Dissenting.
With a profound sense of deja vu,1 I write separately to express my opinion that the trial court erred when it conducted a pretrial competency hearing in Appellant’s absence without ascertaining whether Appellant himself knowingly, vol*23untarily, and intelligently waived his right to appear.
First, I wish to emphasize that it is beyond dispute that a pretrial competency hearing is a “critical stage of the trial”2 at which a defendant has the right to be present. In my opinion, the process of defining the source and scope of a defendant’s right to be present at pretrial competency hearings illustrates the fallacy in the majority’s conclusion that a third party can waive this right. Authority from other jurisdictions interpreting the United States Constitution3 as well as Kentucky precedent interpreting our own Constitution strongly support the view that defendants have a personal right to be present at pretrial competency hearings. Our predecessor Court held in Hill v. Commonwealth4 that Kentucky Constitution § 11 entitles defendants to be present at all evidentiary hearings:
We believe the procedure as used here violates the rights of the accused set out in Section 11 of the Constitution of Kentucky. Anytime a trial court conducts an evidentiary hearing for the purpose of ascertaining facts upon which it is to base a ruling, certainly all parties have the fundamental right to be present and to cross-examine the witnesses.5
In Conley v. Commonwealth,6 Appellant claimed an entitlement to RCr 11.42 relief because the trial court failed to conduct a hearing on the defendant’s competency to stand trial. The Court of Appeals denied relief on preservation grounds,7 but noted, “[i]t is true that when such ‘hearings’ are conducted, the accused has the right to be present and to cross-examine the witnesses.” 8
The potential consequences that stem from a trial court’s’ruling as to a defendant’s competency to stand trial further support the conclusion that a defendant has a constitutional right to be present at those proceedings. Due process guarantees require the defendant’s presence whenever “important decisions are being made relating to one’s liberty.”9 For example, Section Eleven of the Kentucky Constitution guarantees the respondent the right to be present for a quasi-criminal “lunacy inquest.”10 Pretrial competency hearings involve the same interests and a ruling on a defendant’s competency to stand trial necessarily constitutes an “im*24portant decision.” If the trial court finds the defendant is competent to stand trial, he or she faces the possibility of criminal punishments.11 If, however, the trial court finds the defendant is not competent to stand trial, that finding automatically results in a loss of liberty because the trial court must either order a sixty day commitment or conduct an involuntary hospitalization proceeding.12
With the understanding that defendants have the right to be present at competency hearings, the issue before the Court thus becomes whether Appellant waived his right to be present at the pretrial competency hearing conducted in his case. The only “waiver” reflected in the record came from Appellant’s counsel upon inquiry by the trial court as to Appellant’s absence:
Trial Court: The other thing is, is Mr. Fugate here?
Defense Counsel: No, sir, Your Honor.
Trial Court: Okay — you will waive his presence then, with regard to this hearing?
Defense Counsel: Yes, sir, I would have to waive his presence, at this time.
Trial Court: Alright.
Defense Counsel: In my opinion, it would endanger him to try to move him. It would certainly place him in a great deal of pain, to try to move him over here for this hearing.
Trial Court: Okay.
Defense Counsel: That’s just my opinion. That’s my call. So, yes, I will go on the record — I will waive his presence at this hearing.
Trial Court: Okay — the Commonwealth doesn’t have any problem with that?
Commonwealth: Not as long as it’s a knowing and equivocal — a knowing and unequivocal waiver by counsel.
Trial Court: Okay — I would say that since Mr. Campbell [defense counsel] said it’s known and—
Commonwealth: That’s fine.
Trial Court: Okay — let’s take a ten minute break, and then, we will proceed.
Although the majority maintains that Appellant does not contest his attorney’s explanations,13 counsel’s own words — “In my opinion” and “That’s just my opinion. That’s my call” — belie the contention that counsel’s “waiver” followed consultation *25with Appellant, and there is certainly no indication from the record that Appellant’s counsel purported to communicate Appellant’s own wishes or that he spoke with Appellant’s authorization when he waived Appellant’s right. Further, in his brief, Appellant specifically disputes both (1) that he participated in the decision to waive his right to be present and; (2) his attorney’s medical necessity rationalization:
In the present case, there is no suggestion that Appellant personally waived his presence at the competency hearing and the telephone deposition, or that he even knew that the proceedings were taking place. While acting out of concern for Appellant’s medical condition, defense counsel made it clear that it was simply his personal opinion that it would be dangerous and painful for Appellant to be brought to the hearing.
Finally, I find it significant that, even during the competency hearing itself, where Appellant’s physicians testified, Appellant’s trial counsel did not introduce evidence to support his prior assertion that Appellant was physically incapable of being present.
I believe Fugate’s counsel’s unilateral waiver of Fugate’s presence at the pretrial competency hearing was ineffective. Several United States Courts of Appeal have found waivers by counsel of a defendant’s right to be present for trial proceedings ineffective,14 and I agree with the United States Court of Appeals for the D.C. Circuit that trial courts should obtain such waivers from defendants in open court and on the record:
On the subject of waiver, ‘It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ This means that where the defendant is available, ‘the serious and weighty responsibility’ of determining whether he wants to waive a constitutional right requires that he be brought before the court, advised of that right, and then permitted to make ‘an intelligent and competent waiver.’ This has been the uniform practice. In the District Court here waivers by defendants of the constitutional rights to indictment and to trial by jury are taken in open court in writing, signed by the defendant personally on forms prescribed for the purpose. Since the right to be present at trial is ‘scarcely less important to the accused than the right of trial itself,’ some such procedure is certainly indicated before a trial judge can determine whether the defendant has made an intelligent and competent waiver. At least an on-the-record statement in open court by the defendant *26himself should be required.15
While I recognize that such a procedure may delay court proceedings in some cases, “in its absence it is difficult, if not impossible, to determine whether the defendant has knowingly and intelligently relinquished a known right,”16 and, “[t]he slight additional burden on the criminal justice process wrought by a personal waiver requirement is more than offset by avoidance of lengthy appeals to determine whether the defendant’s right to presence has been violated.”17 I find the logistical concerns raised by the Commonwealth18 outweighed by the necessity of an accurate determination of whether a defendant knowingly and voluntarily wishes to waive his right to appear.
Although the majority is correct that a majority of this court has never held that a waiver by counsel is ineffective, the plurality opinion in Dean v. Commonwealth,19 is squarely on point and recognizes that only the defendant him or herself can waive this right:
We hold that because the right to be present and to confront is personal to the accused under Section 11 of the Kentucky Constitution ... only the defendant can waive this right. The waiver must be sufficiently clear “as to indicate a conscious intent.” In the case at bar, appellant’s counsel waived appellant’s right to be present at the depositions of the two prosecution witnesses. There is no indication in the record that it was appellant’s conscious intent to waive this right and his consequent right to cross-examination. Counsel’s waiver being ineffective, there was no waiver.20
I recognize that Dean is not binding precedent because the view expressed in Dean did not represent a majority of the Court, and I do not claim that stare decisis requires this Court to follow Dean today. However, I find the reasoning in Dean not just persuasive, but compelling, and I note that today’s majority makes no serious attempt to refute the merits of the conclusions reached by the Dean majority.
In contrast, I am not at all persuaded by the majority’s conclusion that this Court authorized waivers by counsel in situations like the one before us in Richmond v. Commonwealth.21 In Richmond, the Commonwealth’s Attorney, defense counsel, and the trial judge made arrangements *27to take the deposition of the defendant’s wife, who was a reluctant witness for the Commonwealth in a cocaine trafficking case.22 The trial judge overruled defense counsel’s objection to the deposition testimony, and the parties took the deposition in the defendant’s absence.23 The Richmond majority implies that the defendant was advised in open court that the parties would take his wife’s deposition, and this Court held that he had waived his right to be present by not appearing: “... obviously his absence was by choice. He could have been there. It is our opinion that he waived the right of confrontation.”24
I find it difficult to find the Richmond holding applicable to the facts of this ease. First, defense counsel in Richmond did not attempt to waive his client’s appearance, and the issue before us in this case was not presented in Richmond. Second, despite the majority’s best efforts to characterize Appellant’s absence at the hearing as a “voluntary exclusion,” there is no evidence in the record that Appellant’s absence at the hearing was an intentional failure to appear. In fact, all of the evidence points to an opposite conclusion. As a result of the automobile accident which led to the charges against him, Appellant suffered a severed spinal cord injury which left him without the ability to walk. Appellant attended none of the pretrial proceedings. During the competency hearing itself, Appellant was a non-ambulatory medicated nursing home patient who could not transport himself to the hearing. It is a mistake for the majority to equate Appellant’s attorney’s decision to waive his client’s presence with Richmond’s deliberate no-show, and the majority opinion adopts mutually exclusive positions when, on the one hand, it concludes that Appellant was physically incapable of attending the hearing, but also characterizes Appellant’s absence as a “voluntary exclusion.” In any event, Appellant’s convalescence restricted his autonomy in a manner tantamount to incarceration and, ordinarily, courts have given special scrutiny to waiver claims in similar situations.25
Clearly, this error would not warrant reversal if harmless.26 Because of the constitutional nature of this error, however, the Commonwealth bears the burden of proving it harmless beyond a reasonable doubt.27 After reviewing the testimony at the competency hearing, I do not believe the Commonwealth has satisfied this burden, and I cannot agree with the majority’s analysis that Appellant’s presence could only have contributed to the trial court’s finding of competency. Specifically, I believe Appellant’s involuntary absence from the competency hearing raises questions regarding the integrity of the process. As was the case in Dean:
... [The Commonwealth’s expert’s] testimony ... that appellant may have had a history of malingering in psychological and intelligence testing was particularly damaging to the defense.
*28[This] testimony ... played a significant role in the overall weight of the evidence against Dean. It is impossible to predict with certainty what effect recognition of the appellant’s right to be present and to confront these witnesses during their live testimony would have had in the outcome of the case. We cannot find the error harmless.28
Accordingly, I dissent from the majority opinion and I would remand the case to the trial court, as this Court has recently done in Thompson v. Commonwealth,29 for the trial court to determine the practicality of conducting a retrospective competency hearing — with Appellant present this time, unless he personally waives his right to attend — and to either conduct a competency hearing or order a new trial.30 If the trial court found that a retrospective competency hearing is practicable at this date, and further found following that evidentia-ry hearing that Appellant was competent to stand trial in 1998, the convictions should stand. If, however, the trial court found that Appellant was not competent to stand trial in 1998, it should vacate the convictions, and Appellant would be subject to retrial if now competent.
STUMBO, J., joins this dissent.
. Approximately two (2) years ago, on November 18, 1999, this Court rendered an unpublished opinion in this case that, just like today’s majority opinion, affirmed the trial court's judgment. I dissented then on the same grounds I dissent today, and I was joined in dissent by two (2) of my colleagues. On February 24, 2000, the Court unanimously granted Appellant's Petition for Rehearing and withdrew its original opinion. On September 20, 2000, the parties orally argued the case before the Court. Today, we again affirm the trial court. The passage of time has not changed my opinion in this case.
. RCr 8.28.
. See Sturgis v. Goldsmith, 796 F.2d 1103, 1108 (9th Cir.1986), cert, denied, 508 U.S. 918, 113 S.Ct. 2362, 124 L.Ed.2d 269 (1993):
A competency hearing is intricately linked to the fullness of a defendant’s ability to defend against the charge. Its function is to ensure that no defendant is subjected to trial if his "mental condition is such that he 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.” Recognizing the constitutional dimensions of the competency hearing is not a novel undertaking.
(citations omitted); United States v. Barfield, 969 F.2d 1554, 1556 (4th Cir.1992); United States v. Swanson, 572 F.2d 523, 526 n. 3 (1978), cert, denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978); White v. State, 990 P.2d 253, 264-5 (Okla.Crim.App.1999).
. Ky., 474 S.W.2d 99 (1971).
. Id at 99.
. Ky.App., 569 S.W.2d 682 (1978).
. Mat 685.
. Id. (citations deleted).
. Franklin v. Commonwealth, Ky., 490 S.W.2d 148, 150 (1972).
. Denton v. Commonwealth, 383 S.W.2d 681, 683 (1964). "Lunacy inquests” are now called "Involuntary Hospitalization of the Mentally III” and governed by KRS Chapter 202A.
. KRS 504.110(3) ("If the court finds the defendant competent to stand trial, the court shall continue the proceedings against the defendant.”).
. See KRS 504.110:
(1) If the court finds the defendant incompetent to stand trial but there is a substantial probability he will attain competency in the foreseeable future, it shall commit the defendant to a treatment facility or a forensic psychiatric facility and order him to submit to treatment for sixty (60) days or until the psychologist or psychiatrist treating him finds him competent, whichever occurs first, except that if the defendant is charged with a felony, he shall be committed to a forensic psychiatric facility unless the secretary of the Cabinet for Health Services or the secretary’s designee determines that the defendant shall be treated in another Cabinet for Health Services facility. Within ten (10) days of that time, the court shall hold another hearing to determine whether or not the defendant is competent to stand trial.
(2) If the court finds the defendant incompetent to stand trial but there is no substantial probability he will attain competency in the foreseeable future, it shall conduct an involuntary hospitalization proceeding under KRS Chapter 202A or 202B.
(emphasis added).
.Majority Opinion at 62 S.W.3d 15, 18 (2001) (“Appellant does not contest the accuracy of this statement and does not claim that his attorney was acting without authorization.”).
. See Proffitt v. Wainwright, 706 F.2d 311, 312 (11th Cir.1983). cert. denied, 464 U.S. 1002, 1003, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983) (competency hearing); Larson v. Tansy, 911 F.2d 392, 396 (10th Cir.1990) (jury instructions, summations, and verdict); United States v. Gordon, 829 F.2d 119, 125 (D.C.Cir.1987) (voir dire and impaneling of jury); Cross v. United States, 325 F.2d 629, 632-33 (D.C.Cir.1963). While a minority of federal courts have allowed a defendant’s counsel to waive his client’s right of presence, they have done so only where the evidence demonstrates that counsel consulted with the defendant prior to the waiver. See Wilson v. Harris, 595 F.2d 101, 104 (2nd Cir.1979); United States v. Dunlap, 577 F.2d 867, 868 (4th Cir.1978), cert. denied, 439 U.S. 858, 99 S.Ct. 174, 58 L.Ed.2d 166 (1978).
. Cross v. United States, supra note 14 at 632-633. See also United States v. Gordon, supra note 14 at 125 ("[I]t is clear that rather than permitting defense counsel to waive Gordon's right to presence, the court should have held an on-the-record hearing to advise Gordon of his right to be present at voir dire and obtained a personal waiver in open court.”).
. United States v. Gordon, supra note 14 at 126.
. Id. at 125.
. While, the Commonwealth argues we should provide an exception for cases in which counsel waives the defendant’s presence out of concerns for the defendant’s physical well-being and where the defendant is physically unable to attend the hearing, we believe such an exception would replicate the uncertainty of any waiver by counsel. In cases where counsel alleges that the defendant is physically unable to attend the hearing, trial courts should convene at a location convenient to the defendant and within the trial court's territorial jurisdiction, see Wol-fenbarger v. Commonwealth, Ky.App., 936 S.W.2d 770, 773 (1996), for the purpose of determining, on the record, whether the defendant wishes to waive his right to appear. At a minimum, the trial court should conduct a recorded telephone conference to determine and establish a record of the defendant’s wishes.
. Ky., 777 S.W.2d 900 (1989).
. Id. at 903 (citations omitted).
. Ky., 637 S.W.2d 642 (1982).
. Id. at 644.
. Id.
. Id. at 646.
. See United States v. Gordon, supra note 14 at 125 ("The practice of obtaining open court waivers is, as we have noted, particularly warranted in cases like this where the defendant is not out on bail, but remains in custody and readily available to the court.”); Id. n. 7 ("The distinction between custodial and noncustodial defendants is an important one.”); Larson v. Tansy, supra note 14 at 397 ("[I]t is certainly more difficult to establish that a defendant in custody has waived his right to be present.”).
. See RCr 9.24.
. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Dean v. Commonwealth, supra note 19 at 903.
. Ky., 50 S.W.3d 204 (2001).
. Id. at 208:
The trial court shall determine whether a retrospective competency hearing is permissible and, if necessary, conduct a competency hearing within 120 days from the entry of this Opinion and Order. If the trial court rules that a competency hearing is not possible, or if it determines that Thompson was not competent ... it shall enter an order granting a new trial pursuant to RCr 10.02. And, of course, Thompson shall not be retried until the trial court finds him competent to stand trial. If the trial court determines that a retrospective competency hearing is warranted, and further finds that Thompson was competent ... then it shall make findings of fact in support of this conclusion in its order, which shall be ap-pealable by Thompson.