Commonwealth v. Santos
| Decision Date | 26 March 2021 |
| Docket Number | No. 19-P-1198,19-P-1198 |
| Citation | 166 N.E.3d 502,99 Mass.App.Ct. 360 |
| Parties | COMMONWEALTH v. Richard SANTOS. |
| Court | Appeals Court of Massachusetts |
The case was submitted on briefs.
John M. Thompson & Linda J. Thompson, Springfield, for the defendant.
Travis H. Lynch, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Henry, & Sacks, JJ.
The matter now before us concerns a motion for attorney's fees made by attorneys who were privately retained by the defendant, Richard Santos, to oppose the Commonwealth's interlocutory appeal of an order suppressing evidence. See Mass. R. Crim. P. 15 (d), as amended, 476 Mass. 1501 (2017) ( rule 15 [d]). The Commonwealth1 opposes the motion, arguing that Santos's representation agreement (agreement) with counsel might be illusory and that the amount requested is excessive. We conclude that Santos's agreement with his counsel is not illusory and award attorney's fees in the amount of $21,720 for proceedings before this court. We conclude that Santos must file a motion with the Supreme Judicial Court for fees incurred in connection with his opposition to the Commonwealth's application for further appellate review (FAR).
Background. Santos was privately represented in the Superior Court by an attorney who limits his practice to trial work. After Santos prevailed on a motion to suppress evidence, the Commonwealth received permission to file an interlocutory appeal and Santos's counsel referred him to experienced appellate lawyers. Santos also prevailed on appeal. Commonwealth v. Santos, 97 Mass. App. Ct. 719, 149 N.E.3d 379 (2020). The Commonwealth then sought FAR, which the Supreme Judicial Court denied. See Commonwealth v. Santos, 486 Mass. 1103, 157 N.E.3d 593 (2020).
Subsequently, Santos filed a motion for fees in this court pursuant to rule 15 (d). The motion for fees is supported by an affidavit of counsel representing that Santos had a written agreement with counsel and that Santos had "agreed to [the specified hourly] rate of compensation for work done" by each attorney and describing the work completed. The affidavit also avers that Santos was privately represented in the underlying criminal case.
Although the Commonwealth does not contest the facts set forth in the motion for fees, it does oppose the fee motion. The Commonwealth raises two arguments: (1) that Santos's motion did not "demonstrate that a fee award under [ rule] 15 (d) is available," and (2) that the hours were excessive both in time spent and because the hours included time opposing the Commonwealth's application for FAR. The Commonwealth's argument is based in part on its awareness of a representation agreement between Santos's appellate attorneys and an unrelated defendant.
Santos filed a reply in support of his fee request that did not attach his representation agreement. In light of the Supreme Judicial Court's holding in Commonwealth v. Vasquez, 485 Mass. 405, 150 N.E.3d 723 (2020), we ordered Santos to submit his agreement. After we denied Santos's motion to reconsider, counsel filed the fee agreement under protest.2 After defining the scope of the representation and an hourly rate, the agreement provided, in relevant part:
The agreement included a similar provision for reimbursement of expenses, which were anticipated to be the printing of the defendant's brief and appendix and attorney travel expenses. As with fees, the agreement provided that "[t]his responsibility will be met solely by assignment of the client's right, title and interest to compensation for these expenses under Rule 15(d) of the Rules of Criminal Procedure."
"[T]he award of attorney's fees to defendants is mandatory" under this rule. Commonwealth v. Ennis, 441 Mass. 718, 720, 808 N.E.2d 783 (2004). The Supreme Judicial Court has explained that rule 15 (d) "provides a needed measure of protection to the rights of defendants by seeking to equalize the resources of the defendant with those of the Commonwealth." Commonwealth v. Gonsalves, 432 Mass. 613, 617, 739 N.E.2d 1100 (2000), S.C., 437 Mass. 1022, 773 N.E.2d 941 (2002) and 441 Mass. 1007, 804 N.E.2d 910 (2004). It "is intended for the benefit and protection of defendants who ... must incur fees for private representation to defend against a Commonwealth appeal."
Commonwealth v. Augustine, 470 Mass. 837, 841, 26 N.E.3d 709 (2015).3 Rule 15 (d) provides that a defendant's fees are reimbursed regardless of which side prevails in the Commonwealth's interlocutory appeal. Id. at 842, 26 N.E.3d 709.
The Supreme Judicial Court has placed an important limitation on awards pursuant to rule 15. " Rule 15 (d) is meant to reimburse defendants who pay for their own counsel with their own funds; it is not meant for attorneys who represent defendants whom they know to be indigent, and from whom they never expect to receive payment." Vasquez, 485 Mass. at 406, 150 N.E.3d 723. This is true even if "the attorney claims to have been privately retained." Id. In Vasquez, the court held that an indigent defendant who was represented by appointed counsel at the trial level was not eligible for rule 15 (d) reimbursement to pay a private lawyer to oppose the Commonwealth's application to appeal the partial allowance of the defendant's motions to suppress. Id. at 405-406, 412, 414-415, 150 N.E.3d 723. Both the lawyer and client "knew full well the defendant could not and would not ever pay -- with the expectation that the payment would be sought from, and made by, the district attorney and the Trial Court via a court order under rule 15 (d)." Id. at 408, 150 N.E.3d 723. The court found the agreement in Vasquez to be illusory, stating, "There is no indication in the record ... of a genuine intent for the defendant ever actually to pay for private representation." Id. at 412, 150 N.E.3d 723.
The Commonwealth relies on the Vasquez language to argue that "[i]f a defendant pays no fees for private representation -- and is never expected to pay anything -- there is nothing to reimburse." Vasquez, 485 Mass. at 411, 150 N.E.3d 723. In essence, the Commonwealth argues that Santos has never been obligated to pay his attorneys anything and that therefore the fee agreement is illusory.
The Supreme Judicial Court's decision in Vasquez was based on their conclusion that "[t]here is no indication in the record before us of a genuine intent for the defendant ever actually to pay for private representation." 485 Mass. at 412, 150 N.E.3d 723. Here, however, Santos had private representation in the trial court and on appeal. Santos never asserted that he was indigent and was never found to be indigent; the Commonwealth does not contend otherwise.4 Indeed, the Commonwealth agrees that Santos was represented by private counsel in the trial court and concedes that "if he incurred expenses defending against the Commonwealth's interlocutory appeal, he is entitled to reimbursement under [ rule 15 (d) ]." Appellate defense counsel here did not agree to represent Santos without expectation of compensation. They knew Santos had a rule 15 (d) right to reimbursement and then entered into a fee agreement to represent Santos with provisions that fulfilled the spirit of rule 15 (d) to "equalize the resources of the defendant with those of the Commonwealth." Gonsalves, 432 Mass. at 617, 739 N.E.2d 1100. We read the provisions of the fee agreement on which the Commonwealth relies to protect Santos in two important ways.
First, his attorneys agreed to carry the cost of the representation during the pendency of the appeal, which has now been more than two years, rather than require Santos to pay the fees and costs and later seek reimbursement under rule 15 (d). Were we to require otherwise, it could work a tremendous hardship on defendants and their families and treat them unequally relative to the Commonwealth, which does not have to reimburse the defendant's fees until far later. We acknowledge that, read literally, the fee agreement here could be construed to impose no obligation on the defendant to pay counsel's fees, insofar as it limited the obligation to pay fees solely to an assignment of the right to reimbursement.
In the circumstances of the present case, however, and in contrast to those in Vasquez, it is inaccurate to say that counsel had no expectation of being paid by the defendant. To ignore that underlying reality would elevate form over substance -- an approach Vasquez itself sought to avoid. We note that the agreement here was entered into before the guidance furnished by the Supreme Judicial Court in Vasquez, and we expect that careful drafting will avoid any such issue in future fee agreements.
Second, the attorneys agreed to accept the amount of fees and costs we deem appropriate, even if it is a reduced fee, and even if we are conservative with the public's purse or simply think that counsel could have been more efficient than they ...
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