State v. Weimer , 2014 Ohio 1354 ( 2014 )

[Cite as State v. Weimer, 2014-Ohio-1354.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-L-022
- vs - :
DANNA WEIMER, :
Defendant, :
(AARON T. BAKER, :
Appellant). :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 12 CR 000426.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Aaron T. Baker, Esq., pro se, 38109 Euclid Avenue, Willoughby, OH 44094
(Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Attorney Aaron T. Baker, appeals from the February 4, 2013
judgment of the Lake County Court of Common Pleas, granting his motion for
extraordinary fees, in part, and reducing his attorney fees without a hearing. Based on
the following, we affirm.
{¶2} Baker’s client, Defendant Danna Weimer, was arrested on June 13, 2012,
and initially charged with murder and burglary.1 The docket reflects that on July 27,
2012, Baker filed a motion asking that he be appointed to represent Weimer. That
motion was granted by the trial court on August 3, 2012. On August 14, 2012, an
indictment was filed. After the case was bound over from the Painesville Municipal
Court, the 17-count indictment was returned by the grand jury charging Weimer with
offenses ranging from various misdemeanors to engaging in a pattern of corrupt activity,
aggravated burglary, and aggravated murder. Baker represented Weimer at a
suppression hearing on two separate motions. No speedy trial waiver was filed, and a
jury trial commenced on October 1, 2012, which lasted until a guilty verdict was
rendered two weeks later. Weimer was sentenced on December 13, 2012.
{¶3} The next day, Baker filed a motion for extraordinary fees in the amount of
$15,089, which included $87 in expenses. In his very detailed motion, Baker asserted
the following: the indictment was comprised of 17 counts, from various misdemeanors
to engaging in a pattern of corrupt activity, aggravated burglary, and aggravated
murder; he spent a great deal of time parsing the language in the indictment and
comparing it with various pieces of discovery, in addition to conducting extensive
research; discovery provided by the state was the most voluminous that he has ever
encountered in any type of case; he viewed 48 hours of home surveillance video as well
as a good deal of video from other locations pertinent to this case; he listened to hours
of audio recordings on multiple occasions of every witness interview conducted; various
law enforcement who worked on the case provided dozens of pages of reports; he
visited the various scenes, which spanned from the western portion of Ashtabula
1. Weimer is not a party to this appeal.
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County into the eastern portion of Cuyahoga County, and conducted interviews with
numerous witnesses; in an extremely short period of time, he prepared for a full
afternoon motion hearing; he spent many hours preparing for trial over the course of a
relatively short period of time, as a waiver of speedy trial was not filed; he spent
approximately 11 business days in a jury trial and pulled two “all-nighters” during that
time period; he requested compensation for only the most substantial expenses
incurred in this case, related to phone calls received from Weimer at his office; he
performed all necessary functions on his own, without any assistance from a defense
investigator, co-counsel, and/or paralegal, and he did not request any expert witness
assignments, which might ordinarily be expected in a case of this magnitude; the court
has seen his fee bills in the past, which have always been accurate and never inflated;
and every minute recorded in the present fee bill was properly earned. Baker attached
an affidavit to his motion averring to the foregoing facts under oath, along with a
“Motion, Entry, and Certification for Appointed Counsel Fees” and an itemized fee
statement.
{¶4} On February 4, 2013, the trial court granted Baker’s motion for
extraordinary fees in part and awarded attorney fees in the amount of $8,000 plus
expenses. No hearing was held. In its judgment, the trial court stated: “The court has
considered [Baker’s] motion for extraordinary fees, filed December 14, 2012. The
motion is well-taken and is hereby granted in part. The Lake County Auditor is hereby
ordered to pay the sum of $8,000.00 plus $87.00 in expenses to Aaron T. Baker, Esq.”
{¶5} It is from this judgment that Baker filed a timely appeal and asserts the
following assignment of error:
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{¶6} “The trial court abused its discretion in summarily reducing undersigned
counsel’s assigned counsel fees by nearly one half the amount earned without a
hearing.”
{¶7} We review a trial court’s decision regarding attorney fees for abuse of
discretion. Cefaratti v. Cefaratti, 11th Dist. Lake Nos. 2008-L-151 & 2009-L-055, 2010-
Ohio-5661, ¶40, citing Moore v. Moore, 175 Ohio App.3d 1, 20 (6th Dist.2008). An
abuse of discretion is the trial court’s “failure to exercise sound, reasonable, and legal
decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,
¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004) 11.
{¶8} R.C. 2941.51 provides, in pertinent part and emphasis added:
(A) Counsel appointed to a case or selected by an indigent person
under division (E) of section 120.16 or division (E) of section 120.26
of the Revised Code, or otherwise appointed by the court, except
for counsel appointed by the court to provide legal representation
for a person charged with a violation of an ordinance of a municipal
corporation, shall be paid for their services by the county the
compensation and expenses that the trial court approves. Each
request for payment shall be accompanied by an affidavit of
indigency completed by the indigent person on forms prescribed by
the state public defender. Compensation and expenses shall not
exceed the amounts fixed by the board of county commissioners
pursuant to division (B) of this section.
(B) The board of county commissioners shall establish a schedule
of fees by case or on an hourly basis to be paid by the county for
legal services provided by appointed counsel. Prior to establishing
such schedule, the board shall request the bar association or
associations of the county to submit a proposed schedule. The
schedule submitted shall be subject to the review, amendment, and
approval of the board of county commissioners.
{¶9} Here, Baker filed a motion with the trial court requesting to be appointed
as counsel. In accord with the statute, the Board of County Commissioners for Lake
County, Ohio, established a fee schedule for attorneys appointed to represent indigent
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defendants. See R.C. 120.33. The fee schedule for the representation of indigent
persons is based on the highest degree of offense charged. In the instant case,
because Weimer was charged with aggravated murder, an unclassified felony without
the death penalty specification, Baker was entitled to $40 per hour for work performed
outside of court and $50 per hour for representation in court, with a maximum
compensation of $6,000. The Lake County fee schedule provides that extraordinary
fees and expenses may be granted: the maximum compensation may be increased
“because of extraordinary complex issues involved, multiple cases or offenses, lengthy
trials, or other reasons.”
{¶10} Baker requested extraordinary fees in the amount of $15,089, which is
beyond the maximum award allowable. Without holding a hearing, the trial court
awarded Baker $8,000 plus his expenses of $87. On appeal, Baker maintains it was an
abuse of discretion to summarily reduce his requested fees without explanation. Baker
asserts that allowing trial courts to reduce requested fees without explanation will
prevent criminal defendants from receiving “the constitutionally-guaranteed adequate
assistance of counsel, or in the alternative, the unconstitutional taking of the assigned
attorney’s property.” Baker, however, fails to assert any authority to support this
position. Further, attorneys are bound to render effective assistance of counsel in the
course of representing a criminal defendant. See State v. Bryant, 6th Dist. Lucas No. L-
84-249, 1985 Ohio App. LEXIS 8861, *9 (Oct. 18, 1985).
{¶11} In support of his assignment of error, Baker cites to State v. Torres, 174
Ohio App.3d 168 (8th Dist.2007) and State v. Whitfield, 167 Ohio App.3d 211 (2d
Dist.2006). Both cases are distinguishable. In Torres, the Eighth District Court of
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Appeals addressed an issue with fees due to expert witnesses in a capital case. The
trial court denied over $30,000 in fees claimed by eight professionals. The trial court
approved some fees in full, partially approved others, and denied the remainder. The
Torres Court remanded the case to the trial court to hold a hearing. In Whitfield, the
Second Appellate District addressed a request for payment of services by a private
investigator and also determined the trial court should have held a hearing.
{¶12} Here, Baker requested that he be appointed to represent Weimer.
“Counsel who accept appointment as court-appointed attorneys implicitly accept the fee
schedule approved by the county commissioners and are bound by that schedule.” In
re Ashton, 6th Dist. Sandusky No. S-03-003, 2003-Ohio-3092, ¶3. Baker was aware,
based on the highest offense charged, that the approved fee schedule allowed a
maximum compensation of $6,000. Unlike the situation in Whitfield, where the trial
court reduced fees “well below the $75,000.00 assigned counsel fees cap,” the trial
court awarded Baker fees beyond the maximum reimbursement for representation.
Whitfield at 214.
{¶13} In this case, Baker has not challenged the propriety of the adopted fee
schedule. He has simply asserted that the trial court abused its discretion, in particular
because it failed to hold a hearing and explain the basis for its award. At oral argument,
Baker acknowledged that his motion contained sufficient detail such that a hearing
would serve only to reiterate what was submitted in writing.
{¶14} The trial court is clearly in the best position to make an assessment of the
reasonableness of a request for extraordinary attorney fees in cases such as this. The
trial court has participated in pretrial discussions, is familiar with plea negotiations, and
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has observed the relative efficiencies and decision making related to trial counsel’s
performance. Given the record of this case, we cannot say the trial court abused its
discretion in entering its judgment.
{¶15} Based on the foregoing, appellant’s sole assignment of error is not well-
taken. The judgment of the Lake County Court of Common Pleas is hereby affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶16} I respectfully dissent.
{¶17} The majority holds that the trial court did not abuse its discretion in
reducing Baker’s attorney fees without a hearing. For the following reasons, I disagree.
{¶18} We review a trial court’s decision regarding attorney fees for abuse of
discretion. Cefaratti, supra, at ¶40, citing Moore, supra, at ¶80. Regarding this
standard, we recall the term “abuse of discretion” is one of art, connoting judgment
exercised by a court which neither comports with reason, nor the record. State v.
Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when
the trial court “applies the wrong legal standard, misapplies the correct legal standard,
or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d
401, 2008-Ohio-1720, ¶15 (8th Dist.2008).
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{¶19} Regarding attorney fees, this court stated in In re Murray, 11th Dist.
Trumbull No. 2004-T-0030, 2005-Ohio-1892, ¶26:
{¶20} “The [trial] court is not bound to follow any precise formula in determining
the reasonableness of fees. However, for this court to be able to conduct any
meaningful review of the trial court’s exercise of its discretion, we must be able to
discern some basis for its decision. * * * Without understanding the basis for the [trial]
court[’s] reduction of [attorney] fees, our affirmance would be nothing more than a
‘rubber stamp’ of that decision.”
{¶21} Thus, a trial court is required to conduct a hearing and articulate its
reasons before reducing attorney fees. In re Murray, supra, at ¶25; In re Campbell, 7th
Dist. Mahoning Nos. 02 CA 186 and 02 CA 187, 2003-Ohio-7040, ¶26; In re Simballa,
7th Dist. Mahoning No. 05-MA-8, 2005-Ohio-5934, ¶29; State v. Torres, 174 Ohio
App.3d 168, 2007-Ohio-6651, ¶26 (8th Dist.2007) (holding, in a criminal case involving
aggravated murder, aggravated robbery, and aggravated burglary, that it was an abuse
of discretion to reduce, limit, and deny certain expert expenses and assigned counsel’s
attorney fees without a hearing).
{¶22} In this case, we cannot discern how the trial court reached its conclusion
because it did not hold a hearing nor state any findings to support its decision. On
February 4, 2013, the trial court granted Baker’s motion for extraordinary fees in part
and reduced his attorney fees from $15,089 to $8,087 without a hearing. The entirety of
the trial court’s judgment entry is as follows:
{¶23} “The court has considered [Baker’s] motion for extraordinary fees, filed
December 14, 2012. The motion is well-taken and is hereby granted in part. The Lake
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County Auditor is hereby ordered to pay the sum of $8,000.00 plus $87.00 in expenses
to Aaron T. Baker, Esq.
{¶24} “IT IS SO ORDERED.”
{¶25} The trial court did not adequately justify its reduction in Baker’s requested
fees. In light of the foregoing, this writer believes that the trial court erred in reducing
the amount Baker requested from $15,089 to $8,087 without a hearing. While the trial
court has broad discretion in determining the amount owed to Baker for his services, I
believe it was error for the court to make that determination without a hearing and
without articulating any reasons. Therefore, I would reverse and remand.
{¶26} I respectfully dissent.
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