                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2015-CA-01818-SCT

TERRY PITCHFORD

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:               05/13/2015
TRIAL JUDGE:                    HON. JOSEPH H. LOPER, JR.
TRIAL COURT ATTORNEYS:          RAYMOND M. BAUM
                                RAY CHARLES CARTER
                                DOUG EVANS
                                ALISON R. STEINER
                                GLENN S. SWARTZFAGER
                                SCOTT A. C. JOHNSON
                                CAMERON LEIGH BENTON
                                JASON L. DAVIS
                                MARVIN L. WHITE, JR.
COURT FROM WHICH APPEALED:      GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:        OFFICE OF CAPITAL POST-CONVICTION
                                COUNSEL
                                BY: JAMILA ALEXANDER VIRGIL
                                    LOUWLYNN VANZETTA WILLIAMS
ATTORNEYS FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                                BY: CAMERON LEIGH BENTON
                                    JASON L. DAVIS
DISTRICT ATTORNEY:              DOUG EVANS
NATURE OF THE CASE:             CRIMINAL - DEATH PENALTY - POST
                                CONVICTION
DISPOSITION:                    POST-CONVICTION RELIEF DENIED -
                                10/19/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     EN BANC.

     BEAM, JUSTICE, FOR THE COURT:
¶1.    Terry Pitchford was convicted of capital murder in February 2006 in the Grenada

County Circuit Court and sentenced to death. This Court affirmed his conviction and

sentence on direct appeal. See Pitchford v. State, 45 So. 3d 216 (Miss. 2010). Pitchford

thereafter filed a motion for leave to proceed in the trial court with a petition for post-

conviction relief (PCR), arguing inter alia he had not received a competency hearing in

violation of Rule 9.06 of the Uniform Rules of Circuit and County Court Practice. This

Court granted Pitchford’s motion in part and ordered the trial court to conduct a retrospective

competency hearing.

¶2.    Before the hearing was conducted, a plurality of this Court held that retrospective

competency hearings do not satisfy the purpose of Rule 9.06. See Coleman v. State, 127 So.

3d 161 (Miss. 2013). Despite this ruling, Pitchford’s retrospective competency hearing took

place in May 2015. The trial court found that Pitchford was competent to stand trial in

February 2006 and denied Pitchford’s PCR motion.

¶3.    Pitchford appeals that judgment, claiming the retrospective competency hearing was

(1) an inadequate remedy for purposes of Rule 9.06, and (2) the State’s experts did not apply

the proper standard for competency to stand trial.

¶4.    Finding no merit in Pitchford’s claims, we affirm the judgment of the trial court

denying Pitchford’s PCR petition based on the trial court’s finding that Pitchford was

competent to stand trial in February 2006.

                        FACTS AND PROCEDURAL HISTORY




                                              2
¶5.    On the morning of November 7, 2004, Walter Davis and his son entered the

Crossroads Grocery store in Grenada County, Mississippi, where they discovered the lifeless

body of Reuben Britt. Davis contacted authorities, and investigators with the Grenada

County Sheriff’s Department responded to the scene. The investigation concluded Britt had

been shot with two different types of firearms. Investigators also found missing from the

store a cash register, cash, and a .38 caliber revolver belonging to Britt.

¶6.    Investigators received information that a vehicle owned by Pitchford matched the

description of the vehicle used by Britt’s assailants, and that Pitchford had been part of a

previous robbery attempt at the store, days prior to Britt’s killing. Based on this information,

investigators went to Pitchford’s residence, where they found a car matching the description

they had received from sources.

¶7.    Shirley Jackson, Pitchford’s mother, gave officials permission to search the car. The

search produced Britt’s .38 caliber revolver.

¶8.    Pitchford later confessed that he and Eric Bullins had gone to the store to rob it.

Pitchford said Bullins had shot Britt three times, and that he (Pitchford) had fired shots into

the floor. Pitchford also told investigators that he had attempted to rob the store a week prior

to Britt’s killing.

¶9.    Pitchford was indicted in January 2005 for capital murder. In February 2005, counsel

appointed to represent Pitchford filed a motion stating that “defendant would show that he

has a history of mental problems and that this [c]ourt should appoint a . . . psychologist or

psychiatrist for the purpose of conducting a thorough mental examination.” The motion also



                                                3
stated that the defendant “intends to offer expert witness testimony in the field of psychiatry,

on the issue of the defendant’s competence to stand trial, and insanity at the time of the

alleged offense. The defendant requests this [c]ourt appoint a competent psychiatrist to

assist him in the defense of this matter.” Pursuant to that motion and to agreement by the

parties, the trial court ordered that Pitchford be evaluated at the Mississippi State Hospital

to determine if he was competent to stand trial.

¶10.   Pitchford was evaluated and tested by doctors at the state hospital on January 11 and

25, 2006. The doctors (Reb McMichael, Criss Lott, and Gilbert Macvaugh) determined that

Pitchford was competent to stand trial. They noted that testing and observation indicated

Pitchford was attempting to malinger symptoms of mental illness. They unanimously

concluded that Pitchford “has the sufficient present ability to consult with an attorney with

a reasonable degree of rational understanding in the preparation of his defense, and that he

has a rational as well as factual understanding of the nature and object of the legal

proceedings against him.”

¶11.   No formal competency hearing was held. The trial court, however, held a motions

hearing on February 2, 2006, during which the court considered a motion to continue filed

by the defense that same day. As part of that motion, defense counsel argued that a

continuance was needed to seek an independent mental evaluation. Defense counsel claimed

more time was needed to gather mitigating evidence with the assistance of a defense expert.

Defense counsel told the court he had consulted with an expert and had reason to believe that




                                               4
further testing might reveal a neurological defect that could be helpful mitigation evidence

at trial.

¶12.    After hearing argument from both parties and having reviewed the written report from

the court-appointed experts, the trial court denied the defense’s request for continuance. The

trial court found that doctors from the state hospital had written a very thorough analysis and

had conducted all the evaluations that were necessary. They came up with nothing that

would indicate that Pitchford has “any neurological problems, any psychological problems,

any low I.Q., [or] anything that would justify another person coming in and evaluating Mr.

Pitchford.”

¶13.    The case proceeded to trial on February 6, 2006. A jury found Pitchford guilty of

capital murder and imposed a sentence of death. This Court affirmed Pitchford’s conviction

and death sentence on direct appeal. Pitchford, 45 So. 3d 216.

¶14.    Pitchford thereafter sought leave from this Court to proceed in the trial court with a

PCR petition. Pitchford raised a number of claims, including the claim that he was denied

a competency hearing prior to his trial for capital murder. This Court denied all claims

except Pitchford’s claim pertaining to a competency hearing. This Court ordered that the

matter be remanded to the trial court for a hearing on whether Pitchford was competent to

stand trial at the time the criminal trial took place in February 2006.

¶15.    The hearing was held on May 11 and 12, 2015. Pitchford called five witnesses on his

behalf: Joseph Cornish (an inmate housed with Pitchford prior to trial in the Grenada County

jail); Jonamath Thompson (an inmate also housed with Pitchford prior to trial); Shirley



                                              5
Jackson (Pitchford’s mother); Dominique Hogan (Pitchford’s former girlfriend and the

mother of Pitchford’s only child); and Dr. Rahn Bailey (a psychiatrist who had evaluated

Pitchford on February 4, 2006, just days prior to Pitchford’s criminal trial). For the State,

Drs. McMichael and Macvaugh testified.

¶16.   At the conclusion of the hearing, the trial court issued a bench ruling, followed by a

written order, finding that Pitchford was competent to stand trial in February 2006.

¶17.   The trial court specifically found “of no consequence” Cornish’s or Thompson’s

testimony. The trial court found their statements that Pitchford occasionally talked to himself

or appeared at times to be depressed while in jail prior to trial to be of no import. The trial

court added, however, that even if their testimony was true, it “offers nothing that would

suggest that Pitchford was not competent to stand trial.”

¶18.   The trial court noted that Jackson testified that Pitchford had claimed to have heard

voices in his head as a child, and would occasionally “slap himself upside the head,” and that

he may have attempted suicide when he was fifteen or sixteen years of age. But Jackson also

testified that she did not take this claimed behavior seriously at the time. The court stated,

“her corresponding inaction confirms that she didn’t find these alleged incidents of such a

nature that she believed her son needed medical attention.”

¶19.   The trial court noted that Hogan had testified she one time HAD heard Pitchford

talking to himself while in the shower and another time when he appeared to be “air boxing.”

But the court found that nothing to which Hogan testified offered any insight into Pitchford’s

competence to stand trial.



                                              6
¶20.   As to the respective expert witnesses, the trial court found the State’s expert witnesses

more credible than the defense’s expert witness. According to the court, Dr. Bailey’s report

and testimony was “long on conclusions and very short on facts to support his conclusions.”

Dr. Bailey’s “signed and unsigned reports contradicted each other, and portions of the reports

contradicted other portions of the reports.”       Dr. Bailey’s testimony “was also very

contradictory,” and “there was not a foundational basis for much of his testimony,” and the

court found most of it “lacking in credibility and believability.”

¶21.   The trial court also noted that Pitchford was represented at trial by one of the leading

capital defense lawyers in the state, “if not the entire Southeastern portion of this country,

that being Ray Charles Carter[,]” who was assisted by Ray Baum, “a long-time criminal

defense attorney.” At no time did defense counsel ever indicate to the court they were having

trouble communicating with Pitchford. The court also found it “telling” that neither Carter

nor Baum was called by Pitchford to testify at the retrospective competency hearing.

¶22.   The trial court took into consideration the transcript from Pitchford’s guilty-plea

hearing, held in January 2006, less than a month prior to Pitchford’s criminal trial. Pitchford

had petitioned the trial court to enter a guilty plea. But after extensive colloquy with the

court, Pitchford withdrew his guilty plea and elected to go to trial. The court found the

transcript of that proceeding “shows an individual that understood the legal process and was

in full command of his mental faculties.” Pitchford’s defense attorney, Carter, also had

signed an attorney’s acknowledgment form that indicated he was satisfied that Pitchford had

the mental capacity to enter a valid guilty plea at the time.



                                               7
¶23.   Based on the evidence before it, the trial court found that Pitchford had failed to prove

by a preponderance of the evidence that he was not competent to stand trial in February 2006.

The court denied Pitchford’s PCR claim.

¶24.   This appeal followed. Additional facts and procedural history will be related as

necessary throughout our discussion.

                                     DISCUSSION

¶25.   We address together Pitchford’s claim that the retrospective competency hearing was

an inadequate remedy for purposes of Rule 9.06, and that the State’s experts did not apply

the proper standard for competency to stand trial.

¶26.   Relying on this Court’s decision in Coleman, 127 So. 3d 161, Pitchford contends his

capital-murder conviction should be reversed because the retrospective competency hearing

failed to satisfy the purposes of Rule 9.06, which Coleman held does not contemplate

retrospective competency hearings. Pitchford argues that the inadequacies of such hearings

led this Court to criticize and reject them in Coleman. Pitchford contends the same

inadequacies recognized in Coleman permeated his May 2015 retrospective competency

hearing.

¶27.   The State argues that Pitchford’s claim is self-defeating based on the plain language

found in Coleman, which expressly noted Pitchford’s case and distinguished it by stating:

              Finally, we note that the facts and circumstances presented in Pitchford
       were significantly different than those before us in the present case. In
       Pitchford, the trial court held a hearing, but defense counsel was not given
       notice that mental competency to stand trial was to be determined at that time.
       Pitchford, 2010-DR-01032-SCT (Order of February 14, 2013). Here, the trial
       court outright denied Coleman a hearing and determined that he somehow had

                                               8
       waived his right to a competency hearing, despite repeated requests for such
       a proceeding both before and during trial. In Pitchford, the defendant’s
       competence to stand trial was determined based on a written report from the
       Mississippi State Hospital; but here, the trial court based its determination of
       Coleman’s competence to stand trial on a four-page summary report.
       Pitchford, 2010–DR–01032–SCT. We found that, under the facts in
       Pitchford, where the trial court held a mental competency hearing but did not
       give notice to defense counsel, a retrospective mental competency hearing was
       sufficient to guard the defendant’s due process rights. Id. On the other hand,
       under the facts in this case, when the trial court simply denied the defendant
       a hearing, we find that a retrospective mental competency determination does
       not adequately protect Coleman’s due process rights.

Coleman, 127 So. 3d at 167-68.

¶28.   The State further contends that Pitchford repeatedly attacks issues that arose prior to

his criminal trial in February 2006–issues that should have been raised on direct appeal, such

as lack of notice with regard to his competency hearing prior to trial, lack of opportunity to

present witnesses and other evidence, and allegations that the trial court’s pretrial

competency determination was erroneous. The State submits these claims are procedurally

barred and/or were nonetheless cured by the May 2015 retrospective competency hearing.

¶29.   For reasons to be explained, we overrule Coleman and those cases in agreement with

it that a retrospective competency hearing does not adequately protect a defendant’s due

process rights. The great of weight of authority holds that such a hearing does not violate a

defendant’s due process rights when the facts of the case allow for it.

       Legal Competence

¶30.   It is a violation of due process to try or convict a criminal defendant who is legally

incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).

This prohibition is fundamental to our adversarial system of justice, and such circumstance

                                              9
denies a defendant’s right to a fair trial. Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896,

43 L. Ed. 2d 103 (1975); Pate, 383 U.S. at 385, 86 S. Ct. 836.

¶31.   The standard for competency to stand trial is whether the defendant has “sufficient

present ability to consult with his lawyer with a reasonable degree of rational understanding,”

and “has a rational as well as a factual understanding of the proceedings against him.”

Gammage v. State, 510 So. 2d 802, 803 (Miss. 1987) (citing Dusky v. United States, 362

U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curium)). Although a defendant may

be competent at the commencement of trial, “a trial court must always be alert to

circumstances [throughout trial] suggesting a change that would render the accused unable

to meet the standards of competence to stand trial.” Drope, 420 U.S. at 181.

¶32.   The law, however, presumes a criminal defendant competent to stand trial. Evans

v. State, ___So. 3d ____, 2017 WL 2592415, *4 (Miss. June 15, 2017). And the defendant

bears the burden to prove “by substantial evidence that [he or she] is mentally incompetent

to stand trial.” Evans v. State, 725 So. 2d 613, 660 (Miss. 1997) (quoting Medina v.

California, 505 U.S. 437, 448, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992)).

       Rule 9.06

¶33.   At the time of Pitchford’s criminal trial, Rule 9.06 applied. It provides:

       If before or during trial the court, of its own motion or upon motion of an
       attorney, has reasonable ground to believe that the defendant is incompetent
       to stand trial, the court shall order the defendant to submit to a mental
       examination by some competent psychiatrist selected by the court in
       accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.

       After the examination the court shall conduct a hearing to determine if the
       defendant is competent to stand trial. After hearing all the evidence, the court


                                              10
       shall weigh the evidence and make a determination of whether the defendant
       is competent to stand trial. If the court finds that the defendant is competent to
       stand trial, then the court shall make the finding a matter of record and the case
       will then proceed to trial. If the court finds that the defendant is incompetent
       to stand trial, then the court shall commit the defendant to the Mississippi State
       Hospital or other appropriate mental health facility.

URCCC 9.06 (emphasis added).1

¶34.   In September 2005, based on an ore tenus motion of the parties, the trial court granted

a request to appoint experts at the state hospital to examine Pitchford and “determine his

competency to stand trial and whether or not under the M’Naghten2 standard he is insane and

whether or not under the Atkins3 ruling he is [intellectually disabled].”       The order also

instructed examination of Pitchford to determine “any mitigating circumstances[.]”

Pitchford’s examination was not conducted until January 11, 2006, due to a backlog of

criminal cases assigned to the state hospital for evaluations. No psychological testing was

performed until January 26, 2006.

¶35.   On February 2, 2006, Pitchford’s defense counsel filed a lengthy motion for a

continuance, requesting additional time to conduct a more “thorough mitigation



       1
         Rule 9.06 has since been replaced by Rule 12 of the Mississippi Rules of Criminal
Procedure (effective July 1, 2017). Mississippi Rule of Criminal Procedure 12.5(a) departs
from Rule 9.06’s mandatory-hearing requirement. In the absence of a motion by the court
or the parties, a hearing is no longer mandatory, but permissible. See Miss. R. Cr. P. 12.5(a)
cmt.
       2
         M’Naghten’s case, 8 Eng. Rep. 718 (1843) (establishing test applied in a number
of states to determine whether a defendant is competent to stand trial).
       3
        Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)
(holding that execution of mentally retarded criminals are “cruel and “unusual” under Eighth
amendment to the United States Constitution).

                                              11
investigation” into Pitchford’s “life history,” given that this was a death-penalty case. The

motion contained numerous arguments in support of the request, centering on the claim that

Pitchford had a right to have the evaluations conducted by doctors at the state hospital

reviewed by an independent expert in order to help prepare an adequate defense for both the

culpability and penalty phases of trial.

¶36.   No express issue or concern was raised in the defense’s motion as to Pitchford’s

competency to stand trial. And the defense’s motion concluded as follows: “the defendant

respectfully moves this [c]ourt for a continuance of the trial date now set for February 6,

2006 or in the alternative to proceed to trial on that date if the State elects not to seek the

death penalty.” (Emphasis added.)

       Rule 9.06’s Reasonable Ground(s) Requirement

¶37.   Since this Court’s decision in Sanders v. State, 9 So. 3d 1132, 1142 (Miss. 2009),

Rule 9.06 has been construed to mean that, in any instance in which the trial court orders a

competency evaluation of the defendant, this establishes conclusively (for appellate-review

purposes) that the trial court had reasonable ground(s) to believe the defendant might be

incompetent to stand trial, thus triggering Rule 9.06’s competency-hearing mandate. See

Smith v. State, 149 So. 3d 1027 (Miss. 2014) (construing Sanders’s and Coleman’s

interpretation and application of Rule 9.06 to mean that a trial court’s grant of an order for

a mental competency evaluation is “conclusive of its having found reasonable ground to

believe [the defendant] was entitled to a mental examination and a competency hearing”);

see also Hollie v. State, 174 So. 3d 824, 830-32 (Miss. 2016) (in which a majority of this



                                              12
Court held, based on Sanders, Coleman, and Smith, that a mental evaluation ordered by the

trial court constitutes “a per se showing that the trial court had reasonable grounds to believe

the defendant was incompetent to stand trial”).

¶38.   We find this to be a hypertechnical interpretation and application of Rule 9.06 that

improperly expands the scope and purpose of the rule and conflicts with Mississippi

precedent. Therefore, we reject it.

¶39.    Years ago, this Court found in the case of Jacquith v. Beckwith, 157 So. 2d 403

(Miss. 1963), that an order by the trial court submitting a criminal defendant to a competency

examination did not itself establish sufficient ground to question the defendant’s competence

to stand trial. The Jacquith Court acknowledged that such orders ordinarily are not

controverted, “since usually the defendant or his counsel request or agree to them.” Id. at

408. But Jacquith pointed out that the statute allowing for such examinations nonetheless

“requires some evidential basis.” 4 Id.

¶40.   While Rule 9.06 was not in existence at the time of Jacquith, the same principle

recognized there was recognized by Chief Justice Waller in his dissent in Sanders, when

speaking to Rule 9.06. See Sanders, 9 So. 3d at 1142 (Waller, C.J., dissenting). The trial

court is obligated to hold a competency hearing only “where there is sufficient doubt about



       4
        Jacquith was speaking to former Section 2575.5 of Chapter 262, Mississippi Laws
(1942). That section became law in 1960 shortly after the United States Supreme Court’s
decision in Dusky, which was handed down earlier that same year. Section 2575.5’s
language was carried over to current Section 99-13-11, amended in 1997 to allow for
competent “psychologist(s)” to be selected in addition to “psychiatrist(s).” See Miss. Code
§ 99-13-11(Rev. 2015).


                                              13
a defendant’s competence.” Id. “Sufficient doubt [or reasonable ground] in the court’s mind

was the cornerstone of [Rule 9.06] we then created.” Id. “In the absence of such doubt, the

obligation to sua sponte order a competency hearing simply does not arise.” Id.

¶41.   Justice Coleman concluded similarly in his dissent in Smith. “To put it in Rule 9.06

terms, [the defendant] identifies nothing in the record of the criminal proceedings against him

to indicate the existence of any ‘reasonable ground to believe’ him incompetent to stand

trial.” Smith, 149 So. 3d at 1036-37 (Coleman, J., dissenting) (quoting Rule 9.06). Noting

what the Court of Appeals had found in Smith v. State, 149 So. 3d 1048 (Miss. Ct. App.

2013), Justice Coleman stated, “myriad reasons [may] exist to conduct a mental competency

examination aside from a determination that the above-described reasonable grounds exist.”

Id. at 1037 (citing Smith, 149 So. 3d at 1051-52).

¶42.   We agree. In line with the requirement(s) recognized in Jacquith and in other similar

opinions, we hold that a trial court’s competency evaluation order does not in and of itself

conclusively (or necessarily) establish, for purposes of Rule 9.06’s mandates, or appellate-

review purposes, that the trial court had reasonable grounds to believe the defendant was

incompetent to stand trial. Such a determination must be made based on the facts and

circumstances attending each particular case.

¶43.   For our purposes here, however, whether reasonable grounds existed when the trial

court ordered Pitchford’s competency evaluation in 2006 is moot given this Court’s 2013

order requiring the trial court to conduct a retrospective competency hearing. The sole




                                              14
question now presented is whether the 2015 retrospective competency hearing conducted by

the trial court satisfied Rule 9.06’s mandate(s).

       Retrospective Competency Hearing

¶44.   At the outset, a plurality of this Court, as mentioned, held in Coleman that the

appropriate remedy for failure to hold a competency hearing is a new trial, not a retrospective

competency hearing. Coleman reasoned that the United States Supreme Court repeatedly

has recognized the “inherent difficulties of such a nunc pro tunc determination under the

most favorable circumstances.” Id. at 166 (quoting Drope, 420 U.S. at 183). Coleman

found that Rule 9.06 makes no mention of or suggests that a retrospective competency

hearing is permissible, for the rule clearly specifies that a competency determination must

occur before or during trial, not after trial, conviction, and appeal. Id. at 168. Coleman since

has been affirmed by a majority of this Court in Smith and Hollie.

¶45.   Coleman is correct that the Supreme Court has said that retrospective competency

hearings present inherent difficulties. But the Supreme Court did not announce a per se rule

that retrospective competency hearings are forbidden. In Drope, the Court stated: “Given the

inherent difficulties of such a nunc pro tunc determination under the most favorable

circumstances, see [Pate, 383 U.S. at 386-87; Dusky, 362 U.S. at 403], we cannot conclude

that such a procedure would be adequate here.” Drope, 420 U.S. at 183 (emphasis added).

¶46.   In James v. State, 86 So. 3d 286, 290-94 (Miss. Ct. App. 2012), Justice Maxwell, then

serving on the Court of Appeals and writing for a unanimous court, found that a retrospective

hearing previously ordered by the Court of Appeals and conducted three years after the



                                              15
defendant’s criminal trial, satisfied constitutional due process requirements and the purpose

of Rule 9.06. Id. (citing Hearn v. State, 3 So. 3d 722, 730 (Miss. 2008) (which held that a

Rule 9.06 hearing did not necessarily have to take place as long as “the purposes of Rule 9.06

were satisfied”)).

¶47.   James noted that the Fifth Circuit, “though ‘acutely aware of the hazards connected

with retrospective competency hearings,’ nevertheless ‘has repeatedly sanctioned nunc pro

tunc proceedings where there is sufficient data available to guarantee reliability.’” Id. at 293

(quoting Wheat v. Thigpen, 793 F.2d 621, 630 (5th Cir. 1986)). See also Zapata v. Estelle,

588 F.2d 1017, 1020 (5th Cir. 1979) (“When the trial court does ignore a bona fide doubt as

to the defendant’s competence to stand trial, Pate dictates a nunc pro tunc competency

hearing if a meaningful inquiry into the defendant’s competence can still be had.”)

¶48.   James further noted that a majority of courts now agree that “failure to hold a

competency hearing can be cured retroactively” where sufficient information exists to make

a retrospective hearing meaningful. James, 86 So. 3d at 293 (citing People v. Ary, 51 Cal.

4th 510, 120 Cal. Rptr. 3d 431, 246 P.3d 322, 329 (2011)).

¶49.   We agree with the Court of Appeals. And to the extent Coleman, Smith, and Hollie

are inconsistent with our holding today, they are overruled.

¶50.   Where sufficient information is available to conduct a meaningful hearing to evaluate

retrospectively the defendant’s competence to stand trial, such a hearing does not violate due

process standards. See, e.g., Wheat, 793 F.2d at 630 (“The test for the district court in

determining the question of meaningfulness is whether ‘the quantity and quality of available



                                              16
evidence was adequate to arrive at an assessment that could be labeled as more than mere

speculation.’”) (quoting Bruce v. Estelle, 536 F.2d 1051, 1057 (5th Cir. 1976), cert. denied,

429 U.S. 1053, 97 S. Ct. 767, 50 L. Ed. 2d 770 (1970)). “‘[C]ontemporaneous expert

medical evidence often provides the most useful evidence’ of whether a meaningful

retrospective hearing may be held.” James, 86 So. 3d at 293 (quoting Wheat, 793 F.2d at

630).

¶51.    We also are in accord with the Fifth Circuit that the State should bear the burden of

demonstrating that a meaningful retrospective competency hearing can be conducted. Once

demonstrated, the defendant then bears the burden to prove he or she was “most probably”

incompetent at the time of trial. See, e.g., Bruce, 536 F. 2d at 1059.

        Instant Case

¶52.    Here, the record clearly illustrates that the information available to the trial court for

the retrospective competency hearing in May 2015 was more than adequate. Available and

used at the hearing was the state hospital’s medical report from the competency evaluation

Pitchford submitted to shortly before his trial in February 2006; the two doctors who

performed Pitchford’s evaluation(s); and the transcript from Pitchford’s guilty-plea

proceeding that occurred shortly before trial. The same judge who presided over Pitchford’s

trial had presided over Pitchford’s guilty-plea proceeding, and over the May 2015

retrospective competency hearing.

¶53.    In addition, Pitchford presented his own witnesses, including an expert witness, Dr.

Bailey, who had evaluated Pitchford two days before the 2006 trial and thereafter formulated



                                               17
a report that was never made available to the trial court during the 2006 trial. According to

Dr. Bailey, one of the main reasons he believed Pitchford was not legally competent to stand

trial in February 2006 was based on his review of the transcript from Pitchford’s guilty-plea

hearing.

¶54.   During the guilty-plea hearing, Pitchford indicated that he wanted to speak to his

mother before entering a plea. In Dr. Bailey’s opinion, Pitchford’s “comments about his

mother, were the ones that seemed off balanced that he wanted to talk to his mother rather

than the attorney.” The trial court questioned Dr. Bailey about this as follows:

       [Court]:      “I think he was just wanting to talk to his mama to . . . decide,
                     you know, ‘Mama, what do you think about it?’ Which is that
                     unusual for a life-changing, drastic changing event for
                     somebody to want to talk to a friend or family member?”

       [Dr. Bailey]: “No. It wouldn’t be unusual. It is highly likely that someone
                     would want to speak to a loved one if they are having great
                     difficulty.”

       [Court]:      And, of course, you say you read this guilty – I mean, is there
                     anything in where I, you know, he engages quite fully with the
                     [c]ourt on everything I asked him. He had a show, at least in my
                     book, looked like a pretty rational answer to every question that
                     I was asking about his constitutional rights and about everything
                     concerning the process. So, you know, what is it out of this
                     transcript of this aborted guilty plea that would lead one to think
                     that it reflects that he is not competent?

       [Dr. Bailey]: Well, my testimony is the part about him asking to speak to his
                     mother argues against him being able to work with his attorney?

       [Court]:      But you just said that would be a natural thing for somebody to
                     do to talk to a loved one or family or friend?

       [Dr. Bailey]: That’s true.



                                             18
       [Court]:      So which is it. I mean, it either shows that he was rational
                     wanting to talk to a family member or it shows that he wasn’t
                     but you are saying two different things.

       [Dr. Bailey]: Well, I said I clearly think that his discussion with his lawyer
                     throughout the event on January 19th shows that he is aware of
                     his communications. The lawyer, Carter even said in their [sic]
                     at times when Mr. Pitchford says we haven’t discussed these
                     things or we haven’t discussed these things for a long time. It
                     is very clear that there is a remarkably inconsistent process, a lot
                     of communication, I think throughout the whole process. But,
                     clearly on that day they showed some disagreement about
                     whether they were communicating.

                     Mr. Pitchford’s communication with the [c]ourt do [sic] show
                     that here was some back and forth and he showed he could
                     understand and communicate effectively as you were saying. I
                     am explaining my comment earlier when asked about what I
                     think about him asking to speak to his mother, I think that
                     argues against him having confidence in his lawyer.

       [Court]:      Well, maybe confidence in his lawyer [sic] but confidence in his
                     lawyer and competency to plead guilty or go to trial are
                     drastically different things.

       [Dr. Bailey]: That’s fair.

¶55.   We find no error in the trial court’s decision to reject Dr. Bailey’s testimony with

regard to the guilty-plea proceeding. The transcript from that proceeding fully supports the

trial court’s finding that, even if Pitchford had lacked confidence in his defense counsel at

the time, he nonetheless had a rational understanding of the proceeding(s) against him.

¶56.   We also find no merit in Pitchford’s claim on appeal that the State’s experts “failed

to apply the proper standard for competency.” The 2006 competency evaluation report

clearly found, as already mentioned, that: “Pitchford has the sufficient present ability to

consult with an attorney with a reasonable degree of rational understanding in the preparation

                                              19
of his defense, and that he has a rational as well as a factual understanding of the nature and

object of the legal proceedings against him.”

¶57.   Based on our review of the record, we find no error in the trial court’s conclusion that

Pitchford was competent to stand trial in 2006.

                                      CONCLUSION

¶58.   For these reasons, we affirm the judgment of the circuit court denying Pitchford’s

PCR petition based on the court’s finding that Pitchford was competent to stand trial in

February 2006.

¶59.   POST-CONVICTION RELIEF DENIED.

     WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN
AND ISHEE, JJ., CONCUR. KITCHEN, P.J., CONCURS IN RESULT ONLY WITH
SEPARATE WRITTEN OPINION JOINED BY KING, J.

       KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶60.   With respect, I concur in result only. Without question, Pitchford is procedurally

barred from challenging this Court’s prior order for a retrospective competency hearing. For

that reason, there is no need to consider, let alone to overrule, the well-established holdings

of numerous cases and to overhaul Mississippi’s law governing mental competency

determinations in criminal cases under Uniform Rule of Circuit and County Court Practice

9.06, with the effect of rolling back protections previously afforded criminal defendants.5 I

do agree with the majority’s conclusion that the trial court’s mental competency

       5
        Effective July 1, 2017, this Court adopted new rules governing mental examinations
and competency determinations. See M.R.Cr.P. 12. However, proceedings prior to July 1,
2017, including the instant case, were controlled by Uniform Rule of Circuit and County
Court Practice 9.06.

                                              20
determination was not clearly erroneous, and that the State’s experts applied the proper

standard for mental competence. I would affirm, but for different reasons than those

articulated by the majority.

       A. Pitchford’s challenge to this Court’s prior order for a retrospective
       competency hearing is procedurally barred.

¶61.   This matter commenced when Pitchford filed, in this Court, his application for leave

to proceed in the trial court with a motion for post-conviction relief. See Miss. Code Ann. §

99-39-27 (Rev. 2015). Pitchford made four claims in that application, including (1) that his

constitutional rights had been violated because he was not afforded a mental competency

hearing; (2) that he was deprived of his constitutional right to a fair trial due to racial

discrimination by the State during voir dire; (3) that he received ineffective assistance of

counsel; and (4) that he was denied a fair trial because a juror had concealed material facts

that showed the juror’s bias. In an order entered on February 14, 2013, this Court found that

the second, third, and fourth issues lacked sufficient merit to warrant a hearing. But we found

that Pitchford’s application should be granted regarding the issue concerning the mental

competency hearing. We set forth the following analysis of the issue:

       [T]he record indicates that the trial judge ordered that Pitchford be evaluated
       for competency to stand trial, and that an evaluation took place at the
       Mississippi State Hospital. Pitchford alleges that his counsel appeared before
       the trial court to argue several pending motions including defendant’s motion
       for a continuance; and that – based upon a written report from the Mississippi
       State Hospital – the trial judge decided he was competent to stand trial.
       Pitchford further alleges that his counsel had no prior notice that his
       competency to stand trial would be adjudicated that day. The State does not
       dispute these allegations, and this Court finds no evidence in the record before
       us that notice was provided to the Defendant that his competency to stand trial
       would be adjudicated on the day of the hearing on pending motions.

                                              21
       This Court has held that, when a trial judge has ordered that a defendant be
       evaluated for competency to stand trial, Rule 9.06 of the Uniform Rules of
       Circuit and County Court Practice requires the trial judge to conduct a
       competency hearing. A Defendant is entitled to reasonable prior notice of the
       hearing at which competency to stand trial will be decided, so that the
       defendant will have the opportunity to subpoena witnesses and produce
       additional information for consideration by the trial judge.

Pitchford v. State, No. 2010-DR-01032-SCT (Order of Feb. 14, 2013). In granting

Pitchford’s request for leave to proceed in the trial court on his mental competency issue, we

remanded the matter to the Circuit Court of Grenada County for a hearing to determine

retroactively whether Pitchford had been mentally competent to stand trial during his

February 2006 capital murder trial. We denied his remaining claims.

¶62.   Mississippi Code Section 97-39-27 provides that, in granting an application for leave

to proceed in the trial court with a motion for post-conviction relief, this Court possesses

discretion to “grant or deny all relief requested in the attached motion.” Miss. Code Ann. §

99-39-27(7)(a). We also may permit the filing of the motion in the trial court for further

proceedings. Miss. Code Ann. § 99-39-27(7)(b). The denial of an application is “a final

judgment and shall be a bar to a second or successive application under this article.” Miss.

Code Ann. § 99-39-27(9).

¶63.   The February 14, 2013, order reveals that the Court considered the merits of

Pitchford’s claim regarding the denial of a mental competency hearing and determined that

the appropriate remedy under the particular facts presented was a retrospective competency

hearing. All other relief requested by Pitchford was denied. In 2015, the retrospective

competency hearing occurred, and the trial court entered an order finding that Pitchford had



                                             22
been mentally competent during his 2006 trial and denying the motion for post-conviction

relief. Pitchford has appealed that order, and he now requests that this Court reconsider its

prior order of a retrospective competency hearing. The problem with this request is that the

question of the appropriate relief for the imperfect process in the trial court already has been

resolved, and, absent an exception, it cannot be relitigated. When this Court granted

Pitchford a retrospective mental competency hearing, we necessarily denied his claim that

a new trial was the appropriate remedy for the deficiencies in the trial court proceedings.

Under Section 99-39-27(9), claims that are denied are subject to a bar of successive

pleadings. Thus, Pitchford cannot raise the issue anew, absent an exception to the procedural

bar.

¶64.   Section 99-39-27(9) provides that “excepted from [the bar of successive pleadings]

are those cases in which the prisoner can demonstrate either that there has been an

intervening decision of the Supreme Court of either the State of Mississippi or the United

States that would have actually adversely affected the outcome of his conviction or sentence

. . . .” Miss. Code Ann. § 99-39-27(9). The case of Coleman v. State, 127 So. 3d 161 (Miss.

2013), was decided approximately eight months after our order of February 14, 2013.

Pitchford claims that, because in Coleman, a plurality of this Court repudiated the notion that

a retrospective mental competency hearing could remedy a failure to hold a pretrial

competency hearing, we erred by ordering a retrospective competency hearing in his case.

But because Coleman distinguished the specific facts of Pitchford’s case, Coleman is not

an intervening decision that “would have actually adversely affected the outcome of



                                              23
[Pitchford’s] conviction or sentence.” Coleman first set forth the facts before the Court in

its Pitchford order as follows:

       [I]n Pitchford v. State, 2010–DR–01031–SCT (Order of February 14, 2013),
       this Court ordered a post-trial competency hearing to determine whether the
       defendant had been mentally competent to stand trial. In Pitchford, a capital
       murder case, the trial court granted the defendant a competency hearing, and the
       defendant submitted to a mental examination at the Mississippi State Hospital.
       Pitchford, 2010-DR-01031-SCT. The trial court held a hearing to rule on
       several pending motions as well as competency. Id. Defense counsel was not
       provided notice that Pitchford’s competency to stand trial would be addressed
       at the hearing, and came prepared to argue only the pending motions. Id. Based
       on the written report from the Mississippi State Hospital, the trial court
       determined that Pitchford was mentally competent to stand trial. Id. This Court
       held that “[a] Defendant is entitled to reasonable prior notice of the hearing at
       which competency to stand trial will be decided, so that the defendant will have
       the opportunity to subpoena witnesses and produce additional information for
       consideration by the trial judge.” Id. In order to afford Pitchford’s counsel
       ample time to prepare, we ordered the trial court to conduct a hearing to
       determine whether Pitchford had been mentally competent to stand trial. Id.

Coleman, 127 So. 3d at 165. Then, the plurality distinguished the case from Pitchford,

outlining the important factual differences in the cases as follows:

       [W]e note that the facts and circumstances presented in Pitchford were
       significantly different than those before us in the present case. In Pitchford, the
       trial court held a hearing, but defense counsel was not given notice that mental
       competency to stand trial was to be determined at that time. Pitchford,
       2010–DR–01032–SCT (Order of February 14, 2013). Here, the trial court
       outright denied Coleman a hearing and determined that he somehow had
       waived his right to a competency hearing, despite repeated requests for such a
       proceeding both before and during trial. In Pitchford, the defendant’s
       competence to stand trial was determined based on a written report from the
       Mississippi State Hospital; but here, the trial court based its determination of
       Coleman’s competence to stand trial on a four-page summary report. Pitchford,
       2010–DR–01032–SCT. We found that, under the facts in Pitchford, where the
       trial court held a mental competency hearing but did not give notice to defense
       counsel, a retrospective mental competency hearing was sufficient to guard the
       defendant’s due process rights. Id. On the other hand, under the facts in this
       case, when the trial court simply denied the defendant a hearing, we find that

                                               24
       a retrospective mental competency determination does not adequately protect
       Coleman’s due process rights.

Id. at 167-68.

¶65.   Coleman clearly distinguished the facts in Pitchford, concluding that the due process

concerns inherent in its decision to condemn retrospective mental competency hearings simply

were not present in Pitchford’s case, in which a hearing had occurred but the problem was

lack of notice to the defense. Because Coleman distinguished Pitchford, Coleman was not

an intervening decision that would have affected, adversely or otherwise, the outcome of

Pitchford’s conviction or sentence. There are no grounds for permitting Pitchford to relitigate

the question of whether reversal of his conviction was the appropriate remedy for the

procedural deficiencies in his pretrial mental competency determination, a matter finally

decided by this Court’s order dated February 14, 2013.6

¶66.   Because Pitchford’s argument plainly is procedurally barred, we should not use his

argument as a vehicle for making determinations on when a competency hearing was required

under Rule 9.06 or whether retrospective mental competency hearings should be permissible.

These determinations are completely unnecessary to the resolution of Pitchford’s argument



       6
         Pitchford’s request that we revisit this issue also squarely implicates the law of the
case doctrine. “[A]s a general rule, when an appellate court passes upon a question and
remands the cause for further proceedings, the question there settled becomes the ‘law of the
case’ upon a subsequent appeal, provided the same facts and issues which were determined
in the previous appeal are involved in the second appeal.” Cont’l Turpentine & Rosin Co.
v. Gulf Naval Stores Co., 244 Miss. 465, 480, 142 So. 2d 200, 207 (1962). Under the law of
the case doctrine, our former decision on the question of Pitchford’s entitlement to a remedy
for the procedural defects in his competency determination is conclusive of the question
raised in this appeal after remand.


                                              25
and, in fact, they revisit and redetermine the exact issue already decided by this Court on

February 14, 2013. Therefore, I would, with respect, deem them dicta.7 This Court should find

Pitchford’s argument procedurally barred and then proceed to review his other arguments, in

which he challenges the proceedings at the retrospective competency hearing and the trial

court’s rulings. But because this Court has declared that it is overruling the eight years of case

law that was carefully crafted to protect a criminal defendant’s constitutional right not to be

tried while incompetent, I am compelled to address those decisions.

       B. The plain language of Rule 9.06 required a competency hearing after the
       trial court ordered a mental evaluation.

¶67.   The state and federal constitutions protect a criminal defendant’s due process right

against being tried while mentally incompetent. Pate v. Robinson, 383 U.S. 375, 385, 86 S.

Ct. 836, 15 L. Ed. 2d 815 (1966); Williams v. State, 205 Miss. 515, 524, 39 So. 2d 3, 4 (1949)

(citing Miss. Const. art. 3, § 26). To try or convict a criminal defendant while incompetent

“fundamentally impinges upon his right to a fair trial.” Hollie v. State, 174 So. 3d 824, 830

(Miss. 2015). As this Court has recognized, “[t]he United States Supreme Court has held that

‘the prohibition [against trying or convicting an incompetent defendant] is fundamental to an

adversary system of justice.’” Id. (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct.

896, 43 L. Ed. 2d 103 (1975)). The test for determining competence to stand trial is “whether

       7
        Indeed, the majority finds the issue of whether the trial court had reasonable ground
to order a competency hearing in this case to be moot. Maj. Op. at ¶ 43. Yet the majority
purports to alter the standard applicable to determining when a competency hearing was
mandated by Rule 9.06, in stark contravention of the bedrock principle that this Court must
refrain from adjudicating moot questions because we lack authority to issue advisory
opinions. In re Validation of Tax Anticipation Note, Series 2014, 187 So. 3d 1025, 1032
(Miss. 2016).

                                               26
[a 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.” Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788,

4 L. Ed. 2d 824 (1960). We have held that a competent defendant is one:

       (1) who is able to perceive and understand the nature of the proceedings; (2)
       who is able to rationally communicate with his attorney about the case; (3) who
       is able to recall relevant facts; (4) who is able to testify in his own defense if
       appropriate; and (5) whose ability to satisfy the foregoing criteria is
       commensurate with the severity of the case.

Hollie, 174 So. 3d at 830 (quoting Hearn v. State, 3 So. 3d 722, 728 (Miss. 2008)).

¶68.   Effective May 1, 1995, this Court adopted Uniform Rule of Circuit and County Court

Practice 9.06, which safeguarded the right of criminal defendants against being tried while

mentally incompetent by providing the following procedure:

       If before or during trial the court, of its own motion or upon motion of an
       attorney, has reasonable ground to believe that the defendant is incompetent to
       stand trial, the court shall order the defendant to submit to a mental examination
       by some competent psychiatrist selected by the court in accordance with §
       99-13-11 of the Mississippi Code Annotated of 1972.

       After the examination the court shall conduct a hearing to determine if the
       defendant is competent to stand trial. After hearing all the evidence, the court
       shall weigh the evidence and make a determination of whether the defendant
       is competent to stand trial. If the court finds that the defendant is competent to
       stand trial, then the court shall make the finding a matter of record and the case
       will then proceed to trial. If the court finds that the defendant is incompetent to
       stand trial, then the court shall commit the defendant to the Mississippi State
       Hospital or other appropriate mental health facility.

URCCC 9.06 (emphasis added). Rule 9.06 governs this case because it was the rule in effect

at the time of Pitchford’s trial.




                                               27
¶69.   In Sanders v. State, 9 So. 3d 1132, 1134-35 (Miss. 2009), the trial court had ordered

a mental evaluation of the defendant, but never held a hearing to determine the defendant’s

competence to stand trial. On appeal, Sanders argued that the trial court had erred by failing

to hold a mental competency hearing after it had ordered a mental evaluation. We noted that,

under the United States Constitution, the defendant is denied due process of law if the

evidence raises sufficient doubt as to his ability to stand trial and the trial court does not, on

its own, conduct a separate competency hearing. Id. at 1135 (citing Pate, 383 U.S. 375, 86 S.

Ct. 836). We further noted Pate’s holding that, when sufficient doubt exists as to the

defendant’s mental competence to stand trial, the defendant cannot waive a mental

competency determination by failing to request a hearing. Id. at 1136 (citing Pate, 383 U.S.

at 376-77, 86 S. Ct. 836). Then, we examined the language of Rule 9.06 itself, which plainly

“requires an on-the-record hearing to determine competency once the court has reasonable

ground to believe that the defendant is incompetent.” Sanders, 9 So. 3d at 1136. We

recognized that, because the rule employs the mandatory word shall, not the permissive word

may, “it is evident that it would be error not to hold a competency hearing once a trial court

orders a psychiatric evaluation to determine competency to stand trial.” Id.

¶70.   In Jay v. State, 25 So. 3d 257, 261-62 (Miss. 2009), the defendant filed a motion for

an extension of time, alleging that he had suffered a severe traumatic brain injury. He attached

a physician’s letter to the effect that he was unable to participate in court proceedings. Id. at

262. In response, the trial court ordered a mental evaluation of the defendant. Id. at 262.

Although the report of the mental evaluation was filed two days before the trial, the trial went



                                               28
forward with no on-the-record pretrial determination of Jay’s mental competence to stand

trial. Id. This Court unanimously reversed, holding that Rule 9.06 not only requires that the

trial court order the defendant to undergo a mental evaluation when the trial court has

reasonable ground to believe the defendant is mentally incompetent to stand trial, but that,

after said mental evaluation, “the court shall hold a competency hearing to determine whether

the defendant is competent to stand trial.” Id. We also found that, because the evidence raised

a bona fide doubt as to Jay’s mental competence to stand trial, the failure to hold a

competency hearing violated his constitutional due process rights. Id. at 263.

¶71.    In Beasley v. State, 136 So. 3d 393, 398 (Miss. 2014), this Court again set forth the

firm requirements of Rule 9.06. We said that, “[s]imply put, Rule 9.06 ‘mandates that a

competency hearing be conducted following a court-ordered mental examination.’” Id. But

in Beasley, we found that no reversible error had occurred because the trial court had

complied with Rule 9.06. Id. at 399. The trial court had granted Beasley’s motion for a mental

evaluation on the ground that there was a legitimate issue as to Beasley’s mental competence.

Id. at 398. And after the completion of the mental evaluation, the trial court had held an on-

the-record competency hearing, weighed the evidence, and found Beasley competent to stand

trial. Id. at 399.

¶72.    In Smith v. State, 149 So. 3d 1027, 1030 (Miss. 2014), the trial court ordered that

Smith undergo a mental evaluation, but the mental evaluation never took place. The trial court

never held a competency hearing before accepting Smith’s guilty plea. Id. Smith raised these

deficiencies in a motion for post-conviction relief. Id. at 1029. On appeal, relying on Sanders,



                                              29
we held that “a trial court’s order of a mental evaluation to determine competency under Rule

9.06 means that the trial court had reasonable ground to believe the defendant was

incompetent to stand trial.” Id. at 1033. And according to Rule 9.06, once the trial court orders

a mental evaluation, after the completion of the mental evaluation, “the court shall conduct

a hearing to determine if the defendant is competent to stand trial.” Id. We held that, under

Rule 9.06, “when the trial court has such reasonable ground [to believe the defendant

incompetent to stand trial] a mental evaluation and competency hearing are required.” Id. But

because this Court was unable to determine whether the trial court had ordered the mental

evaluation for the purpose of determining Smith’s mental competence, rather than for some

other reason, we remanded for an evidentiary hearing to ascertain the purpose of the court-

ordered mental evaluation. Id. at 1034-35. We held that “if, after the evidentiary hearing, the

trial court determines that the purpose of the court-ordered mental evaluation was to

determine Smith’s competence to stand trial, Smith’s conviction cannot stand, and Smith must

be either retried or institutionalized following a mental evaluation and competency hearing

under Rule 9.06.” Id. at 1035.

¶73.   This Court revisited this issue in Hollie, 174 So. 3d at 826, in which the trial court had

ordered a mental evaluation, but later accepted Hollie’s guilty plea without making any

determination concerning his mental competence. We reversed, applying our prior holdings

that “[i]n cases like today’s, in which a mental evaluation has been ordered, this Court has

held that this is a per se showing that the trial court had reasonable grounds to believe the

defendant was incompetent to stand trial.” Id. at 830. “As a result, once a mental evaluation



                                               30
is ordered, a competency hearing is mandatory.” Id. We further recognized that a defendant

cannot waive the right to a competency hearing by not objecting to the trial court’s failure to

hold a competency hearing. Id. at 831. Although Hollie was not a majority opinion, six

justices agreed that the failure to hold a mental competency hearing was reversible error.

¶74.   This Court has held that a competency hearing was not required after a court-ordered

mental evaluation as long as “the purposes of Rule 9.06 were satisfied.” In Hearn v. State,

3 So. 3d 722, 730 (Miss. 2008), this Court found that the purposes of Rule 9.06 were satisfied

because one of Hearn’s examining physicians had testified at trial about Hearn’s competence

and was cross-examined by Hearn’s counsel. In those particular circumstances, we held that

the failure to hold a competency hearing after the trial court had ordered a mental evaluation

was not reversible error. Id. Prior to Evans v. State, ___ So. 3d ___, 2017 WL 2592415,

(Miss. June 15, 2017), every case that addressed the issue distinguished Hearn on its facts and

treated Hearn as a narrow exception to the rule. But even in Evans, in which this Court found

that the purposes of Rule 9.06 had been satisfied even though no mental competency hearing

had occurred, this Court did not overrule our holdings that the rule’s plain language requires

that if the trial court orders a mental evaluation, a pretrial mental competency hearing must

follow.

       C. This Court has established that a retrospective competency hearing is not
       an appropriate remedy for the failure to hold a pretrial competency hearing
       when one was required by Rule 9.06.

¶75.   This Court addressed the appropriate remedy for a violation of the competency hearing

requirement of Rule 9.06 in Coleman, 127 So. 3d 161. In Coleman, a plurality of this Court



                                              31
reversed a decision of the Court of Appeals, which had remanded the case for a retrospective

mental competency hearing after finding that the defendant erroneously had been denied a

mental competency hearing by the Lauderdale County Circuit Court. Id. at 162. The plurality

found that a nunc pro tunc mental competency hearing did not adequately protect the

defendant’s due process rights and the procedural guarantees of Rule 9.06, finding:

       Rule 9.06 plainly mandates that the next step after the mental examination has
       occurred is for the trial court to hold a separate competency hearing before trial.
       This simply was not done. A retrospective competency hearing is not mentioned
       or even suggested by Rule 9.06, for the rule clearly specifies that a competency
       determination must occur “before or during trial,” not after trial, conviction,
       and appeal. Thus, such an innovation should not be condoned by this Court. It
       is neither prudent nor permissible for our trial courts, in their implementation
       of Rule 9.06, to deny a timely hearing on the accused person’s mental
       competence to stand trial, to proceed to trial, and then attempt later to remediate
       the omission by conducting an extremely untimely mental competency hearing.

Id. at 168. The plurality found that a failure to follow Rule 9.06 cannot be cured by a

retrospective competency hearing.8 Id. at 168. In Smith and later, in Hollie, a majority of the

Court adopted Coleman’s holding that a retrospective mental competency hearing is not an

adequate remedy for the failure to hold the mental competency hearing required by Rule 9.06,

and that the appropriate remedy is a new trial.

       D. The majority’s decision conflicts with Rule 9.06 and contravenes stare
       decisis.

¶76.   The majority purports to overrule Hollie, Smith, Beasley, Coleman, Jay, and Sanders

with no more explanation than that these decisions posited “a hypertechnical interpretation



       8
         As discussed above, Coleman expressly distinguished the facts of Pitchford,
finding that a retrospective competency hearing had been appropriate to cure the problem
with lack of notice in Pitchford’s case. Coleman, 127 So. 3d at 167.

                                               32
and application of Rule 9.06 that improperly expands the scope and purpose of the rule and

conflicts with Mississippi precedent.” Maj. Op. at ¶ 38. With respect to the majority, it is

abundantly clear that these decisions did nothing more than apply the plain language of Rule

9.06, which provides that, if the trial court has reasonable ground to believe the defendant is

mentally incompetent to stand trial, the trial court shall order a mental evaluation and shall

conduct a mental competency hearing. URCCC 9.06. It is well established that this Court

applies the plain language of a statute or court rule when that language is unambiguous and

leaves no room for interpretation or construction, Coleman v. State, 947 So. 2d 878, 881

(Miss. 2006), therefore, doing so cannot be “hypertechnical.” The language of Rule 9.06 – the

rule applicable to Pitchford – is plain and unambiguous and employs the word shall, which

this Court has held on numerous occasions is a mandatory term. Tunica Cty. v. Hampton Co.

Nat’l Surety LLC, 27 So. 3d 1128, 1134 (Miss. 2009).

¶77.   The majority also finds that these decisions conflict with Mississippi precedent. Maj.

Op. at ¶ 38. Respectfully, these decisions are Mississippi precedent – eight years of

Mississippi precedent that meticulously applied Rule 9.06. That the majority has changed its

collective mind does not signify any precedential conflict. The majority relies on Jaquith v.

Beckwith, 157 So. 2d 403 (Miss. 1963), admittedly a case from “[y]ears ago,” long before the

enactment of Rule 9.06, that held that the trial court’s order for a mental evaluation requires

“some evidential basis.” Maj. Op. at ¶ 39. Then, the majority finds that a trial court is

obligated to hold a mental competency hearing “only ‘where there is sufficient doubt about




                                              33
a defendant’s competence.”9 Maj. Op. at ¶ 40. Thus, the majority jettisons the plain language

of Rule 9.06 and simply would return us to the minimum federal constitutional standard

articulated in Pate, with absolutely no regard for the procedural rule that this Court

thoughtfully and conscientiously promulgated to guarantee the constitutional rights of

criminal defendants not to be tried while mentally incompetent.

¶78.   The majority likewise pivots on retrospective competency hearings, finding that these

hearings, once found to conflict with the requirements of Rule 9.06, now should be permitted

“where there is sufficient data to guarantee reliability” and “a meaningful inquiry into the

defendant’s competence can still be had.” Maj. Op. at ¶ 47. The majority bases this decision

not on our governing case law, but on an opinion from the Mississippi Court of Appeals and

on opinions from the Fifth Circuit Court of Appeals that retrospective mental competency

hearings do not offend due process provided certain requisites are met.

¶79.   In undertaking to overruling Hollie, Smith, Beasley, Coleman, Jay, and Sanders, the

majority reduces the procedural protections heretofore in place to protect criminal defendants

against being tried while incompetent. In its bid to return this Court to pre-Rule 9.06 federal-

only constitutional standards, the majority not only ignores the plain language of Rule 9.06,

but it neglects the fact that this Court is fully empowered to construe our state constitution and

laws to provide greater protections for the rights of the citizenry than those afforded by the



       9
         Under Rule 9.06, a trial court could order a mental evaluation to determine mental
competence to stand trial only when the trial court had reasonable ground to believe the
defendant was incompetent to stand trial. URCCC 9.06. Therefore, logic dictates that if the
trial court ordered a mental evaluation, some basis existed for the court to doubt the
defendant’s competence to stand trial.

                                               34
United States Constitution. Graves v. State, 708 So. 2d 858, 861 (Miss. 1997). This Court

already has determined that, under the plain language of Rule 9.06, the trial court’s order for

a mental evaluation means that the trial court had reasonable ground to doubt the defendant’s

mental competence, triggering the requirement for a hearing. And the Court already has

determined that retrospective mental competency hearings are inadequate to protect the

defendant’s due process rights and the procedural guarantees of Rule 9.06. Coleman, 127 So.

3d at 162; Smith, 149 So. 3d at 1035. The Court has no principled reason to revert to prerule

standards.

¶80.   Another consideration is that the majority’s decision implicates the doctrine of stare

decisis. That doctrine provides “that prior applicable precedent usually must be followed even

though the case, if considered anew, might be decided differently by the current court.” The

trial bench and bar have a right to expect consistent decisions from this Court. United Servs.

Auto. Ass’n v. Stewart, 919 So. 2d 24, 30 (Miss. 2005); Hye v. State, 162 So. 3d 750, 755

(Miss. 2015). We have said that:

       The doctrine of stare decisis is the bedrock of our system of jurisprudence. It
       has given direction and stability to the common law whose precepts constitute
       the larger part of the rules by which we live and are governed. It demands
       definiteness in the law, and that its rules be consistent so that they may be
       known. It has been said to be the most fundamental characteristic of the
       common law as distinguished from other systems.

State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss. 1991) (quoting Laurel Daily

Leader, Inc. v. James, 224 Miss. 654, 681, 80 So. 2d 770, 780-81 (1955) (Gillespie, J.,

Special Opinion)). Although this time-honored doctrine may be overcome if legal reason and

justice so demand, generally courts will depart from prior applicable precedent only “when

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such departure is necessary to avoid the perpetuation of pernicious error.” Hye, 162 So. 3d

at 755; see also Bell v. State, 160 So. 3d 188, 195 (Miss. 2015) (stating that, even though the

current Court may disagree with a previous statutory interpretation, we must continue to apply

it unless we consider it pernicious, impractical, or mischievous in effect).

¶81.   The majority makes no finding that our prior interpretation of Rule 9.06 has resulted

in pernicious error or that legal reason and justice demand a reduction in the process due to

potentially mentally incompetent criminal defendants. In my opinion, one could not so find,

because our prior interpretation of Rule 9.06 assured that a criminal defendant whose mental

competence has been placed in doubt, as evidenced by a trial court order for a mental

evaluation, was afforded the competency hearing necessary to resolve the vital question of

whether the defendant was mentally competent to stand trial. And certainly, a nunc pro tunc

competency hearing, in which the parties must struggle to establish what the defendant’s

mental state was in the distant past, affords far less protection than a timely pretrial

competency hearing. In my opinion, the majority’s decision fails to meet the high burden

required to dispense with our longstanding interpretation of Rule 9.06.

       E. Conclusion

¶82.   Pitchford’s attempt to reargue the question of the appropriate remedy for the procedural

deficiencies in his 2006 pretrial competency determination is procedurally barred because that

issue was finally decided by this Court in its order of February 14, 2013, which remanded the

case for a retrospective competency hearing. Because the issue is procedurally barred, there

is no need to alter, or even to discuss, the law governing mental competency determinations



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under Rule 9.06, and to do so is both imprudent and harmful. Although I condemn the

majority’s attempt to overrule eight years of precedent governing mental competency

determinations under Rule 9.06, I agree with its decision to affirm the outcome of Pitchford’s

retrospective competency hearing, but would do so by a different and less disruptive route.

       KING, J., JOINS THIS OPINION.




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