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                                                       RENDERED: MAY 5, 2016
                                                        NOT TO BEI PUBLISHED

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                              2015-SC-000387-MR


DWAYNE EARL BISHOP
                                                      BAT E
                                                                      APPELLANT


                    ON APPEAL FROM COURT OF APPEALS
V.                        NO. 2014-CA-001079-OA
                   FLOYD CIRCUIT COURT NO. 00-CR-00061

HONORABLE EDDY COLEMAN, SPECIAL                                        APPELLEE
JUDGE, FLOYD CIRCUIT COURT

AND

COMMONWEALTH OF KENTUCKY                              REAL PARTY IN INTEREST



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Dwayne Earl Bishop appeals to this Court from the Court of Appeals'

order denying his petition for a writ of mandamus to direct the trial court to

rescind its order purportedly depriving Bishop of access to counsel at trial. The

Court of Appeals declined to issue the writ because Bishop has an adequate

remedy by appeal. We agree and affirm the order of the Court of Appeals.


                I. FACTUAL AND PROCEDURAL BACKGROUND.

      Bishop was indicted sixteen years ago for the brutal murder of his

estranged wife. He was tried, convicted, and sentenced to life imprisonment. He

appealed the conviction to this Court contending he was denied a right to

hybrid counsel at trial. We agreed. And in an unpublished opinion, we

reversed the conviction, holding that Bishop was "constitutionally entitled to
make a limited waiver of counsel, specifying the extent of services he desires."'

We remanded his case for further proceedings consistent with our ruling.

       In the years since our ruling, a retrial has been repeatedly delayed in

large part because of Bishop's clash with a succession of attorneys appointed

to him as hybrid counsel. This stems mostly from Bishop's frequent invocation

of his "constitutional right to be the captain of his own defense ship." His

frequent battle with appointed counsel about defense strategy ultimately

caused the trial court to order a formal hearing to inquire into precisely why it

was taking so long to bring the case to trial. The hearing resulted in the trial

court's entering written findings of fact, conclusions of law, and the order that

brought about this writ action.

       The trial judge found as a matter of fact that Bishop failed to cooperate

with the eleven attorneys that have been appointed to him as hybrid counsel at

some point since our remand. Specifically, the trial court found that Bishop

refused to disclose defense witnesses to attorneys, insisted on pursuing

collateral issues, and refused to discuss relevant trial strategy. Despite his

attorneys' efforts to pursue the collateral issues to the extent the trial court

allowed, Bishop remained unsatisfied and routinely refused advice on appellate

procedure, the rules of evidence, or relevant defensive strategies. This

eventually led the trial court to determine that Bishop's antagonistic behavior

toward his appointed counsel was the main reason behind the significant delay

for retrial, suggesting even that Bishop's recalcitrance is calculated to delay

retrial.



       1   Bishop v. Commonwealth, 2009 WL 424989 (Ky. 2009).
                                           2
      In addition to a refusal to cooperate, the trial court also found that

Bishop threatened one of the currently appointed defense attorneys, Rebecca

Lytle, with physical injury. Lytle refused to meet with Bishop alone. In response

to this development, Bishop announced that if the trial court could not remove

her for a conflict, he would "break her front teeth out." Bishop's investigator

mirrored Lytle's sentiment—he felt uncomfortable meeting Bishop in person

and wished to assist him only through written communication.

      The trial court determined that Bishop was competent to stand trial, to

represent himself, and to cooperate with appointed counsel (if he were willing).

As a result of Bishop's unmanageable behavior, the trial court concluded as a

matter of law that Bishop forfeited his right to hybrid counsel. As such, the

trial court ordered Bishop to represent himself, determine his own trial

strategy, make his own statements and arguments, and conduct his own

examination of witnesses. But the trial court stopped short of fully discharging

appointed counsel from the case. Instead, appointed counsel was ordered to

remain in the case to assist Bishop in the event he is either unwilling or unable

to represent himself and to offer assistance such as serving subpoenas on

witnesses and conducting legal research.

      Bishop was unpleased with the ruling and filed an original action in the

Court of Appeals for a writ of mandamus to prohibit the trial court from

enforcing the order. His primary argument is that the order deprives him of his

constitutional right to counsel and violates our holding granting him access to

hybrid counsel. But the Court of Appeals denied the writ because it concluded

that he had an adequate remedy by appeal from any adverse judgment entered

against him in the trial court. Bishop now appeals to this Court, asking us to
                                         3
reverse and remand the case to Court of Appeals for a writ of mandamus to

prohibit enforcement of the trial court's order.


                                        II. ANALYSIS.

      When ruling on a writ petition, we must first determine whether the writ

is appropriate. Only then will we look to the merits of the petition to review the

trial court's decision. The decision to issue a writ is entirely within this Court's

discretion. 2 A writ is an extraordinary remedy and is one we apply with

caution. We have recognized two specific situations where this type of relief is

appropriate:

             [U]pon a showing that (1) the lower court' is proceeding or is
      about to proceed outside of its jurisdiction and there is no remedy
      through an application to an intermediate court; or (2) that the
      lower court is acting or is about to act erroneously, although
      within its jurisdiction, and there exists no adequate remedy by
      appeal or otherwise and great injustice and irreparable injury will
      result if petition is not granted. 3

Bishop does not argue that that trial court acted outside its jurisdiction;

instead, he posits that the trial court is acting erroneously and the order

imposes a great injustice by depriving him of his constitutional right to counsel

at trial. But under this second writ category, Bishop bears the burden of

proving both irreparable injury and inadequate appellate remedy. 4

      The Court of Appeals denied Bishop's writ petition and concluded that a

matter-of-right appeal following his potential conviction would be an adequate

remedy. Specifically, the panel held that "Bishop offers nothing to show that he

will suffer any injury that cannot be corrected on appeal if he is convicted


      2   Hoskins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004) (citations omitted).
      3   Id. at 10.
      4   Id. at 9-10.
                                              4
erroneously." According to the panel, there is no threat of immediate or

irreparable injury if the court does not consider his substantive claims before

the conclusion of his trial. And we agree.

      Bishop's primary counterargument to the Court of Appeals' decision is

the gradual loss of evidence and general impairment to his own investigation in

preparing his defense, should he be ordered to proceed immediately to trial. He

specifically points to the fact that some witnesses he considered favorable to

his case have already died over the course of the last fifteen years, and he

needs to investigate thoroughly all areas he deems essential to his defense. But

this, to us, is insufficient to establish an immediate and irreparable injury

worthy of grating his writ petition.

      The march of time inexorably threatens the availability of witnesses to

present live testimony. Although we are sure Bishop wishes to use these

individuals to discover new information, granting this writ would only prolong

the pretrial process even more, making it even less likely these potential

witnesses survive to testify at trial. And a large part of the delay in retrial can

be attributed to Bishop's refusal to cooperate and collaborate with the

attorneys the trial court appointed to aid him as hybrid counsel. The Court of

Appeals panel was correct in deducing that our requirement of a lack of an

appropriate appellate remedy is unavoidable. 5 Absent any proof to the

contrary, we have no reason to believe Bishop will acquire any additional

discovery, and we have no reason to be concerned for potentially deteriorating

exculpatory evidence. And as such, there is no injury we must characterize as



      5   See Gilbert v. McDonald-Burkman, 320 S.W.3d 79 (Ky. 2010).
                                           5
immediate, irreparable, and incapable of remedy should he choose to appeal a

potential conviction. So we cannot agree the Bishop is entitled to the writ of

mandamus he requests.

      But our inability to agree to the issuance of a writ today should not

necessarily be construed as an endorsement of the trial court's order. The Sixth

Amendment to the United States Constitution grants every criminal defendant

"the assistance of counsel for his defense." 6 This federal constitutional

protection is incorporated to state prosecutions through the Due Process

Clause of the Fourteenth Amendment.? And the United States Supreme Court

further held that "absent a knowing and intelligent waiver, no person may be

imprisoned for any offense, whether classified as petty, misdemeanor, or felony,

unless he was represented by counsel at his trial." 8

      The Kentucky Constitution offers a similar protection for individuals

prosecuted in the Commonwealth. The state constitution provides that "In all

criminal prosecutions the accused has the right to be heard by himself and

counsel." 9 Kentucky's provision is textually distinct from the Sixth Amendment

and contemplates a heightened scope of rights than its federal counterpart. In

Kentucky, a criminal defendant is entitled to be heard through counsel and

through his own representation. In Wake v. Baker, we construed this

constitutional command to mean that "an accused may make a limited waiver

of counsel, specifying the extent of services he desires, and he then is entitled



      6   U.S. CONST., amend. VI.
      7   See Gideon v. Wainwright, 372 U.S. 335 (1963).
      8   Argersirtger v. Hamlin, 407 U.S. 25, 37 (1972).
      9   Ky.Const. § 11.
                                             6
to counsel whose duty will be confined to rendering the specified services." 10 So

we boldly declared that the Kentucky Constitution includes the right to hybrid

counsel. And we reiterated this representational right in our original opinion in

Bishop's case. 11

       Both the federal and state constitutions take a strong stand on a

criminal defendant's right to representation at trial. And the trial court in the

instant case appears to have concluded that by his conduct, Bishop forfeited

his right to both hybrid and full counsel at trial. We have never directly

confronted a forfeiture of this magnitude in our jurisprudence. While

deprivations of counsel are reviewed on appeal for structural error, it would

appear that structural-error review is incompatible with our writ

requirements. 12 Bishop retains an adequate appellate remedy should he lose at

trial: he is still entitled to a matter-of-right appeal, which may result in yet

another trial. It is thus inappropriate for us to address today whether Kentucky

constitutional law permits forfeiture of full counsel, hybrid counsel, or both.

But should the trial court proceed on its present course, we anticipate our wait


       10 514 S.W.2d 692, 696 (Ky. 1974). The Wake Court, of course, limited the
services a defendant may specify to those within the "normal scope of counsel
services." Id.
       11   See Bishop v. Commonwealth, 2009 WL 424989 *1-2 (Ky. 2009).
        12 See Mitchell v. Commonwealth, 423 S.W.3d 152, 162 (Ky. 2014). This seems
to reflect the Supreme Court's position on Sixth Amendment counsel claims. See
United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (erroneous deprivation of
the right to counsel of choice "unquestionably qualifies as structural error") (internal
citations omitted).
        A structural error is a "very limited class" of errors that affect the "framework
within which the trial proceeds." United States v. Marcus, 560 U.S. 258, 263 (2010).
Under Kentucky law, structural errors are presumed to be prejudicial, and there can
be no harmless-error review. See Allen v. Commonwealth, 410 S.W.3d 125 (Ky. 2013);
Hill v. Commonwealth, (124 S.W.3d 221 (Ky. 2004) (as modified by Depp v.
Commonwealth, 278 S.W.3d 615 (Ky. 2009)) (violation of right to counsel is structural
and not subject to harmless-error review).
                                             7
to tackle the merits of conduct-based waiver of the right to counsel and hybrid

counsel will not be a long one.


                                 III.   CONCLUSION.

      For the foregoing reasons, we affirm the Court of Appeals' decision to

deny Bishop's petition for a writ of mandamus.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Department of Public Advocacy

APPELLEE:

Honorable Eddy Coleman, Special Judge
Floyd Circuit Court


COUNSEL FOR REAL PARTY IN INTEREST, COMMONWEALTH OF
KENTUCKY:

Andy Beshear
Attorney General of Kentucky

James Hays Lawson
Assistant Attorney General of Kentucky




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