Appeal from the Circuit Court of Union County; the Hon. D.D.
Bigler, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 1, 1982.
Petitioner, Patrick J. Prendergast, appeals from the order of the circuit court of Union County awarding him $750 as his attorney fee for representing the defendant, Harold M. Parks, as appointed counsel. Petitioner requested $2,430, which he claimed was a reasonable amount for attorney fees based on his having spent 1 3/4 hours in court and 79 1/4 hours out of court in his representation of defendant, both at the rate of $30 per hour.
The defendant was charged on February 21, 1980, in a five-count information with unlawful possession of a controlled substance, cocaine; unlawful possession of a controlled substance, methaqualone; unlawful possession of cannabis; and two counts of unlawful delivery of a controlled substance, cocaine. Due to conflicts which developed in defendant's first two appointed counsel, petitioner was not appointed until January 8, 1981, after the preliminary hearing and after most of the discovery had been completed. Petitioner filed motions for substitution of judges and a motion to suppress evidence. It does not appear that a hearing was held on the motion to suppress. On July 27, 1981, defendant entered a negotiated plea of guilty to unlawful possession of a controlled substance, methaqualone, and was sentenced to two years' probation. On July 28, 1981, petitioner filed a verified statement of services.
On August 3, 1981, a hearing was held on petitioner's motion for attorney fees. The only witness to testify was attorney David Watt. Mr. Watt testified to his extensive experience as an attorney in the field of criminal law. He further testified that he had reviewed petitioner's file, which contained between five and eight law review articles and five to seven cases from other jurisdictions regarding the defense of necessity. He stated that based on his experience in handling similar issues, he was of the opinion that the time spent was a reasonable amount of time and that the amount submitted was reasonable. Mr. Watt further testified as follows: "[C]onsidering the case, the charges involved, the issues that were involved, and also to a certain extent, considering the fact that Mr. Prendergast is a young lawyer, that the amount of time that he spent in this case was not only reasonable but in my opinion, was not excessive." Mr. Watt related that in a criminal case in which he represented a defendant, the special prosecutor was paid $50 an hour plus expenses. Mr. Watt admitted that he has never defended a sale of cocaine charge on the basis of necessity because it is an extremely rare defense. He stated that since the defendant in this case made admissions against interest in a newspaper interview, the defense would need to be creative.
It appears from the record that defendant is suffering from a disease which has severely affected his hips and ability to walk; consequently, the contemplated defense would be that the cannabis and controlled substances were necessary to relieve the pain.
The State did not contest the time spent or the quality of the representation, but it did contest the reasonableness of the fees on the grounds that the time spent in court was minimal and because an excessive amount of time was spent on the defense of necessity.
The trial court considered the law as stated in People v. Johnson (1981), 93 Ill. App.3d 848, 417 N.E.2d 1062, affirmed (1981), 87 Ill.2d 98, 429 N.E.2d 497, and stated:
"* * * I suppose what constitutes a reasonable fee is determined in each case. The court is not that familiar with the defense of necessity. However, I believe there are only two cases in the state on the subject. Whether or not it was reasonable for Mr. Prendergast to spend that time researching, I didn't talk with Mr. Parks and I don't know what the factual situation was. I do think that necessity is a very limited defense as is indicated by the cases in the state of Illinois.
For the record, in this particular case, defendant's attorney has stated that he was in Court one hour and forty-five minutes. I don't question that or disagree with it. * * *
There is quite a bit of discussion in [the case law] as to what is a reasonable hourly rate. I have no argument that $30.00 is reasonable. It is not the going rate in Union County. The only question that I have is the amount of time consumed in this case by the defendant's attorney. Eighty hours for research and for conferences, and I am not saying, Mr. Rose, that he didn't spend eighty hours. I am sure he did or he wouldn't have filed the verified statement. It is my job to ascertain whether or not that is reasonable in this case. The statute authorizes the payment of a reasonable fee. * * *
And, of course, the court is directed to consider all relative circumstances. The circumstances that we have in this case is the total court appearance of approximately one hour. For the record, the attorney for the defendant was not appointed during the preliminary hearing or during the earlier motion stages, and again, we are talking about what is a reasonable fee. I think they say that you should not be unjustly enriched nor unjustly penalized for having to do court appointed work, and that a reasonable fee infers at least some compensation, and I would agree with that. Such fees awarded to appointed counsel must reimburse the attorney for office overhead and expences [sic] and give him something for his own support. I have no argument with that. It says, do not interpret the statute to require compensation equal to the prevailing market rate in the community, as petitioners suggest, although such a fee is not prohibited and may well constitute an appropriate amount in a given case. I think that what they are trying to say is that the trial judge has wide discretion in what appears to be reasonable in any given case. I was involved in this case from the first appearance to the negotiated plea, so I am familiar with this case. I can't feel that a fee of $2,430.00 is reasonable in this case, so that gets down now as to what is reasonable, and again, I don't want to be misinterpreted as saying that I don't believe that you spent the time on it. You spent the time and I think that you did an excellent job defending the defendant. However, the burden is on me to decide what is reasonable and I can't justify eighty hours outside the court and one hour in court would be reasonable. [Sic.] * * *
I am not again, saying that he did not spend the time and that he did not do an excellent job in defending. The result of the case of two years probation and a fine of $1,000.00 was a very well negotiated plea. I am placed now with the burden of saying what is reasonable. The time spent on jury trials and negotiated pleas, I do not, based on that experience, ...