concurring. Though I agree with the majority’s disposition of this case, I write separately to explain my reasons for doing so and to register my disagreement with portions of the majority’s analysis.
Propositions of Law I and II
Scott’s first two propositions of law address the constitutionality of executing a convict diagnosed with a mental illness such as schizophrenia. Scott contends that “evolving standards of decency” now preclude the execution of a severely mentally ill person. The majority addresses Scott’s constitutional claims on the merits and rejects them. I agree that Scott’s constitutional claims lack merit. But as I noted in my dissent from this court’s allowance of Scott’s discretionary appeal, Scott’s argument on “evolving standards of decency” is not properly before this court. See State v. Scott (2001), 91 Ohio St.3d 1268, 747 N.E.2d 242 (Cook, J., dissenting).
*6On April 10, 2001, Scott filed in the trial court an R.C. 2949.28 “Notice of Apparent Insanity and, in the Alternative, His Motion for a Judicial Determination that It Violates the Ohio and United States Constitutions to Execute a Person with a Diagnosed Severe Mental Illness.” R.C. 2949.28, however, does not provide a proper procedural vehicle by which Scott can challenge the constitutionality of carrying out the execution of a person who has been diagnosed with a severe mental illness such as schizophrenia. Instead, R.C. 2949.28 only provides a vehicle through which a person sentenced to death can contest the execution of that sentence when he or she is insane as defined in R.C. 2949.28(A). The statutory scheme neither provides a movant with the ability to assert alternative constitutional arguments nor empowers the trial court to address such arguments.
But construing the dual nature of Scott’s filing in a light most favorable to him, his alternative motion to declare unconstitutional the Ohio death penalty scheme as applied to severely mentally ill individuals is in truth a petition for postconviction relief. This court has previously held, “Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.” State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131, syllabus. In this instance, Scott in effect argues that his status as a severely mentally ill individual warrants correction of his sentence. And because Scott has previously filed a postconviction relief petition, this court must construe his filing as a successive postconviction relief petition under R.C. 2953.23(A).
R.C. 2953.23(A)(1) provides that “a court may not entertain * * * a second petition or successive petitions * * *” unless “[e]ither of the following applies”:
“(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.
“(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim based on that right.”
Additionally, Scott must also satisfy R.C. 2953.23(A)(2), which precludes consideration of successive petitions unless “[t]he petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but *7for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.” (Emphasis added.)
Scott has failed to satisfy R.C. 2953.23(A)(2) because he does not allege a constitutional error that occurred at trial. Instead, he argues that, because he was diagnosed as schizophrenic following trial, it is unconstitutional to carry out his sentence of death. Scott’s failure to satisfy R.C. 2953.23(A)(2) renders moot any analysis of Scott’s ability to satisfy the (A)(1) factors.
In his jurisdictional memorandum, Scott arguably tried to overcome the (A)(2) procedural hurdle by arguing that evidence of his mental illness was not presented to the jury, thereby “casting] a dark shadow over the death sentence that was imposed.” Scott thus implied that the jury might not have sentenced him to death had it known of his schizophrenia. He makes no such argument in his merit brief.
Even assuming arguendo that Scott’s successive postconviction relief petition satisfies R.C. 2953.23(A)(2) by raising a defect “at the sentencing hearing,” his petition is still procedurally barred for its failure to satisfy R.C. 2953.23(A)(1)(a) or (b). Scott cannot satisfy (A)(1)(a) because he cannot establish that he was “unavoidably prevented” from discovering his schizophrenia. Scott’s own brief admits that “[i]n 1974, one prison doctor noted that Mr. Scott was ‘apparently psychotic and should perhaps be diagnosed as chronic schizophrenic.’ ” And Scott fails to satisfy (A)(1)(b) because he makes no argument that the United States Supreme Court has recognized a new federal or state right that applies retroactively to him. Indeed, Scott seeks a new constitutional rule in this very case, based on what he perceives as “evolving standards of decency” and/or an analogy between his condition and mental retardation.
For the foregoing reasons, it is unnecessary to determine the actual merits of the constitutional arguments raised in Scott’s first two propositions of law.
Proposition of Law III
In his third proposition of law, Scott asserts that (1) the lower court improperly placed the burden of establishing probable cause on him, (2) the court of appeals denied him due process by requiring that he satisfy an unreasonably high standard of probable cause, and (3) he was not afforded a full-fledged statutory inquiry on his competency. Scott also attacks R.C. 2949.28 and 2949.29 as being “void for vagueness” because the statutes do not define “probable cause,” do not assign the burden of establishing probable cause, and fail to assign the burden of proving insanity. Each of these claims fails. Scott’s attacks on the R.C. 2949.28 probable cause determination are predicated upon a misinterpretation of the statute. And Scott cannot attack R.C. 2949.29’s allocation of the burden of proving insanity because he never reached a proceeding under that statute.
*8Scott fails to recognize that “probable cause” is a term of art. As early as 1813, the United States Supreme Court noted that “the term ‘probable cause’ * * * has a fixed and well known meaning.” Locke v. United States (1813), 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364, 367. A finding of probable cause requires more than a mere suspicion of guilt but less evidence than that required to sustain a conviction. See Brinegar v. United States (1949), 338 U.S. 160, 175, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879, 1890. See, also, Melanowski v. Judy (1921), 102 Ohio St. 153, 156, 131 N.E. 360, 361, citing Ash v. Marlow (1851), 20 Ohio 119, 1851 WL 16, paragraph one of the syllabus (defining probable cause as “[a] reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged”). More recently, we stated that probable cause is “a term that has been defined as ‘ “a reasonable ground for belief of guilt.” ’ ” State v. Moore (2000), 90 Ohio St.3d 47, 49, 734 N.E.2d 804, 807, quoting Carroll v. United States (1925), 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555.
In rejecting Scott’s arguments concerning the burdens under R.C. 2949.28 (probable cause determination) and 2949.29 (insanity inquiry), the majority relies in part on R.C. 2949.29(C). This provision states, “In all proceedings under this section, the convict is presumed not to be insane, and the court shall find that the convict is not insane unless the court finds by a preponderance of the evidence that the convict is insane.” The majority appears to interpret this provision as placing the burden of proof on the defense throughout all stages of competency to be executed proceedings.
But this conclusion ignores both the scope of the statute and the nature of a probable cause determination. By its own terms, R.C. 2949.29(C) applies only to proceedings “under this section.” (Emphasis added.) The statutory section that “this section” refers to is R.C. 2949.29, not R.C. 2949.28. The latter statute serves a gatekeeping function; it is only after the court determines that there is probable cause to believe that the convict is insane — as insanity is defined in R.C. 2949.28(A) — that R.C. 2949.29 becomes relevant. In the absence of probable cause to believe that the convict is insane, the presumption of sanity and the burden of proof required by R.C. 2949.29 never apply.
The majority’s interpretation is logically inconsistent, because R.C. 2949.28 provides for a probable cause determination. Such a proceeding requires the production of sufficient evidence to establish that there is reason to believe that the convict is insane. This differs from requiring actual proof that the convict is insane. No probable cause determination in any area of the law equates to actual proof of the issue involved. We do not, for example, deem a juvenile defendant’s guilt conclusively proved following transfer from a juvenile court, even though *9bindover requires that the juvenile court found probable cause to exist. Rather, transfer occurs because there is reason to believe that the juvenile committed the alleged acts. See Juv.R. 30. Following transfer, the state must still prove that the defendant committed such acts. Similarly, a law enforcement officer seeking issuance of a search warrant need not establish, by any quantum of proof, that contraband is actually located at the place to be searched. The officer merely bears the burden of presenting sufficient facts from which a neutral magistrate could conclude that “ ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” State v. George (1989), 45 Ohio St.3d 325, 329, 544 N.E.2d 640, 644, quoting Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. Nothing in R.C. 2949.28 dictates that the probable cause determination under that section should operate differently.
The majority’s interpretation is flawed because R.C. 2949.29(C) is written in the conjunctive. That is, that statute’s presumption of sanity and preponderance-of-the-evidence requirement apply together. By attaching the presumption of sanity to an R.C. 2949.28 proceeding, the majority also attaches the corollary burden of proof. But R.C. 2949.28 imposes only the burden of producing credible evidence to establish probable cause, not the burden of proving insanity by a preponderance of the evidence. The majority erroneously blurs the line between two distinct proceedings. The requirements of R.C. 2949.29 are relevant only once the convict satisfies the requirements of R.C. 2949.28. Otherwise, the statutory scheme would require a convict to demonstrate that there is probable cause to believe that he or she is insane, while at the same time proving by a preponderance of the evidence that he or she is insane. The statutory scheme does not provide for such an inconsistent approach, and the majority should not interpret it in a manner that would create such a logistical and procedural — as well as constitutional — mess.
Scott never satisfied the R.C. 2949.28 requirement of establishing probable cause to believe that he is insane. Thus, a full statutory inquiry on Scott’s competency was never required. Nonetheless, the majority proceeds to address whether the statutory placement of the burden of proof at an R.C. 2949.29 hearing is constitutional. But there could be no error in this case, much less reversible error, predicated on an R.C. 2949.29 hearing, because there was no R.C. 2949.29 hearing here. The majority therefore reaches and resolves an issue that is not presented by this case.
With the foregoing reservations, I concur in the judgment of affirmance.