[Cite as State v. C.W., 2019-Ohio-2058.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                          C.A. No.     18AP0020

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
C. W.                                                  COURT OF COMMON PLEAS
                                                       COUNTY OF WAYNE, OHIO
        Defendant                                      CASE No.   2016 CRC-I 000399

        and

STEVE KNOWLING

        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: May 28, 2019



        SCHAFER, Presiding Judge.

        {¶1}      Appellant, Steve Knowling, trial counsel for the defendant in the underlying

criminal matter, appeals from the March 19, 2018 judgment entry of the Wayne County Court of

Common Pleas approving Mr. Knowling’s application for appointed counsel fees but reducing

the amount of fees requested, and the subsequent April 3, 2018 order denying Mr. Knowling’s

motion to reconsider. For the reasons that follow, we affirm.

                                                  I.

        {¶2}      Defendant, C.W.1, was indicted on September 27, 2016, for one count of unlawful

sexual conduct with a minor in violation of R.C. 2907.04(A), a felony of the fourth degree. C.W.



        1
            C.W. is not a party to this appeal.
                                                2


appeared for arraignment, without counsel, on December 28, 2016. The trial court entered a plea

of not guilty on C.W.’s behalf, and appointed the public defender as counsel for defendant.

       {¶3}    The assigned public defender filed a motion to withdraw as counsel on January 3,

2017, citing a conflict of interest. The trial court approved the motion to withdraw as counsel,

and appointed counsel for C.W. on January 6, 2017. Thereafter, C.W. informed the trial court

that he wished to hire his own attorney. On June 27, 2017 the trial court noted C.W.’s request

for the appointment of counsel during a pretrial, and again appointed the public defender to

represent him. Once again, the public defender moved to withdraw as counsel based on a

conflict of interest. The trial court granted the motion to withdraw and, on June 21, 2017,

appointed Mr. Knowling to represent C.W.. The matter was set for trial but, ultimately, C.W.

changed his plea to guilty as to an amended count of importuning in violation of R.C.

2907.07(B)(1), a felony of the fifth degree. The trial court accepted C.W.’s plea and entered his

conviction on February 23, 2018.

       {¶4}    On March 16, 2018, Mr. Knowling filed a motion, entry, and certification for

appointed counsel fees. In his application, Mr. Knowling requested a total of $2,056.00 in

appointed counsel fees and provided an itemized fee statement and summary of work performed.

The trial court approved the fee application on March 19, 2018, but the judge reduced the

amount of the fee to $500.00. Mr. Knowling then filed a motion to reconsider the judgment

entry reducing assigned counsel fees without explanation or, in the alternative, seeking

extraordinary fees in the amount of $2,056.00. The trial court denied the motion to reconsider

and stated: “The fee requested by counsel was excessive and completely out of proportion to

those requested by other assigned counsel in similar cases.”
                                                  3


       {¶5}       Mr. Knowling appealed from the judgment entry raising one assignment of error

for our review.

                                                  II.

                                        Assignment of Error

       The trial court abused its discretion by summarily reducing assigned
       counsel’s fee request by seventy-five percent without holding a hearing to
       determine whether counsel’s services were reasonable and necessary.

       {¶6}       An appellate court reviews the trial court’s decision regarding appointed counsel

fees for an abuse of discretion. State v. Weimer, 11th Dist. Lake No. 2013-L-022, 2014-Ohio-

1354, ¶ 7. An abuse of discretion is more than an error of judgment; it means that the trial court

was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, (1983). When applying this standard, a reviewing court is precluded from simply

substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio

St.3d 619, 621 (1993).

       {¶7}       Mr. Knowling filed his initial application seeking appointed counsel fees totaling

$2,056.00, along with documentation to show the time he expended and services he performed.

Without explanation for the reduction in fees, the trial judge simply crossed off the amount Mr.

Knowling requested, and wrote in and initialed $500.00 as the approved amount. Thereafter, the

trial court denied Mr. Knowling’s motion for reconsideration and explained that it found his

request to be “excessive” and disproportionate to fees requested for similar work performed.

       {¶8}       On appeal, Mr. Knowling asserts that the trial court abused its discretion by

disallowing the full amount of the fees without a hearing to determine reasonableness or

necessity. He contends that he was denied the opportunity to establish that the time he expended

was essential to an effective defense because, without a hearing, he “was unable to present any
                                               4


evidence or make an argument in support of his assigned counsel fee application[.]” In the

absence of a hearing, Mr. Knowling contends, “there can be no independent analysis of whether

the fees requested were reasonable and necessary.”

       {¶9}   Counsel appointed by the court to represent an indigent person “shall be paid by

the county” for their services and shall receive “compensation and expenses that the trial court

approves.” R.C. 2941.51(A); R.C. 120.33(A)(4). Further, R.C. 2941.51(B) provides that the

board of county commissioners must establish a schedule of fees, either per case or on an hourly

basis, for the payment of services provided by appointed counsel. “Compensation and expenses

shall not exceed the amounts fixed by the board of county commissioners” in the schedule of

fees. R.C. 2941.51(A).

       {¶10} Mr. Knowling notes in his brief that the $2,056.00 in fees he requested “is less

than the $3,000.00 maximum for a [third] degree felony set by the State Public Defender’s

Office.” Aside from the fact that Mr. Knowling’s client was not charged with a third-degree

felony, but rather a felony of the fourth degree, Mr. Knowling avoids mention of the maximum

fee schedule for assigned counsel established by the Board of County Commissioners for Wayne

County.   Pursuant to Wayne County’s approved fee schedule, appointed counsel will be

reimbursed a maximum of $40.00 per hour for out-of-court services and $50.00 per hour for in-

court services. The maximum fee permitted for representation on a felony of the fourth degree is

$1,500.00. We are compelled to point out that Mr. Knowling made his initial application to the

trial court requesting fees in excess of $1,500.00 without an accompanying request for

extraordinary fees. On appeal, however, Mr. Knowling has not challenged the applicability of

the schedule to his request for fees, nor has he raised any issues regarding requests for

extraordinary fees. We confine our analysis accordingly.
                                                 5


       {¶11} Mr. Knowling has assigned as error the trial court’s failure to hold a hearing prior

to approving fees in an amount less that the requested $2,056.00. In support of his contention

that a trial court must “conduct a hearing and articulate its reasons before reducing assigned

counsel attorney fees[,]” Mr. Knowling cites to three probate court cases: In re Estate of

Murray, 11th Dist. Trumbull No. 2004-T-0030, 2005-Ohio-1892; In re Guardianship of

Simballa, 7th Dist. Mahoning No. 05-MA-8, 2005-Ohio-5934; In re Estate of Campbell, 7th

Dist. Mahoning Nos. 02 CA 186 and 02 CA 187, 2003-Ohio-7040. However, each of these

cases involved a probate court’s allowance of reasonable attorney fees paid by the executor or

administrator of an estate pursuant to R.C. 2113.36 and, are simply inapposite in our review of

fees awarded pursuant to R.C. 2941.51. Additionally, Mr. Knowling directs us to State v.

Whitfield, 167 Ohio App.3d 211, 2006-Ohio-3044, (2d Dist.) and State v. Torres, 174 Ohio

App.3d 168, 2007-Ohio-6651, (8th Dist.) for the proposition that a trial court abuses its

discretion when it limits fees without holding a hearing. Whitfield and Torres are likewise

inapplicable to the present matter. Those cases addressed issues concerning a trial court’s

approval of expert witness fees and private investigator’s fees pursuant to R.C. 2929.02, but the

appointed counsel fees at issue in the present case were not implicated in Whitfield or Torres.

       {¶12} We conclude that Mr. Knowling’s reliance on the aforementioned cases is

misplaced. Although payment for appointed counsel’s services is required by statute and the

maximum fee is established by the relevant fee schedule, the actual amount of the compensation

is left to the trial court’s discretion. See State ex rel. Martin v. Corrigan, 25 Ohio St.3d 29, 31

(1986). Mr. Knowling has not provided any relevant authority to support his claim that the trial

court was required to hold a hearing before exercising its discretion to approve appointed counsel

fees in an amount less than counsel requested. In a case such as this, the trial court is “clearly in
                                                 6


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 Mr. Knowling alleges required extensive legal review, and “the relative efficiencies and

decision making related to trial counsel’s performance.” Weimer, 2014-Ohio-1354 at ¶ 14.

       {¶13} This Court does not doubt that Mr. Knowling expended the amount of time that

he deemed necessary to present an effective defense for his client. However, by accepting

appointment as counsel in this matter, Mr. Knowling impliedly accepted and agreed to be bound

by the fee schedule. See In re Ashton B., 6th Dist. Sandusky No. S-03-003, 2003-Ohio-3092, ¶

3. We are not insensitive to the reality that appointed counsel are quite often inadequately

compensated for their services. Nevertheless, based on the foregoing, we cannot say the trial

court abused its discretion by entering its judgment approving a reduced amount of fees without

conducting a hearing. Mr. Knowling’s assignment of error is overruled.

                                                III.

       {¶14} Mr. Knowling’s sole assignment of error is overruled. The judgment of the

Wayne County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                7


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT




CALLAHAN, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶15} I respectfully dissent. I would dismiss this appeal for lack of a final, appealable

order as this case does not involve a substantial right. As the majority explained, appointed

counsel shall receive "compensation and expenses that the trial court approves.” R.C.

2941.51(A).    Although appointed counsel has a right to be paid by the county per R.C.

120.33(A)(4) to the extent that an amount is approved by the trial court, there is no substantial

right to the approval of a sum certain.


APPEARANCES:

STEVE KNOWLING, Attorney at Law, pro se, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
