Opinion
No. 83-728
Decided November 21, 1984.
Attorneys at law — Mandamus to compel allowance of fees for indigent's attorney — Thirty-day limitation of local rule unreasonable — R.C. 2941.51, construed — Writ allowed, when.
IN MANDAMUS.
Relator, Roger A. Wood, is an attorney at law licensed in the state of Ohio and was appointed by the Hon. Peter M. Handwork, then a judge of the Court of Common Pleas of Lucas County, to represent an indigent defendant in a criminal case. Relator undertook such representation and the trial resulted in the sentencing of the defendant on November 18, 1982. Relator filed a motion for new trial based on newly discovered evidence on December 7, 1982. The motion was overruled on December 30, 1982. Subsequently, respondent, Judge Robert G. Christiansen, was appointed to fill the unexpired term of Judge Handwork because of the latter's election to the Sixth District Court of Appeals. On March 9, 1983 relator filed application with respondent for attorney fees relative to the foregoing representation. Respondent refused to approve payment therefor based on Local Rule 17.06 of the Court of Common Pleas of Lucas County which states, in part: "Any application for attorney fees received after 30 days from date of sentence shall not be paid."
Relator seeks the issuance of a writ of mandamus directing respondent to approve payment of the attorney fees requested in his application.
Mr. Marshall D. Wisniewski, for relator.
Mr. Anthony G. Pizza, prosecuting attorney, Mr. Mark E. Lupe and Mr. Thomas O. Secor, for respondent.
While R.C. 2941.51 requires payment for services to assigned counsel, division (A) thereof affords discretion to the trial court by limiting such payment to "such compensation and expenses as the trial court may approve." Respondent concedes that his reason for not approving the subject application for fees was that the application was not filed pursuant to Local Rule 17.06 which requires that such application be filed within thirty days of sentencing.
The question is whether the thirty-day time limitation for filing attorney fee applications imposed by Local Rule 17.06 is unreasonable in view of the statutory right (R.C. 2941.51) of assigned counsel to be paid.
Respondent argues that the local rule time limitation of thirty days is reasonable inasmuch as a county's entitlement to reimbursement for a county appointed counsel system, as herein provided by R.C. 120.33(D), requires that such request be "* * * received by the state public defender within ninety days after the end of the calendar month in which the case is finally disposed of by the court * * *." Thus, respondent argues that the county was foreclosed from the reimbursement rights afforded by R.C. 120.33(D).
The circumstances herein demonstrate the unreasonable nature of the thirty-day limitation for filing applications for attorney fees imposed by Local Rule 17.06. In this case, thirty days from sentencing had elapsed prior to the trial court's ruling on relator's motion for new trial. Relator's responsibilities to the defendant had not ended prior to the court's ruling, and it would be unreasonable to foreclose relator from filing an application for fees, including services rendered subsequent to the thirty-day period; therefore, Local Rule 17.06 is deemed invalid.
Further, the language of R.C. 120.33(D) relates the ninety-day time limit for requests for reimbursement to the time of final disposal of the court case. In this case the ninety-day period did not begin until after December 31, 1982. Thus, the county was not patently foreclosed from seeking reimbursement at the time relator's application for fees was filed on March 9, 1983.
For reason of the foregoing, the writ is allowed and respondent is ordered to approve the fee application submitted by relator, subject to the exercise of his sound discretion as to the reasonableness and appropriateness of such application.
Writ allowed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.