State v. C.W. , 2019 Ohio 2058 ( 2019 )

[Cite as State v. C.W., 2019-Ohio-2058.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 18AP0020
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
C. W. COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Defendant CASE No. 2016 CRC-I 000399
and
STEVE KNOWLING
Appellant
DECISION AND JOURNAL ENTRY
Dated: May 28, 2019
SCHAFER, Presiding Judge.
{¶1} Appellant, Steve Knowling, trial counsel for the defendant in the underlying
criminal matter, appeals from the March 19, 2018 judgment entry of the Wayne County Court of
Common Pleas approving Mr. Knowling’s application for appointed counsel fees but reducing
the amount of fees requested, and the subsequent April 3, 2018 order denying Mr. Knowling’s
motion to reconsider. For the reasons that follow, we affirm.
I.
{¶2} Defendant, C.W.1, was indicted on September 27, 2016, for one count of unlawful
sexual conduct with a minor in violation of R.C. 2907.04(A), a felony of the fourth degree. C.W.
1
C.W. is not a party to this appeal.
2
appeared for arraignment, without counsel, on December 28, 2016. The trial court entered a plea
of not guilty on C.W.’s behalf, and appointed the public defender as counsel for defendant.
{¶3} The assigned public defender filed a motion to withdraw as counsel on January 3,
2017, citing a conflict of interest. The trial court approved the motion to withdraw as counsel,
and appointed counsel for C.W. on January 6, 2017. Thereafter, C.W. informed the trial court
that he wished to hire his own attorney. On June 27, 2017 the trial court noted C.W.’s request
for the appointment of counsel during a pretrial, and again appointed the public defender to
represent him. Once again, the public defender moved to withdraw as counsel based on a
conflict of interest. The trial court granted the motion to withdraw and, on June 21, 2017,
appointed Mr. Knowling to represent C.W.. The matter was set for trial but, ultimately, C.W.
changed his plea to guilty as to an amended count of importuning in violation of R.C.
2907.07(B)(1), a felony of the fifth degree. The trial court accepted C.W.’s plea and entered his
conviction on February 23, 2018.
{¶4} On March 16, 2018, Mr. Knowling filed a motion, entry, and certification for
appointed counsel fees. In his application, Mr. Knowling requested a total of $2,056.00 in
appointed counsel fees and provided an itemized fee statement and summary of work performed.
The trial court approved the fee application on March 19, 2018, but the judge reduced the
amount of the fee to $500.00. Mr. Knowling then filed a motion to reconsider the judgment
entry reducing assigned counsel fees without explanation or, in the alternative, seeking
extraordinary fees in the amount of $2,056.00. The trial court denied the motion to reconsider
and stated: “The fee requested by counsel was excessive and completely out of proportion to
those requested by other assigned counsel in similar cases.”
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{¶5} Mr. Knowling appealed from the judgment entry raising one assignment of error
for our review.
II.
Assignment of Error
The trial court abused its discretion by summarily reducing assigned
counsel’s fee request by seventy-five percent without holding a hearing to
determine whether counsel’s services were reasonable and necessary.
{¶6} An appellate court reviews the trial court’s decision regarding appointed counsel
fees for an abuse of discretion. State v. Weimer, 11th Dist. Lake No. 2013-L-022, 2014-Ohio-
1354, ¶ 7. An abuse of discretion is more than an error of judgment; it means that the trial court
was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, (1983). When applying this standard, a reviewing court is precluded from simply
substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio
St.3d 619, 621 (1993).
{¶7} Mr. Knowling filed his initial application seeking appointed counsel fees totaling
$2,056.00, along with documentation to show the time he expended and services he performed.
Without explanation for the reduction in fees, the trial judge simply crossed off the amount Mr.
Knowling requested, and wrote in and initialed $500.00 as the approved amount. Thereafter, the
trial court denied Mr. Knowling’s motion for reconsideration and explained that it found his
request to be “excessive” and disproportionate to fees requested for similar work performed.
{¶8} On appeal, Mr. Knowling asserts that the trial court abused its discretion by
disallowing the full amount of the fees without a hearing to determine reasonableness or
necessity. He contends that he was denied the opportunity to establish that the time he expended
was essential to an effective defense because, without a hearing, he “was unable to present any
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evidence or make an argument in support of his assigned counsel fee application[.]” In the
absence of a hearing, Mr. Knowling contends, “there can be no independent analysis of whether
the fees requested were reasonable and necessary.”
{¶9} Counsel appointed by the court to represent an indigent person “shall be paid by
the county” for their services and shall receive “compensation and expenses that the trial court
approves.” R.C. 2941.51(A); R.C. 120.33(A)(4). Further, R.C. 2941.51(B) provides that the
board of county commissioners must establish a schedule of fees, either per case or on an hourly
basis, for the payment of services provided by appointed counsel. “Compensation and expenses
shall not exceed the amounts fixed by the board of county commissioners” in the schedule of
fees. R.C. 2941.51(A).
{¶10} Mr. Knowling notes in his brief that the $2,056.00 in fees he requested “is less
than the $3,000.00 maximum for a [third] degree felony set by the State Public Defender’s
Office.” Aside from the fact that Mr. Knowling’s client was not charged with a third-degree
felony, but rather a felony of the fourth degree, Mr. Knowling avoids mention of the maximum
fee schedule for assigned counsel established by the Board of County Commissioners for Wayne
County. Pursuant to Wayne County’s approved fee schedule, appointed counsel will be
reimbursed a maximum of $40.00 per hour for out-of-court services and $50.00 per hour for in-
court services. The maximum fee permitted for representation on a felony of the fourth degree is
$1,500.00. We are compelled to point out that Mr. Knowling made his initial application to the
trial court requesting fees in excess of $1,500.00 without an accompanying request for
extraordinary fees. On appeal, however, Mr. Knowling has not challenged the applicability of
the schedule to his request for fees, nor has he raised any issues regarding requests for
extraordinary fees. We confine our analysis accordingly.
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{¶11} Mr. Knowling has assigned as error the trial court’s failure to hold a hearing prior
to approving fees in an amount less that the requested $2,056.00. In support of his contention
that a trial court must “conduct a hearing and articulate its reasons before reducing assigned
counsel attorney fees[,]” Mr. Knowling cites to three probate court cases: In re Estate of
Murray, 11th Dist. Trumbull No. 2004-T-0030, 2005-Ohio-1892; In re Guardianship of
Simballa, 7th Dist. Mahoning No. 05-MA-8, 2005-Ohio-5934; In re Estate of Campbell, 7th
Dist. Mahoning Nos. 02 CA 186 and 02 CA 187, 2003-Ohio-7040. However, each of these
cases involved a probate court’s allowance of reasonable attorney fees paid by the executor or
administrator of an estate pursuant to R.C. 2113.36 and, are simply inapposite in our review of
fees awarded pursuant to R.C. 2941.51. Additionally, Mr. Knowling directs us to State v.
Whitfield, 167 Ohio App. 3d 211, 2006-Ohio-3044, (2d Dist.) and State v. Torres, 174 Ohio
App.3d 168, 2007-Ohio-6651, (8th Dist.) for the proposition that a trial court abuses its
discretion when it limits fees without holding a hearing. Whitfield and Torres are likewise
inapplicable to the present matter. Those cases addressed issues concerning a trial court’s
approval of expert witness fees and private investigator’s fees pursuant to R.C. 2929.02, but the
appointed counsel fees at issue in the present case were not implicated in Whitfield or Torres.
{¶12} We conclude that Mr. Knowling’s reliance on the aforementioned cases is
misplaced. Although payment for appointed counsel’s services is required by statute and the
maximum fee is established by the relevant fee schedule, the actual amount of the compensation
is left to the trial court’s discretion. See State ex rel. Martin v. Corrigan, 25 Ohio St. 3d 29, 31
(1986). Mr. Knowling has not provided any relevant authority to support his claim that the trial
court was required to hold a hearing before exercising its discretion to approve appointed counsel
fees in an amount less than counsel requested. In a case such as this, the trial court is “clearly in
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the best position to make an assessment of the reasonableness of a request for extraordinary
attorney fees[,]” having observed the pretrial discussions, plea negotiations, the substantial legal
issue Mr. Knowling alleges required extensive legal review, and “the relative efficiencies and
decision making related to trial counsel’s performance.” Weimer, 2014-Ohio-1354 at ¶ 14.
{¶13} This Court does not doubt that Mr. Knowling expended the amount of time that
he deemed necessary to present an effective defense for his client. However, by accepting
appointment as counsel in this matter, Mr. Knowling impliedly accepted and agreed to be bound
by the fee schedule. See In re Ashton B., 6th Dist. Sandusky No. S-03-003, 2003-Ohio-3092, ¶
3. We are not insensitive to the reality that appointed counsel are quite often inadequately
compensated for their services. Nevertheless, based on the foregoing, we cannot say the trial
court abused its discretion by entering its judgment approving a reduced amount of fees without
conducting a hearing. Mr. Knowling’s assignment of error is overruled.
III.
{¶14} Mr. Knowling’s sole assignment of error is overruled. The judgment of the
Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, J.
CONCURS.
CARR, J.
DISSENTING.
{¶15} I respectfully dissent. I would dismiss this appeal for lack of a final, appealable
order as this case does not involve a substantial right. As the majority explained, appointed
counsel shall receive "compensation and expenses that the trial court approves.” R.C.
2941.51(A). Although appointed counsel has a right to be paid by the county per R.C.
120.33(A)(4) to the extent that an amount is approved by the trial court, there is no substantial
right to the approval of a sum certain.
APPEARANCES:
STEVE KNOWLING, Attorney at Law, pro se, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.