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People v. Fowler

September 08, 1998


Garman, P.j., Cook and McCULLOUGH, JJ., concur.

The opinion of the court was delivered by: Presiding Justice Garman

Appeal from Circuit Court of Edgar County

No. 96CF121

Honorable Richard E. Scott, judge Presiding.

In December 1996, defendant Troy Fowler was charged in the circuit court of Edgar County with murder and aggravated battery of a child. Initially, Fowler was represented by the public defender. In January 1997, attorney Ronald Tulin of Ronald Tulin, Ltd. (Tulin), entered his appearance on Fowler's behalf, having been retained by Fowler's parents. Later that month, Fowler was also charged with the offense of predatory criminal sexual assault of a child. In March 1997, the State announced its intention to seek the death penalty. A jury trial commenced in April 1997. Attorney Doug Quivey, an associate in Tulin's office, was co-counsel at this trial. After the jury deadlocked on a verdict, the trial court declared a mistrial.

In May 1997, Tulin filed a motion asking that the public defender be appointed to represent Fowler in the retrial and that Tulin be allowed to withdraw as counsel. In that motion, Tulin alleged that (1) Fowler's parents had paid him a retainer that would cover 200 hours of services in the first trial, (2) Tulin had rendered more than 400 hours of services, in addition to costs advanced of almost $2,400, (3) Fowler's parents were unable to pay for the retrial, nor were they able to pay the balance owed on the first trial, and (4) Fowler himself was indigent. The trial court denied the motion, appointed Tulin to represent Fowler and directed that Tulin's fees would be assessed pursuant to statute.

In May 1997, Tulin filed a motion asking for a finding of extraordinary circumstances under section 113-3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3(c) (West 1996)), so that payment of attorney fees could exceed the fee limits imposed by that section. In the motion, Tulin cited as extraordinary circumstances: (1) Fowler may face the death penalty if convicted; thus, the amount of time needed to prepare is "immense"; (2) based upon experience in the first trial, it is likely the retrial will last a long time; (3) the statutory maximum fee of $30 per hour for out-of-court time does not cover Tulin's secretarial expenses; and (4) as Tulin was not paid in full for the first trial, being appointed public defender for Fowler places a significant financial hardship on Tulin. In June 1997, Tulin filed a motion asking that he be allowed to withdraw and his co-counsel, Quivey, be appointed to represent Fowler. At a hearing on these motions, the trial court clarified its earlier denial of Tulin's motion to withdraw, by stating that both Tulin and Quivey had been appointed to represent Fowler and would continue to do so. The court also made a finding of extraordinary circumstances.

Thereafter, additional discovery was completed and motions were filed and heard. After an amended information was filed, Fowler stood charged with one count of first degree murder and two counts of predatory criminal sexual assault of a child. Four days prior to the second jury trial, the State advised the court that it would not seek the death penalty. The retrial, held in July 1997, resulted in convictions on all counts. The trial lasted eight days. The trial court sentenced Fowler to natural life imprisonment on the murder conviction and 30-year prison terms on the two counts of predatory criminal sexual assault, to run consecutively to the natural life sentence.

Tulin filed a request by letter for attorney fees and costs, asking for payment for 323 hours at an hourly rate of $120. He also asked for payment of certain costs advanced and payment of other costs directly to the providers of services. In reply to this letter, the trial court sent a letter to counsel, stating that it was prepared to enter an order requiring the county to pay an attorney fee of $9,535, representing an hourly rate of $25 for 177 out-of-court hours and $35 for 146 in-court hours. In response, Tulin filed a supplemental petition for fees and expenses, alleging expenditure of 177 out-of-court hours and 146 incourt hours. Tulin alleged that his normal rate is $120 per hour. He also alleged that his overhead costs totaled $68.97, consisting of $27 per hour for Quivey's salary and benefits and $41.97 per hour for secretarial and investigative salaries and benefits. Tulin alleged that he is an experienced criminal attorney whose criminal work constitutes 25% of his time in private practice. Tulin stated he had also been an assistant State's Attorney and public defender in Coles County. Tulin's petition asked for an allowance of $80 per hour as a reasonable fee.

At a hearing on the petition, neither the State nor the trial court questioned the number of hours claimed by Tulin, the stated customary hourly rate of $120, the accuracy or reasonableness of Tulin's stated overhead expenses, or his claims concerning his level of experience in criminal matters. The State took no position on the petition and made no argument during the hearing. After hearing argument from Tulin, the trial court denied the request for allowance of $80 per hour and ordered fees paid in accordance with its prior letter. With some modification, costs were ordered paid. The court indicated that in setting Tulin's fee, it had taken into consideration the fact that there had been a previous trial which had acted as a "dress rehearsal" for the retrial. The court also reminded Tulin that it had informed him at the time of his appointment that he would be paid "at the rate of *** someone who was brought in as an independent public defender counsel." Tulin has appealed from the portion of this order awarding him $9,535 in fees.

Tulin argues on appeal that the trial court erred in awarding him only $25 per hour for out-of-court time and $35 per hour for in-court time. He argues that such low rates do not even cover reasonable overhead expenses and, therefore, do not constitute reasonable compensation as contemplated by section 113-3(c) of the Code. That section provides in relevant part as follows:

"Upon the filing with the court of a verified statement of services rendered the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee. The court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel. In counties with a population greater than 2,000,000, the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee stated in the order and based upon a rate of compensation of not more than $40 for each hour spent while court is in session and not more than $30 for each hour otherwise spent representing a defendant, and such compensation shall not exceed $150 for each defendant represented in misdemeanor cases and $1[,]250 in felony cases, in addition to expenses reasonably incurred as hereinafter in this Section provided, except that, in extraordinary circumstances, payment in excess of the limits herein stated may be made if the trial court certifies that such payment is necessary to provide fair compensation for protracted representation." 725 ILCS 5/113-3(c) (West 1996).

A petition for fees is addressed to the trial court's sound discretion. In re Petition for Fees, 117 Ill. App. 3d 744, 749, 453 N.E.2d 949, 952 (1983) (People v. Wilson). We first note that Edgar County has less than 2 million inhabitants. Thus, the dollar figures set forth in section 113-3(c) of the Code do not apply here. Nor was it necessary for the trial court to find the existence of extraordinary circumstances; such a finding is necessary only in counties with populations exceeding 2 million to award fees greater than the statutory maximums. The only inquiry we must address is whether the compensation awarded Tulin in this case constitutes a "reasonable fee" within the meaning of the statute. We conclude that it does not.

In arriving at a reasonable fee for appointed counsel's services, the trial court should consider (1) time spent and services rendered, (2) the attorney's skill and experience, (3) the complexity of the case, (4) overhead costs, (5) expenses of trial, and (6) the number of attorneys in the local area who could be called upon to perform pro bono criminal trial work. People v. Johnson, 87 Ill. 2d 98, 106, 429 N.E.2d 497, 500 (1981). The above list is not exclusive. Other appropriate factors may be considered in a particular case. For example, the rate of compensation for counsel in the jurisdiction or comparable jurisdictions may be considered, as well as the availability of public funds. Johnson, 87 Ill. 2d at 105, 429 N.E.2d at 500. In addition, a trial court may consider the effects of inflation in setting a fee award. In In re Petition for Fees, 148 Ill. App. 3d 453, 499 N.E.2d 624 (1986) (People v. Jones), appointed counsel, Sharon Costa, received a fee award of $50 per hour. The State appealed, arguing the award was excessive. It argued that since the legislature had set limits of $40 per hour for in-court time and $30 per hour for out-of-court time for large counties, it must not have intended that fee awards be greater in small counties. The appellate court rejected this argument, stating that if the legislature had intended the maximum rates to apply in small counties, it would have so stated. However, the court did find that the hourly rates in the statute must be given some consideration as bearing on reasonableness. The court noted a prior case where the Supreme ...

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