Dissenting opinion by
Justice WINTERSHEIMER.I must respectfully dissent from the majority opinion because Skaggs is not entitled to retroactive application of the mental retardation exception. The statute in question directly specifies that it is not to be applied retroactively. KRS 532.140.
In 1981, Skaggs robbed and brutally murdered an elderly couple in their home/ place of business. He repeatedly confessed to police as well as on the witness stand. There is no reasonable question as to his guilt and the crimes committed certainly qualify for the death penalty. Twenty-four years have passed since the commission of the two murders. The defense involving mental retardation was first presented approximately twelve years after he was sentenced to death. This new theory of a retardation defense was intertwined with an ineffective counsel claim which has been previously rejected by this Court on two occasions.
The post-trial retardation defense is based on examinations and tests paid for by the Department of Public Advocacy more than ten years after the initial trial. It first appeared in a third motion by Skaggs for a new trial, which was in fact the fifth collateral attack beyond his direct appeal in state court. The reports by the new experts were stapled to the motion. That motion was denied and another appeal ensued. This Court affirmed the order of the circuit court denying the motion because the claim by Skaggs was without merit.
KRS 532.140(3) provides that “the provisions of KRS 532.135 and 532.140 shall apply only to trials commenced after July 13,1990.” KRS 532.135 contemplates that the mental retardation exemption is to be a pretrial determination. Subsection 1 of that statute requires at least 30 days notice “before trial” of the intent to prove retardation. Section 2 requires the trial judge to resolve such a claim at least ten days “before the beginning of the trial.” Subsection 4 refers to this as a “pretrial determination.” Skaggs’ trial commenced on February 22, 1982. He was found guilty on all counts and a 20-year sentence was imposed for the burglary and on each of the robberies, but the jury could not agree on the punishment for the two murders. In June 1982, the sentencing hear*56ing before a new jury resulted in Skaggs receiving the death penalty for each of the murders.
A three-judge panel of the Sixth Circuit reversed this Court’s unanimous decision on the merits of the new retardation defense presented by Skaggs. The Sixth Circuit vacated the 1982 death sentences and remanded the case for resentencing. Skaggs v. Parker, 235 F.3d 261 (6th Cir.2000). Following a third capital sentencing phase, Skaggs was again sentenced to death for both murders.
The April 2002 resentencing was actually a resumption of his 1982 trial, not the commencement of it. It was only a partial resentencing in view of the fact that even the Sixth Circuit allowed the burglary and robbery sentences to be imposed without comment.
Commonwealth v. Eldred, 973 S.W.2d 43 (Ky.1998), referred to a capital sentencing proceeding, that is, a capital penalty phase, as a trial-like proceeding. Eldred, supra, also recognized that a capital murder defendant whose jury spares his life despite the finding of an aggravating circumstance is not acquitted of the death penalty. Sentencing is a distinctly different and less rigid process than the guilty/not guilty election which precedes it.
Any criminal defendant must await sentencing and entry of a final judgment before he can appeal a jury’s verdict of guilt. Appeals are only permitted from final judgments. This decision by the Sixth Circuit panel in Skaggs, supra, returned the defendant to the position he had occupied immediately prior to the second 1982 sentencing. As noted by this Court in the unpublished decision in Skaggs v. Commonwealth, 1994-SC-0393-MR (1995), his trial was begun on February 23, 1982, and therefore his claim that the death penalty was precluded based on his alleged mental retardation was without merit. It should be clear that the mental retardation exception statute does not apply.
A review of the record in this case demonstrates that the mere claim of mental retardation does not automatically trigger the death penalty exemption statute. Even a brief review of the evidence reveals that Skaggs admits that “Dr. Ravani’s report specifically states that ‘no signs of mental retardation were present.’ ” Skaggs’ brief concedes that psychologist Engum “did not give Skaggs any intelligence tests, but relied upon Yonts’ results.” Yonts, the defense psychologist, was inconclusive, indicating that the assessment of the intellectual functioning of Skaggs does not indicate clearly whether he has mental retardation. Skaggs admits in several places in his brief that the defense expert Yonts could reach no further than to suggest that he was “mildly mentally retarded” or “borderline mentally retarded” despite the I.Q. being above 70. It is also of interest to note that K.C.P.C. psychologist Dr. Stephen Free found that Skaggs was malingering and did not find that he was mentally retarded at all.
Any reliance on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), is misplaced. Atkins, supra, observed that “not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.”
The majority takes refuge in Thompson v. Commonwealth, 56 S.W.3d 406 (Ky.2001), in which this Court ordered a retrospective competency hearing. In that case, the trial judge had reasonable grounds to believe the defendant was incompetent to plead guilty and thus a competency hearing was needed. The majority also concluded that a retrospective hearing may be permissible under due pro*57cess depending on the facts of a particular case. This case is different.
A careful review of this case clearly indicates that the trial judge was not in error when he declined to entertain additional competency challenges. The facts of each case must control the result produced by this or any court. The standard of review regarding whether a competency hearing is required is whether a reasonable judge should have expressed some doubt with regard to competency. That is clearly not the case in this situation. It is unfortunate that this Court would mechanically apply the Thompson result here. Obviously, this Court is substituting its own version of the evidence for that of the trial judge. Therefore, I cannot agree.
Surely the family and friends of the two victims are entitled to some consideration as to the closure of these grisly and senseless murders — 24 years have passed. The legal process afforded the convicted killer has been much more than due.