In re Foster Attorney Fees
317 Mich. App. 372
| Mich. Ct. App. | 2016Background
- Defendant David Boudrie pleaded guilty to unlawful imprisonment; Mitchell T. Foster was court‑appointed for first‑tier appellate review and filed a delayed application for leave to appeal raising OV‑3 scoring, ineffective assistance for failure to object, and unconstitutional judicial fact‑finding increasing guidelines.
- Foster also sought leave to file a motion to correct an invalid sentence in the trial court; the Court of Appeals denied leave “for lack of merit in the grounds presented” and denied the motion.
- Foster was paid $642 but petitioned the trial court for additional reasonable fees and reimbursement for time and expenses spent preparing the delayed application and the motion to the Court of Appeals.
- The trial judge denied additional fees, stating a personal policy of not paying appellate fees when the Court of Appeals denies leave for lack of merit (especially in a “poor county”).
- Foster appealed the fee denial. The Court of Appeals held the trial court’s policy to condition compensation on appellate outcome was an abuse of discretion and remanded for an individualized fee determination by a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying additional appellate fees and expenses to court‑appointed counsel | Foster: trial court must award reasonable compensation for time and expenses incurred preparing delayed application and appellate motion even if Court of Appeals denied leave for lack of merit | Trial court: denial appropriate when Court of Appeals finds no merit; county cannot afford to pay for work on appeals without merit | Reversed: trial court abused discretion; fee awards cannot be contingent on appellate outcome and require individualized determination |
| Whether trial court policy of denying fees when leave denied “for lack of merit” is permissible | Foster: policy creates impermissible contingency fee and conflicts with requirement of reasonable compensation | Trial court: policy justified by county fiscal constraints and desire to discourage meritless appeals | Policy unreasonable and violates principles against contingency fees in criminal cases; cannot refuse payment solely because leave was denied |
| Whether Court of Appeals’ “for lack of merit” disposition conclusively shows counsel’s work lacked merit | Foster: denial does not necessarily mean no merit; some issues may warrant further review (e.g., Lockridge) | Trial court: treated denial as outcome‑based proof of lack of merit | Court: “for lack of merit” may not be final merits decision; one issue (Lockridge) later showed merit, so outcome‑contingent denial improper |
| Whether remand should be to a different trial judge | Foster: judge’s statements show personal policy and inability to be impartial on remand | Trial court: judge is only circuit judge and considered county finances | Court: reassignment warranted to preserve appearance of justice and avoid judge’s previously expressed views affecting remand |
Key Cases Cited
- Halbert v. Michigan, 545 U.S. 605 (2005) (Sixth Amendment requires appointed counsel for plea‑convicted defendants seeking first‑tier appellate review)
- In re Recorder’s Court Bar Ass’n, 443 Mich. 110 (1993) (statutory reasonable‑compensation requirement for appointed counsel and need for individualized fee determinations)
- People v. Lockridge, 498 Mich. 358 (2015) (constitutional sentencing‑guidelines issue affecting merit of appellate arguments)
- In re Mullkoff Attorney Fees, 176 Mich. App. 82 (1989) (standard of review for trial court fee determinations)
- People v. Lyon, 310 Mich. App. 515 (2015) (abuse of discretion standard)
- People v. Hill, 221 Mich. App. 391 (1997) (factors for reassignment to a different judge)