State v. Powers9/11/2001
MOON, C.J., LEVINSON, AND, NAKAYAMA, JJ., WITH RAMIL J., CONCURRING SEPARATELY, AND ACOBA, J., CONCURRING AND DISSENTING SEPARATELY
On December 6, 1999, Reinhard Mohr petitioned this court for a writ of certiorari to review the Intermediate Court of Appeals' (ICA) order, filed November 23, 1999, summarily approving in part and denying in part Mohr's request for attorney's fees, pursuant to Hawaii Revised Statutes (HRS) § 802-5 (1993).
Therein, the ICA denied Mohr's request for $1,412.00, granting instead the lesser amount of $292.00. In his petition, Mohr asserts that the partial denial of his fees was "arbitrary" and "not fair." For the reasons stated below, we reverse the ICA's November 23, 1999 order approving in part and denying in part Mohr's request for attorney's fees. Furthermore, we hold that $614.00 (15.35 hours x $40.00 per hour), as opposed to the amount requested, is reasonable compensation for the services rendered in this appeal. Accordingly, we grant Mohr's request for fees in that amount.
I. BACKGROUND
Pursuant to HRS § 802-5, Mohr was appointed as appellate counsel for Paul Powers in State v. Powers, No. 21564, effective May 27, 1998. At the time of Mohr's appointment, Powers, appearing pro se, was in the process of appealing from a May 8, 1998 guilty conviction and sentence for promoting a dangerous drug in the third degree. Powers was sentenced to five years of probation, subject, inter alia, to a special condition of 122 days of incarceration with credit for time served. The notice of appeal was filed on May 20, 1998. Mohr was the eighth attorney, and the first appellate attorney, appointed to represent Powers since charges were filed on January 30, 1996.
Between May 28, 1998 and May 18, 1999, Mohr attempted to withdraw as counsel on at least two occasions. On May 18, 1999, in conjunction with presenting a stipulation for dismissal of appeal, Mohr filed the instant request for attorney's fees. On the same day, the stipulation to dismiss the appeal was filed as "not approved." Although initially denied, Mohr's motion to withdraw as counsel was granted on October 8, 1999, in light of Mohr's resignation from the practice of law in Hawaii.
Mohr requests fees in the amount of $1,412.00 for 35.3 hours of services. However, the work sheets submitted by Mohr detail only 34.2 hours of services, consisting of 2 hours of client contact, 21.3 hours of research, and 10.9 hours of reading and drafting court documents. The ICA determined that Mohr's request for $1,412.00 was not reasonable and, by order filed November 23, 1999, approved fees in the amount of $292.00 for 7.3 hours of service. On December 6, 1999, Mohr applied for a writ of certiorari to review the ICA's decision, which this court granted.
II. DISCUSSION
A. Appellate Jurisdiction
Preliminarily, we must determine whether an ICA order granting or denying fees and/or costs to an attorney appointed to represent an indigent defendant under HRS § 802-5 is reviewable by this court. Absent jurisdiction, this court has no authority to act on the substantive issues posed by an appeal. See,e.g., Wong v. Wong, 79 Hawaii 26, 29, 897 P.2d 953, 956 (1995) (noting that "in each appeal, the supreme court is required to determine whether it has jurisdiction") (quoting Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaii 115, 119, 869 P.2d 1334, 1338 (1994)).
HRS § 802-5(b), which provides for compensation to appointed counsel, does not contain provisions for the appeal of a fee order granting or denying such compensation. Therefore, the right of appeal, if any, must be found in some other statutory provision. See In Re Ta
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