concurring in part and dissenting in part.
I agree with most of the majority’s opinion in this case; however, I dissent to the majority’s refusal to apply the miscarriage of justice exception to Perkins’s claim that he was mentally incompetent at the time of his trial. Although the habeas court correctly applied this Court’s existing case law, Perkins raises an issue never directly confronted by this Court. Perkins notes that the Eleventh Circuit Court of Appeals treats claims of incompetence at trial as never being subject to procedural default. That court bases its approach on language from the Supreme Court of the United States indicating that “ ‘it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive” his right to have the court determine his capacity to stand trial.’ ” Adams v. Wainwright, 764 F2d 1356, 1359 (II) (A) (1) (11th Cir. 1985) (quoting Pate v. Robinson, 383 U. S. 375, 384 (II) (86 SC 836, 15 LE2d 815) (1966)). See also Johnston v. Singletary, 162 F3d 630, 637 (11th Cir. 1998). Several other federal courts of appeals have also concluded that claims of incompetence that were not asserted at trial should not be subject to procedural default. See Ryan v. Clarke, 387 F3d 785, 791 (III) (8th Cir. 2004) {“Pate stands for the specific proposition that a defendant who fails to raise competency at trial or on direct appeal does not waive his right to raise the issue in post conviction relief proceedings.”); Nguyen v. Reynolds, 131 F3d 1340 (III) (10th Cir. 1997). But see Martinez-Villareal v. Lewis, 80 F3d 1301, 1306-1307 (9th Cir. 1996) (holding that procedural default should apply to claims of incompetence). While I find persuasive these federal courts’ reasons for not treating the issue of incompetence at trial as being subject to procedural default, I would resolve this issue on a similar principle embodied in the Georgia Code and already applied by this Court in a similar situation.
The statute providing generally for procedural default where issues are not raised at trial and on direct appeal also provides as follows: “In all cases habeas corpus relief shall be granted to avoid a miscarriage of justice.” OCGA § 9-14-48 (d). We have applied this provision to cases where a death penalty defendant’s mental retardation was not determined by a jury at trial but where he has succeeded in proving it on habeas corpus. See Turpin v. Hill, 269 Ga. 302 (3) (b) (498 SE2d 52) (1998). In such cases, we have deemed the prohibition on executing the mentally retarded to be such a critical constitutional matter that allowing a waiver thereof would be a miscarriage of justice. Id. Similarly, I would hold now that the right not to be tried while incompetent is such a critical constitutional matter that permitting the waiver of that right by one who was truly incompetent at trial would constitute a miscarriage of justice. A *833defendant who was subjected to trial while incompetent was, in essence, personally absent from the entirety of his or her trial through no fault of his or her own. See Ling v. State, 288 Ga. 299 (1) (702 SE2d 881) (2010). From the perspective of such a defendant, it is as though he or she was never afforded a trial at all. Thus, this situation is not, as the majority asserts, merely a procedural trial irregularity. Instead, it approaches the very absence of a trial. Under such circumstances, the core concerns of the miscarriage of justice exception are clearly implicated.
Decided March 18, 2011. Patrick Hickey, Claire Harrison, Jeffery L. Ertel, for appellant. Thurbert E. Baker, Attorney General, Paula K. Smith, Patricia B. Attaway Burton, Senior Assistant Attorneys General, Richard Tan-gum, Assistant Attorney General, Emily R. Roselli, for appellee.As we did regarding mental retardation, I would hold that the same standard should apply on habeas corpus as would have applied at trial. Turpin, 269 Ga. at 303-304 (4). The standard at trial for claims of incompetence is proof of incompetence by a preponderance of the evidence. See Lewis v. State, 279 Ga. 69, 70 (3) (608 SE2d 602) (2005) (“A defendant bears the burden of establishing incompetency to stand trial by a preponderance of the evidence, and this burden is consistent with principles of due process.”). Because the habeas court has not explicitly applied the standard that I believe we should adopt regarding claims of incompetence at trial, I would remand this matter for consideration of whether Perkins can prove now by a preponderance of the evidence that he was incompetent at the time of trial.
I am authorized to state that Justice Benham joins in this dissent.