People v. Kinion

• Decision Date: 23 September 1983
• Docket Number: No. 56490,56490
• Citation: 454 N.E.2d 625,73 Ill.Dec. 528,97 Ill.2d 322
• Court: Illinois Supreme Court
• Parties: , 73 Ill.Dec. 528 The PEOPLE of the State of Illinois, Appellant, v. Margaret Ann KINION (Braud, Warner, Neppl & Westensee, Ltd., Appellee).

Page 625

454 N.E.2d 625

97 Ill.2d 322, 73 Ill.Dec. 528

The PEOPLE of the State of Illinois, Appellant, v. Margaret Ann KINION (Braud, Warner, Neppl & Westensee, Ltd.,

Appellee).

No. 56490.

Supreme Court of Illinois.

Sept. 23, 1983.

Tyrone C. Fahner, Atty. Gen., Chicago, John X. Breslin, Deputy Director, Gerry R. Arnold, Staff Atty., State's Attys. Appellate Service Com'n, Ottawa, for appellant; L. Patrick Power, State's Atty., Kankakee, James T. Teros, State's Atty., Rock Island, of counsel.

Walter D. Braud, John Malvik, Braud, Warner, Neppl & Westensee Ltd., Rock Island, for appellee.

SIMON, Justice:

The defendant in this case, Margaret Ann Kinion, was convicted in the circuit court of Rock Island County of 63 counts of theft. This appeal concerns the propriety of an award of attorney fees and expert witness fees to Walter Braud, a lawyer who had originally been retained by defendant to represent her for a stated compensation but was later appointed by the circuit court to represent her after she was declared indigent.

Shortly after the indictment in this case was filed in November 1979, Mrs. Kinion retained Braud to defend her, agreeing to pay Braud a fee of $20,000 and giving him a second mortgage on her house to secure the debt. At the time this agreement was entered into Mrs. Kinion was employed by Rock Island County as an accountant at an annual salary in excess of $20,000, but she was suspended from that job upon her arrest and from that time on she received neither salary nor unemployment benefits. Subsequently Mrs. Kinion deeded her entire interest in her house to respondent.

At some point prior to May 1980 Braud decided to raise the issues of insanity and fitness to stand trial on defendant's behalf and engaged the services of Drs. Paul Hauck, Bruce Danto and Lawrence Freedman as expert witnesses. (A fourth expert witness, Dr. Joseph Maciejko, was engaged later and billed Braud only for court appearances in September and November 1980. A fifth expert, Dr. Paul Skinner, also billed Braud.) On May 30, 1980, Mrs. Kinion filed a petition for payment of psychiatric expenses, stating that she could not pay them herself as she had no funds or income. On June 12, 1980, she filed a motion in which she asserted she would be unable to pay the costs of her defense, including attorney fees, and requested the court to declare her indigent. She also moved to have her bail reduced and to have the money thus freed used to defray her expenses, with the permission of the person who had loaned her the bail money.

On June 16, 1980, a hearing was held on all of Mrs. Kinion's motions. The motion relating to reduction of bail was denied, although the court ordered the county to pay the costs of Mrs. Kinion's psychiatric examinations to the extent she had no assets with which to pay them. No action was taken on her indigency petition, although trial was set to begin September 8, 1980.

On September 3 and 16, 1980, Mrs. Kinion filed new motions for declaration of indigency and payment of expert witness fees. A hearing was held on the indigency motion on September 19, but the court reserved its ruling. On October 16, 1980, after the bank which held the first mortgage conducted a foreclosure sale of her house, Mrs. Kinion filed another motion for declaration of indigency, followed by an affidavit of assets and liabilities. The court held a hearing on October 23, 1980, and declared her indigent as of September 3.

During September and October 1980, the court was considering a motion relating to Mrs. Kinion's fitness to stand trial. The court wished to conclude all of the proceedings in the case by December 1, 1980, because the State's Attorney for Rock Island County, who was prosecuting the case, was to become a judge on that date, and the circuit judge felt that to allow the public defender adequate time to familiarize himself with the case and prepare a defense would make it impossible to complete the proceedings by that date. At the hearing on October 23, 1980, therefore, the court appointed Braud as counsel "for the conclusion of the proceedings in this case."

Trial commenced on November 3, 1980, after the court determined that Mrs. Kinion was fit to stand trial. The trial lasted until December 2, 1980, on which date Mrs. Kinion was found guilty on all counts. On December 22, 1980, Braud filed a request for attorney fees and costs in the amount of $28,606.35 and expert witness fees of $10,233.80. The circuit court entered an order on May 6, 1981, awarding fees and costs of $6,500 based on an effective appointment date of September 3, 1980, and expert witness fees of $9,073 based on an accrual date of May 30, 1980. The State's Attorney of Rock Island County appealed, contending that Braud was not properly appointed as defense counsel, and, in the alternative, that no fees for services rendered prior to the actual appointment date of October 23, 1980, could be awarded against the county and that any fees so awarded were limited by statute to $1,000 for attorney fees and $250 for expert witnesses. The appellate court affirmed the award of attorney fees and reversed the award of expert witness fees, remanding the case to the circuit court for recomputation of those fees based on an accrual date of September 3, 1980, and without regard for the statutory $250 limit. 104 Ill.App.3d 30, 59 Ill.Dec. 779, 432 N.E.2d 363.

The State's first argument to this court is that Braud is not entitled to any attorney fees because his request for appointment by the court was simply an attempt to salvage a private fee arrangement that had soured and also because Braud had misled the trial court by representing to it that he would not seek recompense from the State for his services. We agree that Braud should not receive any fees from Rock Island County, and we reverse the appellate court decision allowing fees to him.

Certain statements Braud made to the court estop him to claim any attorney fees. One of the representations here at issue is a statement, set forth in a motion dated June 12, 1980, and referred to by the State's Attorney orally before the court four days later, that Braud "will continue to represent your defendant without cost, and that no application will be made to the State for payment of attorneys [sic ] fees." This appeared in a motion filed for the purpose of having Mrs. Kinion declared indigent. The court did not declare Mrs. Kinion indigent until four months later, the State having objected that she was not indigent because she had a substantial equity in her house and the senior mortgagee having not yet held any foreclosure sale of the house.

In arguing this motion before the court on June 16, 1980, Braud stated to the court:

"We are asking then I think, moving on to the last portion of this, that Margaret be declared indigent, * * * We are not asking that the court pay for or appoint counsel. We are accepting as part of the risks in being an attorney that occasionally our clients are unable to pay for us and we are not prepared to decide between Margaret Kinion and the next client as to which of those clients are more worthy. We are not asking to leave this case, nor are we prepared to abandon Margaret at this time in her life, but we cannot do an adequate job for Margaret without the psychiatric testimony. * * * "

This statement was immediately followed by a request that the court order the State to pay for the defense's psychiatric expenses. It was preceded by a request, which the court denied, that her bond be reduced and the reduction applied toward payment of her psychiatric expenses.

Our criminal code provides that, in the event counsel other than the public defender is appointed by the court in a felony case, counsel shall be paid a "reasonable" fee in accord with a formula based on time spent and services rendered. (Ill.Rev.Stat.1979, ch. 38, par. 113-3(c); see People v. Johnson (1981), 87 Ill.2d 98, 57 Ill.Dec. 599, 429 N.E.2d 497.) No exceptions are mentioned in the statute, and we would ordinarily have no quarrel with the general statement in People ex rel. Conn v. Randolph (1966), 35 Ill.2d 24, 29, 219 N.E.2d 337, that "the court's * * * power to appoint counsel also necessarily includes the power to enter an appropriate order ensuring that counsel do not suffer an intolerable sacrifice and burden and that the indigent defendants' right to counsel is protected" and that in In re Petition for Fees (1981), 93 Ill.App.3d 848, 853, 49 Ill.Dec. 235, 417 N.E.2d 1062, aff'd sub nom. People v. Johnson (1981), 87 Ill.2d 98, 57 Ill.Dec. 599, 429 N.E.2d 497, that "[a] reasonable fee infers at least some compensation." However, it has been recognized that the costs which our statute permits attorneys to recover in cases which require substantial investments of time and effort can be a very significant burden on county finances. (E.g., In re Petition for Fees (1981), 93 Ill.App.3d 848, 854, 49 Ill.Dec. 235, 417 N.E.2d 1062 (Craven, J., specially concurring), aff'd sub nom. People v. Johnson (1981), 87 Ill.2d 98, 57 Ill.Dec. 599, 429 N.E.2d 497.) For this reason circuit courts must exercise discretion in selecting appointed counsel, and should appoint the public defender whenever that course is feasible and not manifestly unfair to the defendant and would not lead to an undue delay in trial. This presupposes that the court is informed as fully as possible as to all relevant considerations, including whether private counsel is willing to volunteer his services, at the time it must act.

In this case the trial court knew in September 1980 or earlier that the State's Attorney was an unopposed candidate for a judicial office, and would be unable to participate in the trial after December 1 of that year, when he would take the bench. As the court explained in its 1981 order awarding fees and costs, its decision on October 23, 1980, to appoint Braud rather than the public defender was based on this,...