IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MAY 5, 2016 NOT TO BE PUBLISHED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 And in an unpublished opinion, we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.
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
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE 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.
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 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. 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