Dissenting Opinion
Hunter, J.The majority opinion finds error in the trial court’s failure to order a competency hearing, but defendant’s plea of guilty need not be withdrawn in view of the psychiatric testimony given at the post-conviction hearing. I dissent from that portion of the opinion authorizing a retrospective determination of competency.
The evidence presented to the trial court and that evidence relied upon by the judge in his findings of fact exhibits the *594infirmities in a retrospective determination of competency. Two psychiatrists testified. One of the psychiatrists, Dr. Foster, had never examined petitioner and had never seen him prior to the hearing. His testimony was generally that petitioner could not have been competent at the time of his plea, but, of necessity, was restricted to theoretical answers to hypothetical questions. The other psychiatrist, Dr. Schmitt, had seen petitioner during a period of hospitalization prior to his arrest and had visited him twice while in jail. Dr. Schmitt’s testimony was to the effect that in his opinion petitioner was competent to stand trial despite sociopathic character disorders. The conflict between these opinions was resolved, as would be expected, in favor of the opinion of Dr. Schmitt, who had personally examined petitioner at the time of trial. The petitioner’s proof was hamstrung by a situation existing because of the trial court’s failure to appoint two psychiatrists at the time it had reasonable cause to believe that petitioner may have been suffering from a mental disorder. In addition, the medical records of petitioner’s hospitalization had been destroyed by fire in the interim, hindering petitioner’s cross-examination of Dr. Schmitt and making impossible any certain determination of whether electroshock treatments had been administered to petitioner. Thus, favorable testimony was hindered by the fact that Dr. Foster had not personally examined petitioner. And the unfavorable testimony of Dr. Schmitt, heavily relied upon by the trial judge in his findings of fact, was given grace from effective cross-examination by the loss of evidence.
The procedure authorized by the majority opinion finds no sanction in the statute. It is there stated that the trial court must stop the proceedings and immediately appoint two psychiatrists to examine the defendant and hold a competency hearing. A later determination does not cure this error. As I have stated previously, a retrospective determination of competence invites judicial noncompliance and violates the statu*595tory mandate. Miller v. State, (1976) 264 Ind. 548, 348 N.E.2d 14 (dissenting opinion).
I would reverse and remand.
Note. — Reported at 357 N.E.2d 895.