State v. Mills

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Mills, Slip Opinion No. 2023-Ohio-4716.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2023-OHIO-4716
THE STATE OF OHIO, APPELLEE, v. MILLS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Mills, Slip Opinion No. 2023-Ohio-4716.]
Criminal law—R.C. 2945.37(G)—Competency of the accused—A trial court’s
error in failing to hold a mandatory competency hearing is harmless when
the record, taken as a whole, fails to demonstrate sufficient indicia of
incompetency—Court of appeals’ judgment affirmed.
(No. 2022-0779—Submitted April 5, 2023—Decided December 28, 2023.)
APPEAL from the Court of Appeals for Lucas County,
No. L-20-1084, 2022-Ohio-969.
__________________
DEWINE, J., announcing the judgment of the court.
{¶ 1} This is an appeal of criminal convictions. In the trial court, the
defendant’s attorney asked for an assessment of the defendant’s competency to
stand trial. But after a competency evaluation was scheduled, the defendant refused
to be transported to the treatment center where the examination was to take place.
 SUPREME COURT OF OHIO

The matter proceeded to trial without a competency hearing and the defendant was
convicted.
{¶ 2} The Sixth District Court of Appeals concluded that the trial court had
erred by not holding a competency hearing. 2022-Ohio-969, ¶ 27. But it held that
the error was harmless because the record failed to reveal sufficient indicia of
incompetency. Id.
{¶ 3} The defendant asks that we revisit our prior precedent on the
harmless-error standard for trial-court errors involving the failure to hold a
mandatory competency hearing. We decline to do so. We reaffirm our traditional
standard that a trial court’s failure to hold a mandatory competency hearing is
harmless when the record, taken as a whole, fails to reveal sufficient indicia of
incompetency. Applying this standard, we affirm the decision of the court of
appeals.
I. A Trial, a Conviction, and an Appeal
{¶ 4} In July 2019, Miguel Mills was charged with two felonies for firing a
gun at a car that was stopped at an intersection. A trial date was initially set for
October 2019, but it was continued once so that Mills could consider a plea offer
by the state and a second time so that the trial court could accommodate other cases
on its docket. To Mills’s frustration, his trial did not begin until December 2019.
{¶ 5} A couple weeks after the trial was continued the second time, Mills’s
attorney filed a “motion for competency and general mental health assessment.” In
support of this request, Mills’s attorney said that Mills’s mental stability since being
detained was in a “downward spiral,” rendering counsel unable to have a coherent
conversation with Mills regarding the evidence against him, trial tactics, or the
state’s plea offer. The attorney also said that during three previous meetings,
corrections officers had to be called to the meeting room because of Mills becoming
“verbally violent and physically telegraphing potential violence.” This behavior
occurred, the attorney explained, whenever he was not “in complete agreement with

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[Mills’s] predetermined position * * * on even the smallest issues concerning the
proceeding in court or his defense.”
{¶ 6} In response to the motion, the trial court referred Mills for a general
psychological evaluation. But when the time came for Mills to be transported to
the treatment center for the examination, he refused to go. The evaluation was
never rescheduled. Mills’s attorney did not raise the matter further and the case
proceeded to trial. A jury ultimately found Mills guilty of both felonies, and the
trial court imposed a prison sentence.
{¶ 7} Mills appealed to the Sixth District. He argued, among other things,
that the trial court committed reversible error by failing to hold a competency
hearing. See 2022-Ohio-969 at ¶ 2. The Sixth District overruled that assignment
of error and affirmed Mills’s convictions. Id. at ¶ 27-28, 56. It noted that
R.C. 2945.37(B) requires a competency hearing when the issue of the defendant’s
competency is raised prior to trial, but it held that the trial court’s failure to conduct
such a hearing was harmless error. 2022-Ohio-969 at ¶ 13-14, 27-28. Applying
the standard that this court announced in State v. Bock, 28 Ohio St.3d 108, 502
N.E.2d 1016 (1986), the court of appeals explained that a trial court’s failure to
hold a mandatory competency hearing is harmless error when the record fails to
reveal “sufficient indicia of incompetency.” 2022-Ohio-969 at ¶ 27. It determined
that Mills’s behavior, “while aggressive, hostile, and disruptive, [was] not sufficient
indicia of mental incompetency.” Id. at ¶ 24. The court further explained that “the
record contains evidence of [Mills’s] capability of understanding the charges
against him and of assisting his counsel.” Id. at ¶ 27.
{¶ 8} Mills appealed, and we accepted jurisdiction over two propositions of
law. See 167 Ohio St.3d 1482, 2022-Ohio-2765, 192 N.E.3d 510. In the first, Mills
asserts that “[a]n appellate court considering whether a record on appeal contains
‘sufficient indicia of incompetence’ to trigger a constitutional competency hearing
must review that record only for reasonable doubt * * * of the appellant’s

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incompetence in [the] lower-court proceedings.” His second proposition posits: “A
defendant cannot waive the issue of competency on a silent record.”
II. The Trial Court’s Failure to Hold a Competency Hearing Was Harmless
Error
{¶ 9} Mills presents this appeal as a legal challenge to the harmless-error
standard applied by the court of appeals. He asks us to create a standard that would
require an appellate court to examine the record for “reasonable doubt * * * of the
[defendant’s] incompetence in lower-court proceedings.” We decline to do so and
instead adhere to our precedent. Applying that precedent, we find no error in the
court of appeals’ determination that the trial court’s error in failing to hold a
competency hearing was harmless.
A. We Adhere to the Sufficient-Indicia-of-Incompetency Standard
{¶ 10} The United States Supreme Court has held that the Due Process
Clause of the Fourteenth Amendment to the United States Constitution requires
procedures adequate to “protect a defendant’s right not to be tried or convicted
while incompetent to stand trial.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct.
896, 43 L.Ed.2d 103 (1975). Ohio has enacted a statute, R.C. 2945.37, that details
procedures to protect this right.
{¶ 11} A defendant is incompetent when he “is incapable of understanding
the nature and objective of the proceedings against [him] or of assisting in [his]
defense.” R.C. 2945.37(G); see also Dusky v. United States, 362 U.S. 402, 402, 80
S.Ct. 788, 4 L.Ed.2d 824 (1960) (“[T]he test must be whether [the defendant] has
sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding—and whether he has a rational as well as factual
understanding of the proceedings against him”).
{¶ 12} “[T]he court, prosecutor, or defense may raise the issue of the
defendant’s competence to stand trial.” R.C. 2945.37(B). “If the issue is raised
before the trial has commenced, the court shall hold a hearing on the issue.”

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(Emphasis added.) Id. “A defendant is presumed to be competent to stand trial.”
R.C. 2945.37(G). To rebut this presumption, the defendant’s incompetency to
stand trial must be established at the hearing by a preponderance of the evidence.
Id.
{¶ 13} By requesting a competency examination, Mills’s counsel raised the
issue of Mills’s competency. Thus, under the plain terms of R.C. 2945.37(B), the
trial court should have held a competency hearing. Quite possibly, Mills’s attorney
would have been limited in what evidence of incompetency he could present at the
hearing, given Mills’s refusal to be transported for a competency examination. But
if the issue of a defendant’s competency is raised before trial, a competency hearing
is mandatory. Id. And neither Mills’s refusal to cooperate nor the failure of Mills’s
attorney to raise the issue after the initial motion excused the trial court from its
duty to hold a competency hearing.
{¶ 14} But a court’s failure to hold a mandatory competency hearing is not
a basis for automatic reversal. Bock, 28 Ohio St.3d at 110, 502 N.E.2d 1016.
Rather, “the failure to hold a mandatory competency hearing is harmless error
where the record fails to reveal sufficient indicia of incompetency.” Id.; see also
State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995), quoting Bock at 110
(the right to a competency hearing “rises to the level of a constitutional guarantee
where the record contains ‘sufficient indicia of incompetence,’ such that an inquiry
into the defendant’s competency is necessary to ensure the defendant’s right to a
fair trial”).
{¶ 15} We explained in Bock that incompetency is measured by the
statutory criteria—the ability to understand the nature and objective of the
proceedings and to assist in one’s defense. Id. at 110. Thus, “[i]ncompetency must
not be equated with mere mental or emotional instability or even with outright
insanity.” Id. Indeed, “[a] defendant may be emotionally disturbed or even
psychotic and still be capable of understanding the charges against him and of

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assisting his counsel.” Id.
{¶ 16} In Bock, this court looked to the trial record and concluded that there
was not sufficient indicia of incompetency to render prejudicial the court’s failure
to hold a hearing. Id. at 110-111. The court noted that defense counsel had asked
for a competency hearing and explained that the defendant was in the hospital for
drug problems. Id. at 110. Further, the record revealed “testimony by [the
defendant] of his emotional distress and comments about suicide.” Id. But we
determined that such evidence did not amount to sufficient indicia of incompetency:

Defense counsel, after the original motion for a hearing,
failed ever again to mention the defendant’s competency until the
time for appeal. The record reveals no adequate indication of any
behavior on the part of the defendant which might indicate
incompetency. Nor is there any expert or lay opinion in the record
that defendant was actually incompetent. Furthermore, the
defendant testified extensively at trial under direct, cross-, redirect
and recross-examinations with no apparent behavior which would
lead this court to believe that he was not competent to stand trial.

Id. at 111.
{¶ 17} Since Bock, we have continued to apply the sufficient-indicia-of-
incompetency standard. See, e.g., State v. Were, 94 Ohio St.3d 173, 175-176, 761
N.E.2d 591 (2002); State v. Hough, 169 Ohio St.3d 769, 2022-Ohio-4436, 207
N.E.3d 788, ¶ 28-37 (plurality opinion); see also State v. Ahmed, 103 Ohio
St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 64-69 (applying standard in context
of a request made during trial); Berry, 72 Ohio St.3d at 359-362, 650 N.E.2d 433
(same). Mills asks us to reconsider this standard. He posits that an appellate court
should be required to find that the failure to hold a competency hearing is reversible

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error when the record reveals a “reasonable doubt” concerning the defendant’s
competency to stand trial. At the same time, he tells us that he is not asking us to
abandon the sufficient-indicia-of-incompetency standard but instead to “better
define” that standard by using “reasonable doubt” to “clarify what quantity of
indicia is ‘sufficient’ to trigger reversal.” (Emphasis added.)
{¶ 18} We decline to do so. The United States Supreme Court has opted
not to “prescribe a general standard with respect to the nature or quantum of
evidence necessary” to require a competency hearing as a constitutional matter.
Drope, 420 U.S. at 172-173, 95 S.Ct. 896, 43 L.Ed.2d 103. And despite Mills’s
protestations to the contrary, what he asks is that we replace our existing standard
with a different one. The sufficient-indicia-of-incompetency standard speaks to a
quantum of evidence. It is a standard that we have fleshed out through reference to
specific facts in our caselaw. See, e.g., Bock, 28 Ohio St.3d at 110-111, 502 N.E.2d
1016; Were at 175-176. It requires an examination of the record as a whole to
determine whether there is evidence that presents a reasonable question as to
whether the defendant is incompetent.
{¶ 19} The beyond-a-reasonable-doubt standard is a standard of proof—one
that is typically reserved for criminal trials. In its traditional context, it requires
that the state overcome the presumption of innocence that criminal defendants
enjoy by offering proof of guilt beyond a reasonable doubt. See R.C. 2901.05(A).
Such a standard is a poor fit for the competency context where the presumption is
reversed: a defendant is presumed competent to stand trial, R.C. 2945.37(G).
Indeed, the United States Supreme Court has instructed that as a constitutional
matter, “a State may presume that the defendant is competent and require him to
shoulder the burden of proving his incompetence by a preponderance of the
evidence.” Cooper v. Oklahoma, 517 U.S. 348, 355, 116 S.Ct. 1373, 134 L.Ed.2d
498 (1996).
{¶ 20} Given the different presumptions that apply to competency and

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innocence, we decline Mills’s invitation to graft the criminal proof-beyond-a-
reasonable-doubt standard onto harmless-error review of a trial court’s failure to
hold a mandatory competency hearing. We adhere to our traditional standard:
“[T]he failure to hold a mandatory competency hearing is harmless error where the
record fails to reveal sufficient indicia of incompetency.” Bock at 110.
B. The Record Fails to Reveal Sufficient Indicia of Incompetency
{¶ 21} Having rejected Mills’s attempt to change the legal standard, we turn
to the court of appeals’ determination that the record fails to reveal sufficient indicia
of Mills’s incompetency. At the outset, we clarify that we must consider “the
totality of the evidence,” including “both evidence of incompetency and evidence
of competency,” to determine whether the trial court’s failure to hold a competency
hearing was harmless. Hough, 169 Ohio St.3d 769, 2022-Ohio-4436, 207 N.E.3d
788, at ¶ 59 (Kennedy, J., dissenting), citing Pate v. Robinson, 383 U.S. 375, 378,
386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In doing so, we note that in Hough, a
plurality of the court seemed to suggest that evidence of incompetency should be
viewed in isolation, without consideration of the totality of the trial record. See id.
at ¶ 31-36 (plurality opinion). But a plurality opinion is not controlling precedent.
See Hedrick v. Motorists Mut. Ins. Co., 22 Ohio St.3d 42, 44, 488 N.E.2d 840
(1986), overruled on other grounds by Martin v. Midwestern Group Ins. Co., 70
Ohio St.3d 478, 639 N.E.2d 438 (1994), superseded by statute as stated in
Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 727 N.E.2d 1265
(2000); Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). And
our caselaw has long established that a reviewing court must consider both evidence
of competency and evidence of incompetency. See Bock, 28 Ohio St.3d at 110-
111, 502 N.E.2d 1016; Berry, 72 Ohio St.3d at 362, 650 N.E.2d 433.
{¶ 22} Mills points to several instances that he suggests are indicia of his
incompetency. He notes that on the day he was arraigned in this case, he was first
sentenced in a separate case. During that sentencing, Mills stated that he felt

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“bamboozled,” “lost,” and “railroaded” because he did not understand what was
happening. The trial court then explained to Mills that he was simply being
sentenced for a drug-possession offense to which he had previously pled guilty.
Apparently satisfied with the judge’s explanation, Mills said that he understood.
The court asked him whether there was anything else he wanted to discuss, and
Mills responded, “No, sir.”
{¶ 23} As the court proceeded that day with the arraignment, Mills
demonstrated no difficulty understanding the proceeding. When the court inquired
about Mills’s need for appointed counsel, Mills asked whether he could select an
attorney from the appointed-counsel list. Mills also apologized to the court for his
earlier outburst during sentencing in the drug-possession case.
{¶ 24} As further evidence of his purported incompetency, Mills points to
the following statement he made during a September 4 pretrial hearing: “Your
honor, seems like to me like he don’t have time for me, Your Honor.” Read in
context, however, this statement simply reflected Mills’s frustration with the fact
that his attorney would be unavailable on the first two trial dates offered by the
judge. There is nothing in the hearing transcript that indicates any inability of Mills
to understand the nature of the proceeding or to communicate with his attorney. To
the contrary, Mills’s attorney began the hearing by explaining: “I will inform the
Court I had time to sit down and review videos with my client and g[i]ve him picture
printouts. He indicates to me he desires to go to trial as quickly as possible. I told
him that can’t be next week.”
{¶ 25} Mills also points to a hearing that occurred on October 21, the date
the case was initially set for trial. The trial court inquired about plea negotiations,
and defense counsel stated: “I cannot assure the Court that I have effectively
communicated the [state’s plea] offer to him, given his adamant desire not to really
discuss that with me.” The state placed the plea offer on the record, and the trial
court went over the offer in detail with Mills. During the judge’s explanation of

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the offer, Mills acknowledged on four separate occasions that he understood what
the judge was explaining to him. As with the September 4 hearing, there is nothing
in the hearing transcript that demonstrates any inability of Mills to understand the
nature of the proceeding or to assist in his defense. Further, at a hearing that
occurred two days later, Mills’s attorney was able to inform the court: “I talked to
my client. He rejected the plea at this time and wants the earliest possible trial
date.”
{¶ 26} Mills also points to a series of outbursts that occurred on
November 4, when the court was forced to delay Mills’s trial because of other cases
on the court’s docket. Mills told the court that it was violating his rights by not
proceeding to trial more quickly. And at one point, Mills interjected, “Modern day
slavery, man. That’s all this is. Guilty till proven innocent instead of innocent until
proven guilty.” The transcript demonstrates that Mills was angry at the hearing—
and difficult. But nothing in the transcript suggests that he didn’t understand the
nature of the hearing or that he lacked the capacity to assist his attorney. To the
contrary, Mills demonstrated an acute—though imperfect—awareness of his
speedy-trial rights, arguing to the court that the delay in bringing him to trial was
“well over [his] 90 days * * * speedy trial” rights.
{¶ 27} Nor is there any indicia of incompetency in the record of the trial
itself. Mills appears to have been quite capable of understanding legal concepts
and of assisting in his defense. For example, the record indicates that Mills
expressed discomfort with the racial composition of the initial jury panel and that
his attorney raised that issue with the trial judge at an in-chambers conference in
which Mills participated. The state later used one of its peremptory challenges to
excuse an African-American juror, and Mills’s counsel raised an objection under
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in
response. When the court overruled the objection, Mills stated: “This is racist.”

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{¶ 28} Ultimately, this case is quite similar to Bock, 28 Ohio St.3d 108, 502
N.E.2d 1016. As in Bock, after filing the initial request for a competency
examination, defense counsel “failed ever again to mention the defendant’s
competency until the time for appeal,” id. at 111. As in Bock, “[t]he record reveals
no adequate indication of any behavior on the part of the defendant which might
indicate incompetency,” id. And as in Bock, there is no “expert or lay opinion in
the record that defendant was actually incompetent,” id. The only real distinction
between this case and Bock is that the defendant in Bock testified at trial. See id.
Here, we do not have any trial testimony by Mills to review, but we do have
transcripts of the trial and multiple hearings at which Mills interacted with his
attorney and with the court. Much like the defendant’s testimony examined by the
court in Bock, the proceedings in this case reveal “no apparent behavior which
would lead this court to believe that [Mills] was not competent to stand trial,” id.
{¶ 29} The record here is very different than the record in Were, 94 Ohio
St.3d 173, 761 N.E.2d 591, a case in which we found that the record did present
sufficient indicia of incompetency. Defense counsel in Were made four explicit
requests for a competency hearing. Id. at 175. On multiple other occasions,
counsel expressed to the trial court their belief that the defendant was incompetent.
Id. For instance, one of the defendant’s attorneys specifically told the court that
based on his years of experience as a part-time referee in probate court handling
civil commitments, he believed that the defendant was exhibiting signs of paranoia.
Id. Further, the defendant’s “own letters and statements to the court suggest[ed]
that [his] paranoia centered on defense counsel,” as evidenced by six pro se filings
in which he attempted to have his attorneys dismissed based on his claims that they
were “racially biased, had threatened his life, were conspiring with the prosecution,
and had failed to adequately prepare for the mitigation phase.” Id.
{¶ 30} In this case, the record demonstrates that Mills was frustrated with
the pace of the proceedings and that at times he acted out on this frustration. But

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nothing indicates that he was “incapable of understanding the nature and objective
of the proceedings against [him] or of assisting in [his] defense,” R.C. 2945.37(G).
{¶ 31} Indeed, much of the evidence that Mills points to actually
demonstrates his understanding of the proceedings. Mills knew that a criminal
defendant is presumed innocent until proven guilty. He recognized his right to
appointed counsel. He knew that a Batson claim involves an allegation of racial
discrimination. He knew that he had the right to a speedy trial. And he repeatedly
told the trial judge that he understood what was being explained to him.
{¶ 32} The pretrial motion for a competency examination filed by Mills’s
attorney asserted that Mills had become difficult and uncooperative. But a lack of
cooperation does not demonstrate an inability to cooperate. Mills’s attorney
represented to the trial court that he had been able to go over the state’s evidence
and the plea offer with Mills. And during multiple court appearances, Mills was
able to articulate what his counsel had told him about the proceedings. For
example, Mills expressed frustration that his counsel had told him that everyone
would be ready for trial on October 21 and then told him that his trial date might be
continued again. Further, counsel’s competency motion came after Mills rejected
the state’s plea offer. Thus, Mills’s unwillingness to further discuss a potential plea
deal with his attorney was perfectly consistent with Mills’s repeated insistence that
he wanted to be tried as soon as possible.
{¶ 33} The record demonstrates that Mills was capable of “understanding
the nature and objective of the proceedings against [him and] of assisting in [his]
defense,” R.C. 2945.37(G). Because the record lacks sufficient indicia of Mills’s
incompetency, the trial court’s failure to hold a competency hearing constituted
harmless error. We overrule Mills’s first proposition of law.
III. There Is No Need to Reach Mills’s Second Proposition of Law
{¶ 34} We now turn to Mills’s second proposition of law, which states: “A
defendant cannot waive the issue of competency on a silent record.” He contends

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that “[t]he Sixth District held that [he] implicitly waived his right to a competency
hearing by refusing to submit to an evaluation.” But a review of the Sixth District’s
decision reveals that it was premised on that court’s conclusion that the trial court’s
failure to hold a competency hearing constituted harmless error.1 See 2022-Ohio-
969 at ¶ 27.
{¶ 35} The court of appeals did briefly discuss waiver in its decision
denying reconsideration, suggesting that the right to a competency hearing may be
waived if the “defendant fails to maintain the competency issue in the record, and
the record shows insufficient indication of any behavior on the part of the defendant
which might indicate incompetency.” 6th Dist. Lucas No. L-20-1084, at 6 (May
12, 2022). But the court also reiterated its determination that “any such failure [to
hold a mandatory competency hearing was] harmless error under the entire record
before [it].” Id. at 7. Because we agree with the Sixth District that the trial court’s
failure to hold a competency hearing was harmless error, it is unnecessary to reach
Mills’s second proposition of law.
IV. Conclusion
{¶ 36} We adhere to our traditional standard that a trial court’s error in
failing to hold a mandatory competency hearing is harmless when the record, taken
as a whole, fails to demonstrate sufficient indicia of incompetency. Having
considered the record in this case, we find that it fails to reveal sufficient indicia of
Mills’s incompetency. Therefore, the trial court’s error in failing to hold a
competency hearing was harmless. We affirm the judgment of the Sixth District
Court of Appeals.

1. Mills’s merit brief also says that “the Sixth District cited caselaw from the Eighth District Court
of Appeals that permits defendants to waive further competency proceedings affirmatively, on the
record, and after some evidence suggests that further pursuit of the issue will be futile for the
defendant.” The brief then identifies three Eighth District cases. None of these cases, however,
were cited by the Sixth District in its opinion. See generally 2022-Ohio-969. While we trust that
counsel’s misrepresentations were inadvertent, we caution counsel to be more careful in its
representations to this court.

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Judgment affirmed.
KENNEDY, C.J., and DETERS, J., concur.
FISCHER, J., concurs in judgment only, with an opinion.
DONNELLY, J., would dismiss the appeal as having been improvidently
accepted because the court of appeals appropriately applied settled caselaw.
BRUNNER, J., dissents, with an opinion joined by STEWART, J.
_________________
FISCHER, J., concurring in judgment only.
Introduction
{¶ 37} A defendant’s right to a hearing on the issue of his competency to
stand trial rises to the level of a constitutional guarantee only when there is
sufficient doubt regarding his competence. See Pate v. Robinson, 383 U.S. 375,
387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope v. Missouri, 420 U.S. 162, 180,
95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Therefore, although a defendant has the right
to a competency hearing under Ohio law on request, R.C. 2945.37(B), a trial court’s
failure to hold a competency hearing is harmless error unless there are sufficient
indicia of incompetency in the record, State v. Bock, 28 Ohio St.3d 108, 111, 502
N.E.2d 1016 (1986). This has been the harmless-error standard for reviewing a
trial court’s failure to holding a competency hearing since 1986, when Bock was
decided. This court reaffirmed it as the standard in 2022 in State v. Hough, 169
Ohio St.3d 769, 2022-Ohio-4436, 207 N.E.3d 788, ¶ 12, 31, and it continues to be
the standard today.
State v. Hough
{¶ 38} In my view, the sufficient-indicia-of-incompetency standard does
not even need to be reiterated in this case, because just last year, in Hough, we held
that “the standard set forth in Bock is proper and sufficiently protects a defendant’s
right not to be tried when incompetent,” id. at ¶ 28 (plurality opinion); see also id.
at ¶ 45 (Fischer, J., concurring in part and dissenting in part). Furthermore, I

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disagree with the lead opinion because I do not take Hough to suggest that evidence
of a defendant’s competency cannot be considered when determining whether it
was harmless error for a court to not hold a competency hearing. This court’s
decision in Bock is clear that evidence of competency can, and should, be
considered. See id. at 111 (noting that the defendant testified extensively at trial
while exhibiting no behavior indicating incompetency). Rather, I take the statement
in Hough—that the question under Bock is not whether there are any indicia of
competency but rather whether there are sufficient indicia of incompetency, Hough
at ¶ 31 (plurality opinion)—as an acknowledgment that the indicia of competency
in that case were outweighed by the indicia of incompetency.
{¶ 39} In Hough, a psychiatric evaluation revealed that the defendant had
been unable to state the day of the week, the date, the month, or the year, and that
he held several delusional beliefs such as that other people could control his
thoughts. Id. at ¶ 8. The defendant’s psychiatric doctor noted that the defendant
was having auditory hallucinations and was responding to internal stimuli. Id.
Further, cognitive tests indicated that the defendant had a full-scale IQ of 59,
equivalent to that of a person with an intellectual disability. Id. at ¶ 33-34.
{¶ 40} Therefore, in Hough, we held that the trial court’s failure to hold a
competency hearing on request was not harmless error, because the record included
sufficient indicia of the defendant’s incompetence. 169 Ohio St.3d 769, 2022-
Ohio-4436, 207 N.E.3d 788, at ¶ 30-33, 37 (plurality opinion), ¶ 45 (Fischer, J.,
concurring in part and dissenting in part). However, this case is not Hough.
Mills
{¶ 41} The facts of this case do not rise to the level of those in Hough. There
are not sufficient indicia of Mills’s incompetence in this case, because the record
demonstrates that Mills had the capacity to understand the nature and object of the
proceedings against him, to consult with his counsel, and to assist in preparing his

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defense. See Drope, 420 U.S. at 171, 95 S.Ct. 896, 43 L.Ed.2d 103;
R.C. 2945.37(G).
{¶ 42} Mills understood the nature and object of the proceedings against
him. On October 21, 2019, he expressed three separate times that he understood
the charges against him and the sentencing possibilities. He also asked the trial
court whether he could choose his counsel from the appointed-counsel list and
indicated multiple times that he wanted a jury trial as soon as possible. Then,
consistent with those wishes, he expressed frustration when the court delayed his
trial date. Also, Mills clearly remembered what had occurred during his previous
court appearances. For example, on October 21, Mills explained to the court that
he was sentenced to community control in an earlier case. On November 4, Mills
stated that in August or early September, his trial date was set for some time in
October, and he remembered that he had agreed to continue his October trial date
so that he could consider the state’s plea offer. Mills’s comments about being
subjected to “modern day slavery,” being presumed “guilty until proven innocent,”
and having been “bamboozled” or “railroaded” indicate that he was dissatisfied
with the trial process but do not indicate that he was incompetent.
{¶ 43} Mills was also able to consult with his counsel and assist in preparing
his defense. While Mills had issues with his counsel at times, he clearly had the
ability to consult with his counsel. During multiple court appearances, Mills was
able to articulate what his counsel had told him about the proceedings. For
example, Mills expressed frustration that his counsel had told him that everyone
would be ready for trial on October 21 and then told him that his trial date might be
continued again. Further, when the trial court denied defense counsel’s objection
during voir dire under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986), Mills said, “This is racist,” indicating that he understood the nature of
the objection. Mills further demonstrated his understanding of the proceedings and
his ability to assist in his defense when he stated that he had read about his speedy-

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trial rights and knew the state had only 90 days to bring him to trial, see
R.C. 2945.71(C)(2) and (E).
{¶ 44} Moreover, defense counsel’s assertion in Mills’s motion for a
competency assessment that Mills became verbally abusive whenever he did not
agree with counsel’s position on a legal issue merely demonstrates that Mills was
dissatisfied with his counsel. Counsel indicated that Mills was unable to have a
reasoned discussion regarding the state’s plea offers, but that apparent refusal by
Mills was consistent with his position, which he expressed many times, that he
wanted to go to trial as quickly as possible.
{¶ 45} As the state points out, disagreeing with counsel is not necessarily
indicative of incompetence. In State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-
6404, 858 N.E.2d 1144, this court weighed a defendant’s refusal to heed his
counsel’s advice against his responses to the trial court’s questions in which he
expressed his understanding of the nature of the charges against him and the
possible penalties for the charges, and we rejected the defendant’s argument that
the trial court had abused its discretion in denying his request for a competency
evaluation. Id. at ¶ 161-162. Similarly, in this case, Mills indicated that he
understood the nature of the charges against him and the possible penalties for the
charges.
Conclusion
{¶ 46} As the Sixth District Court of Appeals held below, there is evidence
in the record that Mills was combative, but there is not sufficient evidence that he
was incompetent. See 2022-Ohio-969, ¶ 22-24. Therefore, the trial court’s failure
to hold a competency hearing was harmless error.
_________________
BRUNNER, J., dissenting.
{¶ 47} “It has long been accepted that a person whose mental condition is
such that he lacks the capacity to understand the nature and object of the

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proceedings against him, to consult with counsel, and to assist in preparing his
defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95
S.Ct. 896, 43 L.Ed.2d 103 (1975). Ohio protects that right, in part, through a statute
providing that when the issue of the competency of a defendant in a criminal case
is raised before trial, “the court shall hold a hearing on the issue.” (Emphasis
added.) R.C. 2945.37(B). We have held, however, and the lead opinion reiterates
today, that a trial court’s failure to hold a competency hearing under
R.C. 2945.37(B) is harmless error unless there is “sufficient indicia of
incompetency * * * in the record,” (emphasis added) State v. Bock, 28 Ohio St.3d
108, 111, 502 N.E.2d 1016 (1986). This dissent questions the propriety of
reviewing courts’ continuing to decide what exactly is “sufficient indicia of
incompetency” without applying a clear standard such as the reasonable-doubt
standard. This dissent also questions whether reviewing courts may properly find
harmless error when a trial court failed to hold a statutorily required competency
hearing and there are indicia of the defendant’s incompetency in the record
including defense counsel’s statements claiming that the defendant was unable to
engage in a coherent conversation.
{¶ 48} The lead opinion has declined to answer the question of just what
amounts to sufficient indicia of incompetency under Bock. See id. at 111. In doing
so, it permits any judge in this state who is considering a person’s competency to
stand trial to rely on his or her personal and undisclosed view of what amounts to
sufficient indicia of incompetency when making what amounts to a clinical
psychiatric or psychological judgment about the person’s competency. And in this
case, the lead opinion ignores the clear evidence of incompetency that was provided
by appellant Miguel Mills’s counsel, including counsel’s assertion that Mills was
“unable to have a coherent conversation concerning the evidence against him, [or]
any type of trial tactic available.” Ignoring this evidence in the record, the lead
opinion determines that the trial court’s failure to conduct a competency hearing

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 January Term, 2023

was harmless error.
{¶ 49} R.C. 2945.37(B) is black and white—if the issue of a defendant’s
competency is raised before trial, a hearing must be held. Through Bock and the
lead opinion’s application of it today, this court smudges the lines between the
black and white to unnecessarily create shades of gray. And the lead opinion
applies Bock so as to sanction the blurring of R.C. 2945.37(B)’s clear lines,
justifying its doing so as being necessary to determine whether the trial court’s
failure to conduct a competency hearing was harmless error. But this case is not a
child’s coloring book; rather, it asks questions concerning personal liberty, the
substantial rights of an individual, and the guarantees of a fair criminal-justice
system in our state’s communities.
{¶ 50} The crux of this case is this: Mills’s counsel stated, within three
weeks of trial, that Mills “[was] unable to have a coherent conversation concerning
the evidence against him, [or] any type of trial tactic available.” Had Mills been
given a competency hearing and ordered to undergo a competency evaluation, a
key determination by an expert evaluator would have been whether Mills was
“coherent” enough to assist in his own defense. See, e.g., State v. Roberts, 137
Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 90 (“After interviewing [the
defendant], [the psychologist] concluded that [the defendant] had the ability to
interact with defense counsel and to provide information and a coherent account of
her own perceptions about the situation to her counsel” [emphasis added]).
{¶ 51} The concept of competency to face trial envisions that the defendant
is coherent. By its very definition, being coherent means being rational, integrated,
logical, and understandable and having clarity, consistency, and intelligibility. See
Merriam-Webster Dictionary Online, https://www.merriam-
webster.com/dictionary/coherent (accessed Aug. 14, 2023) [https://perma.cc/7L58-
VY6W]. Here, a competency hearing was required under R.C. 2945.37(B),
because Mills’s lack of coherency was an indication of his incompetency. Were

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Mills’s competency formally evaluated and a report of the evaluation reviewed by
the trial court as part of a competency hearing, and were the report to have
concluded that Mills was malingering, the court would know of that conclusion. If
Mills were determined to need treatment to be restored to competency, however,
the court would know that conclusion and Mills and the public could be assured of
a fair trial following his restoration to competency. But today, the lead opinion
continues to encourage courts to make uneducated, not-clinically-supported
guesses on issues such as whether a defendant in a criminal case whose counsel
questions whether the defendant can engage in a “coherent conversation” is
competent to stand trial. This court and any other court of review should refrain
from shoring up an abject failure by a trial court to hold a competency hearing by
excusing the failure as harmless error,2 especially when Ohio law requires a
hearing. See R.C. 2945.37(B). Because I conclude that the trial court’s failure to
hold a competency hearing was not harmless error, I respectfully dissent.
I. Clarifying the Bock standard
{¶ 52} In his first proposition of law, Mills asks this court to clarify the
“sufficient indicia of incompetency” standard established in Bock, 28 Ohio St.3d at
111, 502 N.E.2d. 1016. It is easy to understand why he would request this, since
determining whether certain evidence is “sufficient” for a purpose needs a clear
standard, a touchstone, a bar. Certainly, there are clinically relevant trigger words
that should cause trial- and appellate-court judges, regardless of their own

2. The harmless-error rule appears to have been born from concerns about judicial efficiency and
the promotion of public respect for the criminal process. See United States v. Hasting, 461 U.S.
499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Delaware v. Van Arsdall, 475 U.S. 673, 681, 106
S.Ct. 1431, 89 L.Ed.2d 674 (1986). Ohio’s version of the rule is contained in Crim.R. 52(A), which
provides that “[a]ny error, defect, irregularity, or variance which does not affect substantial rights
shall be disregarded.” Alarmingly, the harmless-error rule has the potential to be applied in criminal
cases as a de facto game of chance of predicting how an appellate court will rule on the question
whether there was a clear error, defect, irregularity, or variance during the trial-court proceedings
and whether the defendant would have been found guilty absent the error, defect, irregularity, or
variance.

20
 January Term, 2023

experiences or opinions, to conclude that a defendant’s competency must be
evaluated and a hearing held on the matter. In this case, the trigger word was
“coherent,” which was used by Mills’s counsel. This is not a difficult call to make,
considering that word’s definition and how a defendant’s competency is essential
to the defendant’s assisting in his or her own defense.
{¶ 53} Disappointingly, the lead opinion expressly declines to step up to the
plate and take a crack at helping courts and counsel understand what amounts to
sufficient indicia of incompetency to trigger a hearing under R.C. 2945.37(B) and
an evaluation under R.C. 2945.371(A). Its reason seems to be that the standard set
forth in Bock is simply good enough as it is and that any clarification of that
standard for appellate-review purposes would somehow be inconsistent with the
role of an appellate court.
{¶ 54} But this court is not just any appellate court. All other courts
established by the Ohio Constitution are referred to in the Constitution as “courts
inferior to the Supreme Court,” Ohio Constitution, Article IV, Section 1, and are
guided by this court’s decisions upon “review and final determination” in certified-
conflict cases, id. at Section 3(B)(4), and other types of cases that come before the
court, id. at Section 2(B)(2). We should assist this state’s inferior courts by showing
them how to “get it right,” to ensure that there is less error at the trial level and on
appellate review, which will result in greater fairness for all. Having not undertaken
that task, today’s lead opinion would allow every appellate (and trial) judge to be
free to decide what amounts to sufficient indicia of incompetency based on the
judge’s personal, undisclosed standard. And that, in turn, means that defendants
and their counsel will not have a practical understanding of what evidence is
sufficient, either at the trial level or in the record on appeal, to overcome the
presumption of competency.
{¶ 55} One cannot deny that society is everchanging. Although Ohio
judges may receive antibias training as part of their continuing education, see Court

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News Ohio, Anti-Bias Training Part of Judicial College’s Present and Past
(July 31, 2020), https://www.courtnewsohio.gov/happening/2020
/antiBiasTraining_073120.asp (accessed Sept. 6, 2023) [https://perma.cc/P567-
ALFM], no single judge can fully understand the clinical manifestations of mental
illness that might affect a defendant’s competency to stand trial, particularly given
that a defendant may have or be of a wholly different familial and experiential
background, upbringing, education, class, race, gender, nationality, sexual
orientation, gender identity, age, or intelligence level than the judge. The same may
be said regarding counsel’s assurances that his or her client is competent. 3 Judges
and attorneys must abide by the expectation of objectivity imposed on them in this
state, which requires a judge or attorney considering the question of a defendant’s
competency to make an arm’s-length determination based on the advisement or
testimony of an expert witness and not on what could be perceived as the judge’s
or attorney’s conjecture, guesses, or senses. See Supreme Court of Ohio
Commission on Professionalism, Professional Ideals for Ohio Lawyers and Judges
4 (Apr. 2023) (providing that a lawyer shall aspire to “[m]aintain the sympathetic
detachment that permits objective and independent advice to clients” and that a
judge “must not only be fair but also give the appearance of being fair”), available
at https://www.supremecourt.ohio.gov/docs/Publications/AttySvcs/proIdeals.pdf
(accessed Aug. 14, 2023) [https://perma.cc/C3GS-Y25L]. In declining to clarify
the standard established in Bock, 28 Ohio St.3d 108, 502 N.E.2d 1016, the lead
opinion tacitly determines that the standard may be whatever a judge wants it to be.
{¶ 56} I would hold that when there is a reasonable doubt as to whether the

3. In a recent capital case, I criticized the majority opinion for concluding that a competency
evaluation was not required for a defendant whose “experienced attorney—by self-proclamation—
ha[d] adjudged his client to be competent based on counsel’s stated ability to recognize mental
illness, even when that client may not [have] outwardly demonstrate[d] visible symptoms of mental
illness to nonclinical laypersons during the limited time they interact[ed].” State v. Lawson, 165
Ohio St.3d 445, 2021-Ohio-3566, 179 N.E.3d 1216, ¶ 214 (Brunner, J., dissenting).

22
 January Term, 2023

defendant was competent to stand trial, the presumption of competency is rebutted
and the matter must be remanded to the trial court for it to conduct the mandatory
competency hearing under R.C. 2945.37(B) and to consider a formal competency
evaluation.
{¶ 57} Applying a reasonable-doubt standard when determining whether a
trial court’s failure to hold a competency hearing was harmless error balances the
risk of error in not holding a competency hearing versus that of holding such a
hearing. See Cooper v. Oklahoma, 517 U.S. 348, 362-363, 116 S.Ct. 1373, 134
L.Ed.2d 498 (1996), quoting Cruzan v. Dir., Missouri Dept. of Health, 497 U.S.
261, 283, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (“The ‘more stringent the burden
of proof a party must bear [when attempting to rebut the presumption of
competency], the more that party bears the risk of an erroneous decision’ ”); see
also Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (“the
function of legal process is to minimize the risk of erroneous decisions”). Using a
reasonable-doubt standard for this competency inquiry also makes sense because,
by definition, the harmless-error rule is applied in that context only when the
defendant, for whatever reason, has already been deprived of the opportunity to
gather and present evidence of his or her incompetency at a hearing required by
R.C. 2945.37(B). In that situation, the record on appeal will inherently lack reliable
information about the defendant’s competency or lack thereof at the time of trial
and conviction. See State v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566, 179
N.E.3d 1216, ¶ 212 (Brunner, J., dissenting) (“the ‘sufficient indicia of
incompetency’ method falls short, because it is based on gleaning information from
a record when often no record was made”).
{¶ 58} The task of determining whether a competency hearing should be
held—or whether the failure to hold a hearing was harmless error—can be
particularly difficult when the defendant has mental-health issues. The rate of
severe mental illness—such as major affective disorders or schizophrenia—is

23
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higher in jails and prisons than in the general population. See Collier, Incarceration
Nation, 45 Monitor on Psychol. 56 (Oct. 2014), available at
https://www.apa.org/monitor/2014/10/incarceration (accessed Aug. 14, 2023)
[https://perma.cc/Y8Y6-4EQH]. “[A]bout 10 percent to 25 percent of [United
States] prisoners suffer from serious mental illnesses,” while the average rate for
such illnesses in the general population in the United States is only about 5 percent.
Id.
{¶ 59} Judges and attorneys rarely have the training or experience necessary
to identify severe mental illness and its manifestations without input from a mental-
health professional. The Revised Code recognizes this truth, permitting a trial court
to order a psychological evaluation of the defendant, see R.C. 2945.371(A),
requiring the trial court to hold a competency hearing when the issue is raised, see
R.C. 2945.37(B), and permitting the evaluation results and other evidence
concerning the defendant’s competency to be presented at such a hearing.
Unfortunately, continuing to apply the standardless harmless-error rule from Bock,
28 Ohio St.3d 108, 502 N.E.2d 1016, as the lead opinion does today, promotes the
opposite of what R.C. 2945.37(B) requires. By allowing judges to apply essentially
whatever standard they envision is appropriate when determining whether a
defendant has successfully rebutted the presumption of competency (by a showing
of sufficient indicia of incompetency), the very purpose of R.C. 2945.37(B), which
is to protect the right to a fair trial, may be subverted.
{¶ 60} A better approach, which aligns with Mills’s first proposition of law,
is to require application of a reasonable-doubt standard. The reasonable-doubt
standard is a commonly applied rule in criminal procedure. Using it in the context
of deciding whether the failure to hold a R.C. 2945.37(B) competency hearing was
harmless error would foster greater consistency, predictability, and fairness in Ohio
criminal cases in which the defendant’s competency is placed at issue. This would
be a small step toward addressing the concerns raised by compelling psychological

24
 January Term, 2023

research, which has shown that the rate of mental illness for prisoners is greater
than that for the general population. See Collier, 45 Monitor on Psychol. at 56.
II. The lead opinion’s application of the Bock standard
{¶ 61} Applying the Bock standard here, it is clear that the record contains
sufficient indicia of Mills’s incompetency so as to preclude a finding that the trial
court’s failure to conduct a competency hearing was harmless error. See id. at 110-
111. As noted above, the question of a defendant’s competency is not simply
whether the defendant understands what is going on around him or her. An equally
essential part of the competency question concerns whether the defendant has the
ability to consult with and assist his or her counsel for the purpose of preparing a
defense. See Drope, 420 U.S. at 171, 95 S.Ct. 896, 43 L.Ed.2d 103.
{¶ 62} In considering this issue, it is important to acknowledge that unlike
evidence concerning a defendant’s ability to understand the trial-court proceedings,
evidence of a defendant’s ability to assist his or her counsel is not nearly as likely
to be contained in a transcript of the proceedings. The work of preparing a defense
is done primarily outside of court, in private between the defendant and his or her
counsel. As a result, if anyone is able to offer evidence that a defendant is unable
to assist in the preparation of his or her defense, it is most likely the defendant’s
counsel. For that reason, statements by defense counsel about the defendant’s
ability to assist in preparing a defense are significant.
{¶ 63} After working with and representing Mills for several months,
Mills’s counsel concluded that his mental condition had declined to the point at
which he was unable to assist in his own defense. Counsel therefore filed in the
trial court a motion seeking a competency evaluation for Mills, as contemplated
under R.C. 2945.371(A). Among other things, counsel informed the court of the
following:

1. Mr. Mills’ mental stability since being in pre-trial

25
 SUPREME COURT OF OHIO

detention on his charges has continued in a downward spiral.
Where counsel was once able to have a “somewhat” reasonable
conversation concerning the evidence against him that has
completely evaporated.
2. Mr. Mills is unable to have a coherent conversation
concerning the evidence against him, any type of trial tactic
available or a calm reasoned discussion concerning the plea offer
from the State and the risk of plea verses [sic] trial.
3. The last three visits with Mr. Mills have resulted in him
becoming so verbally violent and physically telegraphing potential
violence it has caused upwards to three or four Corrections Officers
to respond to the meeting room.
4. This occurs with any comments by counsel that isn’t in
complete agreement with what his predetermined position is on even
the smallest issues concerning the proceeding in court or his
defense.

(Emphasis added.) For some judges, the intimation of an accused’s anger, such as
that which Mills’s counsel described, may evince the accused’s lack of acceptance
of responsibility for his or her actions or lack of respect for the court. The former
interpretation reflects the judge’s loss of objectivity for the presumed innocence of
the accused unless and until he or she is proved guilty. The latter reflects an
ignorance of how a person may manifest mental illness; e.g., a person may manifest
depression through acute anger.4

4. See Fava & Rosenbaum, Anger Attacks in Patients with Depression, 60 J.Clinical Psychiatry 21 (Supp. 15:
1999), available at https://www.psychiatrist.com/read-pdf/793/ (accessed Aug. 14, 2023)
[https://perma.cc/SQ4L-GTH8]. This study explained:

26
 January Term, 2023

{¶ 64} Mills’s counsel’s statements are clear and direct evidence that
Mills’s abilities to consult with his counsel and assist in his defense were
substantially impaired, and that evidence was presented by the person in the best—
and perhaps only—position to know. Defense counsel told the trial court that Mills
was unable to have a coherent conversation concerning the evidence against him,
and the timing and context in which counsel used the word “coherent” amounted to
ample evidence in the record to establish reasonable doubt as to whether Mills was
competent to stand trial, thus requiring the trial court to conduct a competency
hearing under R.C. 2945.37(B) and permitting a formal competency evaluation
under R.C. 2945.371(A). Because evidence in the record creates reasonable doubt
as to whether Mills was competent, the sufficient-indicia-of-incompetency standard
under Bock, 28 Ohio St.3d at 111, 502 N.E.2d 1016, was met and the trial court’s
failure to hold a competency hearing under R.C. 2945.37(B) was not harmless
error.
{¶ 65} Even as the lead opinion chooses to continue to apply Bock without
connecting it to any standard for determining whether there are sufficient indicia of
incompetency, it ignores the clear indicia of Mills’s incompetency in the record
within Mills’s counsel’s statements. In particular, the lead opinion does not address

Anger attacks are sudden intense spells of anger that resemble panic
attacks but lack the predominant affects of fear and anxiety associated with panic
attacks. They typically occur in situations in which an individual feels
emotionally trapped and experiences outbursts of anger that are later described by
the patient as being uncharacteristic and inappropriate to the situation at hand.
Anger attacks consist of both behavioral and autonomic features, and various
criteria and an Anger Attacks Questionnaire have been designed to identify the
presence of these attacks. The prevalence of anger attacks in depressed patients
is approximately 30% to 40%, and the attacks have disappeared in 53% to 71%
of depressed patients treated with fluoxetine, sertraline, or imipramine. This
article discusses the development of the concept of anger attacks, the presence of
anger attacks in depression and other psychiatric disorders, and the current
treatment of anger attacks.

Id.

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 SUPREME COURT OF OHIO

defense counsel’s assertion that “Mills [was] unable to have a coherent
conversation concerning the evidence against him, [or] any type of trial tactic
available.” Nor does the lead opinion address defense counsel’s assertions that
Mills’s “mental stability” had “continued in a downward spiral” and that his ability
to have a “ ‘somewhat’ reasonable conversation concerning the evidence against
him” had “completely evaporated.” There is no good reason for the lead opinion
to ignore these statements. If being “unable to have a coherent conversation
concerning the evidence” and any “trial tactic[s]” does not register as sufficient
indicia of incompetency, then it is difficult to imagine what would. By ignoring
these statements, the lead opinion sets a dangerous example for the lower courts.
{¶ 66} The lead opinion ultimately concludes that there are not sufficient
indicia of Mills’s incompetency in the record—a conclusion that is perhaps
unsurprising in light of its decision to ignore material evidence to the contrary. In
support of that decision, the lead opinion points to “multiple court appearances” in
which, in its words, “Mills was able to articulate what his counsel had told him
about the proceedings,” lead opinion, ¶ 32. And it notes that Mills had “expressed
frustration” regarding his counsel’s advisements as to when his trial would likely
begin and that Mills had indicated that he understood his speedy-trial rights. Id. at
¶ 32. It also observes that Mills indicated that he understood the nature of an
objection that his counsel made during voir dire. There are several problems with
this reasoning.
{¶ 67} None of the evidence on which the lead opinion relies supports its
position, because none of the evidence is informative of Mills’s ability to assist his
counsel with his defense. At most, it reflects Mills’s understanding of statements
he had heard. And to the extent that any statements by Mills do indicate some
ability of his to assist his counsel, they are not dispositive of this case. It is well
established that “the question under Bock[, 28 Ohio St.3d 108, 502 N.E.2d 1016,]
is not whether there are any indicia of competency. The question is whether there

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 January Term, 2023

are sufficient indicia of incompetency.” (Emphasis sic.) State v. Hough, 169 Ohio
St.3d 769, 2022-Ohio-4436, 207 N.E.3d 788, ¶ 31 (lead opinion).
{¶ 68} In addition, the lead opinion does not take into account that all but
one of the statements by Mills on which it relies to conclude that there are not
sufficient indicia of Mills’s incompetency in the record were made before or during
the November 4, 2019, hearing, which was before his counsel filed the motion for
a competency evaluation on November 19, 2019. That matters because Mills’s
counsel explained in the motion that Mills’s mental stability had been declining in
the months leading up to the motion. It was only around November 19 that defense
counsel concluded that Mills’s mental stability had “completely evaporated” and
that he was “unable to have a coherent conversation concerning the evidence” and
“trial tactic[s].” The only evidence from after November 19 on which the lead
opinion relies is Mills’s December 9 statement during voir dire expressing his
opinion that the trial court’s rejection of his counsel’s objection was “racist.” That
lone statement, however, simply is not evidence that Mills was able to assist his
counsel in preparing his defense during the time immediately before trial.
{¶ 69} In the end, defense counsel’s assertions concerning Mills’s
competency in the motion for a competency evaluation should be more than enough
to preclude a finding of harmless error here.
III. Waiver or forfeiture
{¶ 70} The lead opinion’s conclusion that the failure to hold a competency
hearing was harmless error leads it to decline to address the issue raised in Mills’s
second proposition of law: whether he waived or forfeited his right to challenge the
trial court’s failure to hold a competency hearing by refusing to be transported from
the jail to the location of the evaluation. I would hold that Mills’s refusal to be
transported did not constitute a waiver or a forfeiture of his right to raise the
competency issue on appeal.
{¶ 71} The state argues that Mills’s refusal should be viewed as either an

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implicit waiver or a forfeiture of the right to challenge on appeal the trial court’s
failure to hold a competency hearing. Like the court of appeals below, the state
points to the fact that Mills refused to be transported to the location of the
psychological evaluation, which it contends violated his duty to cooperate in the
competency-determination process established, in its view, by R.C. 2945.371(C)(1)
and (D)(2). See 2022-Ohio-969 at ¶ 17. The state also points to conduct by Mills
following his refusal that it contends indicates he was competent and to the fact that
defense counsel did not raise any concerns about Mills’s competency during trial.
{¶ 72} Again, it appears that the state and the court of appeals have lost their
way on objectivity’s path, substituting their own values and experiences in place of
the informed and objective analyses necessary to ensure a fair trial. And, ironically,
the state’s waiver argument necessarily depends on Mills’s having been competent
when he engaged in the conduct to which the state points to support its argument.
“[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’ ”
United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993),
quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
In some circumstances, a defendant’s waiver of rights may be inferred from the
defendant’s behavior. See, e.g., State v. Murphy, 91 Ohio St.3d 516, 518-519, 747
N.E.2d 765 (2001) (observing that a trial court may infer a defendant’s waiver of
Fifth Amendment rights from the defendant’s behavior). But whether a waiver is
made expressly, through a statement, or implicitly, through conduct, the issue is
ultimately the same: “[W]hether the defendant in fact knowingly and voluntarily
waived” the right. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60
L.Ed.2d 286 (1979). Thus, “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.” Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct.
836, 15 L.Ed.2d 815 (1966).
{¶ 73} Here, based on the concerns raised by Mills’s counsel regarding his

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competency, it is simply not clear whether Mills was competent during the period
immediately before trial and during trial. Notably, although a refusal to comply
with a psychological evaluation could be a knowing and intelligent decision, it
could also be a manifestation of mental illness. The state essentially conceded this
point at oral argument. And while proof that a defendant suffers from mental illness
does not automatically establish the defendant’s incompetency, Bock, 28 Ohio
St.3d at 110, 502 N.E.2d 1016, mental illness can cause incompetency in certain
cases, Drope, 420 U.S. at 181-182, 95 S.Ct. 896, 43 L.Ed.2d 103. As a result, the
state’s waiver argument fails.
{¶ 74} The result here is no different if the question is one concerning
forfeiture of the argument. “[F]orfeiture is the failure to make the timely assertion
of a right.” Olano at 733, citing Zerbst at 464. Mills’s counsel raised clear concerns
regarding Mills’s competency in his motion for a competency evaluation. In my
view, that was sufficient to preserve for appeal any argument concerning the
competency hearing sought by that motion. The state cites no authority for the
proposition that Mills or his counsel needed to object again to preserve those
arguments.
IV. Conclusion
{¶ 75} The trial court’s failure to hold a competency hearing was not
harmless error, and the harmless-error rule should not be applied to the deprivation
of a substantial right—here, the right to a fair trial, which guarantees that a
defendant shall not be tried unless the defendant is competent and able to assist
defense counsel in his or her defense—in a standardless manner. I would therefore
reverse the judgment of the Sixth District Court of Appeals and clarify that Bock
calls for application of a reasonable-doubt standard with respect to reviewing a trial
court’s failure to hold a competency hearing under R.C. 2945.37(B), thereby
eliminating the standardless use of the harmless-error rule in that context. Because
the lead opinion does not and for the reasons stated above, I respectfully dissent.

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STEWART, J., concurs in the foregoing opinion.
_________________
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J.
Majdalani, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Kimberly E. Burroughs,
Assistant Public Defender, for appellant.
Steven L. Taylor, urging affirmance for amicus curiae, Ohio Prosecuting
Attorneys Association.
_________________

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