Opinion
CR-10-0595
10-04-2011
Joseph W. Hutchinson III v. State of Alabama
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Choctaw Circuit Court
(CC-00-38)
This case was previously assigned to another judge on this Court; it was reassigned to Judge Joiner on March 1, 2011.
Joseph W. Hutchinson III appeals from two orders of the Choctaw Circuit Court approving only part of the attorney-fee declarations Hutchinson submitted for his representation of Medell Banks, Jr. We remand with instructions.
Facts and Procedural History
Hutchinson originally filed a notice of appeal to this Court. In an unpublished order dated December 4, 2009, this Court transferred Hutchinson's appeal to the Alabama Supreme Court. The Supreme Court, however, has transferred the appeal back to this Court. Hutchinson v. State, 66 So. 3d 220 (Ala. 2010). In its opinion transferring the appeal, the Supreme Court stated the following facts, which are also relevant here:
In support of this Court's decision to transfer the appeal, the order cited Ex parte Galanos, 796 So. 2d 390 (Ala. 2000), and Ex parte McNabb, 879 So. 2d 1166 (Ala. 2003). In its opinion transferring the appeal back to this Court, however, the Alabama Supreme Court overruled Galanos and McNabb and held:
"The Court of Criminal Appeals is the appropriate appellate court to review attorney-fee declarations following a criminal proceeding involving an indigent defendant. Awarding attorney fees 'in relation to' a criminal case is a matter for the Court of Criminal Appeals. Art. VI, § 141, Ala. Const. 1901 (Off. Recomp.) (previously Amendment No. 328, § 6.03, Ala. Const. 1901). As Justice Murdock noted [in his special writing in State v. Isbell, 985 So. 2d 446 (Ala. 2007)], when it comes to a matter relating to a criminal case, whether it be an issue arising before trial, such as one regarding discovery, or an issue arising only after the entry of a final judgment, such as one regarding a criminal defense counsel's fee application, it is the Court of Criminal Appeals that, in all common sense and logic, should decide the question. It is the Court of Criminal Appeals that has the experience and expertise in criminal matters to make an informed judgment as to the infinite variety of questions that potentially can arise in relation to criminal proceedings."
"On August 26, 1999, Joseph W. Hutchinson III, an attorney, was appointed to represent Medell Banks, Jr., an indigent defendant, in a capital-murder case. On May 7, 2001, Banks entered a 'best-interest' plea of guilty to manslaughter for the death of his wife's newborn baby. On June 25, 2001, the trial court sentenced Banks to 15 years' imprisonment. Banks later moved to withdraw his guilty plea based on newly discovered evidence indicating that his wife could not have been pregnant and bore the child Banks was accused of killing. The trial court denied Banks's motion to withdraw his plea, and Banks appealed to the Court of Criminal Appeals. On August 9, 2002, the Court of Criminal Appeals held that a manifest injustice had occurred after Banks obtained test results that showed that his wife could not have been pregnant when she was allegedly carrying the child Banks was accused of killing, and it reversed the trial court's judgment and remanded the cause for the trial court to grant Banks's motion to withdraw his guilty plea. Banks v State, 845 So 2d 9 (Ala Crim. APP. 2002) The facts underlying this case are set out in the Court of Criminal Appeals' opinion. The capital-murder charges against Banks remained pending after Banks "withdrew his guiltyHutchinson, 66 So. 3d at 221.
plea. Eventually, Banks entered a best-interest plea to tampering with physical evidence, a misdemeanor. The capital-murder charge was dismissed. Banks was sentenced to time served.
"On December 16, 2008, Hutchinson, who had represented Banks throughout his trial and appellate proceedings, filed two attorney-fee declarations. The first fee declaration was for work completed in the proceedings in the trial court before the appeal to the Court of Criminal Appeals. ... Hutchinson's second fee declaration involved work completed after Banks filed his appeal ....
"The trial judge who presided over the criminal proceedings against Banks had retired, and a new judge was assigned Hutchinson's fee declarations. Following a hearing, the trial court reduced Hutchinson's claims for out-of-court expenses and for overhead expenses for both the trial and appellate proceedings."
Discussion
On appeal, Hutchinson presents two issues. First, he argues that the trial court exceeded its discretion in failing to approve the full amount of his fee declarations because, he says, the undisputed evidence indicated that his work was reasonable and necessary to Banks's defense and that it prevented a grave miscarriage of justice. Alternatively, Hutchinson contends that the trial court exceeded its discretion by failing to articulate its reasons for reducing the amount of the fees Hutchinson claimed. We agree with Hutchinson's alternative argument, and we remand this cause to the trial court for it to explain why it reduced the fee amounts Hutchinson submitted on his fee declarations.
As noted above, Hutchinson submitted two fee declarations to the trial court: The first was for work Hutchinson performed in the trial court before the appeal to this Court, and the second was for work completed after Banks filed his appeal. Each fee declaration included detailed itemizations of the amounts Hutchinson claimed.
Hutchinson's first fee declaration sought the following amounts:
$1,635 in in-court expenses, representing 27.25 hours at $60 an hour;
$18,557.60 in out-of-court expenses, representing 463.94 hours at $40 an hour;
$3,803.95 in extraordinary expenses approved in advance by the trial court; and
$17,191.65 in overhead expenses, representing 491.19 hours at $35 an hour.
The second fee declaration sought the following amounts:
$2,610 in in-court expenses, representing 43.50 hours at $60 an hour;
$28,046 in out-of-court expenses, representing
701.15 hours at $40 an hour; extraordinary expenses approved in advance by the court of $5,143.15; and overhead expenses of $26,062.75, representing 744.65 hours at $35 an hour.
Because the judge who had presided over Banks's criminal proceedings had retired, the fee declarations were assigned to a new judge. An evidentiary hearing was held on March 9, 2009. Hutchinson testified at the hearing, as did attorney Jim Evans, who served as appointed cocounsel with Hutchinson during Banks's proceedings, and attorney Spencer Walker, who had served as appointed counsel for Banks's wife Victoria.
On September 2, 2009, the trial court entered separate orders on the fee declarations. On each fee declaration, the trial court approved Hutchinson's litigation expenses and the amounts Hutchinson sought for in-court time. On both fee declarations, however, the trial court reduced the amounts Hutchinson sought for out-of-court time and for office overhead expenses.
In the first fee declaration, Hutchinson sought $18,557.60 for out-of-court work (463.94 hours at the rate of $40 per hour) and overhead expenses of $17,191.65 (491.19 hours at the rate of $35 per hour). The trial court reduced the fee for out-of-court work to $11,597.46 and the overhead expenses to $8,595.82. The trial court gave no explanation for the reductions, other than a handwritten note on the fee declaration stating that the reduced amounts represented "39.75% of out of ct. hours." The trial court did not explain, however, why it selected 39.75 as a percentage to reduce the out-of-court hourly fee and the overhead expenses. Moreover, it does not appear that the trial court actually reduced either of those expenses by 39.75 percent.
In the second fee declaration, Hutchinson sought $28,046 for out-of-court hourly work (701.15 hours at the rate of $40 per hour) and $26,062.75 in overhead expenses (744.65 hours at the rate of $35 per hour). The trial court reduced the fee for out-of-court work to $17,578.54 and the overhead expenses to $13,031.37. Again, the trial court gave no reason for the reductions other than a handwritten note on the fee declaration stating that the reduced amounts represented " 60.25% of out of ct. hours." As with the first fee declaration, the trial court did not explain why it selected 60.25 percent, nor does it appear that the trial court actually used 60.25 percent in reducing the amounts claimed by Hutchinson.
Hutchinson was appointed to represent Banks under § 15-12-21 (a), Ala. Code 1975. At the times relevant to this appeal, § 15-12-21(d), Ala. Code 1975, provided, in relevant part:
Section 15-12-21(a), Ala. Code 1975, provides:
"If it appears to the trial court that a defendant is entitled to counsel, that the defendant does not expressly waive the right to assistance of counsel, and that the defendant is not able financially or otherwise to obtain the assistance of counsel, the court shall appoint counsel to represent and assist the defendant. It shall be the duty of the appointed counsel, as an officer of the court and as a member of the bar, to represent and assist the defendant to the best of his or her ability."
The legislature recently amended many of the statutory provisions relating to the representation of indigent defendants, including § 15-12-21, Ala. Code 1975. See Act No. 2011-678, Ala. Acts 2011. Those amendments are effective June 14, 2011, "but [do] not affect the compensation arrangement for any indigent defense representation ongoing or unpaid as of [the] effective date." The statutory provisions discussed in this opinion are those applicable to Hutchinson's representation of Banks.
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"(d) Counsel appointed in cases described in subsections (a), (b), and (c) ... shall be entitled to receive for their services a fee to be approved by the trial court. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case .... Effective October 1, 2000, the amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of sixty dollars ($60) per hour for time expended in court and forty dollars ($40) per hour for time reasonablySee also § 15-12-6, Ala. Code 1975 ("Compensation of counsel appointed to represent indigent defendants shall be paid by the state in such amounts as otherwise provided by law."); Wright v. Childree, 972 So. 2d 771, 781 (Ala. 2006) ("Section 15-12-21(d), as amended in 1999, provides for the payment of office-overhead expenses to lawyers appointed to represent indigent defendants in Alabama.").
expended out of court in the preparation of the case. The total fees paid to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not exceed the following:
"(1) In cases where the original charge is a capital offense or a charge which carries a possible sentence of life without parole, there shall be no limit on the total fee."
As § 15-12-21 (d) indicates, Hutchinson was entitled to receive "forty dollars ($40) per hour for time reasonably expended out of court in the preparation of [Banks's] case" (emphasis added), and, because Banks was charged with a capital offense, there was no limit on the total number of hours Hutchinson could charge for his out-of-court time so long as, in the trial court's view, that time was "reasonably expended" preparing the case.
This Court has not established criteria for a trial court to consider in determining whether, under § 15-12-21(d), time was "reasonably expended out of court in the preparation of the case." In evaluating the reasonableness of an attorney fee generally, however, the Supreme Court has stated:
"'The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and its determination on such an issue will not be disturbed on appeal unless in awarding the fee the trial court exceeded that discretion. State Bd. of Educ. v. Waldrop, 840 So. 2d 893, 896 (Ala. 2002); City of Birmingham v. Horn, 810 So. 2d 667, 681-82 (Ala. 2001); Ex parte Edwards, 601 So. 2d 82, 85 (Ala. 1992), citing Varner v. Century Fin. Co., 738 F.2d 1143 (11th Cir. 1984).Kiker v. Probate Court of Mobile County, [Ms. 1090414, Sept. 17, 2010] ___ So. 3d ___, ___ (Ala. 2010) (quoting Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552-53 (Ala. 2004) (emphasis added in Kiker) ). Of course, not all the above-quoted factors will be relevant in an indigent-defense case. Even so, a court evaluating the reasonableness of a fee in an indigent-defense case should consider those factors that are relevant under the particular circumstances. In addition to those factors, the possible punishment that could be imposed on the indigent defendant should be considered in evaluating the reasonableness of a fee in an indigent-defense case. See, e.g., Hulse v. Wilfvat, 306 N.W.2d 707, 711 (Iowa 1981); Duffy v. Circuit Court for the Seventh Judicial Circuit, 2004 S.D. 19,676 N.W.2d 126, 134 (2004).
"'This Court has set forth 12 criteria a court might consider when determining the reasonableness of an attorney fee:
"'"[T]he nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.""Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740,
749 (Ala. 1988). These criteria are for purposes of evaluating whether an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be met. Beal Bank v. Schilleci, 896 So. 2d 395, 403 (Ala. 2004), citing Graddick v. First Farmers & Merchants Nat'1 Bank of Troy, 453 So. 2d 1305, 1311 (Ala. 1984).
"'We defer to the trial court in an attorney-fee case because we recognize that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in an attorney-fee determination. Horn, 810 So. 2d at 681-82, citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). Nevertheless, a trial court's order regarding an attorney fee must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee. Horn, 810 So. 2d at 682, citing American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999); see also Hensley, 461 U.S. at 437, 103 S. Ct. 1933.'"
In Kiker, supra, the Alabama Supreme Court remanded the cause before it because the Mobile County Probate Court had failed to articulate its reasons for the attorney fee it had awarded in that case. The Alabama Supreme Court held:
"The probate court may, in its discretion, reduce an agreed-upon attorney fee if it concludes that the attorney fee is unreasonable. See Ex parte Peck, 572 So. 2d 427, 429 (Ala. 1990). However, without a sufficient explanation by the probate court regarding its consideration of the 12 factors outlined in Pharmacia [Corp. v. McGowan, 915 So. 2d 549, 552-53 (Ala. 2004),] and how it calculated the attorney fees, we cannot ascertain whether the probate court exceeded its discretion in awarding those fees."Kiker, ___ So. 3d at ___ (emphasis added). Consequently, the Alabama Supreme Court remanded the cause for the probate court to enter an order explaining its decision. In the present case, such a remand is necessary before we may review the circuit court's reduction of the fees claimed by Hutchinson.
Conclusion
Like the Alabama Supreme Court in Kiker, we cannot determine in the present case whether the trial court exceeded its discretion in reducing the fees claimed by Hutchinson. Therefore, we remand this cause to the circuit court for the entry of an order explaining its decision and articulating its reasons for that decision. Due return shall be made to this Court within 42 days of the date of this opinion.
REMANDED WITH INSTRUCTIONS.
Welch, P.J., and Windom, Kellum, and Burke, JJ., concur.
Hutchinson v. State, 66 So. 3d 220, 230 (Ala. 2010). Upon transfer from the Supreme Court, this appeal was assigned case no. CR-10-0595.