[Cite as State v. Weimer, 2014-Ohio-1354.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2013-L-022
        - vs -                                   :

DANNA WEIMER,                                    :

                 Defendant,                      :

(AARON T. BAKER,                                 :

                 Appellant).                     :


Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 12 CR 000426.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Aaron T. Baker, Esq., pro se, 38109 Euclid Avenue, Willoughby, OH              44094
(Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Attorney Aaron T. Baker, appeals from the February 4, 2013

judgment of the Lake County Court of Common Pleas, granting his motion for

extraordinary fees, in part, and reducing his attorney fees without a hearing. Based on

the following, we affirm.
        {¶2}    Baker’s client, Defendant Danna Weimer, was arrested on June 13, 2012,

and initially charged with murder and burglary.1 The docket reflects that on July 27,

2012, Baker filed a motion asking that he be appointed to represent Weimer. That

motion was granted by the trial court on August 3, 2012. On August 14, 2012, an

indictment was filed. After the case was bound over from the Painesville Municipal

Court, the 17-count indictment was returned by the grand jury charging Weimer with

offenses ranging from various misdemeanors to engaging in a pattern of corrupt activity,

aggravated burglary, and aggravated murder.           Baker represented Weimer at a

suppression hearing on two separate motions. No speedy trial waiver was filed, and a

jury trial commenced on October 1, 2012, which lasted until a guilty verdict was

rendered two weeks later. Weimer was sentenced on December 13, 2012.

        {¶3}    The next day, Baker filed a motion for extraordinary fees in the amount of

$15,089, which included $87 in expenses. In his very detailed motion, Baker asserted

the following: the indictment was comprised of 17 counts, from various misdemeanors

to engaging in a pattern of corrupt activity, aggravated burglary, and aggravated

murder; he spent a great deal of time parsing the language in the indictment and

comparing it with various pieces of discovery, in addition to conducting extensive

research; discovery provided by the state was the most voluminous that he has ever

encountered in any type of case; he viewed 48 hours of home surveillance video as well

as a good deal of video from other locations pertinent to this case; he listened to hours

of audio recordings on multiple occasions of every witness interview conducted; various

law enforcement who worked on the case provided dozens of pages of reports; he

visited the various scenes, which spanned from the western portion of Ashtabula


1. Weimer is not a party to this appeal.

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County into the eastern portion of Cuyahoga County, and conducted interviews with

numerous witnesses; in an extremely short period of time, he prepared for a full

afternoon motion hearing; he spent many hours preparing for trial over the course of a

relatively short period of time, as a waiver of speedy trial was not filed; he spent

approximately 11 business days in a jury trial and pulled two “all-nighters” during that

time period; he requested compensation for only the most substantial expenses

incurred in this case, related to phone calls received from Weimer at his office; he

performed all necessary functions on his own, without any assistance from a defense

investigator, co-counsel, and/or paralegal, and he did not request any expert witness

assignments, which might ordinarily be expected in a case of this magnitude; the court

has seen his fee bills in the past, which have always been accurate and never inflated;

and every minute recorded in the present fee bill was properly earned. Baker attached

an affidavit to his motion averring to the foregoing facts under oath, along with a

“Motion, Entry, and Certification for Appointed Counsel Fees” and an itemized fee

statement.

      {¶4}   On February 4, 2013, the trial court granted Baker’s motion for

extraordinary fees in part and awarded attorney fees in the amount of $8,000 plus

expenses. No hearing was held. In its judgment, the trial court stated: “The court has

considered [Baker’s] motion for extraordinary fees, filed December 14, 2012.        The

motion is well-taken and is hereby granted in part. The Lake County Auditor is hereby

ordered to pay the sum of $8,000.00 plus $87.00 in expenses to Aaron T. Baker, Esq.”

      {¶5}   It is from this judgment that Baker filed a timely appeal and asserts the

following assignment of error:




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      {¶6}   “The trial court abused its discretion in summarily reducing undersigned

counsel’s assigned counsel fees by nearly one half the amount earned without a

hearing.”

      {¶7}   We review a trial court’s decision regarding attorney fees for abuse of

discretion. Cefaratti v. Cefaratti, 11th Dist. Lake Nos. 2008-L-151 & 2009-L-055, 2010-

Ohio-5661, ¶40, citing Moore v. Moore, 175 Ohio App.3d 1, 20 (6th Dist.2008). An

abuse of discretion is the trial court’s “failure to exercise sound, reasonable, and legal

decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,

¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004) 11.

      {¶8}   R.C. 2941.51 provides, in pertinent part and emphasis added:

             (A) Counsel appointed to a case or selected by an indigent person
             under division (E) of section 120.16 or division (E) of section 120.26
             of the Revised Code, or otherwise appointed by the court, except
             for counsel appointed by the court to provide legal representation
             for a person charged with a violation of an ordinance of a municipal
             corporation, shall be paid for their services by the county the
             compensation and expenses that the trial court approves. Each
             request for payment shall be accompanied by an affidavit of
             indigency completed by the indigent person on forms prescribed by
             the state public defender. Compensation and expenses shall not
             exceed the amounts fixed by the board of county commissioners
             pursuant to division (B) of this section.

             (B) The board of county commissioners shall establish a schedule
             of fees by case or on an hourly basis to be paid by the county for
             legal services provided by appointed counsel. Prior to establishing
             such schedule, the board shall request the bar association or
             associations of the county to submit a proposed schedule. The
             schedule submitted shall be subject to the review, amendment, and
             approval of the board of county commissioners.

      {¶9}   Here, Baker filed a motion with the trial court requesting to be appointed

as counsel. In accord with the statute, the Board of County Commissioners for Lake

County, Ohio, established a fee schedule for attorneys appointed to represent indigent



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defendants. See R.C. 120.33. The fee schedule for the representation of indigent

persons is based on the highest degree of offense charged.          In the instant case,

because Weimer was charged with aggravated murder, an unclassified felony without

the death penalty specification, Baker was entitled to $40 per hour for work performed

outside of court and $50 per hour for representation in court, with a maximum

compensation of $6,000. The Lake County fee schedule provides that extraordinary

fees and expenses may be granted: the maximum compensation may be increased

“because of extraordinary complex issues involved, multiple cases or offenses, lengthy

trials, or other reasons.”

       {¶10} Baker requested extraordinary fees in the amount of $15,089, which is

beyond the maximum award allowable.         Without holding a hearing, the trial court

awarded Baker $8,000 plus his expenses of $87. On appeal, Baker maintains it was an

abuse of discretion to summarily reduce his requested fees without explanation. Baker

asserts that allowing trial courts to reduce requested fees without explanation will

prevent criminal defendants from receiving “the constitutionally-guaranteed adequate

assistance of counsel, or in the alternative, the unconstitutional taking of the assigned

attorney’s property.”    Baker, however, fails to assert any authority to support this

position. Further, attorneys are bound to render effective assistance of counsel in the

course of representing a criminal defendant. See State v. Bryant, 6th Dist. Lucas No. L-

84-249, 1985 Ohio App. LEXIS 8861, *9 (Oct. 18, 1985).

       {¶11} In support of his assignment of error, Baker cites to State v. Torres, 174

Ohio App.3d 168 (8th Dist.2007) and State v. Whitfield, 167 Ohio App.3d 211 (2d

Dist.2006).   Both cases are distinguishable.   In Torres, the Eighth District Court of




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Appeals addressed an issue with fees due to expert witnesses in a capital case. The

trial court denied over $30,000 in fees claimed by eight professionals. The trial court

approved some fees in full, partially approved others, and denied the remainder. The

Torres Court remanded the case to the trial court to hold a hearing. In Whitfield, the

Second Appellate District addressed a request for payment of services by a private

investigator and also determined the trial court should have held a hearing.

       {¶12} Here, Baker requested that he be appointed to represent Weimer.

“Counsel who accept appointment as court-appointed attorneys implicitly accept the fee

schedule approved by the county commissioners and are bound by that schedule.” In

re Ashton, 6th Dist. Sandusky No. S-03-003, 2003-Ohio-3092, ¶3. Baker was aware,

based on the highest offense charged, that the approved fee schedule allowed a

maximum compensation of $6,000. Unlike the situation in Whitfield, where the trial

court reduced fees “well below the $75,000.00 assigned counsel fees cap,” the trial

court awarded Baker fees beyond the maximum reimbursement for representation.

Whitfield at 214.

       {¶13} In this case, Baker has not challenged the propriety of the adopted fee

schedule. He has simply asserted that the trial court abused its discretion, in particular

because it failed to hold a hearing and explain the basis for its award. At oral argument,

Baker acknowledged that his motion contained sufficient detail such that a hearing

would serve only to reiterate what was submitted in writing.

       {¶14} The trial court is clearly in the best position to make an assessment of the

reasonableness of a request for extraordinary attorney fees in cases such as this. The

trial court has participated in pretrial discussions, is familiar with plea negotiations, and




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has observed the relative efficiencies and decision making related to trial counsel’s

performance. Given the record of this case, we cannot say the trial court abused its

discretion in entering its judgment.

       {¶15} Based on the foregoing, appellant’s sole assignment of error is not well-

taken. The judgment of the Lake County Court of Common Pleas is hereby affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                 ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶16} I respectfully dissent.

       {¶17} The majority holds that the trial court did not abuse its discretion in

reducing Baker’s attorney fees without a hearing. For the following reasons, I disagree.

       {¶18} We review a trial court’s decision regarding attorney fees for abuse of

discretion.   Cefaratti, supra, at ¶40, citing Moore, supra, at ¶80.     Regarding this

standard, we recall the term “abuse of discretion” is one of art, connoting judgment

exercised by a court which neither comports with reason, nor the record. State v.

Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when

the trial court “applies the wrong legal standard, misapplies the correct legal standard,

or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d

401, 2008-Ohio-1720, ¶15 (8th Dist.2008).




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       {¶19} Regarding attorney fees, this court stated in In re Murray, 11th Dist.

Trumbull No. 2004-T-0030, 2005-Ohio-1892, ¶26:

       {¶20} “The [trial] court is not bound to follow any precise formula in determining

the reasonableness of fees.         However, for this court to be able to conduct any

meaningful review of the trial court’s exercise of its discretion, we must be able to

discern some basis for its decision. * * * Without understanding the basis for the [trial]

court[’s] reduction of [attorney] fees, our affirmance would be nothing more than a

‘rubber stamp’ of that decision.”

       {¶21} Thus, a trial court is required to conduct a hearing and articulate its

reasons before reducing attorney fees. In re Murray, supra, at ¶25; In re Campbell, 7th

Dist. Mahoning Nos. 02 CA 186 and 02 CA 187, 2003-Ohio-7040, ¶26; In re Simballa,

7th Dist. Mahoning No. 05-MA-8, 2005-Ohio-5934, ¶29; State v. Torres, 174 Ohio

App.3d 168, 2007-Ohio-6651, ¶26 (8th Dist.2007) (holding, in a criminal case involving

aggravated murder, aggravated robbery, and aggravated burglary, that it was an abuse

of discretion to reduce, limit, and deny certain expert expenses and assigned counsel’s

attorney fees without a hearing).

       {¶22} In this case, we cannot discern how the trial court reached its conclusion

because it did not hold a hearing nor state any findings to support its decision. On

February 4, 2013, the trial court granted Baker’s motion for extraordinary fees in part

and reduced his attorney fees from $15,089 to $8,087 without a hearing. The entirety of

the trial court’s judgment entry is as follows:

       {¶23} “The court has considered [Baker’s] motion for extraordinary fees, filed

December 14, 2012. The motion is well-taken and is hereby granted in part. The Lake




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County Auditor is hereby ordered to pay the sum of $8,000.00 plus $87.00 in expenses

to Aaron T. Baker, Esq.

       {¶24} “IT IS SO ORDERED.”

       {¶25} The trial court did not adequately justify its reduction in Baker’s requested

fees. In light of the foregoing, this writer believes that the trial court erred in reducing

the amount Baker requested from $15,089 to $8,087 without a hearing. While the trial

court has broad discretion in determining the amount owed to Baker for his services, I

believe it was error for the court to make that determination without a hearing and

without articulating any reasons. Therefore, I would reverse and remand.

       {¶26} I respectfully dissent.




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