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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

November 22, 2016 

v No. 328374 

Tuscola Circuit Court 

BRIAN PAUL TIMKO, LC No. 14-013061-FH 

 Defendant, 

and 

JOHN W. UJLAKY, 

 Appellant. 

Before: WILDER, P.J., and CAVANAGH and SERVITTO, JJ. 

PER CURIAM. 

 Appellant appeals as of right the trial court’s order denying his motion for 

reconsideration of the trial court’s prior order awarding attorney fees and expenses. We reverse 

and remand for the trial court to either award the requested fees, or articulate on the record its 

basis for concluding that such fees are not reasonable. 

I. FACTS 

The trial court appointed appellant as counsel for defendant in defendant’s “postconviction proceedings.”1

 After his representation was complete, appellant filed a MAACS2

voucher requesting attorney fees and expenses. Appellant requested a total of $3,012 in fees, for 

50.2 hours of work at a rate of $60 per hour, and $181.15 in expenses. When explaining the 

“basis of [his] request,” appellant checked the box on the voucher indicating that he was filing a 

 

1

 Defendant pleaded no contest to three counts of CSC-II, MCL 750.520c(1)(a) (person under 

13). 

2

 Michigan Appellate Assigned Counsel System. 
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“[m]otion for extraordinary fees” and directed the trial court to an attached billing record. The 

trial court ordered that appellant be paid $700 in fees and $181.15 in expenses. 

 Appellant moved for reconsideration, seeking an additional $2,312 in fees. Appellant 

believed that the trial court’s fee order was entered pursuant to a strict application of a trial court 

payment schedule capping fees in plea cases at $700. Appellant claimed that the policy allowed 

the “Chief Judge [to] approve reimbursement for fees in excess of the max if the att[orney] 

submits a written request which sets out excess fees and states the issues that made the case 

‘unusual’ or ‘complex.’ ” Appellant argued that he provided the trial court with information 

necessary to invoke this exception. Further, appellant questioned the merits of the policy, as well 

as arguing that the $700 he was awarded, a payment of $13.94 an hour for 50.2 hours of work, 

was unreasonable. 

The trial court denied appellant’s motion for reconsideration. 

II. ANALYSIS 

We review for an abuse of discretion a trial court’s decision on a motion for 

reconsideration. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). We 

also review the determination of the lower court as to reasonable compensation for court 

appointed services and expenses for an abuse of discretion. In re Attorney Fees of Mullkoff, 176 

Mich App 82, 85; 438 NW2d 878 (1989). “A court abuses its discretion when it selects an 

outcome outside the range of reasonable and principled outcomes.” People v Waclawski, 286 

Mich App 634, 645; 780 NW2d 321 (2009). 

Appointed attorneys in criminal cases are entitled to reasonable attorney fees. See, e.g., 

In re Ujlaky, 498 Mich 890; 869 NW2d 624 (2015).3

 To determine what attorney fees are 

reasonable, the trial court should consider: (1) “[t]he complexity and difficulty of the case and 

the time and expense of counsel which can reasonably be justified”; (2) “[t]he trial court’s policy 

as to compensation”; and (3) “[t]he minimum standards for indigent criminal appellate defense 

services promulgated by the Michigan Supreme Court in Administrative Order 1981-7, 412 Mich 

lxxxiv-xci.” In re Attorney Fees of Jamnik, 176 Mich App 827, 831; 440 NW2d 112 (1989). 

Here, in his MAACS voucher requesting fees, defendant merely checked the box on the 

indicating that he was filing a “[m]otion for extraordinary fees” and directed the trial court to an 

attached billing record, rather than actually filing said motion for extraordinary fees. Thus, 

whether he actually moved for extraordinary fees in anything other than his motion for 

reconsideration is debatable. 

 

3

 This entitlement was found in a prior version of MCL 775.16. Since its recent amendment, 

MCL 775.16 no longer explicitly provides that an attorney appointed to represent an indigent 

defendant is entitled to reasonable compensation. However, our Supreme Court, in In re Ujlaky

nevertheless referenced the reasonableness of compensation to appointed counsel, indicating that 

the entitlement remains. 
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 Nevertheless, in In re Ujlaky, 498 Mich 890, counsel there submitted only a billing 

statement with his MAACS voucher when requesting extraordinary fees and our Supreme Court 

still remanded the matter to the trial court for a determination of the reasonableness of the 

attorney fee requested. In that case, “[t]he 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.” Id. at 890. That is 

the precise scenario here. And, like the Ujlaky Court, we find remand to the trial court for either 

an award of the requested fees or articulation on the record its basis for concluding that such fees 

are not reasonable, the appropriate remedy. 

 Appellant also argues that the trial court violated the takings clause of the Fifth 

Amendment when it only paid him the county maximum of $700 for his services. The US and 

Michigan Constitutions “prohibit the taking of private property for public use without just 

compensation.” Wayne Co Bd of Comm’rs v Wayne Co Airport Auth, 253 Mich App 144, 183; 

658 NW2d 804 (2002). See US Const, Am V; Const 1963, art 10, § 2. Other states, as appellant 

argues, have held that “ ‘attorneys’ services are property, and are thus subject to Fifth 

Amendment protection.’ ” See, e.g., Ex Parte Brown, 393 SC 214, 222; 711 SE2d 899 (2011), 

quoting State v Smith, 242 Kan 336, 370; 747 P2d 816 (1987). 

Recently, this Court reiterated that a salary constitutes property, ATF Mich v State, ___ 

Mich App ___; ___ NW2d ___ (2016) (Docket Nos. 303702; 303704; 303706); slip op at 12-14, 

lv pending, and “where government directly seizes property in which a person has a property 

interest, a Fifth Amendment taking occurs requiring the government to pay just compensation,” 

id. at ___; slip op at 12. But unlike that case, where the employees “had a contract based 

property right in their own wages,” id., appellant’s compensation had yet to be determined. 

Indeed, pursuant to the trial court’s policy and relevant authority, the precise amount of that 

compensation was a matter to be determined after the work had been performed. 

 Appellant also argues that the trial court violated defendant’s Sixth Amendment right to 

the effective assistance of counsel in paying appellant only $700 in fees. Although the MIDCA 

recognizes that a defendant’s right to the effective assistance of counsel may be impacted by 

“[e]conomic disincentives,” MCL 780.991(2)(b), low pay for appointed counsel does not violate 

a defendant’s Sixth Amendment rights. In In re Meizlish, 387 Mich 228, 240; 196 NW2d 129 

(1972), the Michigan Supreme Court, citing State v Rush, 46 NJ 399; 217 A2d 441 (1966), 

stated: 

 We agree with the New Jersey court that an indigent defendant is not 

deprived of his constitutional rights [“to the aid of counsel”4

] by the appointment 

of unpaid counsel. Dedication and diligence to a client’s cause should not be 

altered because of the payment of a higher fee. Judging by the numerous 

complaints received by the State Bar Grievance Administrator, the payment of 

minimum fees does not insure the quality of work from retained counsel. Most 

 

4 Rush, 46 NJ at 405. 
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attorneys are dedicated and will zealously protect the rights of any client they 

defend. 

Thus, appellant’s constitutional arguments are without merit. 

 Reversed and remanded for the trial court to either award the requested fees, or articulate 

on the record its basis for concluding that such fees are not reasonable. We do not retain 

jurisdiction. 

 

/s/ Kurtis T. Wilder 

/s/ Mark J. Cavanagh 

/s/ Deborah A. Servitto