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People v. Kinion





APPEAL from the Circuit Court of Rock Island County; the Hon. ROBERT J. HORBERG, Judge, presiding.


On November 27, 1979, defendant Margaret Ann Kinion, an accountant for the City of Rock Island, was indicted for 63 counts of felony theft. For an initially proposed fee of $20,000, petitioner Braud, Warner, Neppl, and Westensee, Ltd., a Rock Island law firm, agreed to represent her in the criminal action. As defendant lacked sufficient funds, she gave petitioner a second mortgage on her home and subsequently deeded the law firm any interest she might possess in the realty.

Raising the issues of fitness to stand trial and insanity, petitioner concluded that psychiatric examination was necessary. On May 30, 1980, defendant filed a petition for payment of psychiatric expenses, alleging that she was a poor person without employment, income, or funds; and that the Rock Island Bank had begun foreclosure proceedings against her home. This was followed, on June 12, 1980, by a motion to declare the accused indigent. The motion alleged that defendant had been suspended from her position; her car, repossessed; her furniture, being replevied; her attempts to sell her home, futile; and her ability to pay her attorney fees and costs of defense, nonexistent. On June 16, 1980, the indigency motion was heard. It was established that defendant had no funds nor investments, was receiving no unemployment compensation as she had been suspended, not terminated, and had had her bail loaned by a friend. A realtor testified that defendant's home had been listed at $78,000, had a first mortgage of over $43,000, and had a fair market value of $55,000 to $60,000. Defendant suggested that her bail be reduced and the freed monies be used to pay for her psychiatric examinations, but this was opposed by the State. The court denied the motion to reduce bail, but adopted petitioner's further suggestion that funds from the sale be first applied to the cost of the examinations and then to petitioner's fees. Petitioner expressly stated that it was not seeking its fees from the court, and the court ordered that the county would pay for the examinations if defendant had no assets. No dollar figure was requested nor mentioned.

On September 2, 1980, defendant filed a motion for payment of witness fees, alleging her indigency and requesting the appointment of four experts to determine her fitness for trial. The following day she filed an application for indigency and payment of legal and expert witness fees, requesting the appointment of petitioner as her attorney. On September 16, 1980, defendant filed a renewed motion for declaration of indigency. The motions were heard on September 19, 1980, and the court reserved its ruling. A subsequent hearing was held on October 23, 1980. It was established that the bank had to purchase defendant's home for $47,200, the actual amount of its mortgage, as there were no bids at or above that price. The court declared defendant an indigent and appointed petitioner her attorney "for the conclusion of the proceedings." On December 2, 1980, after a four-week jury trial, defendant was found guilty. She has appealed her convictions to this court, but those appeals are presently pending in separate and unrelated appeals.

On December 22, 1980, petitioner filed a corrected petition for attorney fees and costs. The petition requested expert witness fees in the amount of $10,233.80 and attorney fees and costs in the amount of $28,606.35. On May 6, 1981, the trial court issued its opinion and ruling on petition for fees. The court concluded it had the discretion to appoint petitioner as defendant's attorney and that the effective date of the appointment was September 3, 1980. Finding that petitioner had, since that date, spent 151 hours in court and 54 hours out of court, it awarded fees of $5,390 and costs of $1,110. Concluding that the county should pay for all expert witness fees accrued from May 30, 1980, the court awarded such fees in the amount of $9,073.

On appeal, the State contends the trial court erred in appointing petitioner as defendant's attorney, and in its award of fees and costs.

Considering first the propriety of the trial court's appointment of petitioner as defendant's attorney, the State has advanced three arguments in support of its position. It contends the agreement between petitioner and defendant bars such appointment, that petitioner was estopped to seek such appointment, and that defendant was not shown to be indigent.

• 1 While the parties have each advanced their arguments concerning the validity of the contract of retainer, we shall not here consider the interesting question concerning the nature and sufficiency of its consideration. We instead look to section 113-3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 113-3(b)):

"In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel * * * [I]f the defendant requests counsel other than the Public Defender and the court finds that the rights of the defendant will be prejudiced by the appointment of the public defender, the court shall appoint as counsel a licensed attorney at law of this State * * *."

It can be seen that the two factors which must guide the trial court in appointing counsel are indigency and the desire of a defendant for counsel. This is no more than statutory recognition of the principle that the right of an accused to counsel under the sixth amendment cannot be dependent upon ability to pay for an attorney's services. (People v. Cook (1980), 81 Ill.2d 176, 407 N.E.2d 56.) Defendant here specifically requested an attorney, manifesting the requisite desire for counsel. The question of her indigency will be considered hereafter. The appropriateness of appointing private counsel is not before us as it was first raised in the State's reply brief, but we note the appointment considered the significant amount of time petitioner had expended on this matter before appointment. Were we to hold that the existence of a contractual relationship between a defendant and attorney barred a court from appointing counsel, we would undermine both the express intent of the statute and its constitutional underpinnings. This we decline to do. In so declining, we express no opinion as to any action sounding in contract. We likewise express no opinion regarding the State's contention, irrelevant to our determination of this issue and raised in its reply brief, that petitioner had an ethical obligation to continue its representation without compensation.

The State's second argument in support of its position that the trial court erred in appointing petitioner is that petitioner was estopped from accepting the appointment. The State contends that the estoppel stems from petitioner's representation in the initial indigency petition, that it would "continue to represent your defendant without cost, and that no application will be made to the State for payment of attorney's fees," and its later statement at the June 16, 1980, hearing that "[w]e are not asking that the court pay for or appoint counsel. We are accepting as part of the risks in being an attorney that occasionally our clients are unable to pay for us."

• 2 While the State does not explain the theoretical basis of its estoppel argument we note two factors. To be actionable, a false representation must generally relate to an existing or past event, not to a promise or prognostication concerning a future happening. (Sinclair v. Sullivan Chevrolet Co. (1964), 31 Ill.2d 507, 202 N.E.2d 516.) In addition, an essential element of estoppel is reliance. (Finley v. Finley (1980), 81 Ill.2d 317, 410 N.E.2d 12.) We cannot see how the State, the adverse party in the fee aspect of this case, relied upon petitioner's assertion. If the trial court so relied, as this appears to be the implied argument, we note no fees were awarded to petitioner for work prior to September 3, 1980. Thus, as to the relevant period, the representation did not prove to be false. Under these circumstances, we do not find petitioner was estopped from accepting the appointment.

• 3 The State's third argument in support of its position on this first issue is that it was not shown that defendant was indigent. The State posits that she possessed an equity of between $11,000 and $16,000 in her home and failed to exercise her right of redemption. It appears the estimate of equity is based upon the appraisal value of the realty; however, the fact that the bank was unable to find a buyer at $47,200 belies such value. The reality of the matter is that she possessed no equity in her home. As for her failure or petitioner's failure to exercise the right of redemption, this would have required the outlay of the above sum plus interest for an asset apparently worth less. We fail to see how this could bear on the question of indigency. We therefore find the trial court correctly declared defendant to be indigent. Finding no merit in the State's three arguments, we affirm the court's order of appointment.

Considering next the trial court's award of fees and costs, we first turn to its award of attorney fees and costs, and conclude with a discussion ...

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