NOT DESIGNATED FOR PUBLICATION

GUIDRY, J.

The defendant, Edward Nelson McCray, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty and, following a jury trial, was found guilty as charged. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant previously appealed, designating one assignment of error in which he argued that the trial court erred in proceeding to trial without a determination of his mental capacity to proceed to trial. This court conditionally affirmed the conviction and sentence and remanded for the trial court to make a determination as to the possibility of a meaningful inquiry into the defendant's competence at the time of trial and, if so, for an evidentiary hearing and determination on the issue. State v. McCray, 10-0504 (La. App. 1st Cir. 12/22/10) (unpublished).

On remand, the trial court found that the defendant was competent to understand the proceedings of his trial, and that he was able to assist his attorney at trial. Subsequently, the defendant filed a writ of mandamus requesting enforcement of this court's order in his appeal. We denied the writ application as follows:

State v. McCray, 11-1192 (La. App. 1st Cir. 9/14/11) (unpublished). The defendant again appeals, designating as assignment of error number one, the trial court's failure on remand to follow the unambiguous instructions of this court, and as assignment of error number two, ineffective assistance of counsel on remand. For the following reasons, we affirm the ruling of the trial court.

STATEMENT OF FACTS

On the afternoon of August 7, 2005, the defendant had an altercation with Mallery Magee, the victim, in Folsom, Louisiana. The defendant needed a place to live at the time and was allowed to spend one night at a trailer home that was also being occupied by the victim. Witnesses observed the defendant with a hammer in his hand moments before the victim, completely naked, staggered from his trailer while bleeding profusely from the head. The defendant indicated that he and the victim had a fight. The victim died from his wounds. The next day, the defendant was arrested in a dilapidated trailer on his father's property in Tangipahoa Parish. Inside the defendant's duffel bag was a hammer partially wrapped in a shirt and plastic bag.

Dr. Michael Defatta, a forensic pathologist who performed the autopsy on the victim, testified at trial that the victim had several large gaping lacerations on his head, as well as abrasions on his chest and back. Some of the lacerations on the head were from a blunt force or crushing effect from an object. One laceration was linear, while another laceration was curvilinear. According to Dr. Defatta, the wounds could have been caused by different surfaces of the same object. In his opinion, that type of crescent-shaped injury was usually caused from some type of hammer. Further, the side of the hammer may have caused the linear abrasion. The victim died from a loss of blood.

ASSIGNMENTS OF ERROR

In assignment of error number one, the defendant argues that the transcript of the proceeding that took place upon remand, on August 11, 2011, contains no determination by the trial court that a meaningful inquiry into the defendant's competence at the time of trial was possible. The defendant further notes that the transcript of the proceeding also shows that it was not conducted as an evidentiary hearing, but instead was treated as merely a perfunctory proceeding to clear up the record. In the defendant's second assignment of error, he presents the closely-related argument that the hearing conducted by the trial court was fundamentally unfair and in violation of his due process rights. The defendant notes that reports dated February 13, 2008, from a psychiatrist and psychologist were admitted as evidence of his competency at his trial, which began about eighteen months later on August 11, 2009. The defendant further notes that at the hearing upon remand, his trial counsel testified regarding their communications during the trial. The defendant argues that his appointed counsel for the hearing upon remand exhibited a misunderstanding of this court's instructions and was ineffective in failing to object to the proceeding's inconsistency with the instructions of this court.

In its response brief, the State notes that before the trial the defendant filed a motion to adopt the sanity proceedings in Washington Parish. The State further notes that the trial court believed that it made the competency determination in this case prior to trial, but acknowledged that the determination was not clear in the record. The State notes that on remand the trial court had the doctors' reports and determined that the defendant was competent based on those reports. The State concludes that the defendant has failed to prove that his counsel erred or that the result of the proceedings would have been any different had his counsel acted differently. In a reply brief, the defendant reiterates the fact that in 2007, when he filed his motion to adopt sanity proceedings, he sought only to adopt the findings of the previous November 22, 2006, Washington Parish Sanity Commission Report, which found him incompetent to stand trial, and not the subsequent evaluations, as they were not extant at the time of his 2007 motion.

A criminal defendant has a constitutional right not to be tried while legally incompetent. A state must observe procedures adequate to protect a defendant's right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L. Ed. 2d 353 (1992).

Louisiana's statutory scheme for detecting mental incapacity jealously guards a defendant's right to a fair trial. State v. Rogers, 419 So.2d 840, 843 (La. 1982). In Louisiana, "[m]ental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." La. C.Cr.P. art. 641. Louisiana law also imposes a legal presumption that a defendant is sane and competent to proceed. La. R.S. 15:432; State v. Carmouche, 01-0405, p. 30 (La. 05/14/02), 872 So.2d 1020, 1041. The defendant carries the burden of establishing that he lacks the capacity to understand the object, nature and consequences of the proceedings against him, and that he is unable, in a rational and factual manner, to consult with counsel in a meaningful way, and to assist in his defense. State v. Narcisse, 426 So.2d 118, 128 (La.), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L. Ed. 2d 176 (1983). Although article 647 of the Louisiana Code of Criminal Procedure mandates a contradictory hearing, there is no prohibition against waiver of a full hearing or stipulation to submission on the competency issue based on uncontroverted doctor's reports. See State v. Darnell, 43,048, pp. 76-77 (La. App. 2d Cir. 8/13/08), 988 So.2d 870, 877.

Further, although the trial court may consider expert medical testimony on the issue of competency to stand trial, the ultimate decision on the issue of competency shall be made by the court alone. State v. Castleberry, 98-1388, p. 9 (La. 4/13/99), 758 So.2d 749, 758, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L. Ed. 2d 185 (1999). Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused's ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. State v. Bennett, 345 So.2d 1129, 1138 (La. 1977) (on rehearing).

The trial judge's determination of competency to stand trial is entitled to great weight and will not be disturbed on appeal absent a showing of manifest error. State v. Brown, 414 So.2d 689, 694 (La. 1982). If the trial court abuses its discretion in failing to investigate a defendant's claims of incompetency before trial, a nunc pro tunc hearing on the issue of competency may be allowed if a meaningful inquiry into the defendant's competency can still be had. See State v. Snyder, 98-1078, p. 30 (La. 4/14/99), 750 So.2d 832, 854-55; State v. Mathews, 00-2115, p. 17 (La. App. 1st Cir. 9/28/01), 809 So.2d 1002, 1016, writs denied, 01-2873 (La. 9/13/02), 824 So.2d 1191, 01-2907 (La. 10/14/02), 827 So.2d 412. The trial court is in the best position to determine whether it can make a retrospective determination of a defendant's competency during his trial and sentencing. Snyder, 98-1078 at pp. 30-31, 750 So. 2d at 855. A meaningful determination is possible where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant's condition at the time of the original proceedings. Additionally, when determining whether a meaningful hearing may be held, we look to the existence of contemporaneous medical evidence, the recollections of non-experts who had the opportunity to interact with the defendant during the relevant period, statements by the defendant in the trial transcript, and the existence of medical records. The passage of time is not an insurmountable obstacle if sufficient contemporaneous information is available. Snyder, 98-1078 at p. 31, 750 So. 2d at 855. The determination of whether a trial court can hold a meaningful retrospective competency hearing is necessarily decided on a case-by-case basis. The State bears the burden to show the court that the tools of rational decision are available. Snyder, 98-1078 at p. 31, 750 So. 2d at 855.

In the instant case, the defendant was indicted by grand jury on August 7 to August 8, 2005. On August 16, 2007, James Talley, the defense counsel at the time, filed a motion for mental examination. On November 30, 2007, the defendant filed a motion to adopt the sanity proceedings in Washington Parish (State v. McCray, docket no. 04-CR2-91549). On April 21, 2009, the State informed the trial court that the defendant had been found incompetent on November 22, 2006, in Washington Parish, but the competency issue had been resolved. Specifically, the trial court in Washington Parish subsequently had the defendant evaluated by the Department of Health and Hospitals where arrangements were made for consulting a psychiatrist/psychologist to evaluate the defendant. As noted by the State, based on February 13, 2008 evaluations by Dr. David Hale, a psychologist, and Dr. Harminder Mallik, a psychiatrist, the defendant was found to be competent. The State further marked medical records from Washington Parish as exhibits Ml and M2, and submitted them into evidence. However, there was no response from the trial court at this hearing. When the trial began on August 11, 2009, the trial court had still made no ruling on the record regarding the status of the defendant's competency to stand trial.

In the initial appeal, the defendant asserted that it was error for the trial to have taken place and that his conviction should be reversed because the trial court never found him competent to stand trial at any time. Finding merit in the defendant's assertion, this court noted that there was nothing in the record before us that indicated that the trial court made any ruling regarding the defendant's competency. This court further noted that if the trial court adopted the findings of Drs. Hale and Mallik, it was not clear from the record. We held that there had been no formal ruling issued in the instant matter regarding the defendant's mental capacity to proceed. However, contrary to the defendant's suggestion that his conviction be reversed, we found it unnecessary to set aside the conviction and sentence as the issue of capacity may be clarified on remand. See Snyder, 98-1078 at pp. 31-32, 750 So. 2d at 855-56. As such, we remanded for a nunc pro tunc hearing on the issue of competency, if a meaningful inquiry into the defendant's competency could still be had.

At the hearing on remand, the State reintroduced the November 22, 2006, Washington Parish Sanity Commission Report by Dr. Michelle Garriga. Therein, after examining the defendant at that time, Dr. Garriga noted in her summary of competence to stand trial:

The State also reintroduced the subsequent February 13, 2008 medical evaluation of the defendant from the Department of Health and Hospitals wherein the defendant was evaluated by Drs. Hale and Mallik. At that time, upon determining the defendant was exaggerating and malingering his symptomology, the doctors concluded in pertinent part:

Under the "OPINIONS REGARDING COMPETENCY" heading, the doctors selected the option that stated: "The defendant currently has a rational as well as a factual understanding of the proceedings against him/her and has a sufficient present ability to consult with his/her lawyer with a reasonable degree of rational understanding."

The defendant addressed the court, stating that he wished to fire the counsel who was representing him on remand, stating that his counsel failed to respond to correspondences. The defendant further stated:

The defendant further stated that he is a paranoid schizophrenic suffering from depression. The defendant added that he did not take any medication and was under a doctor's care at the time of the trial, because at that time, he believed that people were trying to poison him to death.

The trial court noted that it remembered referring to the reports indicating that the defendant ultimately had been found competent to proceed to trial in Washington Parish. The trial court acknowledged that its conclusion that the defendant was also competent to stand trial in this case may not have been set forth on the record. The trial court also recalled that the parties agreed to stipulate to reports in lieu of the doctors' testimony.

The defendant's counsel at the time of the trial, Oliver Carriere, then testified. Carriere recalled the parties' stipulation that if the doctors were called to testify, their testimony would be consistent with the information in their reports. Carriere further confirmed that during the trial he did not have any concerns regarding the defendant's competency to stand trial, and that they were able to communicate at the time. The trial court noted that at the time of the trial, the defendant understood the function of the judge and the lawyers in the courtroom and the charges against him. The trial court further noted that the defendant was able to assist and formulate a defense with his attorney, identify witnesses, and discuss trial strategy. The trial court also noted its consideration of the ultimate finding in Washington Parish that the defendant was competent to stand trial. At the end of the hearing, the trial court stated, "Well, the motion is denied." However, the hearing transcript also includes the following statement by the trial court:

The defense counsel did not object to the trial court's ruling or consideration of evidence on remand.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for postconviction relief in the trial court than on appeal. This is because postconviction relief provides the opportunity for a full evidentiary hearing under La. C.Cr.P. art. 930.1 However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La. App. 1st Cir. 1993), writ denied, 94-0050 (La. 4/7/94), 635 So.2d 1132.

A claim of ineffective assistance of counsel is to be assessed by the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fuller, 454 So.2d 119, 125 n.9 (La. 1984). The defendant must show that counsel's performance was deficient and that the deficiency prejudiced him. Counsel's performance is deficient when it can be shown that he made errors so serious that he was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To carry his burden, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Although a defendant cannot waive the requirement of a specific mental capacity finding once the issue is raised, he can submit to such a determination based on the sanity commission reports. Darnell, 43,048 at p. 11, 988 So. 2d at 877. At the outset, we note that the defendant did not complain about the lack of a contradictory sanity hearing until his initial appeal. Moreover, even if we were to find any error in the lack of a contradictory hearing, such error is harmless in this case. See Narcisse, 426 So. 2d at 129. As noted, there was nothing in the original appeal record to indicate that the trial court made any ruling regarding the defendant's competency, or that he adopted the findings of Drs. Hale and Mallik. Based on the record before us at the time, we held that there had been no formal ruling issued regarding the defendant's mental capacity to proceed, but noted that the issue of capacity may be clarified on remand.

Based upon our review of the record established upon remand, we find that the trial court has complied with this Court's order to conduct a nunc pro tunc hearing on the issue of competency. We further find no discrepancy in the minutes and transcript of the hearing that took place upon remand. The trial court concluded that a meaningful inquiry into the defendant's competency could still be had and noted its review of the findings of Drs. Hale and Mallik. To the extent that the defendant argues that these doctors' evaluations were stale, the defendant failed to prove that there was any significant change in circumstances during the time period that lapsed between their evaluations and the trial. Thus, we find no error in consideration of the reports of Drs. Hale and Mallik. Further, the trial court admitted testimony by the attorney who represented the defendant at the time of the trial. The trial court carefully noted its recollection of the defendant's capacity to proceed at the time of the trial. Given the testimony and evidence presented in the nunc pro tunc hearing, we find that the weight of the evidence supports the trial court's ruling that it was possible to determine the defendant's competency and that, in fact, the defendant was competent at the time of trial. Moreover, under the Strickland analysis for ineffective assistance of counsel, even if the defendant's counsel on remand had rendered a deficient performance, the record before us does not demonstrate any prejudice considering the fact that Drs. Hale and Mallik clearly found that defendant had the capacity to stand trial, and the trial court on remand clarified its determination of competency. Accordingly, we find no merit in assignments of error numbers one and two. Therefore, the defendant's conviction and sentence are hereby affirmed.

CONVICTION AND SENTENCE AFFIRMED.