Per Curiam.
Respondent, Jay D. Scott, was convicted of the aggravated murder of Vinnie M. Prince and sentenced to death. Scott appealed, and the court of appeals affirmed his conviction and sentence. State v. Scott (June 3, 1985), Cuyahoga App. No. 48609, unreported, 1985 WL 9047. We also affirmed Scott’s conviction and death sentence. State v. Scott (1986), 26 Ohio St.3d 92, 26 OBR 79, 497 N.E.2d 55.
Scott’s state postconviction proceedings concluded on January 12, 1994, when we refused to accept jurisdiction. State v. Scott (1994), 68 Ohio St.3d 1426, 624 N.E.2d 1064, certiorari denied, Scott v. Ohio (1994), 512 U.S. 1213, 114 S.Ct. 2694, 129 L.Ed.2d 825.
Finally, the federal court of appeals denied Scott’s application for habeas relief in Scott v. Mitchell (C.A.6, 2000), 209 F.3d 854, certiorari denied (2000), 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503. We set Scott’s execution date for April 17, 2001. State v. Scott (2001), 91 Ohio St.3d 1424, 741 N.E.2d 535.
On April 10, 2001, Scott’s attorneys filed a motion in the Cuyahoga County Court of Common Pleas claiming that Scott is incompetent to be executed under the standards set forth in R.C. 2949.28(A). After a hearing to determine probable cause, the trial court found that no probable cause existed to warrant further proceedings to determine whether Scott was insane as defined in R.C. 2949.28(A). On April 16, 2001, the trial court dismissed the matter without further hearing.
On April 17, we stayed Scott’s execution after the court of appeals requested that we do so. The court of appeals affirmed the trial court’s dismissal on April 20, 2001. State v. Scott (Apr. 20, 2001), Cuyahoga App. No. 79506, unreported, 2001 WL 406583. Thereafter, we set a new execution date of May 15, 2001, 91 Ohio St.3d 1499, 746 N.E.2d 192.
[2] The cause is now before this court upon a discretionary appeal from the court of appeals’ judgment affirming the trial court’s dismissal.
Scott raises three issues in this appeal. First, Scott argues that the ban on cruel and unusual punishment in the United States Constitution’s Eighth Amendment and Section 9, Article I of the Ohio Constitution bars Ohio from executing any person with a biologically based severe mental illness such as schizophrenia. However, Scott cites no authority, and we are not aware of any authority, that supports Scott’s claim that the prohibitions against cruel and unusual punishment of the Eighth Amendment and the Ohio Constitution preclude the execution of mentally ill persons who understand their crimes and the capital punishment that they face.
Scott also argues that he should not be executed because the Supreme Court of the United States has recently granted certiorari to review whether mentally retarded persons can be executed. See McCarver v. North Carolina, certiorari granted (2001), 532 U.S.-, 121 S.Ct. 1401, 149 L.Ed.2d 132. However, that case has nothing to do with Scott’s appeal, since Scott is not and does not claim to be mentally retarded. As the court of appeals stated, “While McCarver may deal with questions involving the baseline intelligence of mentally retarded individuals and whether they may be incapable of the understanding required under Ford, Scott’s contention ignores his capacity to understand the reasons for and nature of the death penalty.” State v. Scott (Apr. 20, 2001), Cuyahoga App. No. 79506, unreported, at 11, 2001 WL 406583, citing Ford v. Wainwright (1986), 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335. Thus, this contention has no merit.
R.C. 2949.28(A) defines sanity for purposes of determining a convict’s competency to be executed. The issue to be resolved under R.C. 2949.28 is whether the convict has the “mental capacity to understand the nature of the death penalty and why it was imposed upon the convict.”
The trial court considered the briefs and other matters submitted by the parties and conducted a hearing to determine if probable cause existed to believe that the convict was insane. For future reference, R.C. 2949.28(B) does not require a hearing to determine probable cause. Instead, R.C. 2949.28(B)(2) simply requires that “a judge shall determine, based on the notice and any supporting information, any information submitted by the prosecuting attorney, and the record in the case, including previous hearings and orders, whether probable cause exists to believe that the convict is insane.” (Emphasis added.) If the trial court can make the probable cause determination without a hearing, then no hearing is required.
In this case, even after a hearing, Scott had presented no medical or psychiatric testimony or expert testimony of any nature showing that he is insane, as defined, or that further proceedings are warranted to consider the issue. Indeed, [3] the trial court made specific findings of fact on Scott’s mental condition in determining that no probable cause existed to question whether Scott was competent to be executed. While finding that Scott has suffered from chronic undifferentiated schizophrenia since 1994, the trial court found no evidence that Scott did not “understand the nature of the death penalty and/or why it is being imposed upon him.” We find that the trial court properly evaluated the evidence that related to Scott’s competency to be executed using the definition of insanity set forth in R.C. 2949.28(A).
Moreover, the trial court’s detailed findings of fact support its determination that there was no probable cause to believe that Scott was incompetent to be executed. We find no evidence from the record of the proceedings that the trial court abused its discretion in making these findings, Therefore, Scott’s first proposition has no merit.
In his second issue, Scott argues that the test for determining competency to be executed as set forth in Ford u Wainwright is no longer adequate in light of contemporary medical and psychiatric standards and should be replaced.
Ohio’s current law governing competency to be executed, R.C. 2949.28 and 2949.29, was enacted in 1998 and was modeled after the Supreme Court’s decision in Ford. As Justice Powell explained in his concurring opinion in that case, whether a convict is competent to be executed for Eighth Amendment purposes turns solely on whether the convict is aware of his impending execution and the reasons for it: “If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” 477 U.S. at 422, 106 S.Ct. at 2608, 91 L.Ed.2d at 354 (Powell, J., concurring).
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Per Curiam.
Respondent, Jay D. Scott, was convicted of the aggravated murder of Vinnie M. Prince and sentenced to death. Scott appealed, and the court of appeals affirmed his conviction and sentence. State v. Scott (June 3, 1985), Cuyahoga App. No. 48609, unreported, 1985 WL 9047. We also affirmed Scott’s conviction and death sentence. State v. Scott (1986), 26 Ohio St.3d 92, 26 OBR 79, 497 N.E.2d 55.
Scott’s state postconviction proceedings concluded on January 12, 1994, when we refused to accept jurisdiction. State v. Scott (1994), 68 Ohio St.3d 1426, 624 N.E.2d 1064, certiorari denied, Scott v. Ohio (1994), 512 U.S. 1213, 114 S.Ct. 2694, 129 L.Ed.2d 825.
Finally, the federal court of appeals denied Scott’s application for habeas relief in Scott v. Mitchell (C.A.6, 2000), 209 F.3d 854, certiorari denied (2000), 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503. We set Scott’s execution date for April 17, 2001. State v. Scott (2001), 91 Ohio St.3d 1424, 741 N.E.2d 535.
On April 10, 2001, Scott’s attorneys filed a motion in the Cuyahoga County Court of Common Pleas claiming that Scott is incompetent to be executed under the standards set forth in R.C. 2949.28(A). After a hearing to determine probable cause, the trial court found that no probable cause existed to warrant further proceedings to determine whether Scott was insane as defined in R.C. 2949.28(A). On April 16, 2001, the trial court dismissed the matter without further hearing.
On April 17, we stayed Scott’s execution after the court of appeals requested that we do so. The court of appeals affirmed the trial court’s dismissal on April 20, 2001. State v. Scott (Apr. 20, 2001), Cuyahoga App. No. 79506, unreported, 2001 WL 406583. Thereafter, we set a new execution date of May 15, 2001, 91 Ohio St.3d 1499, 746 N.E.2d 192.
[2] The cause is now before this court upon a discretionary appeal from the court of appeals’ judgment affirming the trial court’s dismissal.
Scott raises three issues in this appeal. First, Scott argues that the ban on cruel and unusual punishment in the United States Constitution’s Eighth Amendment and Section 9, Article I of the Ohio Constitution bars Ohio from executing any person with a biologically based severe mental illness such as schizophrenia. However, Scott cites no authority, and we are not aware of any authority, that supports Scott’s claim that the prohibitions against cruel and unusual punishment of the Eighth Amendment and the Ohio Constitution preclude the execution of mentally ill persons who understand their crimes and the capital punishment that they face.
Scott also argues that he should not be executed because the Supreme Court of the United States has recently granted certiorari to review whether mentally retarded persons can be executed. See McCarver v. North Carolina, certiorari granted (2001), 532 U.S.-, 121 S.Ct. 1401, 149 L.Ed.2d 132. However, that case has nothing to do with Scott’s appeal, since Scott is not and does not claim to be mentally retarded. As the court of appeals stated, “While McCarver may deal with questions involving the baseline intelligence of mentally retarded individuals and whether they may be incapable of the understanding required under Ford, Scott’s contention ignores his capacity to understand the reasons for and nature of the death penalty.” State v. Scott (Apr. 20, 2001), Cuyahoga App. No. 79506, unreported, at 11, 2001 WL 406583, citing Ford v. Wainwright (1986), 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335. Thus, this contention has no merit.
R.C. 2949.28(A) defines sanity for purposes of determining a convict’s competency to be executed. The issue to be resolved under R.C. 2949.28 is whether the convict has the “mental capacity to understand the nature of the death penalty and why it was imposed upon the convict.”
The trial court considered the briefs and other matters submitted by the parties and conducted a hearing to determine if probable cause existed to believe that the convict was insane. For future reference, R.C. 2949.28(B) does not require a hearing to determine probable cause. Instead, R.C. 2949.28(B)(2) simply requires that “a judge shall determine, based on the notice and any supporting information, any information submitted by the prosecuting attorney, and the record in the case, including previous hearings and orders, whether probable cause exists to believe that the convict is insane.” (Emphasis added.) If the trial court can make the probable cause determination without a hearing, then no hearing is required.
In this case, even after a hearing, Scott had presented no medical or psychiatric testimony or expert testimony of any nature showing that he is insane, as defined, or that further proceedings are warranted to consider the issue. Indeed, [3] the trial court made specific findings of fact on Scott’s mental condition in determining that no probable cause existed to question whether Scott was competent to be executed. While finding that Scott has suffered from chronic undifferentiated schizophrenia since 1994, the trial court found no evidence that Scott did not “understand the nature of the death penalty and/or why it is being imposed upon him.” We find that the trial court properly evaluated the evidence that related to Scott’s competency to be executed using the definition of insanity set forth in R.C. 2949.28(A).
Moreover, the trial court’s detailed findings of fact support its determination that there was no probable cause to believe that Scott was incompetent to be executed. We find no evidence from the record of the proceedings that the trial court abused its discretion in making these findings, Therefore, Scott’s first proposition has no merit.
In his second issue, Scott argues that the test for determining competency to be executed as set forth in Ford u Wainwright is no longer adequate in light of contemporary medical and psychiatric standards and should be replaced.
Ohio’s current law governing competency to be executed, R.C. 2949.28 and 2949.29, was enacted in 1998 and was modeled after the Supreme Court’s decision in Ford. As Justice Powell explained in his concurring opinion in that case, whether a convict is competent to be executed for Eighth Amendment purposes turns solely on whether the convict is aware of his impending execution and the reasons for it: “If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” 477 U.S. at 422, 106 S.Ct. at 2608, 91 L.Ed.2d at 354 (Powell, J., concurring).
Recently, the United States Court of Appeals for the Sixth Circuit has reaffirmed Justice Powell’s competency standard in Ford. In Coe v. Bell (C.A.6, 2000), 209 F.3d 815, 826, the court stated that an equivalent of “Justice Powell’s standard, that ‘only those who are unaware of the punishment they are about to suffer and the reason they are to suffer it are entitled to a reprieve,’ satisfies due process and is not an unreasonable interpretation of Supreme Court precedent.”
The defense complains that Scott’s schizophrenia and other forms of mental illness are not included in the trial court’s consideration of a convict’s competency to be executed. To the contrary, under the provisions of R.C. 2949.28(B)(2), the trial court shall consider “any supporting information” in determining whether probable cause exists to believe that the convict is insane. Here, the trial court fully considered defense medical testimony showing that Scott suffered from [4] schizophrenia. However, the tidal court found that Scott’s schizophrenia did not affect Scott’s competency to be executed, and properly rejected Scott’s claim. Thus, we find that R.C. 2949.28 properly incorporates the Ford standard for weighing claims of competency to be executed and reject Scott’s second proposition.
In his third proposition, Scott argues that R.C. 2949.28 and 2949.29 are unconstitutional by failing to properly allocate the burden of proof. Scott asserts that the state must bear the burden of proving that all condemned prisoners are competent to be executed.
Scott claims that the trial court arbitrarily assigned the burden of proof to the defense during the probable cause inquiry. However, sanity and competence are generally presumed. One who challenges either mental responsibility for crimes or competence to be tried must bear the burden of proof to challenge those presumptions. See State v. Austin (1905), 71 Ohio St. 317, 73 N.E. 218; R.C. 2945.37(G), 2901.05(C)(2), and 2901.01(A)(14).
Moreover, R.C. 2949.29 states that the burden of proof to challenge competency is on the defense. R.C. 2949.29(C) provides: “In all proceedings under this section, the convict is presumed not to be insane, and the court shall find that the convict is not insane unless the court finds by a preponderance of the evidence that the convict is insane.” Thus, the trial court properly found that “the burden of proof is on the defense to show probable cause that Mr. Scott fits the definition of insanity as outlined in O.R.C. § 2949.28.”
Finally, placing the burden of proof on Scott to prove probable cause or to prove by a preponderance of the evidence that he is incompetent to be executed does not violate Scott’s constitutional protections.
In Medina v. California (1992), 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353, the Supreme Court held that a state may presume that the defendant is competent to be tried and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence. In so ruling, the court held that a state’s procedure regarding the burden of proof in the criminal context will not be prohibited unless “ ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Id. at 445, 112 S.Ct. at 2577, 120 L.Ed.2d at 363, quoting Snyder v. Massachusetts (1934), 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677. After examining the historical and modern treatment of the burden of proof in competency proceedings and the requirements of fundamental fairness, the court concluded that placing this burden on a criminal defendant satisfies due process. Id. at 446-449, 112 S.Ct. at 2577-2579, 120 L.Ed.2d at 363-366.
In Ford, Justice Powell stated that a convict in proceedings to determine competency to be executed does not make his claim of insanity against a “neutral [5] background.” On the contrary, “in order to have been convicted and sentenced, petitioner must have been judged competent to stand trial, or his competency must have been sufficiently clear as not to raise a serious question for the trial court. The State therefore may properly presume that petitioner remains sane at the time sentence is to be carried out, and may require a substantial threshold showing of insanity merely to trigger a hearing process.” (Footnote omitted.) Ford, 477 U.S. at 425-426, 106 S.Ct. at 2610, 91 L.Ed.2d at 356-357 (Powell, J., concurring).
Moreover, the United States Court of Appeals for the Sixth Circuit has ruled that Tennessee’s statute on competency to be executed properly placed the burden of proof on the convict to prove his incompetency by a preponderance of the evidence. Coe v. Bell, 209 F.3d at 827-828. In so ruling, the court concluded that in light of Medina, it saw “no reason why a prisoner’s competency to be executed should be treated more strictly than a criminal defendant’s competency to stand trial for the purpose of due process.” Id. at 828. We therefore find that the trial court properly interpreted R.C. 2949.29(C).
For the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Lundberg Stratton, JJ., concur.
Cook, J., concurs separately.
Pfeifer, J., dissents.