IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

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PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

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ACTION. 
RENDERED: MAY 5, 2016 

NOT TO BE PUBLISHED 

,Suprrtur Ciurf rufurkg 

2015-SC-000387-MR 

DWAYNE EARL BISHOP 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 And in an unpublished opinion, we 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. 

1Bishop 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 

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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. 2A 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. 5Absent 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." 6This 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."9Kentucky'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 

6U.S. CONST., amend. VI. 

7 See Gideon v. Wainwright, 372 U.S. 335 (1963). 

8 Argersinger 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." )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. 12Bishop 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 

10514 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 

8