters publicly unless
and until a formal competency hearing is held.
{¶ 25} The state raises the concern that under this interpretation, R.C.
2945.37(B) could be used to cause delay by the defendant’s filing such a motion on
the eve of trial. That concern fails to compel a different conclusion in this case for
two reasons. First, it overlooks the fact that an attorney’s ethical obligations require
that any motion the attorney files have a good-faith basis in both law and fact. See

11
SUPREME COURT OF OHIO

Prof.Cond.R. 3.1 (“A lawyer shall not * * * assert or controvert an issue in a
proceeding, unless there is a basis in law and fact for doing so that is not frivolous,
which includes a good faith argument for an extension, modification, or reversal of
existing law”). Any attempt to use R.C. 2945.37(B) for undue delay runs the risk
of being exposed as baseless at the hearing. Second, less than a week before the
trial court denied Hough’s motion for a psychiatric evaluation on April 18, 2019, it
had granted a nearly two-month continuance—until June 3, 2019—based on a joint
request by the parties for additional time for trial preparation and continuing plea
negotiations. R.C. 2945.37(C) requires that a competency hearing be held either
within 30 days of the issue being raised or, if the court orders an evaluation of the
defendant under R.C. 2945.371, within 10 days after the report based on the
evaluation is filed. We have no reason to believe that those requirements could not
have been met between April 12, 2019—the day the motion for a competency
evaluation was filed—and the June 3, 2019 trial date that had been set when the
continuance was granted on April 8.
{¶ 26} The issue at the heart of this case is whether the trial court’s error
was harmless. Hough argues that Bock sets too high of a standard and therefore
does not sufficiently protect a defendant’s right not to be tried when incompetent.
He also claims that the appellate court here effectively set an even higher standard
than what Bock provides, one that permits a finding of harmless error unless the
record is “replete with indicia of incompetency.” Overall, he claims Bock and cases
applying it set a standard that is effectively insurmountable, as the hearing required
by R.C. 2945.37(B) and the associated psychological examination in advance of
the hearing, see R.C. 2945.371, are the way to create a record concerning
incompetency. Finally, Hough contends that the appellate court failed to give
proper weight to the evidence of his incompetency in the record and found evidence
to the contrary where there was none.

12
January Term, 2022

{¶ 27} The state argues in response that the standard set forth in Bock is
proper and was correctly applied in this case. In particular, the state defends the
appellate court’s statement that the record here is “not replete with indicia of
incompetency,”

2021-Ohio-2198 at ¶ 46

, by arguing that the appellate court simply
used that phrase to distinguish the facts in this case from those in Were,

, and that the statement did not amount to a new,
heightened standard for determining harmless error. And the state argues that the
appellate court otherwise properly applied the Bock standard in this case, because,
according to the state, the record in this case does not contain sufficient indicia of
incompetency. The state notes that the motion for a competency evaluation did not
identify any facts indicating Hough’s incompetency, Hough had never been found
incompetent in prior criminal cases, and the psychiatric evaluation conducted
before sentencing indicated he understood the purpose of the evaluation.
       {¶ 28} In our view, the standard set forth in Bock is proper and sufficiently
protects a defendant’s right not to be tried when incompetent. In Bock, we noted
that whether a trial court’s failure to hold a competency hearing is reversible error
is to be determined on a case-by-case basis. See Bock,

28 Ohio St.3d at 109-110

. And in Bock, the court’s holding was based on the facts of that
case, which involved a defendant who substantially participated in the trial and
therefore provided a much greater opportunity for potential indicators of
incompetency to be displayed on the record. We concluded in the syllabus: “The
failure to hold a competency hearing is harmless error where the defendant
proceeds to participate in the trial, offers his own testimony in defense and is
subject to cross-examination, and the record fails to reveal sufficient indicia of
incompetency.” (Emphasis added.)

 at paragraph one of the syllabus.
       {¶ 29} Here, Hough’s interactions with the trial court were far fewer and by
their nature less likely to reveal potential indicators of incompetency than the
interactions involved in Bock. Hough did not testify and was therefore not subject




                                         13
                             SUPREME COURT OF OHIO




to cross-examination. He made no statements at trial or at sentencing, and the trial
court addressed him only twice—once at trial to advise him of his Fifth Amendment
rights and once at the end of sentencing to wish him luck. Given those limited
interactions, the transcripts of the trial-court proceedings here are far less
informative as direct evidence of Hough’s demeanor and behavior as compared to
the record in Bock. And regardless, a defendant’s in-court demeanor does not
permit a trial court to dispense with a competency hearing when one is otherwise
required. See Pate v. Robinson,

383 U.S. 375, 385

86 S.Ct. 836

15 L.Ed.2d 815

(1966); Drope,

420 U.S. at 179

.
       {¶ 30} The appellate court improperly discounted the indicia of Hough’s
incompetency in the record. For example, it was dismissive of Hough’s mental-
health diagnoses, stating that “mental illness alone is not necessarily sufficient for
a finding of legal incompetence,”

2021-Ohio-2198 at ¶ 47

. No one has argued that
Hough’s mental-health diagnoses alone warranted an incompetency finding. But
those diagnoses are relevant and should be considered with any other evidence that
may indicate incompetency.
       {¶ 31} The appellate court also relied on the fact that according to Dr.
McConnell’s report, Hough understood that he was in jail, had been charged with
vehicular homicide, had an upcoming hearing, and was being examined at the
request of his counsel. It likewise relied on the fact that Hough’s counsel stated
that he had shown remorse and taken responsibility for his actions, which the
appellate court believed “suggests he has an appreciation for the nature of the
charges,” id. at ¶ 49. But the question under Bock is not whether there are any
indicia of competency. The question is whether there are sufficient indicia of
incompetency.
       {¶ 32} There exist numerous indicia of Hough’s incompetency in the
record. First, in the portion of the report in which Dr. McConnell observed that
Hough understood that he was in jail and that he was being examined for an




                                         14
                                 January Term, 2022



upcoming hearing in this case, Dr. McConnell also observed that Hough “was not
able to provide [him] with the day of the week, date, month, or year” and that Hough
held several delusional beliefs, such as the belief that others could control his
thoughts or force thoughts into his head and that people were trying to follow him
and cause him problems. Hough stated he was having auditory hallucinations
during the evaluation. On this point, Dr. McConnell believed that Hough was
responding to internal stimuli, not external noises.
       {¶ 33} Cognitive      tests   revealed   important     indicia   of   Hough’s
incompetency, with the test scores indicating that Hough has a full-scale IQ of 59,
“which is within the extremely low range and is the same or greater than only 0.3
[percent] of his same-aged peers.” He similarly scored within the first percentile
on a test component assessing his abilities in verbal concept formation and verbal
and nonverbal reasoning.
       {¶ 34} In his final conclusions, Dr. McConnell stated that “regardless of the
contributing factors or cause of [Hough’s] limited intellectual and cognitive
abilities, his abilities are still within the extremely low range and are equivalent to
the intellectual/cognitive abilities of an individual with an Intellectual Disability.”
Overall, Dr. McConnell summarized his conclusions as follows:


       Mr. Hough is an individual with a severe mental illness and
       intellectual/cognitive deficits. * * * He has attempted to engage in
       mental health treatment over the past few years but has struggled
       maintaining compliance with treatment. This could be associated
       with his poor insight, limited intellectual/cognitive functioning,
       and/or the nature of the symptoms associated with his DSM-5
       diagnoses.




                                          15
                            SUPREME COURT OF OHIO




       {¶ 35} Additionally, Hough’s counsel raised concerns about Hough’s
competency at sentencing:


       [HOUGH’S COUNSEL:] He has some very real diagnoses. He has
       shown over the course of this case tendencies to lose focus.
       Sometimes he responds to external stimuli to where it made me
       wonder whether or not he was competent. I tried to pull all the
       medical records that I could to get the background on whether or
       not he was competent. * * *
              Please understand that competency and the other diagnoses
       that he has may seem like an excuse, but they’re very real when it
       comes to a criminal case. If he is hearing voices and does not know
       who he is and he thinks God is speaking to him, that goes to the
       heart of whether or not he can stand and/or sit in front of a Court
       and actually be helpful in his defense.
              I did bring up to the Court my concerns about his
       competency. I filed a request to have his competency reviewed, and
       it was denied.
              THE COURT: Yeah, two years into the case, so don’t even
       get me started on that, okay? If you want to get started on that, I’m
       happy to get started on that, because you had two years to do that.
              [HOUGH’S COUNSEL]: I am not getting into that. I am
       simply making a record that one was made, and it was denied.
       Competency is very fluid. You can be competent one moment, and
       two years later you may not be competent.           I can’t file for
       competency before I see a reason to do so. He has not failed to take
       responsibility for this. He has shown incredible remorse for what
       has happened.




                                        16
                                January Term, 2022




(Emphasis added.)      These statements are consistent with statements in Dr.
McConnell’s report, and they are a clear indication—from someone who worked
with Hough in person—that he may not be competent.
       {¶ 36} Finally, the fact that Hough’s counsel did not file additional motions
for a competency hearing does not weigh in favor of finding harmless error. While
repeated requests may support the conclusion that a defendant is incompetent, see
Were,

94 Ohio St.3d at 175

, the absence of repeated requests does
not indicate the opposite—that a defendant must be competent. We likewise do not
believe that the fact that the case had been continued numerous times should dictate
whether a competency hearing was needed. Nine of the eleven continuances in this
case were granted based on requests made jointly by the parties. Of the remaining
two, one was requested by Hough based on the unavailability of his counsel and
the other was requested by the state based on the unavailability of one of its
witnesses.
       {¶ 37} Overall, Dr. McConnell’s report and the statements of Hough’s
counsel at sentencing reflect significant indicia of Hough’s incompetency. The
hearing required by R.C. 2945.37(B) and the associated psychological examination
in advance of the hearing, see R.C. 2945.37(A)(2) and (C); R.C. 2945.371(A),
would have facilitated a proper consideration of whether Hough was competent.
“ ‘Common sense dictates that no defendant can make a record of lack of
competency absent the findings and hearings contemplated by R.C. 2945.37 and
2945.371.’ ” Were at 177, quoting Bock,

28 Ohio St.3d at 113

(Wright, J., dissenting). We therefore conclude that the appellate court erred by
concluding that the trial court’s failure to hold such a hearing was harmless error.
       {¶ 38} That leaves only the remedy. Hough argues that precedents from
this court and the United States Supreme Court require that his convictions be
vacated and this case remanded to the trial court, where the issue of his competency




                                         17
                             SUPREME COURT OF OHIO




can be raised and addressed before a new trial may occur. The state argues for a
limited remand during which Hough’s convictions would remain in effect while the
trial court conducts an inquiry into whether he was competent at the time he was
tried.
         {¶ 39} Hough is correct. In Were, after we concluded that the trial court’s
failure to hold a competency hearing was not harmless error, we vacated the
defendant’s convictions and remanded the matter for a new trial.

94 Ohio St.3d at 177

. The United States Supreme Court has taken the same
approach in this context. See Pate,

383 U.S. at 385

86 S.Ct. 836

15 L.Ed.2d 815

(remanding for new trial). Although the state points to prior cases in which the
courts ordered the type of limited remand the state seeks, those cases involved other
contexts and the courts did not order a limited remand based on a failure to hold a
competency hearing when one was required. See, e.g., State v. Tuck,

80 Ohio App.3d 721, 725

610 N.E.2d 591

 (10th Dist.1992) (ordering limited remand to
determine whether there had been error in jury selection); State v. Brown, 2d Dist.
Montgomery No. 24297,

2012-Ohio-195, ¶ 12

 (ordering limited remand to
determine whether there had been error concerning suppression of evidence). The
United States Supreme Court has also rejected the propriety of a limited remand in
the competency-determination context. See

Pate at 387

 (noting “the difficulty of
retrospectively determining an accused’s competence to stand trial” and the “need
for concurrent determination” of competency); Drope,

420 U.S. at 183

28 Ohio St.3d 108, 109-10

 (“The question remains whether petitioner’s due process rights
would be adequately protected by remanding the case now for a psychiatric
examination aimed at establishing whether petitioner was in fact competent to stand
trial in 1969. Given the inherent difficulties of such a nunc pro tunc determination
under the most favorable circumstances, * * * we cannot conclude that such a
procedure would be adequate here. * * * The State is free to retry petitioner,
assuming, of course, that at the time of such trial he is competent to be tried”).




                                          18
                                January Term, 2022



       {¶ 40} The opinion concurring in part and dissenting in part would not
vacate Hough’s convictions but would remand this case for the trial court to attempt
to determine whether Hough was competent at the time of his trial in August 2019.
It contends that we and the United States Supreme Court “fail to recognize” that
determining whether a defendant was competent in the past “is no more difficult”
than a court’s analyzing a defendant’s claim of not guilty by reason of insanity
(“NGRI”). Opinion concurring in part and dissenting in part, ¶ 47. The problem
with this approach is that the statutory definition of NGRI is focused on the
defendant’s mental state “at the time of the commission of the offense,” R.C.
2901.01(A)(14), while the statutory definition of competency to stand trial is
focused on “the defendant’s present mental condition,” R.C. 2945.37(G)—meaning
the mental condition of the defendant at the time of trial. A retrospective inquiry
is therefore the only option when considering an NGRI claim, and undertaking that
inquiry—notwithstanding the difficulty of the task—avoids due-process concerns
inherent in the conviction of a person who was insane at the time of the offense.
See Kahler v. Kansas, __U.S.__,

140 S.Ct. 1021

206 L.Ed. 2d 312

(2020) (“for
hundreds of years jurists and judges have recognized insanity (however defined) as
relieving responsibility for a crime”). But a retrospective inquiry is not the only
option when determining competency to stand trial. And as the United States
Supreme Court noted in Drope, a retrospective inquiry could be inadequate to
protect the defendant’s right to due process. See id. at 183.
{¶ 41} The retrospective inquiry suggested by the opinion concurring in
part and dissenting in part would also create additional problems not present in the
NGRI context. The opinion states that the trial court could “take testimony
concerning Hough’s competency at the time of his trial,” opinion concurring in part
and dissenting in part at ¶ 46, but the best source of such testimony would likely be
the defendant’s counsel. A retrospective inquiry could therefore require the
disclosure of communications protected by the attorney-client privilege, attorney

19
SUPREME COURT OF OHIO

work product, or the opinion of the attorney based on such protected material. That
concern is not present in a hearing on an NGRI claim, since such a hearing is
focused on a time before legal representation has begun.
{¶ 42} Given the passage of time in this case and the evidence discussed
above, we cannot conclude that Hough’s conviction is a presumption to be rebutted
by evidence at a potential competency hearing held post-appeal. Hough had the
right to a contemporaneous competency hearing under R.C. 2945.37(B). The trial
court did not provide to Hough what is required by that statute. And the
retrospective consideration that is inevitable in NGRI proceedings does not satisfy
the requirement of the statute. Hough should be afforded what he was entitled to
in the first instance; this necessitates vacating his conviction in order to provide,
pursuant to the plain language of the statute, an inquiry into his competency that is
contemporaneous with his trial, if the state chooses to retry Hough.
{¶ 43} We vacate Hough’s convictions and remand the matter to the trial
court.
III. Conclusion
{¶ 44} We reverse the judgment of the Tenth District Court of Appeals,
vacate Hough’s convictions, and remand the cause to the trial court.
Judgment reversed,
convictions vacated,
and cause remanded.
O’CONNOR, C.J., and DONNELLY, J., concur.
STEWART, J., concurs in judgment only.
FISCHER, J., concurs in part and dissents in part, with an opinion.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
_________________

20
January Term, 2022

FISCHER, J., concurring in part and dissenting in part.
{¶ 45} I concur in part and dissent in part because rather than vacating
appellant Richard Hough’s convictions, I would remand the case to the trial court
for it to conduct a competency hearing. I agree with the lead opinion that the trial
court erred by not holding a competency hearing, because the plain language of
R.C. 2945.37(B) states that if the issue of competency is raised before trial, “the
court shall hold a hearing on the issue.” (Emphasis added.) I also agree with the
lead opinion that there are indicia of Hough’s incompetency in this case that
demonstrate that the trial court’s error may not have been harmless. However, I
disagree with the lead opinion on the appropriate remedy.
{¶ 46} Competency to stand trial is a factual issue that should be determined
in the first instance by the trial court. By vacating Hough’s conviction, the lead
opinion essentially makes a factual determination that Hough was incompetent at
the time of his trial. But the trial court is in the best position to make this
determination. At a competency hearing, the trial court not only can review the
record in this case, but it also can take testimony concerning Hough’s competency
at the time of his trial. This court does not have the benefit of those resources in
making a competency determination on appeal.
{¶ 47} The lead opinion concludes that this court is bound by United States
Supreme Court cases that state that it is difficult to retrospectively determine a
defendant’s competency. Lead opinion, ¶ 40. However, the lead opinion and the
United States Supreme Court fail to recognize that it is no more difficult than a
court’s analyzing a defendant’s claim of not guilty by reason of insanity (“NGRI”).
An NGRI plea requires a court to determine whether a defendant was insane at the
time of the commission of an offense that may have occurred years or even decades
earlier. Similarly, a competency hearing conducted after trial requires the court to
determine whether, at the time of trial, a defendant was capable of understanding
the proceedings and assisting in his or her defense. R.C. 2945.37(G). The evidence

21
SUPREME COURT OF OHIO

for both analyses involves expert testimony on the defendant’s previous mental
state.
{¶ 48} If trial courts can effectively analyze NGRI claims by determining
the defendant’s mental state at the time of the offense, I see no reason why trial
courts would be unable to retrospectively analyze competency by determining the
defendant’s mental state at the time of trial. This is especially true in cases such as
this one in which the record reflects the defendant’s mental state at the time of the
trial and there are witnesses that could testify to such. The record in this case
includes Hough’s sentencing mitigation report, which includes Dr. McConnell’s
description of Hough’s family background, school and work history, past legal
troubles, medical and mental-health history, hospitalization records, and IQ-test
results. Furthermore, Dr. McConnell analyzed and could testify as to Hough’s
diagnoses, intellectual functioning, and mental state at the time of trial.
{¶ 49} Because I believe the trial court can and should determine Hough’s
previous competency to stand trial in the first instance, I would reverse the decision
of the court of appeals and remand the case to the trial court to conduct a
competency hearing.
_________________
KENNEDY, J., dissenting.
{¶ 50} I agree with the lead opinion that the trial court erred when it failed
to hold a competency hearing when appellant, Richard M. Hough, filed a motion
for competency evaluation prior to trial. See R.C. 2945.37(B). However, I part
ways with the lead opinion when it concludes that the error was not harmless.
{¶ 51} The failure to hold a mandatory competency hearing is not subject
to automatic reversal. State v. Bock,

(1986). The question is whether, based on the totality of the evidence, Hough had
the capacity to understand the criminal proceedings against him and to assist
counsel in his defense. See Dusky v. United States,

362 U.S. 402

, 4




                                           22
                                    January Term,

2022 L.Ed.2d 824

 (1960). Because, based on the totality of the evidence before the trial
court, the record does not demonstrate that Hough was incompetent to stand trial,
the error was harmless.
        {¶ 52} Therefore, I dissent from the majority’s judgment and would affirm
the judgment of the Tenth District Court of Appeals.
                                           Facts
        {¶ 53} I agree with the facts set forth in the lead opinion and rely on them
here. But for purposes of this opinion, I highlight the following facts.
        {¶ 54} Hough was indicted on November 7, 2017 and pleaded not guilty on
December 1, 2017. The matter was originally scheduled for trial on January 31,
2018, but was continued numerous times at the request of either the defendant, the
state, or the parties jointly.
        {¶ 55} On April 8, 2019, at the request of both parties, the trial court granted
the ninth continuance of the trial date and rescheduled the trial to June 3, 2019. On
April 12, 2019, Hough’s counsel filed two separate motions, a motion for
competency evaluation and a motion for psychiatric evaluation. On April 18, 2019,
the trial court denied the motion for psychiatric evaluation, but it never addressed
the motion for competency evaluation. Hough did not ask the court to rule on the
original motion for competency evaluation and did not renew the motion for
competency evaluation.
        {¶ 56} After two additional continuances, the trial began on August 26,
2019. The trial court held a sentencing hearing on September 12, 2019, and at that
hearing counsel mentioned the motion for competency evaluation.
         The trial court erred in failing to hold a competency hearing,
                                 but the error was harmless
        {¶ 57} When the issue of a defendant’s competency to stand trial is raised
prior to the commencement of trial, Ohio law requires that the trial court hold a
competency hearing. R.C. 2945.37(B); see also Bock,

28 Ohio St.3d at 109

, 502




                                             23
                             SUPREME COURT OF OHIO




N.E.2d 1016. There is no question that the trial court erred when it failed to hold a
competency hearing. But that error can be harmless “where the record fails to
reveal sufficient indicia of incompetency.”

Id. at 110

, citing Drope v. Missouri,

420 U.S. 162, 180

 (1975).
       {¶ 58} The lead opinion contends that the Bock court limited the inquiry to
whether there are sufficient indicia of incompetency. I disagree.
       {¶ 59} Competency and incompetency are two sides of the same coin. And
in Pate v. Robinson,

383 U.S. 375

86 S.Ct. 836

15 L.Ed.2d 815

 (1966), which the
Bock court “construed and followed,”

id.

 at paragraph one of the syllabus, the
Supreme Court stated that “[a] determination of [whether a defendant is entitled to
a hearing] necessitates a detailed discussion of the conduct of the trial and the
evidence touching upon the question of [the defendant’s] competence at that time.”
(Emphasis added.)

Pate at 378

. The Pate court also stated that “the stipulation of
[the director of the behavior clinic’s] testimony was some evidence of Robinson’s
ability to assist in his defense.” (Emphasis added.)

Id. at 386

. Had the court in
Pate intended to exclude evidence of competency, there would have been no reason
to discuss that evidence. Therefore, a reviewing court should consider the totality
of the evidence, both evidence of incompetency and evidence of competency, when
determining whether a trial court’s error in failing to hold a competency hearing
was harmless.
       {¶ 60} Having established what evidence a reviewing court considers, I turn
to the well-known test for determining legal competency to stand trial announced
in Dusky,

362 U.S. 402

4 L.Ed.2d 824

. When determining whether
a defendant is legally competent to stand trial a trial court must inquire whether the
defendant “ ‘has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational as well
as factual understanding of the proceedings against him.' ”

Id. at 402

, quoting the
government’s brief.




                                         24
                                January Term, 2022



       {¶ 61} This court first recognized the Dusky competency test in State v.
Chapin,

67 Ohio St.2d 437, 439

424 N.E.2d 317

 (1981), and we have continued to
apply it in the ensuing decades, see, e.g., State v. Montgomery,

148 Ohio St.3d 347

2016-Ohio-5487

71 N.E.3d 180, ¶ 56

 (applying the Dusky test when assessing a
defendant’s competency to enter a guilty plea). The General Assembly codified
this test in Ohio law and recognized that a defendant is incompetent if he “is
incapable of understanding the nature and objective of the proceedings against
[him] or of assisting in [his] defense.” R.C. 2945.37(G).
       {¶ 62} Therefore, the evidence of incompetency must bear on the
defendant’s ability to understand the charges against him and to assist his counsel.
See Bock,

28 Ohio St.3d at 110

.
       {¶ 63} Hough filed a motion for competency evaluation prior to trial, and
the trial court erred in failing to then hold a hearing to determine Hough’s
competency. The lead opinion concludes that the error was not harmless because
“[t]here exist numerous indicia of Hough’s incompetency in the record.” Lead
opinion, ¶ 32. But to reach this conclusion, the lead opinion relies on various
statements in Dr. McConnell’s confidential report that only establish Hough’s
mental-health diagnoses and cognitive deficits.
       {¶ 64} But “[i]ncompetency must not be equated with mere mental or
emotional instability or even with outright insanity.         A defendant may be
emotionally disturbed or even psychotic and still be capable of understanding the
charges against him and of assisting his counsel.”

Bock at 110

. The same is true
of cognitive deficits.    As the Fourth Circuit has explained, “ ‘neither low
intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be
equated with mental incompetence to stand trial.’ ” Walton v. Angelone,

321 F.3d 442, 460

 (4th Cir.2003), quoting Burket v. Angelone,

208 F.3d 172, 192

 (4th
Cir.2000).




                                         25
                             SUPREME COURT OF OHIO




       {¶ 65} Dr. McConnell’s confidential report establishes the existence of
mental-health diagnoses and cognitive deficits, see lead opinion at ¶ 7-9, that could
possibly affect Hough’s ability to understand the proceedings or assist counsel, but
there is no evidence in the report that Hough was in fact incompetent. The lead
opinion misses the crucial step that the evidence must bear on Hough’s competency
to stand trial. And contrary to the lead opinion’s determination, there is nothing in
the record that supports the conclusion that this evidence affected Hough’s capacity
to understand the criminal proceedings against him and to assist his counsel in his
defense.
       {¶ 66} In fact, Dr. McConnell’s confidential report contains evidence that
Hough did understand the criminal proceedings against him and was able to assist
counsel in his defense. Dr. McConnell began Hough’s evaluation by explaining
the purpose and nonconfidential nature of the evaluation, which Hough indicated
that he understood. In the report, Dr. McConnell does not express doubt or question
Hough’s ability to comprehend. There is nothing in the report to indicate that
Hough failed to cooperate or was difficult to deal with at any time during the
evaluation.
       {¶ 67} The report reveals that Hough was able to provide Dr. McConnell
with extensive information for the evaluation. And with respect to Hough’s
orientation, Dr. McConnell observed in the report that Hough “ ‘was not able to
provide [him] with the day of the week, date, month, or year, but recognized that
he was in jail and had an upcoming court hearing. He understood that he was
participating in an evaluation per the request of his defense counsel and the
Court.’ ” Lead opinion at ¶ 8. Hough’s knowledge of his upcoming court hearing,
the purpose of the evaluation, and his cooperation in the evaluation bear on his
capacity to understand the criminal proceedings and to assist counsel in his defense.
And Hough’s temporal confusion does not offer any support for incompetency—as
Dr. McConnell’s report fails to indicate that Hough’s date-and-time confusion




                                         26
                                January Term, 2022



impacted his understanding of the nature or consequences of the legal proceedings
or even the evaluation process. The Eighth Circuit reached a similar conclusion
when it determined that a defendant’s memory lapses caused by a mild traumatic
brain injury were not evidence of incompetency, because medical reports provided
no indication the defendant was incapable of understanding the nature or
consequences of the legal proceeding. United States v. Dahl,

807 F.3d 900, 904

(8th Cir.2015).
       {¶ 68} Moreover, while the lead opinion discounts Hough’s interactions
with the trial court because they were far fewer than those in Bock and “less likely
to reveal potential indicators of incompetency,” lead opinion at ¶ 29, this court has
determined that the demeanor of a defendant during trial is a relevant consideration
on the question of incompetency. In Bock,

28 Ohio St.3d at 111

,
we relied on the fact that “[t]he record reveal[ed] no adequate indication of any
behavior on the part of the defendant which might indicate incompetency.” And in
State v. Braden,

98 Ohio St.3d 354

2003-Ohio-1325

785 N.E.2d 439, ¶ 117

, the
court, while recognizing the defendant’s interactions with the court during trial,
stated that “the record reflects no behavior by [the defendant] during trial that would
suggest the lack of legal competency.” The lack of bizarre or irrational behavior
by a defendant during proceedings before the trial court was also deemed relevant
by the Ninth Circuit during its review of a trial court’s decision not to hold a
competency hearing. Williams v. Woodford,

384 F.3d 567, 605

 (9th Cir.2004).
Hough did not engage in any outbursts or bizarre or irrational behavior at any time
during the proceedings.
       {¶ 69} The testimony of Hough’s friend, Tainta Butts, at his sentencing
hearing also weighs against finding sufficient indicia of incompetency. Butts
testified regarding the remorse Hough experienced because of his actions, stating:




                                          27
                            SUPREME COURT OF OHIO




               [Hough] has had remorse about this situation for the past two
       years. He’s been in my home living with me with this. He has
       expressed that he does not remember. He has expressed the fact that
       he does not remember about children being hurt, about Mrs. Griggs
       being killed, about Ms. Amanda being injured. He has very much
       so expressed his concern about that. He deals with it every day.
               For him not to be in the courtroom and he may not show
       them, but, yes, he has emotions behind this. He has anger behind
       this. He expresses sorrow to the family about what has happened.
       He has tried to clean himself up as far as coming in here and doing
       the right thing.
               He has never missed a court date. He has been here for every
       court date. We have sat out here for several hours and then get sent
       home. He is not trying to not take accountability.


Her testimony describes Hough as having a rational as well as factual understanding
of the proceedings against him. See Dusky,

362 U.S. at 402

4 L.Ed.2d 824

.
       {¶ 70} Finally, an examination of the statements by Hough’s counsel to the
trial court at sentencing are necessary. Counsel stated:


       [Hough] has some very real diagnoses. He has shown over the
       course of this case tendencies to lose focus. Sometimes he responds
       to external stimuli to where it made me wonder whether or not he
       was competent. I tried to pull all the medical records that I could to
       get the background on whether or not he was competent. * * *
               Please understand that competency and the other diagnoses
       that he has may seem like an excuse, but they’re very real when it




                                         28
                                January Term, 2022



       comes to a criminal case. If he is hearing voices and does not know
       who he is and he thinks God is speaking to him, that goes to the heart
       of whether or not he can stand and/or sit in front of a Court and
       actually be helpful in his defense.


       {¶ 71} The lead opinion notes that these statements are consistent with Dr.
McConnell’s report and determines they are a “clear indication” that Hough may
not be competent. Lead opinion at ¶ 35. But again, the lead opinion’s conclusion
is inconsistent with caselaw and fails to complete the required analysis.
       {¶ 72} This court has stated that “ ‘defendant’s counsel is in the best
position to evaluate a client’s comprehension of the proceedings.’ ” State v.
Lawson,

165 Ohio St.3d 445

2021-Ohio-3566

179 N.E.3d 1216, ¶ 64

, quoting
Hernandez v. Ylst,

930 F.2d 714, 718

 (9th Cir.1991). However, here, counsel’s
concerns that Hough was hearing voices, not knowing who he was, and thinking
God was speaking to him—standing alone—are not evidence of incompetency. As
discussed above, “[a] defendant may be emotionally disturbed or even psychotic
and still be capable of understanding the charges against him and of assisting his
counsel.” Bock,

28 Ohio St.3d at 110

. The focus must be on
whether Hough’s mental health affected his ability to understand the charges
against him and assist his counsel. See

id.

 For example, in Dahl,

807 F.3d at 903

,
the Eighth Circuit concluded that the deteriorating mental condition of the
defendant did not demonstrate incompetency, because defense counsel did not
represent that the change had caused the defendant to be unable to understand the
proceedings or to assist in his defense.
       {¶ 73} Hough’s counsel did not advise the trial court that Hough’s mental
health prevented him from understanding the nature or consequences of the
proceedings. Counsel also did not assert that Hough’s mental health made him
unable to assist in his defense. Instead, counsel’s statements, at their core, question




                                           29
                              SUPREME COURT OF OHIO




whether Hough’s mental health might impact his ability to assist in the defense, and
that is insufficient to establish that he was incompetent to stand trial.
       {¶ 74} The lead opinion brushes aside the fact that, after the initial motion,
counsel did not raise the issue of competency again until sentencing, stating that
“the absence of repeated requests does not indicate * * * that a defendant must be
competent,” (emphasis sic) lead opinion at ¶ 36. But this ignores our previous
reliance on just that in Bock, in which we concluded that the record lacked sufficient
indicia of incompetency. “Defense counsel, after the original motion for a hearing,
failed ever again to mention the defendant’s competency until the time for appeal.”
Id. at 111. And defense counsel’s efforts here stand in stark contrast to counsel’s
efforts in State v. Were,

94 Ohio St.3d 173, 175

 (2002).
       {¶ 75} Defense counsel in Were raised the issue on several occasions
throughout the proceedings: (1) in a pretrial motion, (2) after opening arguments,
(3) during the trial, and (4) before the start of the mitigation phase.
       {¶ 76} In Were, the court similarly considered whether the trial court’s
failure to hold a hearing on a pretrial competency motion was harmless error. See

id. at 173-174

. While the Were court found that the defendant’s constitutional and
statutory rights to a competency hearing were violated, it reached this conclusion
based on not only the numerous requests for a hearing set forth above but also on
counsel’s many direct and indirect representations “to the court that they believed
appellant to be incompetent,”

id. at 175

. One defense attorney in Were who had
served as a referee in probate court handling civil commitments expressed that
“[b]ased on [his probate-court] experience, he believed that [the defendant]
exhibited signs of paranoia and harbored suspicion against the defense team that,
in counsel’s view, could not be overcome.”

       {¶ 77} Counsel in Were also claimed that the defendant’s “failure to
cooperate seriously hampered their ability to present a defense.”

Id. at 176

. During
the course of the proceedings, counsel filed motions to withdraw on two separate




                                          30
                                January Term, 2022



occasions and a motion for a continuance because the defendant believed “counsel
was taping confidential conversations and turning the tapes over to the state * * *
[and he] refus[ed] to speak with them or any member of the defense team and h[e]
refus[ed] to accept their correspondence.”

 The defendant in Were also filed
numerous pro se motions to dismiss his attorneys, stating that they “were racially
biased, had threatened his life, were conspiring with the prosecution, and had failed
to adequately prepare for the mitigation phase.”