People v. Fowler
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-1045
Case Date: 09/04/1998
NO. 4-97-1045
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Edgar County
TROY FOWLER, ) No. 96CF121
Defendant, )
and ) Honorable
THE LAW OFFICES OF RONALD TULIN, LTD. ) Richard E. Scott,
Intervenor-Appellant. ) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE GARMAN delivered the opinion of the
court:
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 cocounsel 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 "im-
mense"; (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 secre-
tarial 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 cocounsel,
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 in-court hours.
Tulin alleged that his normal rate is $120 per hour. He also
alleged that his overhead costs totalled $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 reasonable-
ness 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 consti-
tute 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 pro-
vided, except that, in extraordinary circum-
stances, 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 Court of Illinois had
awarded $30 per hour for appellate work in a murder case. The work
in that case was done in 1982, whereas the work performed by Costa
was done in 1985. After considering that three-year time span and
the pro bono factor, the appellate court determined that a
reasonable fee was $35 for out-of-court time and $45 for in-court
time. Jones, 148 Ill. App. 3d at 456, 499 N.E.2d at 626-27.
The supreme court in Johnson stated that reasonable
compensation should reimburse the attorney for his or her overhead
expenses and yield something toward the attorney's support. The
court held that a fee award that is insufficient to cover reason-
able office overhead and expenses of trial is clearly unreasonable.
Without stating a precise formula, the court indicated that trial
courts should start with the hourly fee normally charged for
comparable services and subtract an amount adequate to satisfy the
attorney's pro bono duty to defend those who cannot afford to pay
for private counsel. Johnson, 87 Ill. 2d at 105-06, 429 N.E.2d at
500.
Here, there was evidence on some of the factors identi-
fied in Johnson. Tulin submitted an affidavit of a local attorney
with experience in murder cases, stating that $120 per hour is a
reasonable rate of compensation in Edgar County for attorneys
handling capital murder cases. Tulin stated to the trial court
that his firm normally charges $120 per hour for such services.
The court had before it Tulin's detailed itemization of
services rendered. However, the record does not show that the
trial court considered this evidence in making its fee award. The
court seemed to base the award primarily on the fact that the
retrial was essentially a repeat of the first trial and on its
statement that Tulin was to be paid as an "independent public
defender counsel." The court did not elaborate on what it meant by
this statement. Although the fact that this was a retrial is a
proper consideration, the trial court gave this factor too much
emphasis to the exclusion of other factors. We note that Tulin
stated he spent in excess of 400 hours in trying the case the first
time. After the retrial was concluded, he had spent 323 hours, a
reduction of 77 hours. The trial court failed to determine the
reason for this reduction; it may be that the difference is
attributable to preparation done during the first trial when Tulin
was acting as private counsel. If so, the trial court's fee award
may have had the effect of doubly emphasizing the fact that this
was a retrial.
The trial court failed to consider the complexity of the
case. This was a capital murder case until four days prior to
commencement of the trial, thus requiring Tulin to prepare the case
as if the State would be seeking the death penalty. Numerous
motions were filed prior to the retrial, experts were hired, and an
additional charge of predatory criminal sexual assault of a child
was filed against Fowler. The trial lasted eight days. The fact
that this was a retrial does not necessarily mean it was not
complex and did not require a great deal of attorney time.
The trial court's average hourly award to Tulin is
$29.50. Although we have stated that the trial court need not have
found the existence of extraordinary circumstances under section
113-3(c) of the Code, we note the inconsistency in the court's
making this finding and then awarding Tulin less than the maximum
hourly rates authorized for larger counties.
We recognize the financial burden placed on small
counties in providing legal representation for indigent defendants.
However, section 113-3(c) of the Code does not allow trial courts
to shift the greater share of this burden to appointed counsel.
The hearing on Tulin's fee petition was clearly inade-
quate. Therefore, this cause must be remanded for a new hearing to
afford the trial court an opportunity to reconsider Tulin's fee
petition in light of the views expressed herein. The court may, in
its discretion, allow introduction of additional evidence needed to
make an informed decision.
Accordingly, that portion of the trial court's order
awarding Tulin attorney fees of $9,535 is vacated and the cause
remanded. The portion of the order awarding costs is affirmed.
Affirmed in part and vacated in part; cause remanded with
directions.
COOK and McCULLOUGH, JJ., concur.
Illinois Law
Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
> Minimum Wage in Illinois
Illinois Agencies