If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re Attorney Fees of MITCHELL T. FOSTER
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 21, 2019
Plaintiff-Appellee,
v No. 343340
Kalamazoo Circuit Court
THERESA LYNNE PETTO, LC No. 2015-000906-FC
Defendant,
and
MITCHELL T. FOSTER,
Appellant.
Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.
PER CURIAM.
Appellant, Mitchell T. Foster, appeals as of right the trial court’s order granting, in part,
his motion for reconsideration and awarding Foster $1,000 in attorney fees. For the reasons
stated in this opinion, we reverse and remand for further proceedings.
This case arises out of attorney fees charged by Foster as a result of his representation of
defendant, Theresa Lynne Petto, in her post-conviction proceedings. Petto pleaded guilty but
mentally ill to felony murder, MCL 750.316(1)(b), before the end of her trial. The trial court
sentenced Petto to life imprisonment without the possibility of parole. Foster was appointed to
represent Petto in her appeal. Foster filed a motion in the trial court to withdraw Petto’s guilty
plea. The trial court denied that motion. Thereafter, Foster filed a delayed application for leave
to appeal, which this Court denied. Foster appealed this Court’s decision to the Michigan
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Supreme Court. In lieu of granting leave to appeal, the Michigan Supreme Court remanded the
case to this Court for consideration as on leave granted. Foster then filed a motion for a remand
to the trial court for a Ginther1 hearing, which was granted by this Court.
Foster filed a petition in the trial court for a total payment of $2,820.31 in attorney fees
for the work he completed on Petto’s case up until this Court denied Petto’s delayed application
for leave to appeal. Foster sought payment for 51.20 hours of work at a rate of $45 an hour (the
scheduled rate in Kalamazoo County for appointed counsel in felony appeals) and 5.80 travel
hours at $12 an hour (scheduled rate in Kalamazoo County). Foster requested $446.71 in
additional expenses. The trial court awarded Foster $750, which exceeded the $500 cap that
Kalamazoo County placed on services rendered by appointed attorneys in appellate proceedings
involving guilty pleas. Foster then filed a motion for reconsideration, requesting the approval of
an additional $1,623.60 for his work on the case. In the alternative, Foster asked the trial court to
state on the record its reasons for decreasing his attorney fees. Following a hearing, the trial
court set aside its initial order awarding Foster $750 in attorney fees and ordered that Foster was
entitled to the $500 maximum for representing Petto in her motion to withdraw guilty plea and
the $500 maximum for representing Petto in her appeal. This appeal followed.
Foster argues that the trial court abused its discretion by capping attorney fees pursuant to
the Kalamazoo County fee schedule without considering whether his additional requested fees
were reasonable. We agree.
“A trial court’s determination regarding the reasonableness of compensation for services
and expenses of court-appointed attorneys is reviewed for an abuse of discretion.” In re Foster
Attorney Fees, 317 Mich App 372, 375; 894 NW2d 718 (2016). “A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.” Id.
(quotation marks and citation omitted).
This Court has explained:
“At common law” the burden of providing a defense to indigent defendants “was
borne by members of the bar as part of the obligations assumed upon admission to
practice law.” In re Recorder’s Court Bar Ass’n, 443 Mich 110, 121; 503 NW2d
885 (1993). However, in Recorder’s Court Bar Ass’n, our Supreme Court, while
noting that the validity and accuracy of this common-law rule was not without
challenge, recognized that MCL 775.16 provides a statutory right to reasonable
compensation for those attorneys appointed to represent indigent defendants. Id.
at 122-123. Our Supreme Court held that while “what constitutes reasonable
compensation may necessarily vary among circuits,” “the Legislature clearly
intended an individualized determination of reasonable compensation . . . .” Id. at
129-130. [In re Foster Attorney Fees, 317 Mich App at 375-376.]
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Although MCL 775.16 has since been amended, effective July 1, 2013, and no longer contains
the reasonable-compensation requirement, the Supreme Court has made clear that the
requirement still applies. See In re Ujlaky, 498 Mich 890 (2015) (remanding the case to the trial
court “for a determination of the reasonableness of the attorney fees requested”). See also In re
Foster Attorney Fees, 317 Mich App at 376 n 1 (declining to specifically address the issue, but
noting that the Michigan Supreme Court referred to the reasonable-compensation requirement in
an order entered after MCL 755.16 was amended).
In In re Ujlaky, 498 Mich at 890, the Supreme Court, in lieu of granting leave to appeal,
reversed our decision affirming the denial of an attorney’s request for extraordinary fees and
remanded the case to the trial court “for a determination of the reasonableness of the attorney
fees requested.” The order directed that:
The trial court applied the county’s fee schedule, which capped compensation for
plea cases at $660, but did not address at all the reasonableness of the fee in
relation to the actual services rendered, as itemized by the appellant. See In re
Recorder’s Court Bar Ass’n, 443 Mich 110, 131, 503 NW2d 885 (1993).
Although the expenditure of any amount of time beyond that contemplated by the
schedule for the typical case does not, ipso facto, warrant extra fees, spending a
significant but reasonable number of hours beyond the norm may. On remand,
the trial court shall either award the requested fees, or articulate on the record its
basis for concluding that such fees are not reasonable. See, e.g., In re Attorney
Fees of Mullkoff, 176 Mich App 82, 85-88, 438 NW2d 878 (1989), and In re
Attorney Fees of Jamnik, 176 Mich App 827, 831, 440 NW2d 112 (1989).
In this case, while the trial court expressed some concern about the 10.1 hours spent on
the delayed application for leave, the trial court did not conclude that this or any other amount of
time that Foster spent on Petto’s case was unreasonable. However, it clearly relied on the
Kalamazoo County policy capping compensation for appeals involving guilty pleas. At the
hearing, Foster asked the trial court to consider whether the hours spent in each category on his
itemized billing statement were reasonable. However, the trial court declined to do so on the
record. The trial court agreed to examine Foster’s itemized hours and issue a written opinion. In
the written opinion, the trial court concluded that Foster was entitled to the maximum amounts
allotted by Kalamazoo County for representing Petto at her plea-withdrawal hearing and her
appeal, but it did not determine that any of the additional time Foster spent on the case, for which
he was requesting additional fees, was unreasonable.
As a result, we conclude that the trial court abused its discretion in failing to either award
Foster the full amount of requested fees or determine its basis for concluding that the amount
was not reasonable. See In re Attorney Fees of Ujlaky, 498 Mich at 890 (stating that the trial
court was required to “either award the requested fees, or articulate on the record its basis for
concluding that such fees are not reasonable.”). See also In re Attorney Fees of Jamnik, 176
Mich App at 831-832 (stating that “[w]hile the determination of what is reasonable
compensation for such services is left to the sound discretion of the trial court, it is an abuse of
discretion to simply deny any compensation for such services”). Accordingly, we remand to the
trial court for such a determination. See In re Attorney Fees of Ujlaky, 498 Mich at 890.
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Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Douglas B. Shapiro
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
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