The Oregon Court of Appeals reversed lower court assessments of attorney fees against criminal defendants without finding that they are, or may be, able to pay.

Clifford Graham was convicted of four sex crimes. Since he had previously been twice convicted of sex crimes, the court sentenced Graham to life imprisonment without the possibility of parole on all four convictions, pursuant to ORS 137.719. The court then ordered Graham to pay court-appointed attorney fees totaling $8,000.

The Court of Appeals held that Graham's sentence was not unconstitutionally disproportionate to his criminal conduct. The court held, however, that the trial court committed plain error by imposing attorney fees.

Noting that State v. Coverstone, 260 Or App 714, 320 P3d 670 (2014) held that it was a "grave error" to impose an $8,000 court-appointed attorney fee award against a defendant who had been sentenced to 375 months in prison, the court held that the record was insufficient to support a finding that Graham "'is or may be able to pay' the fees, as required by ORS 151.505(3) and ORS 161.665(4)." See: State v. Graham, 274 Or App 718, _ P3d _ (2015).

George Flagg, III, was convicted of multiple sex offenses and sentenced to 350 months in prison. The court then ordered him to pay $4,600 in fines and $2,976 in court-appointed attorney fees.

The Court of Appeals agreed with the parties that the trial court erred in imposing the attorney fees. "That is because - given defendant's indigence, the amount of the fees, and defendant's prison sentence -the error is grave and because this is not a case in which the trial court could have made the necessary findings" that Flagg "is or may be able to pay" the fees, the court concluded. See: State v. Flagg, 274 Or App 716, _ P3d _ (2015).

Finally, Cody Saranpaa violated his probation in two consolidated cases. The trial court held a probation violation hearing, revoked probation and sentenced Saranpaa to 65 months in prison.

During the hearing, the trial court did not impose court-appointed attorney fees. It first imposed those fees when it issued its written judgment.

The Court of Appeals reversed, finding that the trial court erred in imposing attorney fees without first finding that Saranpaa "is or may be able to pay" those fees.

Given that the court did not impose the attorney fees in open court, Saranpaa was not required to object and the appellate court was permitted to reach the unpreserved error. See: State v. Saranpaa, 274 Or App 720, _ P3d _ (2015).

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