Opinion
110395
08-12-2021
IN RE M.H. A Minor Child [Appeal by Anna Markovich]
Anna Markovich, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin, Assistant Prosecuting Attorney, for appellee.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. DL-20-102957 and DL-20-102996
JUDGMENT: AFFIRMED
Anna Markovich, pro se.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION
FRANK D. CELEBREZZE, JR., JUDGE
{¶ 1} Appellant, Anna Markovich ("appellant"), who was assigned to represent defendant M.H. in two juvenile delinquency cases, brings this appeal challenging the juvenile court's judgment denying her motion for extraordinary fees. Appellant argues that the juvenile court abused its discretion in denying the motion because an award of extraordinary fees was warranted and that the juvenile court failed to provide a reason for denying the motion. After a thorough review of the record and law, this court affirms.
Although the notice of appeal states that defendant M.H. filed the instant appeal by and through her assigned counsel (appellant), the record reflects that appellant, not M.H., is prosecuting this appeal and is the interested party. M.H. does not challenge her adjudication of delinquency for petty theft, and she is not a party in this appeal.
I. Factual and Procedural History
{¶ 2} On March 9, 2020, a magistrate appointed appellant to represent M.H. in two juvenile cases. First, in DL-20-102996, M.H. was charged in a one-count complaint on March 9, 2020, with petty theft, a first-degree misdemeanor, for an incident that occurred on February 25, 2020. This case proceeded to trial on October 26, 2020. At the close of trial, M.H. was adjudicated delinquent.
{¶ 3} Second, in DL-20-102957, M.H. was charged in a one-count complaint on March 6, 2020, with petty theft, a first-degree misdemeanor, for an incident that occurred on January 15, 2020. This case proceeded to trial on January 28, 2021. At the close of trial, M.H. was adjudicated not delinquent.
{¶ 4} On February 23, 2021, appellant filed a motion for extraordinary fees pursuant to Loc.R. 19. Appellant requested extraordinary fees in the amount of $962. In support of her request for extraordinary fees, appellant asserted,
[appellant] has expended considerable time and effort bringing [the two juvenile cases] to conclusion.
There were unique circumstances, which necessitated the extraordinary amount of service performed by [appellant], such as, but not limited to: it took almost a year to resolve the above captioned cases; there were multiple continuances due to the minor's health
issues and the State's witnesses being exposed to the COVID-19; there was voluminous discovery (multiple security videos) that [appellant] had to review; there were multiple communications between [appellant] and different assistant prosecuting attorneys who have frequently changed, and [appellant] had to prepare and participate in two trials because these matters could not be resolved through [a] plea agreement.
[Appellant] demonstrates the total of 22.30 hours of service performed in this matter, as evidenced by the Itemized Fee Statement attached hereto. The total fees requested are $962.00, which is intended to compensate more fairly the full amount of time expended.
{¶ 5} In support of her motion for extraordinary fees, appellant submitted (1) motions, entries, and certifications for appointed counsel fees, (2) itemized fee statements, (3) financial disclosure forms, and (4) the orders appointing appellant to represent M.H. in the juvenile proceedings.
{¶ 6} On March 15, 2021, the juvenile court denied appellant's motion for extraordinary fees. The juvenile court's judgment entry provides, in relevant part, "[u]pon review of the Court file and the Motion, the Court finds said motion is not well taken. It is therefore ordered that said Motion is denied."
{¶ 7} On March 24, 2021, appellant filed the instant appeal challenging the juvenile court's judgment. Appellant assigns one error for review:
I. The trial court abused [its] discretion in denying the assigned counsel's motion for extraordinary fees.
II. Law and Analysis
{¶ 8} In her sole assignment of error, appellant argues that the juvenile court abused its discretion in denying her motion for extraordinary fees.
{¶ 9} This court reviews the trial court's decision regarding appointed counsel fees for an abuse of discretion. State v. C.W., 9th Dist. Wayne No. 18AP0020, 2019-Ohio-2058, ¶ 6, citing State v. Weimer, 11th Dist. Lake No. 2013-L-022, 2014-Ohio-1354, ¶ 7. A court abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "A decision is unreasonable if there is no sound reasoning process that would support that decision." AAAA Ents. Inc. v. River Place Community Urban Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990); see also Ockunzzi v. Smith, 8th Dist. Cuyahoga No. 102347, 2015-Ohio-2708, ¶ 9 ("Abuse of discretion' is a term of art, describing a judgment neither comporting with the record, nor reason."). Under the abuse of discretion standard, this court may not simply substitute our judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).
{¶ 10} First, appellant argues that the juvenile court abused its discretion in denying her motion because the trial court failed to explain the reason for the denial. Appellant directs this court to (1) Section I(H)(3) of the Office of the Ohio Public Defender's ("OOPD") "Standards and Guidelines for Appointed Counsel Reimbursement," and (2) Section 120-1-15(B)(1) of the Ohio Administrative Code ("OAC").
{¶ 11} OOPD's "Standards and Guidelines for Appointed Counsel Reimbursement" were revised in November 2019. Section I(H)(3), governing reduction or denial of attorney fees, provides, "[i]f a court reduces or denies a legal fee that is at or below the applicable portion of the county fee schedule, a journal entry stating the reasons for the reduction or denial must be attached to the Motion, Entry, and Certification for Appointed Counsel Fees form[.]" (Emphasis added.)
See Office of the Ohio Public Defender, Reimbursement Standards and Guidelines 2019-11, https://opd.ohio.gov/static/County %20Resources/Recoupment/Reimbursement%20 Standards%20and%20Guidelines_Nov%202019.pdf (accessed July 22, 2021).
{¶ 12} Here, the juvenile court denied the extraordinary fees requested by appellant that exceeded the portion of the county fee schedule for misdemeanor offenses. Accordingly, to the extent that appellant argues that the juvenile court was required by Section I(H)(3) to issue findings or reasons for denying the motion for extraordinary fees, appellant's argument is misplaced.
{¶ 13} OAC 120-1-15 , governing fee schedules for appointed counsel and public defender salaries, provides, in relevant part,
(B) To modify a submitted fee bill, a court must comply with the following:
(1) If a court denies, in full or in part, an appointed counsel fee bill that is at or below the applicable portion of the county fee schedule, the court shall provide an entry stating the reason for the denial or the reduction of the fee bill.(Emphasis added.)
{¶ 14} Because the amount of extraordinary fees requested by appellant, $962, exceeded the $250 maximum for misdemeanor cases set forth in the county fee schedule, the juvenile court was not required to state the reason or rationale for the denial in its judgment entry. Accordingly, appellant's reliance on OAC 120-1-15 is misplaced.
{¶ 15} Appellant also directs this court to In re J.B., 8th Dist. Cuyahoga No. 109161, 2020-Ohio-1121, in support of her argument that the juvenile court erred by denying her motion for extraordinary fees without explanation. In In re J.B., the appellant-guardian ad litem ("GAL") was appointed to represent a minor child in permanent custody proceedings. Pursuant to the fee schedule in effect at the time of the GAL's appointment, the maximum fee that the GAL could receive was $500. In re J.B. at ¶ 10. The GAL filed a motion for approval of payment of GAL fees and a motion for extraordinary fees. The GAL requested a total of $2, 673 in fees. The GAL's motion for extraordinary fees was granted, but the juvenile court awarded the GAL $750 rather than the $2, 673 requested by the GAL. The GAL filed an appeal challenging the juvenile court's judgment.
{¶ 16} On appeal, this court reversed the juvenile court's judgment and remanded the matter for the juvenile court to (1) reconsider the GAL's motion for extraordinary fees, and (2) explain the basis for the amount of extraordinary fees awarded. This court explained,
both the assigned trial judge and the administrative judge reviewed [the GAL's] motion for extraordinary fees, found that extraordinary fees beyond the $500 per case "maximum" were warranted and
approved payment of additional $250 in extraordinary fees. However, there is nothing in the record that indicates why the juvenile court granted [the GAL's] motion for extraordinary fees but approved total fees of $750 instead of the $2, 673 in total fees [the GAL] had requested.Id. at ¶ 15. This court noted that "without any explanation of the basis or reasoning behind the juvenile court's decision, we are unable to conduct a meaningful review of [the decision to grant the motion for extraordinary fees but approve $750 rather than the $2, 673 requested by the GAL]." Id. at ¶ 16.
{¶ 17} After reviewing the record, we find In re J.B. to be distinguishable from the present matter. Here, unlike In re J.B., the juvenile court did not find that extraordinary fees were warranted. Nor did the juvenile court approve payment of extraordinary fees in excess of the $250 per case maximum. Here, there is not a discrepancy between the amount of extraordinary fees awarded by the juvenile court and the amount requested by appellant - the juvenile court concluded that extraordinary fees were not warranted.
{¶ 18} In the GAL's motion for extraordinary fees in In re J.B., 8th Dist. Cuyahoga No. 109161, 2020-Ohio-1121, the GAL "did not explain why he believed the case warranted an award of extraordinary fees or provide any information or evidence in support of his request for extraordinary fees other than to identify the hours he spent in court and out of court on various dates related to the case," and the GAL "provided virtually no information in support of his motion for extraordinary fees other than to itemize the hours he spent in court and out of court on various dates related to the case." Id. at ¶ 4, 16. In this case, appellant did, in fact, explain in her motion why she believed extraordinary fees were warranted. Accordingly, appellant's reliance on In re J.B. is misplaced.
{¶ 19} Appellant has failed to identify any authority that stands for the proposition that a trial court is required to state the reason or rationale for denying a motion for extraordinary fees. See App.R. 16(A)(7).
{¶ 20} Second, appellant argues that the juvenile court abused its discretion in denying her motion for extraordinary fees because extraordinary fees were, in fact, warranted in this case. Appellant emphasizes that the two juvenile cases in which she was appointed to represent M.H. "involved multiple offenses and separate trials." Appellant's brief at 8.
{¶ 21} In support of her argument, appellant directs this court to OOPD Section I(H)(2), which provides, "[c]ases eligible for extraordinary fees are ones which, because of extraordinarily complex issues, multiple offenses, lengthy trials, or other reasons, warrant compensation at a rate which exceeds the maximums established by a county of the OPD."
{¶ 22} Based on the record before this court, we are unable to conclude that the juvenile court's judgment denying appellant's motion for extraordinary fees was unreasonable, arbitrary, or unconscionable. In her reply brief, appellant concedes that by agreeing to accept appointments from the juvenile court, she ultimately agreed to accept the fee schedule approved by the county commissioners. See In re C.W., 9th Dist. Wayne No. 18AP0020, 2019-Ohio-2058, at ¶ 13, citing In re Ashton B., 6th Dist. Sandusky No. S-03-003, 2003-Ohio-3092, ¶ 3 ("by accepting appointment as counsel in this matter, [the GAL] impliedly accepted and agreed to be bound by the fee schedule"). Furthermore,
the trial court is "clearly in 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 [defendant's trial counsel] alleges required extensive legal review, and "the relative efficiencies and decision making related to trial counsel's performance."In re C.W. at ¶ 12, quoting Weimer, 11th Dist. Lake No. 2013-L-022, 2014-Ohio-1354, at ¶ 14.
{¶ 23} In this case, the juvenile court judge that presided over the juvenile delinquency proceedings reviewed counsel's motion for extraordinary fees, and, in considering appellant's motion, reviewed the "court file," was in the best position to determine whether appellant's request for extraordinary fees was reasonable and warranted. As noted above, this court is precluded from merely substituting our judgment for the judgment of the juvenile court.
{¶ 24} As noted above, appellant set forth the reasons she believed extraordinary fees were warranted in her motion. The juvenile court considered these reasons, in addition to the itemized hours appellant spent on the juvenile cases, and ultimately determined that extraordinary fees were not warranted. Because appellant explained the reason she believed extraordinary fees were warranted in her motion, this court is able to conduct a meaningful review of the juvenile court's decision denying appellant's motion for extraordinary fees. See In re J.B. at ¶ 16 (because (1) the GAL provided "virtually no information" in support of his motion for extraordinary fees and (2) the juvenile court did not explain the basis or reasoning behind its decision to grant the motion, but only award $750 rather than the $2, 673 requested, this court was unable to conduct a meaningful review of the juvenile court's decision).
{¶ 25} In support of her request for extraordinary fees, appellant referenced, among other reasons, delays and complications related to the COVID-19 pandemic. We note that the juvenile court proceedings coincided with the timeline of the COVID-19 pandemic. M.H. was charged on March 6 and 9, 2020. Shortly thereafter, the World Health Organization declared COVID-19 a global pandemic, and various restrictions and shutdowns were implemented at the federal, state, and local levels. Many courts transitioned from in-person to remote operations, and many nonessential hearings and trials were postponed.
{¶ 26} These unprecedented complications affected the entire legal system in one way or another, and were certainly not unique to the juvenile cases in which appellant was assigned to represent M.H. The juvenile court could have reasonably concluded that the reasons appellant referenced in support of her request for extraordinary fees - including the length of time it took to resolve the cases ("almost a year"), multiple continuances, witnesses being exposed to COVID-19, and multiple communications between appellant and the prosecuting attorneys - were caused or exacerbated by pandemic-related complications, rather than the complexity of the juvenile cases, and as a result, did not warrant an award of extraordinary fees.
{¶ 27} This court does not question the amount of time appellant expended in representing M.H. in the juvenile cases. We also recognize the reality that appointed attorneys are not always compensated adequately for the services they provide to their clients. See In re C.W. at ¶ 13 ("[w]e are not insensitive to the reality that appointed counsel are quite often inadequately compensated for their services.")
{¶ 28} For all of the foregoing reasons, however, we are unable to conclude that the juvenile court's judgment denying appellant's motion for extraordinary fees was unreasonable, arbitrary, or unconscionable. Accordingly, we find no basis upon which to conclude that the juvenile court abused its discretion in declining to award extraordinary fees to appellant.
{¶ 29} Appellant's sole assignment of error is overruled.
{¶ 30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, A.J., and EILEEN T. GALLAGHER, J., CONCUR