ILNews

Defense attorneys lose appeal for compensation

Back to TopCommentsE-mailPrintBookmark and Share

Two private defense lawyers in Marion County failed to convince the Indiana Court of Appeals that they should be retroactively appointed by the Marion County Public Defender Agency and compensated for their legal work on a case that has an intricate maze of attorney representation over the course of five years.

The court’s ruling came Friday in Timothy-Patrick Treacy v. State, No. 49A02-1010-CR-1254, an attorney fee-focused continuation of a criminal appeal that a separate appellate panel had decided in a not-for-publication ruling in September 2010.

In the underlying case that evolved in Marion Superior Judge Rueben Hill’s court, Timothy-Patrick Treacy was charged in August 2006 with two misdemeanor and two felony drunk driving counts and a misdemeanor public intoxication charge. But multiple delays involving attorney representation and court congestion pushed his jury trial back three years, and Treacy was eventually convicted on all counts in August 2009. He received a sentence that was mostly suspended and resulted in 100 days in jail and probation.

Treacy challenged the convictions on grounds that he didn’t receive a trial within one year as required by Indiana Criminal Rule 4(C), but the appellate court in September 2010 affirmed the lower court’s findings because the delays were mostly caused by the defendant.

But the lawyering continued, as private attorneys Paul Ogden and Patrick Stern who’d represented Treacy toward the end of those four years argued they should be retroactively appointed as public defenders and compensated for their work. The roadmap to Treacy’s representation is scattered through two appellate records, from this most recent attorney-fees ruling to the original Court of Appeals’ NFP decision upholding Treacy’s criminal convictions and sentence.

In the four years from when the case began to when it was completed in Marion Superior Court, the defendant had five lawyers representing him at the trial level along with multiple stints of pro se representation – the list includes two private attorneys whom Treacy fired, a public defender he threatened to file a lawsuit against, and two private attorneys who were later ordered to stay on the case or represent him intermittently because of counsel indecision or delays.

James Recker was hired and then fired between August 2006 and June 2007, and Treacy wasn’t sure about hiring another lawyer or proceeding pro se. The judge appointed Marion County public defender A.J. Reiber until the defendant decided how he wanted to proceed.

Private attorney Jeffrey McQuary appeared for a September 2007 hearing, but within four months Treacy fired him. Treacy wanted to proceed pro se, and told the court that Reiber couldn’t be re-appointed because he was threatening to sue the public defender on claims he owed Treacy $3.5 million for violating his rights.

After more delays, private defense attorney Patrick Stern represented Treacy at a January 2009 hearing after the defendant’s mother retained him for $1,000.

Several more disagreements surfaced between Treacy and his counsel, with Stern noting more than once that he’d been terminated, but the defendant indicated that was not the case and the court ordered Stern to remain as counsel on the case. At one point in July 2009, after Treacy again said he’d fired Stern, Senior Judge Richard Sallee ordered Paul Ogden, who was sitting in the courtroom gallery at the time, to assist in reviewing some tapes because he was representing Treacy in an unconnected civil matter.

About three years after the man had first been charged, the jury trial commenced and Treacy was convicted and sentenced within a month. Both Ogden and Stern were representing Treacy at the time, the court records show.

Within a month of Treacy’s sentencing, Ogden and Stern both filed petitions ordering the county to pay for their costs, which were $3,765 and $3,500 respectively. Judge Hill denied the motions, and the Indiana Court of Appeals has now dismissed the appeal – mostly because the majority found that Ogden and Stern weren’t parties to the case and Treacy hadn’t requested public appointment of the two lawyers.

Finding that it didn’t have subject matter jurisdiction, the appellate court described this as an attempt to circumvent trial and appellate rules to litigate a compensation dispute with the MCPDA on appeal rather than through a separate lawsuit.

“Although this appeal is styled as a challenge to the trial court’s denial of Treacy’s request for counsel at public expense, no such denial is actually claimed,” Judge Cale Bradford wrote. “This appeal is, in fact, an appeal prosecuted by Ogden and Stern on their own behalf in an attempt to have the MCPDA reimburse them for representing Treacy.”

Judge John Baker concurred, but Judge Melissa May disagreed and found that Ogden and Stern were proper parties and they should address the merits. She would affirm the attorney fee denials because Treacy had not raised this argument on appeal and waived it, but also because he’d been given the chance for a public defender.

“If a defendant wishes representation at public expense, he must accept the public defender appointed by the trial court; to permit any other system would undermine the public defender system created by our legislature and increase the cost of providing defense for all indigent defendants.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  3. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

ADVERTISEMENT